Air Navigation and Transport (International Conventions) Bill 2004 [Seanad]: Second Stage.

Minister for Transport (Mr. Brennan)

I move: "That the Bill be now read a Second Time."

Before moving on to the detailed provisions of the Bill and the Montreal convention, which the Bill enables us to ratify, it is useful to place it in the proper context. Aviation is first and foremost an international activity. As far back as 1929, when the first Warsaw convention was adopted, it was clear that an international agreement was needed to facilitate the smooth operation of air transport. Even during the extremely difficult international circumstances of the Second World War, nations came together in 1944 to adopt the Chicago convention, which created the International Civil Aviation Organisation and which still serves as the framework for the conduct of worldwide civil aviation.

We, in Ireland, have always recognised the importance of international aviation for our economy because we are an island on the western periphery of Europe and because of our deep business and historical links with North America over the centuries.

As everyone knows, there has been an enormous growth in air travel in recent years, both for business and pleasure, and for high value and perishable cargoes. Ireland has participated fully in the development of international aviation and its various international conventions. Due to our location on the eastern edge of the Atlantic ocean, we played a pivotal role in the early development of transatlantic aviation and Ireland continues to enjoy a strong reputation within the international aviation community. The purpose of the Bill is to enable us to ratify the 1999 Montreal convention along with our European Community colleagues. That convention is a further milestone in the co-operative development of international aviation, and it is right that we should support it and continue our tradition of support for international aviation.

In the course of preparing the Bill, the opportunity has been taken to restate the existing law relating to the existing Warsaw convention and its amendments so that one Bill covers the entire subject. The Montreal convention is an updated replacement for the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, which, together with numerous subsequent amendments, is referred to as the Warsaw system. The Warsaw system now provides a worldwide system of standards and rules for carriage by air and, in particular, common rules on liability limits for the carriage of passengers, cargo and baggage in the event of damage, delay or loss. The Warsaw system is already enshrined in Irish law in the Air Navigation and Transport Act 1936, as amended.

The Montreal convention represents a major improvement over the liability regime established under the Warsaw convention and its related instruments relative to passenger rights in the event of an accident. Among other benefits, the convention holds carriers strictly liable for damages up to 100,000 special drawing rights; removes the upper limit on damages for accident victims which exists in the Warsaw system; extends the range of jurisdictions in which claims for damages may be brought; clarifies the duties and obligations of carriers engaged in code-share operations; and, with respect to cargo, provides for modernised documentation.

Special drawing rights, otherwise known as SDRs, are units of currency drawn up by the International Monetary Fund for use whenever it is necessary to refer to currency amounts internationally, including in international conventions. This was done to avoid the necessity for referring to the value of gold or major currencies such as the US dollar or the euro. One SDR is worth €1.18. The value of SDRs is based on a basket of currencies of all 184 IMF member states, including the euro. Ireland has been a member of the International Monetary Fund since 1957. For any countries which ratify the Montreal convention but are not members of the International Monetary Fund, provision is made in the convention at Article 23(2) for using a currency unit based on gold.

Significantly for passengers, the convention makes it easier for them or their relatives to bring legal action. In addition to the jurisdictions in which legal action for damages may now be taken under the Warsaw system, the Montreal convention allows legal action to be taken in the state where the passenger lives if the carrier operates services to or from that state. That will, in almost all cases, allow the passenger to take legal action in the courts with which he or she is most familiar.

The new Montreal convention will supersede the Warsaw system in every state which ratifies it. However, the Warsaw system will continue to apply to international air travel where either or both states has not yet ratified the Montreal convention. The Bill deals with that by providing that the most recent convention common to both Ireland and another state will apply to air travel to or from that state. The rules of the Montreal convention are already included in European law for all European airlines and their passengers through EU regulations. Ratification of the Montreal convention will extend the higher liability limits worldwide, thereby providing very significant benefits for passengers travelling with non-EU airlines.

Ratification of the Montreal convention by all EU member states and the European Community before enlargement day on 1 May 2004 will ensure the Montreal convention will automatically extend to the ten accession countries when they become members. Ireland, as EU President, will be holding a major celebration on 1 May 2004 to mark the accession and it would be most inappropriate if it were the only country preventing Community ratification before that date. If the convention is not ratified by the Community before enlargement, the whole process of ratification will be delayed.

I now turn to the main provisions of the Bill. Sections 1 to 3 contain standard provisions in legislation, the short title, the purpose of the Act and interpretations. Section 4 provides for the two versions of the Warsaw convention and the new Montreal conventions to have the force of law in Ireland. The first two are already enshrined in Irish law in the Air Navigation and Transport Act 1936 which has been amended several times. The texts are set out in the three Schedules to the Bill. The provisions in the Air Navigation and Transport Act 1936, which enshrine the first two conventions, are repealed in section 11 of this Bill. That means all the legislation in the area will be conveniently included in one Act. Section 5 provides for the French language to prevail if there is a dispute about differences between the English and the original French texts of the Warsaw system conventions. Those conventions were originally drafted only in French, and the original French texts are deposited with the Ministry of Foreign Affairs in Poland. Section 6 empowers the Government to certify which states are contracting parties to this convention. Section 7 sets out the liabilities of a carrier if a passenger dies and specifies who is entitled to claim compensation. It is based on section 18 of the Air Navigation and Transport Act of 1936, as amended.

The Government-sponsored amendments to this section made in the Seanad are for the purpose only of incorporating into this Bill amendments that were introduced into the Air Navigation and Transport Act 1936 by the Civil Liability Act 1996, and which had been overlooked when this Bill was being drafted. Section 8 empowers the Minister to make a notification, as provided for in Article 57 of the Montreal convention. That article allows a state to declare that the convention will not apply to international flights carried out by the state itself for non-commercial purposes or to military flights. There are no immediate plans to make such notifications. However, it is customary in international aviation to treat state aircraft separately from civilian aircraft. Section 9 empowers the Minister to extend the convention to apply to internal or non-international flights. In practice, internal flights are already subject to equivalent provisions through EU law. Section 10 is a standard provision authorising money to be provided by the Oireachtas. It is not expected that the Act will give rise to any additional costs for the Minister. Section 11 repeals certain provisions of the Air Navigation and Transport Act of 1936 and includes some consequential amendments to ensure that this new Act will be taken into account, when appropriate.

I will now give some background to the Montreal convention and describe its main provisions. The Montreal convention represents the successful culmination of work by the International Civil Aviation Organisation to modernise the patchwork of liability regimes around the world. Air carriers operating to non-EU member states are faced with widely differing liability regimes depending on the treaties to which various governments are parties. There are also many private intercarrier agreements which further complicate matters. That the Montreal convention was immediately signed by 52 countries, including many EU member states, illustrates it success. Ireland signed in 2000. In November last, the United States became the 30th country to ratify it, thereby causing it to enter into force, among the states that have ratified it. As soon as the convention is ratified by Ireland, then by the other EU member states and by the Community, it will become part of European Law and will take precedence over the Warsaw convention and any of its amendments and related instruments.

Chapter 1 covers the general provisions of the convention and deals mainly with who and what it covers. Chapter 2 deals with the documentation and duties of the parties relating to the carriage of passengers, baggage and cargo. Articles 3 to 11 deal with the documentation requirements for international carriage by air. Most significantly, they provide benefits to the cargo industryby providing for modernised electronic documentation, including the elimination of the need for consignors of cargo, to complete detailed air waybills prior to consigning goods to a carrier. Consignors may use simplified electronic records to facilitate shipments. Chapter 3 deals with the liability of the carrier and the extent of compensation for damages. Article 21 provides for compensation in the case of death or injury of passengers.

The carrier will be strictly liable for the first 100,000 SDRs, or approximately €118,000 of proven damages for each passenger. This is a great increase from the approximately 16,600 SDRs under the Warsaw system. A carrier may not avoid liability for this amount even if it can prove that the harm was not caused by its negligence. This means that even if an accident was caused by weather or a third party, such as a terrorist, the carrier is still liable for damages up to 100,000 SDRs. The only way that a carrier can exonerate itself from this liability is if it can prove that the passenger for whom the damages are sought caused or contributed to the accident.

In addition to the amount of 100,000 SDRs carriers are subject to unlimited liability if the plaintiff can show that the carrier was negligent. This is a major change from the Warsaw system which placed a low upper limit of 16,600 SDRs on the amount of damages, except in very unlikely cases, where it could be proved that the carrier or its staff intentionally or recklessly caused the accident. Since these limits are already in force in Ireland under European law, there are no cost implications for Irish air carriers. Also, under European law all European air carriers must insure themselves sufficiently to meet these liability limits. Consequently, ratification of this convention will not increase costs for carriers in Europe nor will it lead to increased fares for passengers.

Article 28 provides for advance payments which acknowledges the right of states to have national laws requiring their own carriers to make such payments in the event of passenger death or injury and addresses certain procedural issues related to such payments. In addition, a resolution adopted by the diplomatic conference as part of the final act of the conference, encourages all states to adopt such laws.

European law already provides for advance payments of the type referred to in Article 28. Amounts of at least 16,000 SDRs, approximately €19,000, are to be made without delay to persons entitled to make claims to meet immediate financial needs. These advance payments do not involve an admission of liability and may be offset against the total amount of damages payable.

Articles 29 to 35 provide for rules relating to the basis for making claims and include a new provision allowing persons to bring actions in the state where the passenger lives, if the carrier operates services to or from that state. Disputes may also be settled by arbitration.

Chapter 4 of the convention deals with combined carriage. This is where a person or cargo makes a journey partly by air and partly by surface transport. In that case the convention only applies to carriage by air. Chapter 5 deals with carriage by air performed by a person other than the contracting carrier. This is primarily to cover what is known as "code-sharing" among airlines. Code-sharing is where airline A agrees to carry passengers on behalf of airline B and the tickets issued by airline B carry its flight number. This has become a very common arrangement among airlines as it allows much wider international marketing by, for example, linking internal US flights by US airlines with Aer Lingus's transatlantic flights. When a claim arises under the convention, a claimant may take an action against the carrier from which the carriage was purchased or against the code-sharing carrier operating the aircraft at the time of the accident.

Chapter 6 of the convention deals with other provisions, such as nullifying clauses in contracts that do not comply with the convention and which require insurance. Chapter 7 contains the final clauses, covering such matters as signature, ratification and entry into force. Article 53 includes provision to allow regional economic integration organisations, such as the European Community, to ratify the convention.

The provisions I have described reflect the many benefits that will accrue under the convention to the air transportation industry, especially its many consumers. The Montreal convention focuses extensively on consumer interests in contrast with the Warsaw convention where the focus was mainly in favour of the then developing international airline industry. One key benefit, not reflected in the provisions, is the benefit of uniformity. Based upon the response to the convention at the diplomatic conference and on communications with other governments since that time, Irish ratification of this convention, which will allow EU ratification by I May of this year, will help to achieve a much-needed and long sought after modernisation and unification of the liability regime applicable to international air carriers.

I commend the Bill to the House.

Mr. P. Breen

I welcome the opportunity to speak on this Bill. Essentially, this Bill updates the 1936 transport Act and the Warsaw convention and paves the way for ratification of the Montreal convention, which has already been signed by 50 OECD countries.

The provisions laid down in the Montreal convention and this Bill will come as a relief to passengers as they are a major improvement on the liability scheme established by the Warsaw convention. It is important that we pass these provisions to ensure a harmonised approach to the level of insurance held by aircraft carriers. With the recent increase in terrorist attacks, particularly since the events of 11 September 2001 in the US, it is vital in the event of any catastrophe that passengers can more easily access compensation.

Many airlines now provide cheap flights and operate on a "no thrills and low frills" basis. The provisions in the Bill for dealing with lost and damaged baggage will reassure passengers who feel more and more that the airline companies do not care about them. Many people travel regularly because of the low cost carriers. Ryanair is a low cost carrier in this country and Aer Lingus is taking the same road. Passengers can travel to many European destinations for a few euro and often the taxes are higher than the price for the flight. People are flying more and Ryanair is opening new routes to Spain. I hope the Minister suggests to Mr. O'Leary that Ryanair should open more routes from Shannon.

It is important to have a unified system of standards and rules for air carriers and to have common rules in respect of liability limits for passengers, cargo and baggage in the event of damage or loss. We all know of occasions when damage was done to baggage or baggage was delayed. Increased security measures since the events of 11 September 2001 mean we have more baggage searches and more random searches of passengers. Throughout the US people are now requested to leave their suitcases unlocked for security reasons.

It is also important that Ireland does not delay in ratifying the Montreal convention. As the Minister is currently president of the EU Transport Ministers, it is important the Bill is passed before 1 May and before the accession of the ten new countries. If we do not ratify the agreement by then, we will delay ratification by those ten countries, which could delay its ratification by years. The agreement is particularly important for the new eastern European countries. Many of these have very different work practices in their airlines and do not have modern aircraft fleets. It is important that they ratify the agreement when they join the EU.

Under the Montreal convention, the overall liability of carriers for passengers has been greatly increased from what was established under the Warsaw convention. Compensation for death of a passenger has been raised to approximately €120,000 compared to the €25,000 awarded by non-EU carriers. The upper limit for damages for accidents is removed and the range of jurisdiction for which claims for damages may be brought has been extended. This Bill provides for a maximum fine of €520 per kilogram for lost or damaged baggage. It also clarifies the duties and obligations of carriers in respect of passengers' baggage and places responsibility on them to prove they were not negligent in handling baggage. This means the passenger no longer has to prove the fault is the carrier's, which is important.

As I said earlier, many passengers travel on low cost airlines and other carriers. Baggage can get damaged on conveyor belts. After a recent flight my suitcase was saturated when I got it back — it must have been left in the rain. This issue is particularly important when one is transferring from one flight to another.

The most crucial part of the terms of the convention is the extension of jurisdiction. This will make it easier for passengers to take legal action against a carrier for damages. Under the Warsaw convention, action could only be brought in the place of business of the airline, the place of accident, the point of origin or destination of a flight. If an incident occurred during a long haul flight one could encounter problems due to possible language barriers and so on.

The Montreal convention allows action to be taken in the place of residence of the passenger. I welcome this development, especially when one considers the frequency with which people take connecting flights. It is important that one can take an action in one's own country. Many people travel through Heathrow Airport because of the broad range of flights available from this airport, which can give rise to problems with flight connections due to the airport's four terminals. Reports frequently tell of luggage being delayed or arriving with some articles missing.

The Montreal convention will not only benefit those travelling with EU carriers, but also EU citizens who fly with non-EU carries. EU carriers have high levels of cover, up to €1 billion, but many carriers from non-EU countries have cover for considerably less than this. The EU Commission has brought forward this proposal to ensure that a harmonised global approach to insurance prevails. The regulation will apply to all EU and non-EU carriers and operators that fly into EU airports or use EU airspace. All such carriers will be required to have specific minimum levels of insurance for passengers, baggage, mail, cargo and third parties.

Current regulations require aircraft and aircraft operators simply to have insurance, but do not specify the actual amounts of insurance. The existing recommended amounts are relatively low compared to that held by most carriers in EU member states. The levels of insurance will depend on the maximum take-off weight of the aircraft and insurance must include cover for acts of war or terrorism. Given the age we live in, that is important.

Ratification of the Montreal convention will expand the higher liability limits worldwide, thereby ensuring significant benefits for passengers travelling with non-EU airlines. The Bill will not be a hardship on our airlines, as both Aer Lingus and Ryanair already meet the proposed levels of insurance. Thankfully, they both have an excellent safety record to date and this regulation will not present difficulties for them. The level of insurance cover for Irish-registered airlines is substantial and is well above the levels specified in the new regulation.

Non-EU aviation carriers operating in Ireland are currently regulated by the Department of Transport. The implementation of this regulation is not expected to have significant implications for the Department. The Irish Aviation Authority, IAA, will be responsible for enforcement in the area of individual aircraft licences. More importantly, this legislation will ensure that sufficient funds will be available to meet the compensation costs of an accident in Ireland involving EU and non-EU carriers from any of the states which are party to the convention in Ireland. To avoid complications and ensure that the Montreal convention works, it is imperative that the Bill is passed before 1 May.

The proposals outlined in the Montreal convention promote greater co-operation between airlines, Governments and passengers. The implementation of more strict standards for airlines will result in greater diligence in their everyday operations and a more careful checking of baggage. Airlines will be more prepared to deal with passenger complaints as well as more willing to work together to ensure the overall satisfaction and safety of the individual passenger, which has to be at the heart of the business.

The aftermath of 11 September 2001 and the Madrid bombings gives rise to increased fears of terrorist threats. Flights to the US from Europe are cancelled on a regular basis. Recently, flights to Washington were cancelled from Heathrow and flights to Los Angeles were cancelled from Paris. While the bombings in Madrid affected the train network, it has had negative effects on tourism and the number of people travelling in general, both by rail and airplane. It is important that the necessary security is provided for all travellers. I am aware that the Minister is examining security on the train network, which is important. Airlines and Governments must work together for the well-being of passengers whose safety must be of primary concern. Without such provisions as those specified in the Montreal convention and in the absence of increased co-operation between carriers throughout the world, passengers will not be able to regain the confidence that has been lost as a result of the horrific actions of a few individuals.

While I have outlined many of the positive aspects of the Bill, a few areas still remain which I urge the Government to examine. I am concerned about the issue of ticketless flights. These days, most people have a computer at home. Aer Lingus stated that 50% of its business is done on the Internet and the figure for Ryanair is higher still, up to 80% or 90%. The Bill does not sufficiently address the possibility of confusion arising in this regard. How can a person prove his or her right to a seat on a plane in the case of a ticketless flight. This matter needs to be examined. In the US someone who has booked a flight electronically can approach the counter, punch into a machine and get his or her seat allocated. The same technology will be used across Europe in due course. That is something about which I am concerned as it is occurring regularly, especially in low-cost airlines.

I hope that airlines make customers aware of their rights under the convention. I am aware that many of these rights are in the small print and that most people do not read them. A customer has to make a claim within 21 days. Many passengers are fed up with the attitude of the airlines and sometimes they just give up on a claim. For example, when a customer calls these airlines, be it at home or abroad, he or she is put on hold and advised that the call will be answered in strict rotation. The customer is kept waiting until eventually he or she gives up in frustration. If it happens at home the problem is not too severe but if it occurs abroad then the customer has to deal with the language barrier and the high cost of calls. This can get confusing, frustrating and it should be examined.

In my own area of County Clare, Shannon Airport is used by military all over the world and not just the US military. Why does the Bill not contain provisions covering the difference between accidents involving commercial and non-commercial flights? If an accident at a military air show happens in an airfield, I am sure that those involved are covered by an insurance policy. Does the Bill cover the possibility of an accident happening outside the airfield and the attendant insurance problems? The Minister believes that there is a difference between state airlines and commercial airlines. The public should have assurances that the military should be held to the same level of accountability as commercial flights. It is not that long since there was an accident involving a US military plane which cut through a cable car in Switzerland. Many died in that accident. It is therefore important that people are protected in that respect. This is especially the case as there are many military flights which operate from Ireland and this issue should be included in the Bill.

I would like to address the current air agreements between the EU and the US. The US is anxious that this Bill is ratified before any agreement is completed between the EU and the US. The Commission has assured the US that the Bill will be ratified before enlargement takes place. I have to commend Aer Lingus on its operating profits this year which were up 30% to €83 million, far ahead of its target of €75 million. Its turnover fell by just over 7% to €888 million, which was largely due to the fact that Aer Lingus has cut its fares to become a low-cost airline. However, I am disappointed with the reaction of Aer Lingus when it decided to push ahead with cost-cutting measures to keep driving fares down. How much more cost-cutting can the workers take? A sum of €83 million is a solid profit by any standards. Despite the Iraq war, the transatlantic routes recorded an increase in passenger numbers of 19.4% to 1.1 million. Aer Lingus also carried 2.1 million passengers on its European routes.

I am aware that it is planning 13 new routes this year to Europe which include Berlin, Venice, Bilbao, Valencia, Lyon, Zurich, Dubrovnik and Warsaw. Shannon Airport was the only airport that suffered after 11 September 2001. Aer Lingus should consider some routes out of Shannon to continental Europe but I do not believe it will do so, given the comments made recently by Mr. Willie Walsh. He claimed that Aer Lingus has been restricted by the current US agreement. He stated that he would like to open five new destinations to the US but he is required to serve Shannon and Dublin on an equal basis. That statement is quite worrying for the future of Shannon Airport as he seems frustrated by the current arrangement. He hopes to grow the transatlantic business, provide additional low-cost fares and provide five new routes; Dallas, Philadelphia, Florida, San Francisco and Canada. I gather that these routes could all be out of Dublin. Looking at the pattern of job lay-offs and other cabin crew problems, I believe that Aer Lingus is consolidating its business out of Dublin to prepare for privatisation in the long term. I am disappointed given that Aer Lingus has been the backbone of Shannon Airport over the last 60 years. It has had excellent relations with people in the west of Ireland and the mid-west area in particular. There has been a gradual erosion of services out of Shannon since 11 September 2001 and it looks like Shannon will again be the big loser in 2004. For instance, flight EI 111 is now operating out of Dublin. That means that there will be less passengers coming through Shannon Airport because the percentage of the flights will be sold out of Dublin. The Boston flight that operated seven days a week last summer, EI 135, has been reduced to five days a week. This is occurring despite the fact that the flight was overbooked throughout the summer season and passengers had to stay overnight in Shannon. I do not know what is the agenda of Aer Lingus when it reduces the Boston flight from seven to five days a week. There is also the case of the American company, Crystal Travel, which was instructed by Aer Lingus to sell seats out of Dublin before Shannon. Aer Lingus should consolidate its existing routes out of the US. It currently has five routes into the US. It should be doing much more marketing. It is obvious that it is not doing sufficient marketing in the east coast. Looking at the 2004 schedule, there are just two flights a day from Shannon and Dublin to the US when there should be at least another flight for the summer period. US Air, which came into Shannon Airport last year, had 94% occupancy on its flights, which was based on successful marketing and a good hub route. It is worrying that this year there will be 48 additional charter flights into Ireland, organised by travel agents and operators in America. More charter flights are coming into Ireland this year because operators in America believe there are not sufficient scheduled flights to Ireland from the US. I am aware of this from talking to passengers who cannot get a flight out of Shannon on a particular day because there is just one flight. Many tour operators operate US flights out of Heathrow Airport. Aer Lingus is losing revenue as a result, which is frustrating.

It is worrying that charter flights are replacing scheduled flights, rather than Aer Lingus consolidating its existing routes. There are many Irish-Americans on the east coast, therefore, Aer Lingus should operate more flights to Boston, New York and other east coast areas. Florida as a destination is open all year round. Obviously flights to the mid-west, particularly to Dallas, where there are adverse weather conditions throughout the winter, will be just a seasonal business. Aer Lingus needs to consolidate its business.

The charter flight service is worrying. The Minister should encourage Aer Lingus to operate more scheduled flights in existing routes. The Bill refers to the code-sharing practice of airlines. Aer Lingus code-shares in the One World Alliance with American Airlines. Could it code-share with other US carriers, particular in the other hubs? I know there is a problem with carriers in America where it is probably given just so many seats. Perhaps it could code-share with other US carriers such as Delta, US Air or North West who have hubs all over the US, whether in Detroit or Memphis.

I worry about the cabin crew dispute. Despite its huge profits, workers in Shannon are being sacrificed as a result of the latest cuts by Aer Lingus. Given the wages and family commitments, it is not practical to expect people to transfer to Dublin. I condemn this move by Aer Lingus, particularly given that it made a profit of €83 million. It flies in the face of the Government's decentralisation programme whereby employees of other State bodies are being asked to move to the country on a voluntary basis. Aer Lingus employees are being asked to move to Dublin on a compulsory basis.

I hope the Minister will take on board my views. I welcome the Bill which I hope will have a speedy passage through the House.

Mr. Shortall

I welcome the Bill. From the Labour Party's point of view, we are happy to facilitate its quick passage through the House over the next couple of weeks.

However, I take issue with the manner in which it has been handled. While Ireland signed the Montreal convention in 2000, it is incredible that it has taken up to four years to ratify it and to introduce legislation. It is even more surprising it has taken so long given the deadline of 1 May. All of us accept it is important that the deadline is met and that the convention applies to existing member states and the accession states. It will apply automatically, provided it is passed before 1 May. While I do not think anyone wishes to obstruct that intention, I would like to know why it has been left to the last minute. We have had four years to deal with the matter and I do not see why it was not possible to introduce legislation before now without putting people under pressure to debate and finalise it.

The transport committee met at 2.30 this afternoon. There was a telephone call from an official of the Minister's Department notifying the clerk to the committee that the Bill had been referred to the select committee before Second Stage had even started. We were asked to deal with Committee Stage by next Wednesday, 31 March. It is an indication of the rushed approach to the legislation, which is not good practice. Given that we have had almost four years to deal with the issue, it would have been better if it had been handled in a more considered and slower manner.

I welcome the legislation, which ratifies the 1999 Montreal convention. That convention is to be welcomed because it restates the Warsaw convention and subsequent amendments, and consolidates all these provisions into one Bill. It provides for common rules and liability for the carriage of passengers, cargo and baggage. The eventualities of damage, delay or loss were adequately covered in the conventions. The Montreal convention provides a major improvement in the reliability regime provided in the Warsaw convention. I welcome the related instruments on passenger rights in the event of an accident. The convention holds carriers liable for damages up to 100,000 special drawing rights. It removes the upper limit on damages for victims of accidents. It provides for advance compensation payments where immediate expenses occur, which is important. People can find themselves in a very distraught situation, very often abroad, where there is an immediate need for cash in order to pay for immediate expenses. There is provision for that kind of advanced payment, which is welcome.

It also extends the range of jurisdictions to which the convention applies. At a time when there is an increasing number of code-share arrangements, it is important that it clarifies the obligations and duties of carriers involved in such arrangements. In regard to the carriage of cargo, the legislation provides for a modernising of the system of documentation. It will make it easier for passengers to bring actions in their home state, providing the carrier concerned operates into or out of that state. If a claim can be processed through one's home state, it makes it much easier in terms of potential language barriers, access to one's established legal advice and the use of domestic courts, which is a welcome provision.

This is, by and large, a technical Bill. It is not open to us to amend any of the Schedules to the Bill or to amend the convention. The Bill itself is very short. The Labour Party will table a number of technical amendments where there are difficulties. There are just 11 sections but there are difficulties with approximately four of the sections, some of which are minor. In section 1 there is no reference to the existing air navigation Acts, an omission that should be rectified. Section 2 is meaningless, it merely restates the long title of the Bill and it should be removed.

There are provisions for the making of ministerial orders in sections 6 and 9 and I am concerned that there are no controls over those orders. It should be necessary for the Minister of the day to lay those orders before both Houses and, ideally, there should be an opportunity to debate them. There is no such provision in the legislation as it stands and that weakens it.

It is strange that in both of those sections there are references to the need to give notice of orders by publishing them in Iris Oifigiúil. That requirement already exists under the Statutory Instruments Acts and I am not sure why it has been restated in this Bill. The only conclusion I can draw is that it is intended to diminish the provisions of the Statutory Instruments Acts. It is either superfluous or there is another reason for this and I would like to hear an explanation for the reference to Iris Oifigiúil.

The Minister referred to section 5 in his own speech, stating that there might be inconsistencies between the English language text and the text in French. In that situation, the exact provisions of the French text will prevail. If that is the case, why is the French text not provided as a Schedule to the Bill? The section states that the French text prevails and the French text of the provisions is deposited in the archives of the Ministry of Foreign Affairs of Poland. It is ludicrous that such a situation could exist. A person would not want to be in a rush to obtain the French text if he or she has to go routing through the archives of the Ministry of Foreign Affairs of Poland. It would have been much easier to attach the French text as a Schedule to the Bill or at least to lay it before both Houses in the Oireachtas Library. That should be addressed because we should deal with it in a more practical way.

Apart from that, I have no difficulties with the legislation. This is a straightforward, technical Bill and the Labour Party is happy to co-operate with its swift passage.

Mr. Eamon Ryan

I wish to share time with Deputies Crowe and Connolly, members of the two wings of the Technical Group who will assist the fuselage.

Acting Chairman (Mr. Sherlock)

Is that agreed? Agreed.

Mr. Eamon Ryan

I agree with Deputy Shortall that it would be entertaining to see the Minister scurrying over to the archives of the Polish Ministry of Foreign Affairs.

All parties support this Bill and I cannot see Committee and Report Stages being contentious. I will comment, however, on how we deal with this legislation. I looked at the manner in which the British handled the passing of this Bill. The British Department of Transport, Local Government and the Regions decided not to secure parliamentary time for the primary legislation but to amend the 1961 Act by affirmative secondary legislation. Perhaps the Minister will tell us in his reply if this might be possible in this case. There is a difficulty with Bills coming through the House that we cannot amend because they are tied to international conventions. It should be easy to find a mechanism agreed by the parties where non-contentious legislation would not use up valuable parliamentary time unnecessarily. The process of parliamentary debate is useful, it allows us to raise faults in legislation that would otherwise escape attention and I would never denigrate our fundamental role as legislators. However, with certain Bills, particularly those with a deadline, we might look to the example of Britain where this was achieved by affirmative secondary legislation, and see if we could follow a similar model. If not, I would not have a problem but it would be interesting to see if we could have dealt with this legislation in this way.

I broadly welcome this Bill and the Minister accurately reflected what it will achieve. The replacing of the Warsaw convention, which largely focused on the needs of the developing international airline industry, with the Montreal convention, which is more focused on consumer interests, is welcome. We should be able to pass this before 1 May, allowing the accession states to become party to it. I doubt people will be dancing in the streets on 1 May to U2 because we have passed the air navigation Bill but this House should be able to pass it by then.

The provisions in Article 57 of the convention allow state aircraft, particularly military aircraft, to be excluded under the terms and conditions of the convention. I am surprised to see that we are including this as a possibility because only three other countries that have passed the Bill have applied this article — the United States, Canada and Japan.

I echo Deputy Pat Breen's concern, given the dramatic increase that has taken place in recent years in military traffic over Ireland and landing at Shannon Airport, about the provisions if there is a serious accident involving such foreign military aircraft which are exempted under the provisions of this convention. The Minister knows the figures — there were 3,691 foreign military over-flights in the last year, up from 2,460 in the previous year and only 1,770 the year before that. We are seeing a massive increase in the use of Irish airspace by foreign air forces. This year ten American divisions, 120,000 troops, have used Shannon Airport as their base in transit on the way to Iraq. Given such volumes the chances of an accident occurring are increasing significantly. What provisions are there if there is an accident involving a US, Japanese or Canadian military aircraft over-flying Ireland or if there is loss of life on the aircraft or on the ground? What consequences and liabilities would arise?

Will the Minister outline the circumstances in which this State would apply this? Why, of all the 50 countries that have signed up to this protocol, have only three opted to use Article 57 to exempt military and state flights? In what circumstances would we apply the provisions of the article? We now have good international co-operation in aviation. While doing some research on the regulation of international shipping recently, it struck me that there is an astonishing lack of regulation in this area, with flags of convenience being used in many cases to remove the obligation to abide by standards, including international and local labour standards. While I welcome the Bill as a good example of international co-operation in action, I regret it is not in place in other areas of the transport sector which have an international dimension.

To follow up on the military issue, this is a good example of how international co-operation can work and the international community can do its business. Many of the problems and issues we face, whether in protecting consumers, the environment or our economy, must be addressed on an international basis. It is ironic that the United States Government, under President Clinton, gave the convention legal force when it became the 30th state to sign it, given that the US has been extremely remiss in failing to sign and support the Kyoto agreement.

As regards Deputy Pat Breen's comments on the development of our aviation industry and the possibility of flights from every Irish airport heading in every direction, we need to recognise the massive environmental costs involved in high speed aviation. The damage being done by aircraft at a high stratospheric level, which has been recognised by a royal commission established by the United Kingdom Government to investigate this issue, will have massive consequences in terms of global warming. These will impose a limit on the development of the aviation industry and this should be acknowledged in every discussion of the sector.

Mr. Crowe

I am grateful for the opportunity to speak on the Bill. It is a welcome development in international air travel and Sinn Féin will support its broad parameters. The Bill will enshrine in Irish law the Montreal convention, which is designed to eventually replace the 1929 Warsaw convention.

It is amazing to consider the development of air travel in the 75 years since the Warsaw convention was signed. Back then, there were no jet engines, the notion of flying non-stop from Europe to Japan was inconceivable and travel by air was a far more hazardous choice than it is today when thousands of people fly through Irish airspace daily.

I note that the Government has taken the opportunity to restate the existing provisions of the Warsaw convention in order that the law operating in this area is contained in a single Act. This is a welcome convenience. The proposals set out in this legislation will have significant and positive benefits to passengers travelling on aircraft. The legitimate question which arises, however, is why it has taken so long to be introduced in the House.

In April 2001, the Council of Ministers met and considered the convention in Luxembourg. The Council welcomed the convention and the phasing out of the old Warsaw convention, describing the proposals as major and urgent steps for international aviation in general and, in particular, to promote the rights of air passengers. It also called on all EU member states to ratify the Montreal convention as soon as their national constitutional requirements permitted, with the aim of co-ordinated deposition of instruments no later than 31 December 2002. It is three years since that Council meeting and 15 months since it requested that the convention be ratified, yet the House is only now examining the relevant legislation.

It is safe to say there are few serious objections to this legislation, which has been universally welcomed in this House. As I have no doubt the Opposition will facilitate its swift passage, I am a little curious as to the reason it has taken so long to reach this point, given that the Government signed the convention in 2000.

If the Bill before us was more controversial, it would have been better practice to have more time for debate instead of rushing it through to make a deadline of 1 May, which appears to be one of the central arguments advanced in favour of the last minute rush of this legislation. We are told that if ratification is completed by all EU member states before 1 May, it will mean the Montreal convention will be automatically extended to the ten new accession states. While I can see the convenience of this approach, I would welcome clarification from the Minister as to whether the accession states were made aware of this or consulted or asked their opinion on the convention. As positive as the legislation is from our point of view, some of the new member states may have wished to extol its merits or demerits.

It has also become clear in recent months that, as Sinn Féin predicted in the context of the Nice treaty debates, the less than generous terms extended to the accession countries on entering the European Union have become gradually less generous in the intervening period. Rushing legislation through to ensure it can be ratified to apply to the new member states strikes me as extremely dubious practice, unless the Governments in question were thoroughly consulted beforehand. Will the Minister clarify whether this was the case?

The Montreal convention removes the upper limit the Warsaw system imposed on compensation claims by passengers involved in an accident. This is a significant and welcome change from the current, extremely low upper limit on damages of €16,600. It came as a surprise, however, to discover that, according to section 7, a limit of €20,000 will be set for damages claimed for mental distress. Since mental distress is not included in the Montreal convention, I can only assume that this is a specific limit imposed by the Government. If this is the case, it raises a number of serious questions. Why is the Government imposing such a limit when the upper limit for accident victims is being removed in the Montreal convention? Does it not appreciate the severe mental distress which can result from airline accidents? Does the Minister not accept that it is conceivable that someone involved in such an accident might never recover mentally from such a traumatic experience? We hear of the nightmares, cold sweats and insomnia from which some people involved in automobile accidents suffer. This would surely be multiplied in the case of an aircraft accident.

Why was the figure of €20,000 selected and on what basis? Did any outside consultation take place on the question of including a limit in the first instance or on its size? An upper limit for one type of injury does not appear to follow any logic. I would welcome an explanation from the Minister and I ask him to introduce amendments on Committee Stage to change this provision.

I am also concerned about section 8, which gives the Government power to make non-commercial state and military flights exempt from the terms and conditions of the convention, although I accept that the Government has indicated it has no plans to make flights of this nature exempt. For a neutral country, Ireland has a large number of foreign military aircraft flying overhead. These include warplanes and military transports moving through Shannon Airport as part of the illegal American war effort in Iraq which is being pursued with the support of the Government, and the occasional so-called accidental straying of British military aircraft and helicopters across the Border. In recent months, two Lynx helicopters crashed in the Six Counties and it was only through luck that nobody was injured or killed on the ground.

Although the Government has chosen not to exempt state non-commercial and military flights, is it aware of whether the United States and British Governments have exempted such flights from their application of the Montreal convention? While I understand the Rome convention deals with compensation for people on the ground in the event that such an aircraft were to crash, it would be of little use in current circumstances since it has not yet been ratified by a sufficient number of countries.

We must also consider the possibility of British or American military flights being involved in mid-air collisions with civilian aeroplanes. Will the Minister clarify whether military and non-commercial state flights carried out by foreign Governments in Irish airspace come under the scope of this legislation? Will he state what implications the convention has for Irish passengers who might be involved in a collision with flights of such a type or be killed or injured while on the ground in the event of a crash?

Debate adjourned.

Dáil Éireann debate - Tuesday, 23 Mar 2004