The objects of the Bill are stated briefly in the explanatory memorandum circulated with the text. Under the provisions of the Air Navigation and Transport Act, 1936, the Warsaw Convention has the force of law in this country in relation to carriage by air between Ireland and other countries to which the Convention applies. In general terms, the Convention provides that when an accident occurring during international carriage by air causes death or injury to a passenger or damage to cargo there is a presumption of liability on the carrier. The Convention enables some compensation for death or loss to be obtained, without litigation. The contracting carrier's liability for each passenger under the Warsaw Convention was limited to 125,000 gold francs, approximately £3,000. Under the Hague Protocol to the Convention, which was given effect here by the Air Navigation and Transport Act, 1959, the limit was doubled to about £6,000. In any case, however, where wilful neglect or misconduct can be established against the carrier there is no limit to his liability.
The Warsaw Convention governs only cases where the contracting carrier performs the carriage and does not contain particular rules relating to international carriage by a person who is not a party to the agreement for carriage, such as, for example, the case where a passenger has made an agreement for carriage by one airline and that airline arranges for the passenger to be carried by another airline.
In order to cover cases of this kind, 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 was concluded at Guadalajara, Mexico, on 18th September, 1961. Under this Convention, if an actual carrier performs the whole or part of carriage which, according to the agreement of the contracting carrier with the passenger or consignor, is carriage subject to the rules of the Warsaw Convention, then he, as well as the contracting carrier, shall be subject to these rules. The contracting carrier, is subject for the whole of the carriage contemplated in the agreement, the actual carrier solely for the carriage which he performs. Section 2 of the Bill will apply the Guadalajara Convention to carriage between this country and other contracting states.
Section 4 of the Bill reenacts with amendments section 18 of the Air Navigation and Transport Act, 1936, which concerns the manner in which the liability imposed on the carrier by the Warsaw Convention in respect of the death of a passenger shall be enforceable and contains for the purpose of enforcement a definition of the expression "member of a family".
Section 18 of the 1936 Act was first amended by section 4 of the Air Navigation and Transport Act, 1959, to provide that in deducing any relationship, a person adopted under the Adoption Act, 1952, shall be considered a lawful child of the adopters and a person in loco parentis to another shall be considered the parent of that other. The Civil Liability Act, 1961, further amended and replaced section 18. This amendment was designed to bring the law in regard to fatal air accidents, as far as possible, into line with the general law governing fatal injuries. The Civil Liability Act, 1964, amended the general law for fatal injuries by repealing the provision in earlier Acts limiting claims for mental distress to three years. It is desirable to make the same provision in respect of air accidents. It is also necessary to take account of the Guadalajara Convention in the application of the section. Rather than introduce a series of amendments in the present Bill it is proposed to reenact the entire section as amended.
The Warsaw Convention, as amended by the Hague Protocol, can, by section 20 of the 1936 Act and section 8 of the 1959 Act, be applied to internal carriage as well as international carriage by air. It is desirable that internal carriage should also have the benefits of the Guadalajara Convention and section 5 of the Bill so provides.
The rationalisation of the present controls over commercial air services is one of the main purposes of the Bill. I must emphasise that the controls referred to regulate air transport from the commercial viewpoint only. The existing controls over the technical and operational aspects of aviation are not in any way affected by the Bill. For example, the regulations concerned with ensuring the safety of the public will continue to apply to all aircraft, whether or not those aircraft come within the scope of the Bill.
At present the Minister's powers in this matter derive from two measures. The first is the Air Navigation (International Lines) Order, 1935. This Order, which was made under the Air Navigation Act, 1920, was expressed to give effect to certain provisions of the 1919 Paris Convention on aerial navigation. Under the Convention each contracting State was to make prior authorisation a condition of the establishment of international airways on its territory. The Paris Convention has been superseded by the Chicago Convention of 1944 but the International Lines Order was continued in force under section 15 of the Air Navigation and Transport Act, 1936. There are, however, certain doubts as to the validity and efficacy of the Order in present day conditions and its replacement is desirable.
The Air Navigation and Transport Act, 1946, provided for the bringing into operation of and giving effect to the Convention on International Civil Aviation signed at Chicago in 1944. The Chicago Convention recognises that each contracting State has control of the air space over its territory and consequently proceeds to lay down that no scheduled international air services may be operated over or into the territory of a contracting State except with the special permission or authorisation of the State concerned and then only in accordance with the terms of such permission or authorisation. Contracting States, including Ireland, normally accord this permission or authorisation by way of bilateral air agreement with the State of Registry of the airline concerned.
Such agreements are based on the premise that the State has control and that the Minister for Transport and Power, acting for the State, may attach any conditions he thinks fit to permissions or authorisations for air services issued by him. It is thought desirable, therefore, at this stage, by enactment of the present measure, to put beyond doubt the State's control over air services to, from within or over its territory. It should perhaps be made clear that the intention is not to introduce any new or onerous restrictions on international aviation operations but to ensure that the State's powers are clear cut and unequivocal. It is proposed that this control will be exercised through the provisions of section 6 of the Bill in conjunction with sections 7 and 8.
The main control authorised by section 6 will be brought into operation on such day as the Minister may appoint by Order. This will afford sufficient time for the preparation and publication of the necessary Order under section 7 and authorisations under section 8.
Section 6 of the Bill restricts the operation of air services to, from, within or over the territory of the State unless the service is either covered by an order under section 7 of the Bill or by an authorisation under section 8. The services to be permitted by order under section 7 will include:—
(a) the type of services covered by our bilateral air agreements;
(b) flights for non-traffic purposes and overflights which may be operated by countries which, like Ireland, are parties to the International Air Services Transit Agreement which ensures between signatories automatic rights to overfly and make stops for non-traffic purposes; and
(c) the individual flights or short series of non-scheduled flights permitted by the Multilateral Agreement on Commercial Rights of Non-Scheduled Air Services in Europe.
These flights are all of a type covered by international agreement, either bilateral or multilateral. The list is not exhaustive; other categories of flights and extension of the present categories may arise in future. It would be difficult to delineate and keep up to date all categories of flights in the Bill; authorisation by Order seems, therefore, a more appropriate method of dealing with the matter.
In addition to the types of services to be covered by Order a number of air services of various kinds are operated such as charters, inclusive tours, casual non-scheduled flights etc. Control over such services is intended to be operated under section 8 of the Bill. Under this section the Minister may issue authorisations to operate one or more flights under such provisions and conditions as he thinks appropriate.
It is intended that the sections of the Bill which authorise control of international services will be used also for control over internal air services and over Irish aviation businesses. At present under section 84 of the Air Navigation and Transport Act, 1936, the Minister for Transport and Power may authorise the operation of internal air services only if they are carried on by one of the statutory companies— Aer Rianta or Aer Lingus or a subsidiary company—or by a person who is already authorised to establish an international air service, provided such international air service and the internal service are carried on with the same aircraft.
Conditions have changed to such an extent since 1936 as to justify repeal of section 84 and the introduction of the measures proposed in sections 6 and 8 of the Bill. This enables the Minister for Transport and Power in his discretion to grant an authorisation to any person to operate an air service within the State.
Apart from the categories of flights which I have already mentioned, there is in Ireland a certain amount of small aviation business which at present is carried on by virtue of licences granted under Part X of the Air Navigation and Transport Act, 1936. The work authorised under these licences falls into three categories (i) aviation private hire business; (ii) pleasure flights; (iii) instruction flights. Private flying as such is not subject to control under this part of the Act, neither is aerial photography or other such aerial work. It is most desirable that our legislation regarding the control of air space should be as compact and consolidated as possible and in view of the generality of sections 6 and 8 of the Bill, it is no longer necessary to retain Parts IX and X of the Air Navigation and Transport Act, 1936. It is proposed, therefore, to repeal these Parts and to cancel licences issued under Part X. Fresh authorisations under section 8 of the Bill will be issued to the holders of existing licences and the conditions and provisions attaching to the new authorisations will as far as practicable be in line with those attaching to the existing licences.
The definition of an air service in this Bill will exclude from the proposed controls private flying, executive type flying and aerial work generally as well as instruction flights. These excluded categories will, therefore, in future be subject only to the operational control exercised from a technical and safety aspect and will not require a special licence or authorisation under this part of the Bill. Part X of the 1936 Act contains provisions relating to applications for the grant and renewal of licences, attachment and amendment of conditions, commencement and duration of licences and other similar matters of detail. It seems more appropriate to deal with these matters of detail by means of regulations rather than by an Act of the Oireachtas and it is so proposed in the Bill. The fees to be charged for authorisations will be fixed in consultation with the Minister for Finance.
It has already been mentioned that under the Chicago Convention scheduled international air services may be operated over or into the territory of a contracting State only in accordance with the terms of the permission or authorisation given by the State concerned. Here also it is felt desirable, at this stage, to put the position beyond doubt by enacting sections 9 and 10 of the Bill. Section 9 gives the Minister power to fix by Order rates and fares charged on air services while section 10 gives him the right to approve or refuse to approve of the fares or rates proposed to be charged on such services.
I do not anticipate that the necessity for fixing rates for carriage of passengers, cargo or mail by Order will arise very frequently because the present method of fixing international rates is on the whole working satisfactorily. This method, which is set out in most of our bilateral air agreements, provides that the rates to be charged on the air routes governed by the bi-laterals shall be agreed by the designated airlines of the countries concerned. Agreement shall where possible be reached through the rate-fixing machinery of the International Air Transport Association (IATA). The rates so agreed must then be submitted for approval to the aeronautical authorities of the countries concerned. If agreement is not reached the aeronautical authorities themselves shall try to determine the tariffs. If the aeronautical authorities fail the matter can be referred to arbitration appointed by the parties themselves or in the final analysis by the International Civil Aviation Organisation.
As I have indicated, the present method of fixing international air fares and rates, through the IATA machinery, has on the whole worked quite satisfactorily. As I have already stated, the IATA arrangements insofar as they affect transport to or from Ireland are subject to my approval. In these circumstances, it is not likely that use will often be made of the rate fixing powers in the Bill to control scheduled airline operations unless IATA fails to agree on rates. The fixing powers will of course also be applicable to non-scheduled operations and to non-IATA airlines, so that if necessary, control of these rates, which are not at present subject to any special control, can be effected.
Sections 11, 15 and 16 of the Bill provide for the making of regulations for the keeping of records and statistics, the production and inspection of these records and the submission of extracts, copies and summaries. I think Senators will agree that these provisions are desirable.
Sections 12 and 13 of the Bill provide for penalties and detention of aircraft. There are two types of penalties, administrative and legal. Administrative penalties can take the form of revocation or suspension of the traffic rights of the airline concerned. The advantage of this type is that it is efficient and can be implemented at once. The disadvantage is that it is on occasion too strong a sanction and may not then be enforceable in that it would mean an unfair punishment on the travelling public. Legal penalties as provided in section 12 of the Bill include fines and/or imprisonment. On summary conviction the fine proposed in section 12 is £100 or imprisonment for six months or both. On conviction on indictment the money penalty is raised to £1,000. These sums are, of course, small as far as airlines are concerned; a more real deterrent is the power of detention of aircraft under section 13 of the Bill. The ultimate sanction would, of course, be denunciation of the bilateral agreement with the country of registration of the air operator concerned.
This Bill relates to commercial aviation only and therefore proposes to exclude State aircraft from its scope. The Minister for Transport and Power may, however, by Order, direct that such provisions of the Bill as may be specified in the Order shall apply to State aircraft. A similar provision appears in the 1936 Act, and it is desirable to repeat it here.
The usual provision regarding the laying of Orders and Regulations before both Houses of the Oireachtas applies to all Orders and Regulations made under this Bill.