Part IVACarriers to be insured against liability to passengers for death or personal injury

An Act relating to Carriage by Air ## Part I—Preliminary #### 1 Short title This Act may be cited as the Civil Aviation (Carriers’ Liability) Act 1959. #### 2 Commencement (1) Parts I, III and V shall come into operation on the day on which this Act receives the Royal Assent. (2) Parts II and IV shall come into operation on such dates as are respectively fixed by Proclamation. #### 5 Interpretation (1) In this Act, unless the contrary intention appears: > Australia includes the Territories. > Australian person means: (a) an individual who is an Australian citizen or is ordinarily resident in Australia; or (b) the Commonwealth, a State or a Territory; or (c) a person who is a nominee of the Commonwealth or of a State or a Territory; or (d) a Commonwealth, State or Territory authority; or (e) a person who is a nominee of a Commonwealth, State or Territory authority; or (f) a local government body (whether incorporated or not) formed by or under a law of a State or a Territory; or (g) a person who is a nominee of a local government body referred to in paragraph (f); or (h) a body corporate that: (i) is incorporated by or under a law of the Commonwealth or of a State or a Territory; and (ii) is substantially owned and effectively controlled by persons referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (i); or (i) a person in the capacity of a trustee, or manager, of a fund in which the total interests (if any) of persons referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) represent 60% or more of the total interests in the fund. > child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975. > de facto partner of a person has the meaning given by the Acts Interpretation Act 1901. > family member has the meaning given by subsections (2) and (3). > Foreign Affairs Department means the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. > parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section. > SDR means Special Drawing Rights within the meaning of the International Monetary Agreements Act 1947. > stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person, if he or she would be the person’s stepchild except that the person is not legally married to the partner. > step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step‑parent of the person, if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent. > the 1999 Montreal Convention means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 (a copy of the English text of which is set out in Schedule 1A), as affected by: (a) any revision of the limits of liability, in accordance with Article 24 of the Convention, that has become effective; and (b) any other amendment of the Convention that has entered into force for Australia and a copy of the English text of which is set out in the regulations. > the Guadalajara Convention means the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier opened for signature at Guadalajara on 18 September 1961. > the Guatemala City Protocol means the Protocol done at Guatemala City on 8 March 1971 and called “Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955”. > the Hague Protocol means the Protocol to amend the Warsaw Convention opened for signature at The Hague on 28 September 1955. > the Montreal Protocol No. 4 means the Protocol done at Montreal on 25 September 1975 and called “Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol Done at The Hague on 28 September 1955”. > the Montreal No. 4 Convention means the Convention that is, under Article XV of the Montreal Protocol No. 4, known as the Warsaw Convention as amended at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975. > the Warsaw Convention means the Convention for the Unification of Certain Rules Relating to International Carriage by Air opened for signature at Warsaw on 12 October 1929, and includes the Additional Protocol to that Convention with reference to Article 2 of that Convention. > the Warsaw Convention as amended at The Hague means the Convention that is, under Article XIX of the Hague Protocol, known as the Warsaw Convention as amended at The Hague, 1955. Meaning of family member (2) For the purposes of this Act, a person is a family member of a passenger at a particular time if, at that time, the person: (a) is the passenger’s spouse or de facto partner; or (b) is a parent, step‑parent or grandparent of the passenger; or (c) is a child, step‑child, ward or grandchild of the passenger; or (d) is a sibling, step‑brother, step‑sister, half‑brother or half‑sister of the passenger; or (e) is wholly or partly dependent on the passenger for financial support and is: (i) a foster‑sibling of the passenger; or (ii) a foster‑child of the passenger; or (iii) a guardian of the passenger; or (f) falls within a class of people (if any) specified in regulations made for the purposes of this paragraph. (3) Relationships mentioned in subsection (2) are, for the purposes of this Part, taken to include: (a) ex‑nuptial relationships; and (b) relationships by adoption; and (c) relationships of child and parent that arise because of the definitions of child and parent in this section; and (d) relationships traced through relationships referred to in paragraphs (a), (b) and (c). #### 5A Application of the Criminal Code Chapter 2 (except Part 2.5) of the Criminal Code applies to all offences created by this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. #### 6 Extension to Territories This Act extends to every Territory. #### 7 Act to bind Crown (1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. (2) Nothing in this Act makes the Crown in any capacity liable to be prosecuted for an offence. #### 8 Texts of Conventions (1) For the purposes of this Act, but subject to subsection (2), the text of a Convention specified in any of the following paragraphs is taken to be the text set out in the Schedule specified in that paragraph: (a) Schedule 1—the Warsaw Convention; (b) Schedule 2—the Warsaw Convention as amended at The Hague; (c) Schedule 3—the Guadalajara Convention; (e) Schedule 5—the Montreal No. 4 Convention. (2) If there is any inconsistency between the text of a Convention, other than the 1999 Montreal Convention, as set out in a Schedule and the text that would result if the authentic French texts of the instruments making up the Convention were read and interpreted together as one single instrument, the latter text prevails. (3) A certificate signed by the Secretary of the Foreign Affairs Department that a document to which the certificate is annexed is a true copy of the authentic French text of the Warsaw Convention, the Hague Protocol, the Guadalajara Convention, the Guatemala City Protocol or the Montreal Protocol No. 4 is prima facie evidence that the document is such a true copy. #### 9 Conversion of SDR to Australian dollars In assessing under this Act the damages recoverable in an action against a carrier, a court must convert all relevant SDR amounts into Australian dollars, using the exchange rate published by the Reserve Bank of Australia, being the rate that applies as at the day on which the court’s judgment is given. ## Part IA—Carriage to which the 1999 Montreal Convention applies #### 9A Definitions In this Part: > the Convention means the 1999 Montreal Convention as having the force of law because of section 9B. #### 9B The 1999 Montreal Convention to have force of law Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage. #### 9C Limitation of liability for Australian international carriers (1) The regulations may specify that a number of SDRs exceeding the relevant number of SDRs applies in relation to the liability of an Australian international carrier in respect of the death or injury of a passenger. (2) If regulations are made under subsection (1), paragraphs 1 and 2 of Article 21 of the 1999 Montreal Convention have the force of law in Australia, in relation to the liability of an Australian international carrier, as if the relevant number of SDRs were instead the number of SDRs specified by the regulations. (3) In this section: > Australian international carrier means: (a) a carrier designated, nominated or otherwise authorised by Australia under a bilateral arrangement to operate scheduled international air services; or (b) a carrier operating a non‑scheduled international flight permitted under section 15D of the Air Navigation Act 1920 and who is an Australian person. > bilateral arrangement has the same meaning as in section 11A of the Air Navigation Act 1920. > relevant number of SDRs means the number of SDRs provided for in paragraphs 1 and 2 of Article 21 of the 1999 Montreal Convention. > Note: The number of SDRs provided for in paragraphs 1 and 2 of Article 21 of the 1999 Montreal Convention may have been revised as a result of a revision of the limits of liability becoming effective in accordance with Article 24 of the 1999 Montreal Convention. #### 9D Liability in respect of death Liability (1) This section applies in relation to liability imposed by the Convention on a carrier in respect of the death of a passenger or in respect of the injury that has resulted in the death of a passenger. (2) Subject to section 9F, the liability under the Convention is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger. (3) Subject to subsection (4), the liability is enforceable for the benefit of any of the passenger’s family members who sustained damage because of the passenger’s death. (4) The liability is enforceable for the benefit of the personal representative of the passenger in his or her capacity as personal representative to the extent that the damages recoverable in the action include: (a) loss of earnings or profits up to the date of death of the passenger; or (b) funeral, medical or hospital expenses paid or incurred by the passenger before the passenger’s death or by the passenger’s personal representative. Action (5) An action to enforce the liability may be brought by: (a) the personal representative of the passenger; or (b) by a person for whose benefit the liability is, under this section, enforceable; but only one action may be brought in Australia in respect of the death of any one passenger. (6) The action to enforce the liability must be for the benefit of all people for whose benefit the liability is enforceable who: (a) are resident in Australia; or (b) not being resident in Australia, express the desire to take the benefit of the action. Damages (7) The damages recoverable in the action include: (a) loss of earnings or profits up to the date of death of the passenger; and (b) the reasonable expenses of the funeral of the passenger; and (c) medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger. (8) In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger. > Note: However, certain types of damages may not be recoverable under Article 29 of the Convention. (9) Subject to subsection (10), the amount recovered in the action, after deducting any costs not recovered from the defendant, must be divided among the people entitled in the proportions the court (or, where the action is tried with a jury, the jury) directs. Orders (10) The court may, at any stage of the proceedings, make any order that appears to the court to be just and equitable having regard to: (a) the provisions of the Convention limiting the liability of the carrier; and (b) any proceedings which have been, or are likely to be, commenced against the carrier, whether in or outside Australia. Costs (11) The second sentence of paragraph 6 of Article 22 of the 1999 Montreal Convention is taken not to apply to an action to which this section applies that is wholly or partly for the benefit of a person or people other than the plaintiff. However, the court may, in such an action, deal with any question of costs in any manner it thinks proper having regard to the operation of the sentence in cases to which it applies. #### 9E Liability in respect of injury Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury. #### 9F Certain liabilities not excluded Nothing in the Convention or in this Part is to be taken to exclude any liability of a carrier: (a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory relating to workers’ compensation; or (b) to pay contribution to a tort‑feasor who is liable in respect of the death of, or injury to, the passenger; but this section does not increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by, or in accordance with, the Convention. #### 9G Proceeds of insurance policies etc. In assessing damages in respect of liability under the Convention, the following must not be taken into account to reduce the damages: (a) any amount paid or payable on the death of, or personal injury to, a passenger under a contract of insurance; (b) any amount paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union; (c) any amount in respect of a pension, social service benefit or repatriation benefit paid or payable, because of the death or injury of a passenger, by any government or person; (d) in the case of the death of a passenger, any amount in respect of the acquisition by a family member of the passenger, consequent upon the passenger’s death, of, or of an interest in, a dwelling used at any time as the home of that family member, or of, or of an interest in, the household contents of any such dwelling; (e) in the case of the death of a passenger, a premium that would have become payable under a contract of insurance in respect of the life of the passenger if the passenger had lived after the time when the passenger died. #### 9H Contributory negligence (1) For the purposes of Article 20 of the Convention, if, in an action against a carrier under the Convention relating to damage: (a) sustained in the case of death or bodily injury of a passenger; or (b) sustained in the case of destruction or loss of, or of damage to, baggage of a passenger; or (c) sustained in the event of the destruction or loss of, or damage to, cargo; or (d) occasioned by delay in the carriage by air of a passenger, a passenger’s baggage, or cargo; the carrier proves that the damage was caused by, or contributed to by, the negligence of the passenger or the consignor of the cargo, the damages recoverable in respect of the damage must be assessed in accordance with this section. (2) The court must determine the damages that would have been recoverable if: (a) there were no limit on the amount of the damages fixed by or in accordance with the Convention; and (b) there had been no negligence on the part of the passenger or consignor. (3) The damages determined under subsection (2) must be reduced to the extent the court thinks just and equitable having regard to the share of the passenger or the consignor in the responsibility for the damage. (4) If the damages, as reduced in accordance with subsection (3), exceed any maximum liability of the carrier fixed by or in accordance with the Convention, the court must further reduce the damages to the maximum liability. (5) If any case to which subsection (1) applies is tried with a jury, the jury must determine the damages referred to in subsection (2) and the amount of the reduction under subsection (3). #### 9J Action against a State Party to the 1999 Montreal Convention which undertakes carriage by air (1) If, at a particular time, an action under the Convention is brought in a court in Australia to enforce a claim in respect of carriage undertaken by a State Party to the 1999 Montreal Convention, the State Party is taken to have submitted to the jurisdiction of the court, unless: (a) the action relates to carriage that is the subject of a declaration by the State Party under Article 57 of the 1999 Montreal Convention; and (b) the declaration is in effect at that time. (2) Nothing in this section authorises the issue of execution against the property of a State Party to the 1999 Montreal Convention. #### 9K Evidence of certain matters (1) The Minister may, by notice published in the Gazette, declare that: (a) a State Party specified in the notice has or has not taken any action referred to in Article 53, 54, 56 or 57 of the 1999 Montreal Convention and the particulars of any action so taken; or (b) a revision of the limits of liability, in accordance with Article 24 of the 1999 Montreal Convention, has become effective and the particulars of the revision. (2) A notice in force under this section is prima facie evidence of the matters declared. (3) A notice made under subsection (1) is not a legislative instrument. #### 9L Jurisdiction of State courts preserved For the purposes of section 38 of the Judiciary Act 1903, an action under the Convention is taken not to be a matter arising directly under a treaty. ## Part II—Carriage to which the Warsaw Convention and the Hague Protocol apply #### 10 Definition In this Part: > the Convention means the Warsaw Convention as amended at The Hague. #### 11 Convention to have force of law (1) The provisions of the Convention have, subject to this Part, the force of law in Australia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage. (2) A reference in this Part to the Convention shall, unless the contrary intention appears, be read as a reference to the provisions of the Convention as having the force of law by virtue of this section. #### 11A Limitation of liability for Australian international carriers (1) Despite the terms of paragraph 1 of Article 22 of the Convention, but subject to the regulations relating to passenger tickets, the liability of an Australian international carrier under this Part in respect of each passenger, by reason of the passenger’s injury or death resulting from an accident, is limited to: (a) if neither paragraph (b) nor (c) applies—260,000 SDRs; or (b) if, at the date of the accident, a regulation was in force prescribing a number of SDRs that exceeds 260,000 for the purpose of this section and paragraph (c) does not apply—the number of SDRs so prescribed; or (c) if, at the date of the accident, no regulation was in force under paragraph (b) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as a number of SDRs that exceeds 260,000—the number of SDRs so specified; or (d) if, at the date of the accident, a regulation prescribing a number of SDRs exceeding 260,000 was in force under paragraph (b) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as a number of SDRs that exceeds the number so prescribed—the number of SDRs so specified. (2) In this section: > Australian international carrier means: (a) a carrier designated, nominated or otherwise authorised by Australia under a bilateral arrangement to operate scheduled international air services; or (b) a carrier operating a non‑scheduled international flight permitted under section 15D of the Air Navigation Act 1920 and who is an Australian person. > bilateral arrangement has the same meaning as in section 11A of the Air Navigation Act 1920. #### 12 Liability in respect of death (1) The provisions of this section apply in relation to liability imposed by the Convention on a carrier in respect of the death of a passenger (including the injury that resulted in the death). (2) Subject to section 14, the liability under the Convention is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger. (3) Subject to the next succeeding subsection, the liability is enforceable for the benefit of such of the passenger’s family members as sustained damage by reason of his or her death. (4) To the extent that the damages recoverable include loss of earnings or profits up to the date of death, or funeral, medical or hospital expenses paid or incurred by the passenger before his or her death or by his or her personal representative, the liability is enforceable for the benefit of the personal representative of the passenger in his or her capacity as personal representative. (6) The action to enforce the liability may be brought by the personal representative of the passenger or by a person for whose benefit the liability is, under the preceding provisions of this section, enforceable, but only one action shall be brought in Australia in respect of the death of any one passenger, and the action, by whomsoever brought, shall be for the benefit of all persons for whose benefit the liability is so enforceable who are resident in Australia or, not being resident in Australia, express the desire to take the benefit of the action. (7) The damages recoverable in the action include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the passenger and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger. (8) In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger. (9) Subject to the next succeeding subsection, the amount recovered in the action, after deducting any costs not recovered from the defendant, shall be divided amongst the persons entitled in such proportions as the court (or, where the action is tried with a jury, the jury) directs. (10) The court may at any stage of the proceedings make any such order as appears to the court to be just and equitable in view of the provisions of the Convention limiting the liability of the carrier and of any proceedings which have been, or are likely to be, commenced against the carrier, whether in or outside Australia. (11) The second sentence of paragraph 4 of Article 22 of the Warsaw Convention, as amended by the Hague Protocol, shall not be construed as applying to an action to which this section applies that is wholly or partly for the benefit of a person or persons other than the plaintiff, but the court may, in such an action, deal with any question of costs in such manner as it thinks proper having regard to the operation of that sentence in cases to which it applies. #### 13 Liability in respect of injury Subject to the next succeeding section, the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury. #### 14 Certain liabilities not excluded Nothing in the Convention or in this Part shall be deemed to exclude any liability of a carrier: (a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory providing for compensation, however described, in the nature of workers’ compensation; or (b) to pay contribution to a tort‑feasor who is liable in respect of the death of, or injury to, the passenger; but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with the Convention. #### 15 Proceeds of insurance policies etc. In assessing damages in respect of liability under the Convention there shall not be taken into account by way of reduction of the damages: (a) a sum paid or payable on the death of, or personal injury to, a passenger under a contract of insurance; or (b) a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union; or (c) any sum in respect of a pension, social service benefit or repatriation benefit paid or payable, consequent upon the death or injury, by any government or person; or (d) in the case of the death of a passenger, any amount in respect of the acquisition by a family member of the passenger, consequent upon the passenger’s death, of, or of an interest in, a dwelling used at any time as the home of that family member, or of, or of an interest in, the household contents of any such dwelling; or (e) in the case of death, a premium that would have become payable under a contract of insurance in respect of the life of the deceased passenger if he or she had lived after the time at which he or she died. #### 16 Contributory negligence (1) Effect shall be given to Article 21 of the Warsaw Convention in accordance with the provisions of this section. (2) If, in an action against a carrier under the Convention, the carrier proves that the damage was caused by or contributed to by the negligence of the passenger or the consignor, the damages recoverable shall be assessed in accordance with this section. (3) The court shall first determine the damages that would have been recoverable if there were no limit on the amount of those damages fixed by or in accordance with the Convention and there had been no negligence on the part of the passenger or consignor. (4) The damages determined under the last preceding subsection shall be reduced to such extent as the court thinks just and equitable having regard to the share of the passenger or the consignor in the responsibility for the damage. (5) If the damages as reduced in accordance with the last preceding subsection exceed the maximum liability of the carrier fixed by or in accordance with the Convention, the court shall further reduce the damages to that maximum amount. (6) Where any case to which subsection (2) applies is tried with a jury, the jury shall determine the damages referred to in subsection (3) and the amount of the reduction under subsection (4). #### 17 Actions against Parties to the Convention who undertake carriage by air (1) A Party to the Convention which has not availed itself of the provisions of the Additional Protocol to the Warsaw Convention with reference to Article 2 of that Convention shall, for the purposes of an action under the Convention brought in a court in Australia to enforce a claim in respect of carriage undertaken by that Party, be deemed to have submitted to the jurisdiction of that court. (2) Nothing in this section authorizes the issue of execution against the property of a Party to the Convention. #### 18 Evidence of certain matters (1) The Minister may, by notice published in the Gazette, from time to time declare: (a) that a country specified in the notice is a country which has ratified or adhered to the Hague Protocol and the date on which the ratification or adherence became effective; (b) that a country specified in the notice has, at the time of deposit of its instrument of ratification of or adherence to the Hague Protocol, declared that its acceptance of that Protocol does not apply to a territory or territories specified in the notice; (c) that a country specified in the notice has duly made a declaration under Article XXVI of the Hague Protocol and the date on which the declaration became effective; (d) that a country specified in the notice has duly extended the application of the Hague Protocol to a territory or territories specified in the notice; (e) the extent (if any) to which a Party to the Hague Protocol has availed itself of the provisions of the Additional Protocol to the Warsaw Convention with reference to Article 2 of that Convention; or (f) that a country specified in the notice has denounced the Hague Protocol in respect of all of the territories for the foreign relations of which that country is responsible or in respect of any such territory specified in the notice, and the date upon which the denunciation became effective. (2) A notice in force under this section is prima facie evidence of the matters declared. #### 19 Jurisdiction of State courts preserved For the purposes of section 38 of the Judiciary Act 1903, an action under the Convention shall be deemed not to be a matter arising directly under a treaty. ## Part III—Carriage to which the Warsaw Convention without the Hague Protocol applies #### 20 Interpretation (1) In this Part, the Convention means the Warsaw Convention as in force, unaffected by the Hague Protocol, between Australia and any other countries. (2) For the purposes of this Part, a reference in the Convention to the territory of a High Contracting Party to the Convention shall be read as a reference to the territories in respect of which a Party declared, in pursuance of section 22, to be a High Contracting Party to the Convention is declared, in pursuance of that section, to be bound by the Convention. #### 21 Provisions of Convention to have force of law (1) The provisions of the Convention have, subject to this Part, the force of law in Australia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage. (2) A reference in this Part to the Convention shall, unless the contrary intention appears, be read as a reference to the provisions of the Convention as having the force of law by virtue of this section. #### 21A Limitation of liability for Australian international carriers (1) Despite the terms of paragraph 1 of Article 22 of the Convention, but subject to the regulations relating to passenger tickets, the liability of an Australian international carrier under this Part in respect of each passenger, by reason of the passenger’s injury or death resulting from an accident, is limited to: (a) if neither paragraph (b) nor (c) applies—260,000 SDRs; or (b) if, at the date of the accident, a regulation was in force prescribing a number of SDRs that exceeds 260,000 for the purpose of this section and paragraph (c) does not apply—the number of SDRs so prescribed; or (c) if, at the date of the accident, no regulation was in force under paragraph (b) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as a number of SDRs that exceeds 260,000—the number of SDRs so specified; or (d) if, at the date of the accident, a regulation prescribing a number of SDRs exceeding 260,000 was in force under paragraph (b) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as a number of SDRs that exceeds the number so prescribed—the number of SDRs so specified. (2) In this section: > Australian international carrier means: (a) a carrier designated, nominated or otherwise authorised by Australia under a bilateral arrangement to operate scheduled international air services; or (b) a carrier operating a non‑scheduled international flight permitted under section 15D of the Air Navigation Act 1920 and who is an Australian person. > bilateral arrangement has the same meaning as in section 11A of the Air Navigation Act 1920. #### 22 Evidence of certain matters (1) The Minister may, by notice published in the Gazette, from time to time declare: (a) who are the High Contracting Parties to the Convention; (b) the territory in respect of which any such Party is bound by the Convention; and (c) the extent (if any) to which any Party has availed itself of the provisions of the Additional Protocol to the Convention. (2) A notice in force under this section is prima facie evidence of the matters declared. (3) A notice published by the Governor‑General in the Gazette, before the date of commencement of this Part, under subsection(3) of section 3 of the Carriage by Air Act 1935 and in force immediately before that date shall, for the purposes of this Act, be deemed to be a notice published by the Minister under this section. #### 23 Conversion of francs Any sum in francs mentioned in Article 22 of the Convention shall, for the purposes of an action against a carrier, be converted into Australian currency at the rate of exchange prevailing on the date on which the amount of any damages to be paid by the carrier is ascertained by the court or jury. #### 24 Adoption of certain provisions of Part II The provisions of sections 12 to 17 (inclusive), except subsection (11) of section 12, apply for the purposes of this Part as if contained in this Part. #### 24A Jurisdiction of State courts preserved For the purposes of section 38 of the Judiciary Act 1903, an action under the Convention is taken not to be a matter arising directly under a treaty. #### 25 Duration of Part (1) This Part shall continue in force until a date to be fixed by Proclamation, being a date not earlier than the date upon which a denunciation by Australia of the Convention in accordance with Article 39 of the Convention takes effect. (2) Upon the date fixed in pursuance of the last preceding subsection, this Part shall be deemed to be repealed. ## Part IIIA—Carriage to which the Guadalajara Convention applies #### 25A Provisions of Convention to have force of law The provisions of the Guadalajara Convention have, subject to Parts II, III and IIIC as affected by the next succeeding section, the force of law in Australia in relation to any carriage by air to which that Convention applies. #### 25B Modification of Parts II and III In relation to carriage to which the Guadalajara Convention applies, references in Part II (other than section 11), in Part III (other than section 21) and in Part IIIC (other than section 25K) to the Convention shall be read as including references to the provisions of the Guadalajara Convention as having the force of law by virtue of this Part. #### 25C Evidence of certain matters (1) The Minister may, by notice in the Gazette, from time to time publish information as to the coming into operation of the Guadalajara Convention or as to the States that have or have not taken any action referred to in Article XI, XII, XIV, XV or XVI of that Convention and as to the particulars of any action so taken. (2) A notice in force under this section is prima facie evidence of the matters specified in the notice. ## Part IIIC—Carriage to which the Montreal No. 4 Convention applies #### 25J Interpretation In this Part: > the Convention means the Montreal No. 4 Convention. #### 25K Effect of Convention in Australia (1) Subject to this Part, the Convention has the force of law in Australia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage. (2) A reference in this Part to the Convention is to be read, unless the contrary intention appears, as a reference to the Convention as having the force of law because of this section. #### 25L Application of certain provisions of Part IV Sections 35 to 39 (inclusive) apply to carriage to which the Convention applies in the same way as they apply to carriage under Part IV, and for that purpose: (a) a reference in section 37 to Part IV is taken to be a reference to this Part and the Convention; and (b) any other reference to Part IV is taken to be a reference to the Convention. #### 25M Jurisdiction of State courts preserved For the purposes of section 38 of the Judiciary Act 1903, an action under the Convention is taken not to be a matter arising directly under a treaty. #### 25N Evidence of certain matters (1) The Minister may, by notice published in the Gazette, from time to time declare: (a) who are the Parties to the Convention; and (b) the territory in respect of which any Party is bound by the Convention; and (c) the extent to which any Party has availed itself of a reservation permitted by the Convention. (2) A notice under this section is prima facie evidence of the matters declared. ## Part IV—Other carriage to which this Act applies #### 26 Interpretation (1) In this Part, unless the contrary intention appears: > airline licence means: (a) an international airline licence in force under the Air Navigation Regulations; or (b) an Air Operator’s Certificate in force under the Civil Aviation Act 1988 authorising airline operations; or (c) a New Zealand AOC with ANZA privileges (as defined in section 3 of the Civil Aviation Act 1988) authorising airline operations. > baggage, in relation to a passenger, means: (a) registered baggage; or (b) baggage, personal effects or other articles, not being registered baggage, in the possession of the passenger, or in the possession of another person (being a person accompanying the passenger or a servant or agent of the carrier) on behalf of the passenger, while the passenger is on board an aircraft for the purposes of carriage to which this Part applies or during the course of any of the operations of embarking or disembarking. > charter licence means: (a) a charter licence in force under the Air Navigation Regulations; or (b) an Air Operator’s Certificate in force under the Civil Aviation Act 1988 authorising charter operations; or (c) a New Zealand AOC with ANZA privileges (as defined in section 3 of the Civil Aviation Act 1988) authorising charter operations. > commercial transport operations means operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo. > contract includes an arrangement made without consideration. > domestic carrier means a carrier operating a flight for the carriage of passengers: (a) between a place in a State and a place in another State; or (b) between a place in a Territory and a place in Australia outside that Territory; or (c) between a place in a Territory and another place in that Territory; other than carriage to which Part IA, II or III applies. > registered baggage, in relation to a passenger, means baggage, personal effects or other articles registered with the carrier as baggage intended to be carried under a contract for carriage of the passenger to which this Part applies. > the Air Navigation Regulations means the Air Navigation Regulations in force under the Air Navigation Act 1920, and includes those Regulations as in force by virtue of a law of a State. (1A) If an Air Operator’s Certificate in force under the Civil Aviation Act 1988 does not authorise airline operations only because the holder of the certificate does not comply with section 41E of this Act in relation to the operations, this Part has effect as if the certificate did authorise the operations. (2) For the purposes of this Part, where, by reason of a contract of charter or other contract between the holder of an airline licence or a charter licence and another person, persons or baggage are or is carried, or are or is to be carried, in an aircraft while it is being operated by the holder of the airline licence or charter licence, that contract shall be deemed to be a contract of carriage providing for that carriage. #### 27 Application of Part (1) This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger: (a) between a place in a State and a place in another State; (b) between a place in a Territory and a place in Australia outside that Territory; (c) between a place in a Territory and another place in that Territory; or (d) between a place in Australia and a place outside Australia; not being carriage to which the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara Convention applies. (3) For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be. (4) For the purposes of this section, where: (a) the carriage of a passenger between two places is to be performed by two or more carriers in successive stages; (b) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts; and (c) this Part would apply to that carriage if it were to be performed by a single carrier under a single contract; this Part applies in relation to a part of that carriage notwithstanding that that part consists of carriage between a place in a State and a place in the same State. #### 28 Liability of the carrier for death or injury Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking. #### 29 Liability of the carrier in respect of baggage (1) Where this Part applies to the carriage of a passenger, the carrier is liable under this Part, and not otherwise, for damage sustained in the event of the destruction or loss of, or injury to, baggage of the passenger, if the occurrence which causes the destruction, loss or injury takes place during the period of the carriage by air unless the carrier proves that the carrier and the carrier’s servants and agents took all necessary measures to avoid the destruction, loss or injury or that it was impossible for the carrier or them to take such measures. (2) For the purposes of the last preceding subsection but subject to the next succeeding subsection, the period of the carriage by air comprises: (a) in relation to baggage other than registered baggage—the period during which the passenger is on board the aircraft or is in the course of any of the operations of embarking or disembarking; and (b) in relation to registered baggage—the period during which the baggage is in the charge of the carrier, whether on board the aircraft or elsewhere. (3) In proceedings under this section in respect of registered baggage, if the carrier proves that the baggage was, within a period of twelve hours after the arrival of the aircraft at the place to which the baggage was to be carried in the aircraft, available for collection by the passenger at a place at which, under the contract, the baggage was to be or could be made available to the passenger, the period of the carriage by air shall not be deemed to include any time after the expiration of that period of twelve hours. (4) In the application of section 39 in relation to an action under this Part in respect of baggage other than registered baggage, the carrier shall be deemed to have proved that the damage was caused by the negligence of the passenger, except so far as the passenger proves that he or she was not responsible for the damage. (5) Where, in relation to carriage referred to in subsection (4) of section 27, registered baggage has been destroyed, lost or injured in circumstances in which, if the carriage had been performed by a single carrier, that carrier would be subject to liability under this section, the carriers (other than a carrier who proves that the baggage was not in the carrier’s charge at the time of the destruction, loss or injury) are jointly and severally subject to that liability. #### 30 Complaint to be made in respect of baggage (1) For the purposes of an action under this Part, evidence proving receipt of registered baggage, without complaint, by the person entitled to delivery is evidence that the baggage has been delivered in good condition and in accordance with the contract of carriage. (2) An action does not lie against a carrier under this Part in respect of baggage, except in case of fraud on the part of the carrier, unless the passenger, or a person acting on his or her behalf, has complained by writing delivered to the carrier or served on the carrier by post or in such other manner as is prescribed: (a) in the case of injury to registered baggage or of loss or destruction of part only of an item of registered baggage—within the period of three days after the date of receipt by or on behalf of the passenger of the baggage, or of the remainder of that item of baggage, as the case may be; (b) in the case of loss or destruction of the whole of an item of registered baggage—within the period of twenty‑one days from the date on which the baggage should have been placed at the disposal of the passenger; or (c) in the case of injury to, or loss or destruction of, baggage other than registered baggage—within the period of three days from the date on which the carriage of the passenger ended. (3) A court having jurisdiction in actions under this Part in respect of baggage may, by order, grant leave to a person to institute or continue an action in that court in relation to baggage notwithstanding that there has been a failure to complain in accordance with the last preceding subsection within the time fixed by that subsection, where the court is satisfied that it is just and equitable to do so by reason of special circumstances. (4) Subsection (2) does not apply in relation to an action in respect of which leave has been granted under the last preceding subsection. #### 31 Limitation of liability (1) Subject to the regulations relating to passenger tickets, the liability of a domestic carrier under this Part in respect of each passenger, by reason of his or her injury or death resulting from an accident, is limited to: (a) if none of paragraphs (b), (c) and (d) applies—the amount applicable under subsection (1AA); or (b) where, at the date of the accident, a regulation was in force prescribing an amount for the purposes of this paragraph and that amount is higher than the amount applicable under subsection (1AA) and paragraph (c) does not apply—the amount prescribed by that regulation; or (c) if, at the date of the accident, no regulation was in force under paragraph (b) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as an amount that exceeds the amount applicable under subsection (1AA)—the amount so specified; or (d) if, at the date of the accident, a regulation was in force under paragraph (b) prescribing an amount and that amount is higher than the amount applicable under subsection (1AA) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as an amount that exceeds the amount so prescribed—the amount so specified. (1AA) The amount applicable under this subsection is: (a) $925,000, unless paragraph (b) applies; or (b) if the regulations provide for indexation in relation to that dollar amount—the indexed amount worked out in accordance with the regulations. (1A) Subject to the regulations relating to passenger tickets, the liability under this Part of a carrier to which this Part applies, other than a domestic carrier, in respect of each passenger, by reason of the passenger’s injury or death resulting from an accident, is limited to: (a) if none of paragraphs (b), (c) and (d) applies—the number of SDRs applicable under subsection (1B); or (b) if, at the date of the accident, a regulation was in force prescribing a number of SDRs for the purposes of this paragraph and that number exceeds the number of SDRs applicable under subsection (1B) and paragraph (c) does not apply—the number of SDRs so prescribed; or (c) if, at the date of the accident, no regulation was in force under paragraph (b) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as a number of SDRs that exceeds the number of SDRs applicable under subsection (1B)—the number of SDRs so specified; or (d) if, at the date of the accident, a regulation was in force under paragraph (b) prescribing a number of SDRs and that number exceeds the number of SDRs applicable under subsection (1B) but the contract of carriage under which the passenger was carried specified the limit of the carrier’s liability as a number of SDRs that exceeds the number so prescribed—the number of SDRs so specified. (1B) The number of SDRs applicable under this subsection is: (a) 480,000, unless paragraph (b) applies; or (b) if the regulations provide for indexation in relation to that number—the indexed number worked out in accordance with the regulations. (2) Subject to the regulations relating to baggage checks, the liability of a carrier under this Part in respect of the destruction or loss of, or injury to, the baggage of any one passenger, being baggage that is, or includes, registered baggage, is limited to: (a) if neither paragraph (b) nor (c) applies—the amount applicable under subsection (2A); or (b) where, at the date of the occurrence that caused the destruction, loss, or injury, a regulation was in force prescribing an amount for the purposes of this paragraph and that amount is higher than the amount applicable under subsection (2A) and paragraph (c) does not apply—the amount prescribed by that regulation; or (c) where an amount that exceeds: (i) if, at the date of the occurrence referred to in paragraph (b), no regulation was in force under that paragraph—the amount applicable under subsection (2A); or (ii) if, at the date of the occurrence referred to in paragraph (b), a regulation was in force under that paragraph prescribing an amount and that amount is higher than the amount applicable under subsection (2A)—the amount prescribed by the regulation; is specified, in the contract of carriage pursuant to which the passenger was carried, as the limit of the carrier’s liability—the amount so specified. (2A) The amount applicable under this subsection is: (a) $3,000, unless paragraph (b) applies; or (b) if the regulations provide for indexation in relation to that dollar amount—the indexed amount worked out in accordance with the regulations. (3) The liability of a carrier under this Part in respect of the destruction or loss of, or injury to, the baggage, other than registered baggage, of any one passenger is limited to: (a) if neither paragraph (b) nor (c) applies—the amount applicable under subsection (4); or (b) where, at the date of the occurrence that caused the destruction, loss or injury, a regulation was in force prescribing an amount for the purposes of this paragraph and that amount is higher than the amount applicable under subsection (4) and paragraph (c) does not apply—the amount prescribed by that regulation; or (c) where an amount that exceeds: (i) if, at the date of the occurrence referred to in paragraph (b), no regulation was in force under that paragraph—the amount applicable under subsection (4); or (ii) if, at the date of the occurrence referred to in paragraph (b), a regulation was in force under that paragraph prescribing an amount and that amount is higher than the amount applicable under subsection (4)—the amount prescribed by that regulation; is specified, in the contract of carriage pursuant to which the passsenger was carried, as the limit of the carrier’s liability—the amount so specified. (4) The amount applicable under this subsection is: (a) $300, unless paragraph (b) applies; or (b) if the regulations provide for indexation in relation to that dollar amount—the indexed amount worked out in accordance with the regulations. #### 32 Contracting out (1) Any provision of an agreement tending to relieve the carrier of liability in accordance with this Part or to fix a lower limit than the appropriate limit of liability provided by this Part is null and void, but the nullity of such a provision does not involve the nullity of the whole contract of carriage. (2) The last preceding subsection does not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of goods carried. #### 33 Servants and agents of carrier (1) If an action in respect of any damage is brought against a servant or agent of a carrier, the servant or agent, if he or she proves that he or she acted within the scope of his or her employment or authority, is entitled to avail himself or herself of the conditions of liability, and the limits of liability, that the carrier would be entitled to invoke under this Part in an action against the carrier in respect of that damage. (2) The aggregate of the amounts recoverable from the carrier, the carrier’s servants and agents shall not exceed the limits referred to in subsection (1). (3) The right to bring an action against a servant or agent of a carrier in respect of any damage, being damage which gave rise to a cause of action against the carrier under this Part, is extinguished if the action is not brought within the time specified in section 34. #### 34 Limitation of actions The right of a person to damages under this Part is extinguished if an action is not brought by him or her or for his or her benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination; (a) the date on which the aircraft ought to have arrived at the destination; or (b) the date on which the carriage stopped; whichever is the later. #### 35 Liability in respect of death (1) The provisions of this section apply in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death). (2) Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger. (3) Subject to the next succeeding subsection, the liability is enforceable for the benefit of such of the passenger’s family members as sustained damage by reason of his or her death. (4) To the extent that the damages recoverable include loss of earnings or profits up to the date of death, or funeral, medical or hospital expenses paid or incurred by the passenger before his or her death or by his or her personal representative, the liability is enforceable for the benefit of the personal representative of the passenger in his or her capacity as personal representative. (6) The action to enforce the liability may be brought by the personal representative of the passenger or by a person for whose benefit the liability is, under the preceding provisions of this section, enforceable, but only one action shall be brought in respect of the death of any one passenger, and such an action, by whomsoever brought, shall be for the benefit of all persons for whose benefit the liability is so enforceable who are resident in Australia or, not being resident in Australia, express the desire to take the benefit of the action. (7) The damages recoverable in the action include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the passenger and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger. (8) In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger. (9) Subject to the next succeeding subsection, the amount recovered in the action, after deducting any costs not recovered from the defendant, shall be divided amongst the persons entitled in such proportions as the court (or, where the action is tried with a jury, the jury) directs. (10) The court may at any stage of the proceedings make any such order as appears to the court to be just and equitable in view of the provisions of this Part limiting the liability of the carrier and of any proceedings which have been, or are likely to be, commenced against the carrier, whether in or outside Australia. #### 36 Liability in respect of injury Subject to the next succeeding section, the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury. #### 37 Certain liabilities not excluded Nothing in this Part shall be deemed to exclude any liability of a carrier: (a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory providing for compensation, however described, in the nature of workers’ compensation; or (b) to pay contribution to a tort‑feasor who is liable in respect of the death of, or injury to, the passenger; but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with this Part. #### 38 Proceeds of insurance policies etc. In assessing damages in respect of liability under this Part there shall not be taken into account by way of reduction of the damages: (a) a sum paid or payable on the death of, or injury to, a passenger under a contract of insurance; or (b) a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union; or (c) any sum in respect of a pension, social service benefit or repatriation benefit paid or payable, consequent upon the death or injury, by any government or person; or (d) in the case of the death of a passenger, any amount in respect of the acquisition by a family member of the passenger, consequent upon the passenger’s death, of, or of an interest in, a dwelling used at any time as the home of that family member, or of, or of an interest in, the household contents of any such dwelling; or (e) a premium that would have become payable under a contract of insurance in respect of the life of a deceased passenger if he or she had lived beyond the time at which he or she died. #### 39 Contributory negligence (1) If, in an action against a carrier under this Part, the carrier proves that the damage was caused or contributed to by the negligence of the passenger, the damages recoverable shall be assessed in accordance with this section. (2) The court shall first determine the damages that would have been recoverable if there were no limit on the amount of those damages fixed by or in accordance with this Part and there had been no negligence on the part of the passenger. (3) The damages determined under the last preceding subsection shall be reduced to such extent as the court thinks just and equitable having regard to the share of the passenger in the responsibility for the damage. (4) If the damages as reduced in accordance with the last preceding subsection exceed the maximum liability of the carrier fixed by or in accordance with this Part, the court shall further reduce the damages to that maximum amount. (5) Where any case to which subsection (1) applies is tried with a jury, the jury shall determine the damages referred to in subsection (2) and the amount of the reduction under subsection (3). #### 40 Regulations relating to passenger tickets and baggage checks The regulations may make provision relating to passenger tickets and baggage checks in respect of passengers or baggage in relation to whom or which this Part applies, being provision for: (a) the circumstances in which such tickets and checks must be issued by carriers; (b) matters to be included in such tickets and checks; and (c) the non‑application of a provision of section 31 (except in cases where the limit of liability under that provision is a sum specified in the contract of carriage) where specified provisions of the regulations relating to the issue, form and contents of such tickets or checks have not been complied with. #### 41 Application of Part to cargo The regulations may provide for applying, with such exceptions, adaptations and modifications as are prescribed, the provisions of the 1999 Montreal Convention and any of the provisions of this Act to and in relation to the carriage of cargo, being carriage in relation to which, if it were the carriage of passengers, this Part would apply, but so that no adaptation or modification of the provisions of Article 22 of the 1999 Montreal Convention shall have the effect of limiting the liability of the carrier to a sum less than the sum to which the carrier’s liability would be limited if those provisions were applied without adaptation or modification. ## Part IVA—Carriers to be insured against liability to passengers for death or personal injury ### Division 1—Preliminary #### 41A Object of Part The object of this Part is to require carriers to hold, in respect of carriage to which Part IA, II, III or IV applies, insurance that will ensure, as far as practicable, that compensation within the limits of liability prescribed by this Act will be paid in respect of death or personal injury suffered by passengers on aircraft. #### 41B Definitions In this Part: > acceptable contract of insurance has the meaning given by section 41C. > adequate financial arrangements has the meaning given by section 41C. > carrier means a person engaged, or proposing to engage, in a passenger‑carrying operation. > CASA means the Civil Aviation Safety Authority. > contract of insurance, in relation to a passenger‑carrying operation that a carrier engages in, or proposes to engage in, means a contract: (a) that is between the carrier and an insurer; and (b) under which the insurer indemnifies the carrier against personal injury liability in respect of each passenger carried, or to be carried, by air by the carrier in the operation. > passenger‑carrying operation means an air transport operation for the carriage of passengers to which Part IA, II, III or IV applies. > personal injury liability, in respect of a passenger carried, or to be carried, by air by a carrier in a passenger‑carrying operation, means liability under this Act in respect of the death of, or personal injury suffered by, the passenger. #### 41C Acceptable contracts of insurance and adequate financial arrangements Acceptable contracts of insurance (1) For the purposes of this Part, an acceptable contract of insurance, in relation to a passenger‑carrying operation that a carrier engages in, or proposes to engage in, is a contract of insurance that relates to the operation and meets the prescribed requirements. (2) The prescribed requirements are: (a) the requirements of subsections (3) and (4); and (b) any other requirements made by the regulations for the purposes of this section. (3) It is a requirement in relation to a contract of insurance that, under the contract, the insurer’s liability to indemnify the carrier against personal injury liability, in respect of each passenger carried, or to be carried, by air by the carrier in the operation, is for an amount that is not less than: (a) in respect of carriage by a carrier to which Part IA applies: (i) the number of SDRs applicable under subsection (3A), unless subparagraph (ii) applies; or (ii) if the regulations prescribe a number of SDRs for the purposes of this subparagraph and that number exceeds the number of SDRs applicable under subsection (3A)—the number of SDRs so prescribed; or (b) in respect of carriage by a domestic carrier to which Part IV applies: (i) the amount applicable under subsection (3B), unless subparagraph (ii) applies; or (ii) if the regulations prescribe an amount for the purposes of this subparagraph and that amount is higher than the amount applicable under subsection (3B)—the amount so prescribed; or (c) in respect of any other carriage: (i) the number of SDRs applicable under subsection (3A), unless subparagraph (ii) applies; or (ii) if the regulations prescribe a number of SDRs for the purposes of this subparagraph and that number exceeds the number of SDRs applicable under subsection (3A)—the number of SDRs so prescribed. (3A) The number of SDRs applicable under this subsection is: (a) 480,000, unless paragraph (b) applies; or (b) if the regulations provide for indexation in relation to that number—the indexed number worked out in accordance with the regulations. (3B) The amount applicable under this subsection is: (a) $925,000, unless paragraph (b) applies; or (b) if the regulations provide for indexation in relation to that dollar amount—the indexed amount worked out in accordance with the regulations. (4) It is a requirement of a contract of insurance that, under the contract, the insurer’s liability to indemnify the carrier against personal injury liability: (a) is not affected by any breach of a safety‑related requirement imposed by or under any Act or by the Civil Aviation Safety Authority; and (b) is not contingent upon the financial condition or solvency of the carrier or upon the carrier not being or not becoming bankrupt or not beginning to be or not being wound up. (5) The prescribed requirements do not prevent a contract of insurance from including provisions indemnifying the carrier against a liability other than personal injury liability. (6) A contract of insurance under which: (a) the insurer indemnifies the carrier against liability as required by Part 205 of the Federal Aviation Regulations of the United States of America made under the law known as Title 49 United States Code—Transportation; and (b) the insurer’s liability to indemnify the carrier: (i) extends to carriage in, to or from Australia; and (ii) is not affected by any breach of a requirement referred to in paragraph (4)(a); is taken to meet the requirements referred to in subsection (4). Adequate financial arrangements (7) For the purposes of this Part, adequate financial arrangements, in relation to a passenger‑carrying operation that a carrier engages in, or proposes to engage in, are financial arrangements that are adequate to discharge any personal injury liability of the carrier in respect of each passenger carried, or to be carried, by air by the carrier in the operation. (8) To avoid doubt, an acceptable contract of insurance in relation to a passenger‑carrying operation is an adequate financial arrangement in relation to the operation. #### 41D Insurer’s liability not affected by exclusions or breaches (1) Except as prescribed by the regulations, an insurer’s liability under a contract of insurance to indemnify the carrier against personal injury liability to the extent mentioned in subsection 41C(3) is not affected by any warranty or exclusion in the contract of insurance or by any breach of the contract of insurance by the carrier. Regulations may provide for Secretary to determine exclusions (2) Without limiting the regulations that may be made for the purposes of subsection (1), the regulations may confer a power on the Secretary of the Department to make a determination, by legislative instrument, in relation to exclusions of liability. (3) If the regulations make provision as mentioned in subsection (2), the regulations may also provide for the Secretary of the Department to delegate that power to a SES employee, or an acting SES employee, in the Department. > Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. ### Division 2—Insurance requirements #### 41E Carriers to be covered by acceptable insurance (1) A person (other than a person who is, or is an agent of, the Crown in any capacity) must not engage in, or propose to engage in, a passenger‑carrying operation, unless an acceptable contract of insurance in relation to the operation is in force. (2) A person who intentionally contravenes subsection (1) commits an offence punishable on conviction by imprisonment for a period of not more than 2 years. > Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence. (3) A person who is, or is an agent of, the Crown in any capacity must not engage in, or propose to engage in, a passenger‑carrying operation, unless adequate financial arrangements in relation to the operation exist. #### 41F Conduct by directors, servants and agents (1) If, in proceedings for an offence against this Part, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the director, servant or agent had the state of mind. (2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Part, to have been engaged in also by the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct. (3) If, in proceedings for an offence against this Part, it is necessary to establish the state of mind of an individual in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and (b) that the servant or agent had the state of mind. (4) Any conduct engaged in on behalf of an individual by a servant or agent of the individual within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Part, to have been engaged in also by the individual unless the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct. (5) If: (a) a person who is an individual is convicted of an offence; and (b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the person is not liable to be punished by imprisonment for the offence. (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose. (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of, or to a member of a board or other group of persons administering or managing the affairs of, a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory. (8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. (9) A reference in this section to an offence against this Part includes a reference to an offence created by section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code that relates to this Part. #### 41G Grounds of cancellation of contract of insurance not affected Nothing in this Part affects: (a) the grounds on which an insurer may cancel a contract of insurance between the insurer and a carrier; or (b) any right that an insurer may have to recover from a carrier an amount paid by the insurer under a contract of insurance between the insurer and the carrier. #### 41H Conflict of laws If: (a) the proper law of a contract of insurance would, except for a term that it should be the law of a foreign country or a term to a similar effect, be the law of any part of Australia; or (b) a contract of insurance contains a term that purports to substitute, or has the effect of substituting, the law of a foreign country for all or any of the provisions of this Part; this Part applies to the contract despite that term. #### 41J Injunctions (1) In this section: > prohibited carriage means a passenger‑carrying operation in relation to which: (a) an acceptable contract of insurance is not in force; or (b) if the carrier is, or is an agent of, the Crown in any capacity—an adequate financial arrangement does not exist. (2) If CASA has reason to believe that a carrier has engaged, or is proposing to engage, in prohibited carriage, CASA may apply to a court of competent jurisdiction for an injunction restraining the carrier from engaging in the carriage. (3) If the carrier does not satisfy the court that it is not engaging, or proposing to engage, in prohibited carriage, the court must grant the injunction. (4) If in the opinion of the court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (2). (5) The court may discharge or vary an injunction or an interim injunction granted under this section. (6) The power of the court to grant an injunction or an interim injunction restraining a carrier from engaging in prohibited carriage may be exercised: (a) whether or not it appears to the court that the carrier intends to engage again, or to continue to engage, in prohibited carriage of that kind; and (b) whether or not the carrier has previously engaged in prohibited carriage of that kind. (7) A court must not require CASA, as a condition of granting an interim injunction, to give any undertakings as to damages. (8) The Federal Court of Australia is invested with federal jurisdiction in matters where CASA applies for an injunction or an interim injunction under this section. ### Division 3—Auditing #### 41JA Auditing CASA may, at any time and from time to time, by written notice given to a carrier, require the carrier, within a period stated in the notice, to produce evidence, satisfactory to CASA, that: (a) an acceptable contract of insurance is in force in relation to a specified passenger‑carrying operation that the carrier engages in, or proposes to engage in; or (b) if the carrier is, or is an agent of, the Crown in any capacity—adequate financial arrangements exist in relation to a specified passenger‑carrying operation that the carrier engages in, or proposes to engage in. #### 41K Audit regulations The regulations may make provision for or in relation to: (a) the manner and form in which notices may be given under section 41JA; and (b) the period that may be set out in such notices; and (c) the manner and form in which evidence is to be produced under that section; and (d) the giving by persons referred to in the regulations (who may be individuals not resident in Australia or corporations not incorporated or carrying on business in Australia) of notice (whether in advance, or after the occurrence of the event concerned) to CASA of any modification, cancellation, non‑renewal or expiry, or of any proposed modification, cancellation or non‑renewal, or of any impending expiry, of an acceptable contract of insurance; and (e) the consequences (including any effect on the contract of insurance) of failure to give a notice referred to in paragraph (d). ### Division 4—Miscellaneous #### 41L Delegation (1) The Director may, in writing, delegate all or any of CASA’s powers under this Part to a member of the staff of CASA. (2) The power of delegation includes a power to delegate a power to any member of the staff of CASA from time to time holding, occupying, or performing the duties of, a specified office or position, even if the office or position does not come into existence until after the delegation is given. (3) If: (a) the Director has, under this section, delegated a power of CASA contained in a provision of this Part; and (b) a delegate exercises the power; a reference in that provision to CASA is taken, in relation to the exercise of the power by the delegate, to be a reference to the delegate. (4) In this section: > Director has the same meaning as in the Civil Aviation Act 1988. #### 41M Saving Any action taken or any other thing done by, or in relation to, the Minister or a delegate of the Minister before the commencement of this section is to be treated after that commencement as if it had been taken or done by or in relation to CASA. ## Part V—Miscellaneous #### 41N Corresponding State laws may confer functions and powers on Commonwealth authorities and officers A law of a State may confer functions and powers on Commonwealth authorities and officers for the purposes of any of the provisions of sections 41B to 41M as those provisions apply as a law of the State, either with or without modifications, and those Commonwealth authorities and officers may perform or exercise the functions or powers so conferred. #### 42 Stowaways (1) Where a person travels in an aircraft without the consent of the carrier and Part IA, Part II, Part III, Part IIIC or Part IV would apply in relation to the carriage of that person if he or she were a passenger carried under a contract for his or her carriage for reward between the place where he or she boarded the aircraft and his or her place of disembarkation, the liability (if any) of the carrier, or of the carrier’s servants or agents, in respect of that person and his or her baggage is subject to the limits as to amounts that are applicable in respect of passengers under that Part. (2) This section does not impose any liability on a carrier or a servant or agent of a carrier to which the carrier is not subject apart from this section. (3) For the purposes of this section, the place of disembarkation of a person shall be deemed to be the next scheduled stopping place after the place at which he or she boards the aircraft or, if he or she continues on board after the aircraft leaves that next scheduled stopping place, the scheduled stopping place next after the last stopping place from which the aircraft departed with that person on board. #### 43 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.