Dáil Éireann debate -
Wednesday, 12 Aug 1936

Vol. 63 No. 19

Committee on Finance. - Air Navigation and Transport Bill, 1936—Fourth and Fifth Stages.

Acting Minister for Industry and Commerce (Mr. Derrig)

I move amendment No. 1:—

In page 10, Section 18, before paragraph (d), to insert a new paragraph as follows:—

(d) the amount which may be recovered in any such action shall not exceed the actual and the prospective loss resulting from such death to the members of the passenger's family.

When Section 18 was being discussed on Committee Stage, Deputy Costello asked what the measure of damages would be in the event of the death of a passenger. He pointed out that under the section, as it stood, nothing was said but that damages "may be awarded," and that there was likely to be considerable discussion when the section came into operation as to the measure of damages. The object of this amendment is to make clear that the principle of Lord Campbell's Act is to be applied as the measure of the damages to be awarded. That is to say, the amount of damages is to be restricted to an amount proportionate to the actual financial loss sustained by the death of the person concerned. The amount of damages will depend entirely on the amount of dependency and on the actual financial loss suffered and will not contain any element of compassionate or vindictive damages.

Professor O'Sullivan

This puts the matter on the same level as all other actions of a similar kind?

Mr. Derrig

Yes.

Amendment agreed to.

Mr. Derrig

I move amendment No. 2:—

In page 13, line 30, Section 24 (1), before the word "caused" to insert the words "without any gross negligence or wilful misconduct on his part and without any gross negligence or wilful misconduct (to which he was privy) on the part of his servants or agents", and in the same line to delete the words "without his actual fault or privy".

The purpose of this amendment is to ensure that the principle of limitation of liability for damages done to third parties on the surface will, in fact, operate. I explained, on the Committee Stage of the Bill, that the words used in the Merchant Shipping Acts, "actual fault or privity," were introduced here on the ground that the merchant shipping legislation was somewhat analogous to the air legislation which we are at present considering. It seems, however, that the expression "actual fault or privity" might have the effect that there would be no limitation of liability. It would be very difficult to imagine an accident taking place to aircraft flown by an owner-pilot and something happening that would not be taken to be within his privity. In view of that, it is thought that the advantage of limitation of liability might be lost. We are, therefore, removing these words and substituting for them the words set out in the amendment, so that, in order that the air-craft owner should receive the benefit of the limitation, he will have to prove the absence of gross negligence and wilful misconduct and, similarly, he will have to prove that wilful misconduct or gross negligence on the part of his servants or agents did not exist with his privity.

Professor O'Sullivan

Why "gross" negligence?

Mr. Derrig

These are the terms used in the Rome Convention. The Rome Convention refers to "gross negligence" and "wilful misconduct". At first, it was thought that the term "actual fault or privity," which is the term used in the merchant shipping legislation, might be satisfactory.

Professor O'Sullivan

What I want the Minister to do is to justify the use of the word "gross." Why not "negligence" and "misconduct?" Even if these terms are used in the Rome Convention, why introduce them here? Is a citizen of this State not to get the benefit of this legislation if there is mere negligence? In the previous amendment, the Minister put actions under this Bill on a level with ordinary actions for damages. In an ordinary action for damages, it is not necessary to prove gross negligence.

Mr. Derrig

A large part of the Bill is devoted to the implementing of certain conventions. The Rome Convention, which deals with this matter, uses the terms "gross negligence" and "wilful misconduct."

I think it might give rise to anomalies if we were not to follow the Rome Convention in this particular matter. The effect of the Bill, if it becomes law, will be to implement all these conventions.

Amendment put and agreed to.

Mr. Derrig

I move amendment No. 3:—

In page 20, line 7, Section 39, to delete the word "acquiry" and substitute the word "acquisition."

This amendment is brought forward on the suggestion of Deputy Dillon. We are replacing the word "acquiry" by the word "acquisition."

Amendment put and agreed to.

Mr. Derrig

I move amendment No. 4:—

In page 21, line 50, Section 45 (1), before the word "right" where that word twice occurs in the said line to insert in each case the words "public or private."

Deputy Dillon asked on the Committee Stage whether provision was made for the payment of compensation when a private right of fishing was prohibited or limited and I undertook to consider the point. I am informed that the position is that when private property is interfered with by the State, unless there is specific exemption from compensation, it is implied that compensation is payable and that as the section stands it gives a right to compensation. It is considered better, however, to provide specifically for compensation when a private right is interfered with and for the method of determination of the amount of compensation. Amendment No. 4 is to distinguish between a public right and a private right of fishing or of landing fish. Amendment No. 5 provides for the payment of compensation when a private right is interfered with, the amount of compensation in the absence of agreement to be determined by the Acquisition of Land (Assessment of Compensation) Act, 1919. The payment of compensation, when a public right is interfered with is impracticable, and I cannot foresee any circumstances, in which a private right of navigation would come into question, where compensation could be granted for interference with such right. The effect of the amendment is to ensure that suitable compensation will be granted where the State interferes with private rights of fishing or landing fish or any other private rights of that character.

Amendment put and agreed to.

Mr. Derrig

I move amendment No. 5:—

In page 21, before section 45 (2) to insert a new sub-section as follows:—

(2) Whenever an order made under the next preceding sub-section of this section limits or prohibits the exercise of any private right of fishing or landing fish or any other private right in respect of any part of the sea or any inlet thereof or foreshore, the Minister shall pay compensation to the owner of or other person entitled to exercise such right and such compensation shall, in default of agreement, be fixed under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919.

Amendment put and agreed to.

Mr. Derrig

I move amendment No. 6:—

In page 50, Second Schedule, before paragraph 2, to insert a new paragraph as follows:

2. The amount of the share capital of the company shall be such sum not exceeding one million pounds as the Minister for Finance shall approve.

On the Committee Stage, and also I think on the Second Reading of the Bill, I stated that the amount of the share capital of the company would be at least £1,000,000. On closer examination of the figures, it has been found that it is not necessary to adhere to £1,000,000. In fact £1,000,000 will be more than adequate. With the information at our disposal at present, we can safely say that the amount of the share capital will not be as great as £1,000,000. We are therefore altering the phrase to read "not exceeding one million pounds."

Amendment put and agreed to.

Mr. Derrig

I move amendment No. 7:—

In page 50, line 40, Second Schedule, paragraph 2, sub-paragraph (d), to delete the words "the amount of" and in line 41, to delete the words "one million pounds."

This is consequential.

Amendment put and agreed to.

Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.

Mr. Derrig

If there is no objection we should like to have the Fifth Stage taken now. I have explained that it is necessary that we should have this Bill in order to proceed with certain works which, I think, should be proceeded with at the earliest possible opportunity.

Mr. Dillon

We are quite prepared to pass the Bill this evening.

Question proposed: "That the Bill do now pass."

Mr. Dillon

There is one matter which I should like to have cleared up on this Stage. I understand that this Bill is to provide for a Commonwealth airline to operate within the Commonwealth of Nations to which we belong. I think emphasis should be thrown on the fact that this departure, which definitely puts Ireland on the map of aerial transport for all time, is consequent on the fact that Saorstát Eireann has the good fortune to be a member of the Commonwealth of Nations and that but for that fact it might very well be that it would be for ever excluded from participation in transatlantic aerial traffic. I should like the Minister to tell us in Dáil Eireann, whilst his colleagues are waxing eloquent in other places upon the historic struggle that is going on with our ancient enemy, Britain, how far he has been engaged in direct negotiation with the British Government in connection with the agreements that have been incorporated in this Bill which is going to become a statute of Oireachtas Eireann. Does he consider that our international position, in the course of these negotiations, was in any way rendered more difficult by our membership of the Commonwealth of Nations? Does he believe that our membership if the Commonwealth of Nations jeopardised or injured the national interest in connection with this very important development in our industrial and mercantile life? Does he consider that the independence and sovereignty of this State were called in question at any time during the negotiations which led up to the developments which gave rise to this Bill? Would he tell us whether he thinks that it in any way derogates from the national sovereignty of Ireland that we should co-operate, as we are co-operating in this legislation, with Great Britain and Canada and the other members of the Commonwealth of Nations? Those are questions on which, I think, the Minister ought to say a word.

A second matter which I should like him to deal with is this: It appears to me that certain matters arising in connection with this measure would have constituted appropriate material for treaty arrangements with the other sovereign States of Great Britain and Canada who are parties to the common arrangement. Can he say what the official opinion of our Department of External Affairs is on that question? Can he inform us whether any of the negotiations which have been carried on in connection with the arrangements which have been arrived at, were conducted from the Department of External Affairs or whether they were conducted by direct contact between the Ministry of Industry and Commerce of this country, the Board of Trade in Great Britain and the corresponding Department in the State of Canada? If the negotiations were conducted in this direct way, would he say that this constitutes a new precedent, and if so, does he consider such a precedent desirable from the constitutional standpoint?

Mr. T. Kelly

Before the Minister replies I wish to say that Deputy Dillon has always represented us over here as wrapping the green flag round us. But every time the Deputy gets an opportunity he wraps the flag of the Commonwealth around him. On the necessity for air transport, I want to say that before Deputy Dillon was born we were concerned here with aviation. I could go so far back as 1912.

Mr. MacDermot

Oh, Deputy Dillon was born then.

Mr. T. Kelly

Was he born then? I never knew his age before.

Mr. Dillon

I shall make no indelicate inquiries about Deputy Kelly's age.

Mr. Kelly

Deputy Dillon can do that as often as he likes. I am not afraid. I hope when I speak here I speak sensibly.

Mr. Dillon

It is only a pious hope.

Mr. Kelly

The only excuse for Deputy Dillon is his age.

Mr. Dillon

I am afraid that matter is not relevant to air navigation.

Mr. Kelly

Neither is the Commonwealth relevant to air navigation, but the Deputy is allowed liberties here that are not permitted to——

An Ceann Comhairle

Deputy Kelly may not question the Chair's ruling on impartiality.

Mr. Kelly

I agree, Sir, but you must admit that the Deputy here carries on in a manner not suitable to the Front Opposition Bench.

An Ceann Comhairle

That is a matter for decision by the Chair.

Mr. Kelly

Yes, but not of the Deputy's manner. In 1912 Cunningham Graham was flying his aeroplane in Belfast and the late Mr. Arthur Griffith and I brought him down to Dublin and we had his aeroplane here. It was hung from the roof of the Rotunda and we arranged lectures for the people of Dublin every half hour. The man who delivered the lectures was The O'Rahilly, who was killed in 1916. We had large crowds of people at the lectures on aeroplanes, and the lecturer spoke of the advantages aeroplanes would be in the future. That only shows that our connection with and interest in air navigation goes very far back. However, what made me rise to speak was more than a whim. It was a view which came into my head when Deputy Dillon was speaking. Whether it is through misfortune or bad luck or through some other reasons peculiar to the British, we must all lament the awful number of accidents that happen to them in the matter of their aviation. Almost every week there are fatal accidents. This morning's papers disclose, I think, 68 fatal accidents to the British Royal Air Force this year. Hundreds of men have been killed in recent years in aeroplane accidents in England. Whether it is that their technicians are at fault or through some other grave reasons, the percentage of accidents appears very high. When we compare their records in aviation with the record of Germany, England shows up to great disadvantage. One seldom hears of accidents to aeroplanes in Germany. Their great airship, the Hindenburg, travels into storms and gales. It goes all over the world and travels safely. We all know what happens to the big English airships. One of them had only left England a few hours when it collapsed in France.

These thoughts came into my head when Deputy Dillon was speaking. Similar misfortunes dog the progress of the American air service. One of their airships was lost some time ago on the coast of Florida and another off the coast of California when 70 or 80 young men in the American air service lost their lives. Why is it that the German air service is so safe? Is it through their lack of competence that the British air service compares so unfavourably with that of the Germans? These are the facts at all events. I am hoping that when the Minister enters into this service he will avail of the services of the best advisers and technicians. If the Government has any interest in this new company that is to promote aviation I hope they will get the best men the world can produce so that it cannot afterwards be said that there was any fault or any lack of science in the construction of the aeroplanes that will fly between this and other countries. I am putting these remarks before the Minister. I hope the Minister will take heed of them because I offer them in all sincerity.

Mr. MacDermot

I doubt very much if Deputy Kelly is correct in his facts. It is perfectly true that Germany leads the world as regards dirigibles. That is because her experimentation in dirigibles goes farther back than those of other countries. But even German airships have suffered disaster.

Mr. Kelly

I never heard of them.

Mr. MacDermot

If the Deputy will search his memory or look through the newspaper files he will come across reports of these disasters. As regards aeroplanes, I very much question the Deputy's statement that there is a higher proportion of accidents in Great Britain than in Germany. After all we do not read the German newspapers to any great extent in this country and the Deputy cannot expect that he will see an accident to a German aeroplane reported in the same way as he would see reported an accident nearer home. I think the Deputy ought to take the trouble to investigate the facts with more care before getting up here and suggesting that Commonwealth aeroplanes or aviators are inferior to foreign aeroplanes or aviators. I do not think there is anything in his contention. I believe that civil aviation in America is greatly ahead of any country including Germany. But apart from America, my opinion, given for what it is worth, is that Great Britain is probably the best of the rest of them.

Mr. Derrig

Deputy Dillon asked what Departments were concerned with these negotiations. Negotiations have been going on in different places, London, Ottawa, Dublin, and at different times different Departments of State have taken part in these negotiations. At one time or other all the Departments concerned have taken part in them. The Department of External Affairs, the Department of Finance, the Department of Posts and Telegraphs, the Department of Industry and Commerce as well as the office of Public Works have all taken part in the negotiations. There is no abrogation of national status or any infringement of constitutional rights or anything of that class involved in connection with the agreements that have been made with regard to transatlantic air services. Deputy Dillon would not be correct in stating that because of our connection with the British Commonwealth we have become participators in these transatlantic air services. The truth is that it is really our geographical position which has been the main factor in determining that we should become part of the present enterprise. We have had negotiations with all the Governments concerned and they have been carried on in the way I have mentioned. The Departments concerned have at some time or other taken part in them. I do not think the Deputy raised any other point of importance.

Deputy Kelly referred to the question of accidents. My information is, as Deputy MacDermot has just pointed out, that so far as commercial aviation is concerned it is on an entirely different plane to the air forces of the different countries. Commercial aviation in the nature of things has to be safe. We have no proper conception in this country of the extraordinary degree of safety that has been attained in commercial aviation. Deputy Kelly can rest assured that so far as the Government are concerned —since they are now pledged to take certain steps to develop aviation and to establish other services—we shall seek for the highest technical advice that can be procured.

The Deputy may rest assured that no efforts will be spared, as far as the Government are concerned, to see that any services that we sponsor or establish will be as perfect and as satisfactory to the public as we can make them.

Question put and agreed to.