The advancement of aerial navigation has changed the modes of transportation. To synchronize with the global developments, air navigation in India also grew. Further, India was a party to many international conventions relating to air carriage and therefore, for regulating international air carriage, India had to make its domestic laws in consonance with the international instruments. Furthermore, India being a party to the Warsaw Convention has formulated the Carriage by Air Act 1934 in order to apply private international air obligations. But due to the limitations in the 1934 Act, the Carriage by Air Act, 1972 was enacted.

Historical Background

The development of international aviation law has proved to be advantageous in dealing with various multifaceted concerns under the domestic aviation sector. Nevertheless, India too had adopted most of the international conventions and instruments. To implement these international conventions norms, India enacted various domestic legislations. The Warsaw Convention 1929 was adopted by India through the formulation of the Indian Carriage Act of 1934.

The Indian Carriage Act, 1934 deals with only the air navigation done internationally whereas the domestic air carriage was governed by the common law principles. However, to the air carriers, the common law principles provided unrestricted freedom. Thus, the Indian Carriage Act 1934 was repealed and a new Carriage by Air Act of 1972 was legislated.

Significantly, the Carriage by Air Act, 1972 was designed to encompass death, injury, or wounding to the passengers, loss or delay to the cargo and goods, destruction, and delay. Besides this, the other facets of the carriage were controlled under the Contract Act, Consumer Protection Act, and the DGCA guidelines. In the Carriage by Air Act, 1972, the application of the Second Schedule was expended in a further notification to include domestic air navigation also. Furthermore, the Third Schedule of the Act was extended in 2014 to include domestic air carriage.

However, the Carriage by Air Act, 1972 was approved by Parliament to include Hague protocol into the Carriage by Air Act. Thus, in 2009 it was again modified for assimilation of the Montreal Convention 1999. So, in India the Carriage by Air Act 1972 as amended in 2009 levies responsibility on international air carriers.

Objectives and Purposes of the Act

On December 19, 1972, the Carriage by Air Act was passed by the Parliament and was enforced on March 23, 1973. The Act basically targets to apply the Warsaw Convention for the amalgamation of laws relating to the International Carriage by Air that was contracted in October 1929. The provisions of the Convention covers all or any carriage such as the carriage of passengers, cargo or baggage executed for the reward.

The purpose of the Act is to conjointly conform with the amendments introduced through various Protocols to the Warsaw Convention. The Act “extends to the whole of India.”1 The object of the Act has been highlighted in the preamble of the Act which is as follows:

“An Act to give effect to the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October, 1929 and to the said Convention as amended by the Hague Protocol on the 28th day of September, 1955 and also to the Montreal Convention signed on the 28th day of May, 1999 and to make provision for applying the rules contained in the said Convention in its original form and in the amended form subject to exceptions, adaptations and modifications to non-international carriage by air and for matters connected therewith.”

Salient Features

The Carriage by Air Act, 1972 is the domestic legislation governing the air carriage and it contains all the three international air conventions concerning international air carriage to which India is a member. All these international conventions have been encapsulated in this Carriage by Air Act without substituting or revoking.

Section 2 of the Act describes various terms such as the ‘amended Convention,’ ‘Convention,’ and ‘Montreal Convention’ etc. Further, the Act contains Three Schedules, which is explained with the help of Section 3, 4, and 4A and also with one Annexure which is distributed in three portions. The first portion discusses the High Contracting Parties to the Warsaw Convention; the second deals with the High Contracting Parties to Hague Protocol and the third part describe the High Contracting Parties to the Montreal Convention.

Moreover, Part I of the Act delivers essential standards enumerated under the Warsaw Convention. Further, the Second Schedule has increased the quantum of recompense in situations of death or wounding of the passengers. Furthermore, the Act put numerous checks on air carriers from misusing the navigational error and pilotage error as protection in case of accountability. The Third Schedule of the Act not only offers greater compensation but also introduces “fifth jurisdiction” with respect to the right to sue successive or the actual carrier individually.

Another significant incorporation done in the Carriage Act was the introduction of section 5. As per Section 5 of the Act, it states that notwithstanding any other law applied in India, the various Schedules like the Schedule First, the Schedule Second, and the Schedule Third will be applied for ascertaining the liability of the air carrier. Further, it excludes the application of other laws in instances of wounding, death of passenger or loss and damage of unchecked and checked baggage.

The underlying principle behind it is that it proscribes passengers from prosecuting air carriers under the Law of Contract, Law of Tort, or Consumer Protection laws which could have directed to the ambiguity of laws. This preventive provision provides a solution to the difficulty of vagueness and also gives certainty to the liability of air carriers.

Further, Section 6 and 6 A of the Act highlights the change of the sum (Francs or SDR) into Indian rupees at the prevailing exchange rate on the date on which the sum is to be paid.5 Furthermore, Section 7 has enacted the provision for cases against the High Contracting Parties. The Section states that if any High Contracting Party undertakes the air carriage, then it will be considered to have acquiesced its jurisdiction to the Indian courts. To put it simply it means that the States which are involved in air carriage business cannot raise the plea of sovereign immunity.

Important Provisions

Listed below are some of the key provisions of the Carriage by Air Act, 1972:

• Liability in case of death- The liability of a carrier with reference of the death of a passenger is determined by the First Schedule, the Second Schedule and the Third Schedule. Further, “the liability shall be enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death.”

• Documents of Carriage covered by the Act: In each Schedule, chapter II deals with the ‘documents of the carriage.’  These documents are as follows:

i. Passenger Ticket

ii. Baggage check

iii. Air consignment note or Airway bill

• Jurisdiction of the Act: As per the Carriage by Air Act, all the three Schedules confer the jurisdiction wherein petitioner can bring an action for recompense. Four jurisdictions are provided by the First and Second Schedule, whereas, an additional jurisdiction in the form of Fifth jurisdiction have been given by in the Third Schedule. These are listed below –

i. The ordinary place of residence of the Carrier, or

ii. Carrier’s principal place of business, or

iii. Establishment or place where contract has been entered into, or

iv. Place of Destination, or

v. Passenger’s permanent or principal residence.

Moreover, the “Fifth Jurisdiction” is given by the Third Schedule which is applicable only when there is damage or loss caused by the injury or death of a passenger.

• Liability of the Carrier: The Schedules of the Act provides that the carrier is accountable for the injury or damage caused in the cases of wound or death “of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

• The provisions relating to the combined carriage: The chapter IV of all the Schedules deals with combined carriage. On the issue of combined carriage, the Act states that where a carriage has been carried out “partly by air and partly by any other mode of carriage,” then in such cases the provisions of the Schedule will be applicable. Further, the parties are not prevented “in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Schedule are observed as regards the carriage by air.”

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