CARRIAGE BY AIR ACT 1974

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 148 CARRIAGE BY AIR ACT 1974 As at 1 June 2015 2 CARRIAGE BY AIR ACT 1974 … … … 30 July 1974 Date of Publication in the Gazzette …… … 29 August 1974 Latest amendment made by Act A1310 which came into operation on … … … … 8 October 2007 Date of Royal Assent PREVIOUS REPRINTS First Reprint … … … 1997 Second Reprint … … … 2001 Third Reprint … … … 2006 3 LAWS OF MALAYSIA Act 148 CARRIAGE BY AIR ACT 1974 ARRANGEMENT OF SECTIONS Section 1. Short title, application and commencement 2. Interpretation 3. Convention to have force of law 4. Designation of State Parties 5. Fatal accidents 6. Limitations of liability 7. Time for bringing proceedings 8. Contributory negligence 9. Power to exclude aircraft in use for military purposes 10. Actions against State Parties 11. Supplementary Convention to have force of law 11A. Amended Convention and Montreal Convention to have force of law 12. Application to carriage by air not governed by Carriage by Air Conventions 13. Act to bind Federal and State Governments 14. Repeal FIRST SCHEDULE SECOND SCHEDULE THIRD SCHEDULE FOURTH SCHEDULE FIFTH SCHEDULE SIXTH SHEDULE 5 LAWS OF MALAYSIA Act 148 CARRIAGE BY AIR ACT 1974 An Act to give effect to certain Conventions relating to carriage by air and to provide for matters connected therewith and ancillary thereto. [19 December 1974] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: Short title, application and commencement 1. (1) This Act may be cited as the Carriage By Air Act 1974 and shall extend throughout Malaysia. (2) Except as provided in subsection (3), this Act shall come into force on such day as the Yang di-Pertuan Agong may by order certify to be the day on which the Convention comes into force as regards Malaysia. (3) Section 11 shall come into force on such day as the Yang diPertuan Agong may by order certify to be the day on which the Supplementary Convention comes into force as regards Malaysia. (4) Section 11A shall come into force on such day as the Yang diPertuan Agong may by order certify to be the day on which the Amended Convention and the Montreal Convention come into force as regards Malaysia. 6 Laws of Malaysia ACT 148 Interpretation 2. In this Act, unless the context otherwise requires — “Amended Convention” means the Convention as further amended by the Montreal Protocol No. 4 of 1975 as set out in the Fifth Schedule; “Carriage by Air Conventions” means the Convention, the Supplementary Convention, the Amended Convention and the Montreal Convention; “Convention” means the Convention for the unification of certain rules relating to international carriage by air known as “the Warsaw Convention as amended at The Hague 1955” as set out in the First Schedule; “court” includes (in an arbitration allowed by the Convention) an arbitrator; “Minister” means the Minister responsible for civil aviation; “Montreal Convention” means the Convention, signed at Montreal on the 28 May 1999, for the unification of certain rules relating to international carriage by air, as set out in the Sixth Schedule; “Montreal Protocol No. 4 of 1975” means the protocol, signed at Montreal on 25 September 1975, to amend the Warsaw Convention as amended at the Hague; “State Party” means, a High Contracting Party in relation to the Convention and the Amended Convention, or a State Party in relation to the Montreal Convention, as the case may be; “Supplementary Convention” means the Convention, supplementary to the Warsaw Convention, signed at Guadalajara on the 18 September 1961, for the unification of certain rules relating to Carriage by Air 7 international carriage by air performed by a person other than the contracting carrier, as set out in the Second Schedule. Convention to have force of law 3. (1) Subject to this section, the provisions of the Convention shall, so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Malaysia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage. (2) This section shall not apply so as to affect rights or liabilities arising out of an occurrence before the coming into force of this section. Designation of State Parties 4. (1) The Yang di-Pertuan Agong may by order from time to time certify who are the State Parties to the Carriage by Air Conventions, in respect of what territories they are respectively parties and to what extent they have availed themselves of the provisions of the Additional Protocol at the end of the Convention or Additional Protocol at the end of the Amended Convention or Article 57 of the Montreal Convention, and any such order shall, except in so far as it has been superseded by a subsequent order, be conclusive evidence of the matters so certified. (1A) The Yang di-Pertuan Agong may by order from time to time certify any revision of the limits of liability established pursuant to Article 24 of the Montreal Convention. (2) Paragraph (2) of Article 40A of the Convention and the Amended Convention shall not be read as extending references to the Convention or the Amended Convention to the territory of a State 8 Laws of Malaysia ACT 148 Party (except such as are references to the territory of any State, whether a State Party or not) to include any territory in respect of which that State Party is not a party. (3) An order made under this section shall, except so far as it has been superseded by a subsequent order, be conclusive evidence of the matters so certified. (4) An order under this section may contain such transitional and other consequential provisions as appear to the Yang di-Pertuan Agong to be expedient. Fatal accidents 5. Any liability imposed by Article 17 of the Convention, Article 17 of the Amended Convention or paragraph 1 of Article 17 of the Montreal Convention on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any written law or any rule of law in force in Malaysia relating to fatal accidents due to a wrongful act, neglect or default and the provisions set out in the Third Schedule shall have effect with respect to the person by and for whose benefit the liability so imposed is enforceable and with respect to the manner in which it may be enforced. Limitations of liability 6. (1) It is hereby declared that the limitations on liability in Article 22 of the Convention, Article 22 of the Amended Convention and Articles 21, 22 and 44 of the Montreal Convention apply whatever the nature of the proceedings by which liability may be enforced and that, in particular— (a) those limitations apply where proceedings are brought by a tortfeasor to obtain a contribution from another torfeasor; and Carriage by Air (b) 9 the limitation for each passenger in paragraph (1) of Article 22 of the Convention, paragraph (1) of Article 22 of the Amended Convention and Article 21 and paragraph 1 of Article 22 of the Montreal Convention applies to the aggregate liability of the carrier in all proceedings which may be brought against the carrier under the appropriate law in force in the relevant part of Malaysia, together with any proceedings brought against the carrier outside Malaysia. (2) A court before which proceedings are brought to enforce a liability which is limited by Article 22 of the Convention, Article 22 of the Amended Convention or Articles 21, 22 and 44 of the Montreal Convention 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 that Article and of any other proceedings which have been, or are likely to be, commenced in Malaysia or elsewhere to enforce the liability in whole or in part. (3) Without prejudice to subsection (2), a court before which proceedings are brought to enforce a liability which is limited by Article 22 of the Convention, Article 22 of the Amended Convention or Articles 21, 22 and 44 of the Montreal Convention shall, where the liability is, or may be, partly enforceable in other proceedings in Malaysia or elsewhere, have jurisdiction to award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court, or to make any part of its award conditional on the result of any other proceedings. (4) The Minister may, from time to time, by order published in the Gazette specify the respective amounts which for the purposes of Article 22 of the Convention, and, in particular of paragraph (5) of that Article, are to be taken as equivalent to the sums expressed in francs which are mentioned in that Article. (5) References in this section to Article 22 of the Convention or the Amended Convention include, subject to any necessary 10 Laws of Malaysia ACT 148 modifications, references to that Article as applied by Article 25 A of the Convention or the Amended Convention. (6) In paragraphs (1)(a) and (b) and in subsections (2) and (3) references to Article 22 of the Convention or the Amended Convention shall include, subject to any necessary modifications, references to Article VI of the Supplementary Convention. Time for bringing proceedings 7. (1) No action against a carrier’s servant or agent which arises out of damage to which any of the Carriage by Air Conventions relates shall, if he was acting within the scope of his employment, be brought after more than two years, reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. (2) Article 29 of the Convention, Article 29 of the Amended Convention and Article 35 of the Montreal Convention shall not be read as applying to any proceedings for contribution between tortfeasors, but no action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which Article 29 of the Amended Convention and Article 35 of the Montreal Convention applies after the expiration of two years from the time when judgment is obtained against the person seeking to obtain the contribution. (3) Subsections (1) and (2) and Article 29 of the Convention, Article 29 of the Amended Convention and Article 35 of the Montreal Convention shall have effect as if references in those provisions to an action included references to an arbitration; and the provisions of the appropriate law in force in the relevant part of Malaysia which determine the time at which an arbitration is deemed to be commenced shall apply for the purposes of this subsection. Carriage by Air 11 (4) In this section references to a carrier include references to an actual carrier as defined in paragraph (c) of Article I of the Supplementary Convention as well as to a contracting carrier as defined in paragraph (b) of that Article and to an actual carrier as defined in Article 39 of the Montreal Convention. Contributory negligence 8. It is hereby declared that for the purposes of Article 21 of the Convention, Article 21 of the Amended Convention and Article 20 of the Montreal Convention, section 12 of the Civil Law Act 1956 [Act 67] is a provision of the law of Malaysia under which a court may exonerate the carrier wholly or partly from his liability. Power to exclude aircraft in use for military purposes 9. (1) The Yang di-Pertuan Agong may from time to time by order direct that this section shall apply, or shall cease to apply, to Malaysia or any other State, specified in the order. (2) The Carriage By Air Conventions shall not apply to the