First Previous (PART IV. Liability in Respect of Damage Caused by Aircraft to Persons and Property on Land or Water, Survival of Causes of Action Arising out of such Liability, Limitation of such Liability, and Compulsory Insurance by Owners of Aircraft Against such Liability.) Next (CHAPTER III. Provision in relation to the Rome Convention.)

40 1936

AIR NAVIGATION AND TRANSPORT ACT, 1936

CHAPTER II

Survival of Causes of Action arising out of Liability in Respect of Damage Caused by Aircraft to Persons and Property on Land or Water, Limitation of such Liability and Compulsory Insurance by Owners of Aircraft against such Liability.

Commencement of Chapter II of Part IV .

22. —This Chapter of this Part of this Act shall come into operation on such day as may be fixed therefor by order of the Minister.

Survival of cause of action in respect of loss or damage caused by aircraft to persons and property on land or water.

23. —(1) This section applies to every cause of action in respect of loss or damage which, after the commencement of this Chapter of this Part of this Act, is caused to persons or property on land or water, by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off, or landing.

(2) Subject to the provisions of this section, on the death of any person after the commencement of this Chapter of this Part of this Act, every cause of action to which this section applies subsisting against, or vested in him, shall survive (as the case may be) against, or for the benefit of his estate.

(3) Where—

(a) a cause of action to which this section applies survives, by virtue of the immediately preceding sub-section, for the benefit of the estate of a deceased person, and

(b) the death of such person has been caused by the circumstances which gave rise to such cause of action,

the damage recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(4) No proceedings shall be maintainable in respect of a cause of action which, by virtue of this section, has survived against the estate of a deceased person unless either—

(a) proceedings against him in respect of such cause of action were pending at the date of his death, or

(b) such cause of action arises not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out administration.

(5) Where damage has been suffered by reason of any circumstances by reason of which a cause of action to which this section applies would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against him before his death such cause of action by reason of those circumstances as would have subsisted if he had died after the damage was suffered.

(6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of the action in respect of which such proceedings are maintainable, shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by contract or promise.

Limitation of liability for damage caused by aircraft to persons and property on land or water.

24. —(1) Subject to the provisions of this section, a person or, as the case may be, his estate shall not, in respect of loss or damage which, after the commencement of this Chapter of this Part of this Act, is without any gross negligence or wilful misconduct on his part and without any gross negligence or wilful misconduct (to which he was privy) on the part of his servants or agents, caused on any one occasion to persons or property on land or water by, or by a person in, or an article or person falling from, any one aircraft while in flight, taking off, or landing, be liable to pay by way of damages an amount exceeding in the aggregate—

(a) in case such aircraft is an airship, twenty-five thousand pounds, or

(b) in case such aircraft is a balloon (whether fixed or free), five thousand pounds, or

(c) in case such aircraft is a glider, one thousand pounds, or

(d) in any other case—

(i) a number of pounds of the currency of Saorstát Eireann equal to the number of pounds avoirdupois constituting the weight of such aircraft fully loaded, or

(ii) if the sum ascertained under sub-paragraph (i) of this paragraph is less than five thousand pounds or more than twenty-five thousand pounds, five thousand pounds or twenty-five thousand pounds, as the case may be.

(2) Without prejudice to the operation of the next following sub-section, a person or, as the case may be, his estate shall not be entitled to the benefit of sub-section (1) of this section in relation to any loss or damage, if, at the time of the happening of the event which was the cause of the loss or damage, he was not the owner of the aircraft concerned and was in, or in possession or control of, the aircraft without the authority or permission of the owner thereof.

(3) A person or, as the case may be, his estate shall not be entitled to the benefit of sub-section (1) of this section in relation to any claim made in respect of such loss or damage as is mentioned in the said sub-section (1) unless it is proved—

(a) that a policy of insurance, issued by an approved aircraft insurer, which, subject to any restrictions or conditions specified therein, insures the owner of the aircraft concerned against all liability which he may incur in respect of such loss or damage, was in force in relation to such, aircraft at the time of the happening of the event which was the cause of the loss or damage giving rise to the claim, or

(b) if the claim is made against the person who at that time was the owner of the aircraft or against his estate, that the aircraft was then in the possession or control of some other person without the authority or permission of the owner, or

(c) that the owner of the aircraft was at the said time an exempted person within the meaning of this Chapter of this Part of this Act.

(4) Where any person or the estate of any person is alleged to be under any liability in respect of such loss or damage as is mentioned in sub-section (1) of this section, and several claims are made or apprehended in respect of that liability, the said person or his personal representative, as the case may be, may make application to the High Court, and thereupon the court—

(a) may determine the amount of the liability and, subject to the provisions of the next following sub-section, distribute that amount rateably among the several claimants;

(b) may stay any proceedings pending in any other court in relation to the same matter; and

(c) may give such directions as the court thinks proper for the joining of persons interested as parties to the proceedings, for the exclusion of claims which are not brought before the court within a certain time, and for requiring security from the person by whom the application to the court was made.

(5) If, by virtue of this section, the amount of the liability is less than the total amount of the damages which the several claimants would, but for this section, be entitled to recover, the first-mentioned amount shall, as to one-half thereof, be appropriated in the first instance to meeting any claims in respect of loss of life or personal injury, and any part of that amount not so appropriated shall be distributed among the several claimants in proportion to their claims, including any claims in respect of loss of life or personal injury if and so far as they exceed the said appropriation.

(6) Nothing in this section shall be construed as affecting the amount of any compensation payable under the Workmen's Compensation Act, 1934 (No. 9 of 1934).

(7) Nothing in this section shall affect the operation of Part III of this Act or any contract for the carriage of passengers or goods by air in so far as the contract provides for determining or limiting the liability of the carrier thereunder.

(8) The Minister may make regulations prescribing the manner in which the weight of an aircraft fully loaded is to be ascertained for the purposes of this section, and directing that, in the case of an aircraft of any particular class, such document (being a document which purports to show the weight of the aircraft fully loaded) as may be specified in the regulations shall be evidence of that weight.

Obligation of owners of aircraft to be insured against certain third party risks.

25. —(1) After the commencement of this Chapter of this Part of this Act, it shall not be lawful for any person to fly, or cause or permit any other person to fly, an aircraft unless—

(a) there is in force in relation to the flying of such aircraft by such person or such other person, a policy of insurance (in this Chapter of this Part of this Act referred to as an approved policy of insurance) issued by an approved aircraft insurer, which subject to any restrictions or conditions specified therein, insures the owner of such aircraft against all liability which he may incur in respect of loss or damage caused to persons or property on land or water in Saorstát Eireann by, or by any person in, or any article or person falling from, the aircraft while in flight, taking off, or landing; or

(b) the owner of such aircraft is an exempted person within the meaning of this Chapter of this Part of this Act.

(2) If any person acts in contravention of this section he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding two hundred pounds or, at the discretion of the court, imprisonment for any term not exceeding six months or to both such fine and imprisonment.

Hirers of aircraft to be treated as owners in certain circumstances.

26. —Where—

(a) any aircraft has been bona-fide demised, let or hired out for a period exceeding fourteen days to any other person by the owner thereof, and

(b) no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of such owner,

the two immediately preceding sections shall have effect as if for references therein to the owner there were substituted references to the person to whom the aircraft has been so demised, let or hired out.

Approved aircraft insurer.

27. —(1) The Minister may from time to time by order declare that a specified person is an approved aircraft insurer for the purposes of this Part of this Act, and whenever any such order is made and in force the person declared thereby to be an approved aircraft insurer for the purposes of this Part of this Act shall be an approved aircraft insurer for that purpose.

(2) The Minister may by order revoke an order made under this section.

Certificate of insurance.

28. —A policy of insurance shall be of no effect for the purposes of the preceding provisions of this Chapter of this Part of this Act unless and until there has been issued by the insurer to the insured a certificate (in this Part of this Act referred to as a certificate of insurance) in relation to such policy in such form and containing such particulars as the Minister may require.

“Exempted persons”.

29. —(1) In this Chapter of this Part of this Act, the expression “exempted person” means a person

(a) who has made and maintained, in respect of any aircraft of which he is the owner, the deposit of the appropriate amount with the Accountant of the Courts of Justice authorised by the next following section to be made by persons who desire to become exempted persons; and

(b) to whom a certificate (which is for the time being in force) has been granted by the Minister under the next following sub-section in respect of such aircraft.

(2) Where any person who is the owner of any aircraft satisfies the Minister that he has made in respect of such aircraft with the Accountant of the Courts of Justice a deposit of the appropriate amount, the Minister shall issue to such person a certificate (in this Chapter of this Part of this Act referred to as a certificate of security) in such form and containing such particulars as the Minister thinks proper.

(3) Where—

(a) a certificate of security has been issued to any person by the Minister under this section, and

(b) either—

(i) the amount, stated in a notice of deficiency given to such person by the Accountant of the Courts of Justice in pursuance of the provisions of this Chapter of this Part of this Act relating to payment of judgment debts out of deposit, has not, within fourteen days after such person has received such notice, been deposited with the Accountant of the Courts of Justice, or

(ii) the deposit made by such person at the time such certificate was granted has ceased to be maintained,

the Minister shall revoke such certificate.

(4) In this section the expression “the appropriate amount” means in relation to any deposit made with the Accountant of the Courts of Justice—

(a) in case the person making such deposit is the owner of not more than two aircraft, the sum mentioned in sub-section (1) of the next following section in respect of such aircraft, and

(b) in case such person is the owner of three or more aircraft, the sum mentioned in sub-section (2) of the next following section in respect of such aircraft.

Deposits by exempted persons.

30. —(1) Any person who is the owner of not more than two aircraft and who desires to become an exempted person may deposit and keep deposited with the Accountant of the Courts of Justice a sum equal to the maximum sum determined in relation to such aircraft by sub-section (1) of section 24 (which relates to limitation of liability for damage caused by aircraft to persons and property on land or water) of this Act.

(2) Any person who is the owner of three or more aircraft and who desires to become an exempted person may deposit and keep deposited with the Accountant of the Courts of Justice a sum equal to the aggregate of the two greatest of the several maximum sums determined under sub-section (1) of section 24 of this Act in relation to those aircraft respectively.

(3) The Accountant of the Courts of Justice shall invest every sum deposited with him under this section in such of the securities authorised by law for the investment of funds in the High Court as the person making or maintaining such deposit shall direct, and the income accruing on such securities shall be paid to the said person.

(4) The Accountant of the Courts of Justice shall not accept a deposit under this section save on a warrant of the Minister.

(5) The Minister may by order make rules with respect to applications for warrants for the purposes of this section, the payment of deposits and the investment thereof or dealing therewith, the deposit of stocks, shares, or other securities in lieu of money, the payment of the income from time to time accruing due on any securities in which deposits are for the time being invested, and the withdrawal and transfer of deposits.

Payment of judgment debts out of deposit.

31. —(1) In this section—

the word “deposit” means a deposit of money or securities in lieu of money made with the Accountant of the Courts of Justice under this Chapter of this Part of this Act by way of qualification for being an exempted person;

the word “depositor” means a person who has made a deposit.

(2) Where a person (in this section referred to as a judgment creditor) has recovered judgment in any court against a depositor for a sum to which this section applies the High Court may, on the application in a summary manner of the judgment creditor and if satisfied that the depositor has no goods which can be taken in execution to satisfy such judgment, order the amount of such judgment together with the costs of such order, the application therefor and the proceedings thereunder to be paid to the judgment creditor out of the deposit maintained by such depositor.

(3) Whenever the High Court makes an order under the immediately preceding sub-section in respect of a deposit the Accountant of the Courts of Justice shall pay the money stated in such order to the judgment creditor specified in such order out of such deposit and shall for that purpose sell so much of the investments representing such deposit as is necessary (after defraying the costs of such sale) to enable such money to be paid.

(4) Whenever the Accountant of the Courts of Justice, in pursuance of an order made by a court under this section, pays any money out of or sells any of the investments representing a deposit maintained with him by a depositor in pursuance of this Part of this Act, he shall forthwith calculate and ascertain the market value of so much of the investments representing such deposit as remains unsold and, if such market value together with any uninvested money included in such deposit falls short of the full proper amount of such deposit, he shall give to the Minister and such depositor notice in writing of such deficiency and of the amount thereof.

(5) If, when a notice of deficiency of deposit is given to a depositor by the Accountant of the Courts of Justice in pursuance of the immediately preceding sub-section such depositor, not more than fourteen days after receiving such notice, deposits with the Accountant of the Courts of Justice a sum equal to the amount of the deficiency stated in such notice, the sum so deposited shall be added to and treated as part of the said deposit and such depositor shall be deemed to have maintained such deposit at its full proper amount.

(6) Whenever a depositor, if an individual, becomes bankrupt or insolvent or dies or, if a corporate body, is wound up or, if a partnership or other unincorporated association, is dissolved, the deposit made by such depositor shall be applicable in the first instance to payment only of the liabilities of the depositor for sums to which this section applies and when all such liabilities of such depositor have been discharged in full shall be applicable as general assets of the depositor.

(7) This section applies to any sum awarded against a depositor as damages in respect of damage or loss caused to persons or property on land or water by, or by a person in, or an article or person falling from, an aircraft, owned by such depositor, while in flight, taking off or landing.

Release of deposits.

32. —Whenever the High Court is satisfied, on the application made in a summary manner by a depositor or by a person claiming through or under a depositor and after notice to the Minister and after such publication of advertisements as the High Court shall direct, that it is just and expedient that the deposit or part of the deposit made by such depositor should be paid out to the person making such application, the High Court shall order such deposit or such part thereof as may be specified in such order to be paid out to such person either unconditionally or subject to such conditions as the High Court shall think proper to specify in such order, and shall direct the Accountant of the Courts of Justice to do all such things (including the sale of the investments representing such deposit or part of such investments) as appear to the High Court to be necessary or expedient for giving effect to such order.

Regulations for purposes of Part IV.

33. —(1) The Minister may by order make regulations in relation to all or any of the following matters, that is to say:—

(a) applications for certificates of security;

(b) the issue of copies or of new certificates in lieu of any such certificates which are lost or destroyed;

(c) the carrying of documents in aircraft and the production of such documents on demand to such, persons as may be specified in such regulations.

(2) If any person acts in contravention (whether by commission or by omission) of any regulations made under this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.