Act 148 CARRIAGE BY AIR ACT 1974
par izzaty hairudin
1. 5. Fatal accidents
1.1. Any liability imposed by Article 17 of the 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.
2. 6. Limitations of liability
2.1. (1) It is hereby declared that the limitations on liability in Article 22 of the Convention apply whatever the nature of the proceedings by which liability may be enforced and that, in particular—
2.1.1. (a) those limitations apply where proceedings are brought by a tortfeasor to obtain a contribution from another torfeasor; and
2.1.2. (b) the limitation for each passenger in paragraph (1) of Article 22 of the Convention applies to the aggregate liability of the carrier in all proceedings which may be brought against him under the appropriate law in force in the relevant part of Malaysia, together with any proceedings brought against him outside Malaysia.
2.2. (2) A court before which proceedings are brought to enforce a liability which is limited by Article 22 of the 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.
2.3. (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 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.
2.4. (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.
2.5. (5) References in this section to Article 22 of the Convention include, subject to any necessary modifications, references to that Article as applied by Article 25A of the Convention.
2.6. (6) In paragraph (1)(a) and in subsections (2) and (3) references to Article 22 of the Convention shall include, subject to any necessary modifications, references to Article VI of the Supplementary Convention.
3. 7. Time for bringing proceedings
3.1. (1) No action against a carrier’s servant or agent which arises out of damage to which the Convention 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.
3.2. (2) Article 29 of the 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 that Article applies after the expiration of two years from the time when judgment is obtained against the person seeking to obtain the contribution.
3.3. (3) Subsections (1) and (2) and Article 29 of the 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
3.4. (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.
4. 9. Power to exclude aircraft in use for military purposes
4.1. (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
4.2. (2) The Convention shall not apply to the carriage of persons, cargo and baggage for the military authorities of a State to which this section applies in aircraft registered in that State if the whole capacity of the aircraft has been reserved by or on behalf of those authorities.
5. 10. Actions against High Contracting Parties
5.1. (1) Every High Contracting Party to the Convention who has not availed himself of the provisions of the Additional Protocol at the end of the Convention shall for the purposes of any action brought in a court in Malaysia in accordance with Article 28 of the Convention to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which any action is to be commenced and carried on; but nothing in this section shall authorize the issue of execution against the property of any High Contracting Party.
5.2. (2) The reference to Article 28 of the Convention in subsection (1) includes a reference to Article VIII of the Supplementary Convention.
6. 13. Act to bind Federal and State Governments
6.1. This Act shall bind the Governments of Malaysia and every State thereof.
7. 8. Contributory negligence
7.1. It is hereby declared that for the purposes of Article 21 of the 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.
8. 1. Short title, application and commencement
8.1. (1) This Act may be cited as the Carriage By Air Act 1974 and shall extend throughout Malaysia
8.2. (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.
8.3. (3) Section 11 shall come into force on such day as the Yang di-Pertuan Agong may by order certify to be the day on which the Supplementary Convention comes into force as regards Malaysia
9. 2. Interpretation
9.1. “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;
9.1.1. “court” includes (in an arbitration allowed by the Convention) an arbitrator;
9.1.2. “Minister” means the Minister responsible for civil aviation;
9.1.3. “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 international carriage by air performed by a person other than the contracting carrier, as set out in the Second Schedule.
10. 3. Convention to have force of law
10.1. (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.
10.2. (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.
11. 4. Designation of High Contracting Parties
11.1. (1) The Yang di-Pertuan Agong may by order from time to time certify who are the High Contracting Parties to the Convention, 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 as set out in the First Schedule, 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.
11.2. (2) Paragraph (2) of Article 40A of the Convention shall not be read as extending references to that Convention to the territory of a High Contracting Party (except such as are references to the territory of any State, whether a High Contracting Party or not) to include any territory in respect of which that High Contracting Party is not a party.
11.3. (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.
11.4. (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.
12. 11. Supplementary Convention to have force of law
12.1. (1) Subject to this section, the provisions of the Supplementary 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 Supplementary Convention applies, irrespective of the nationality of the aircraft performing that carriage
12.2. (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.
13. 12. Provision for applying Act to carriage which is not carriage to which the Convention applies and for giving effect to amendments of the Convention
13.1. (1) to carriage by air, not being carriage by air to which the Convention or the Supplementary Convention, or both, as the case may be, applies or apply, of such description as may be specified in the order, subject to such exceptions, adaptations and modifications, if any, as may be so specified
13.2. (2) Any order made under this section may contain such transitional and other consequential provisions as appear to the Yang di-Pertuan Agong to be expedient
13.3. (3) Any order made under subsection (1) or (2) shall be laid before both Houses of Parliament as soon as may be after it is made.
14. 14. Repeal
14.1. FIRST SCHEDULE - FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR
14.1.1. Article 1
14.1.1.1. This Convention applies to all international carriage of persons, baggage, or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
14.1.2. Article 2
14.1.2.1. (1) This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.
14.1.2.2. (2) This Convention shall not apply to carriage of mail and postal packages.
14.1.3. Article 3 - Section 1—PASSENGER TICKET
14.1.4. Article 4 - Section 2—BAGGAGE CHECK
14.1.5. Section 3—AIR WAYBILL
14.1.5.1. Article 5 - Article 16
14.1.6. CHAPTER III LIABILITY OF THE CARRIER Article 17- Article 30
14.1.7. CHAPTER IV PROVISIONS RELATING TO COMBINED CARRIAGE - Article 31
14.1.8. CHAPTER V GENERAL AND FINAL PROVISIONS Article 32 -40A
14.2. SECOND SCHEDULE
14.2.1. 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
14.2.1.1. Article I - Article X
14.3. THIRD SCHEDULE
14.3.1. PROVISIONS AS TO LIABILITY OF CARRIER IN THE EVENT OF THE DEATH OF A PASSENGER
14.4. FOURTH SCHEDULE
14.4.1. The Carriage by Air Enactment 1935 F.M.S. Enactment No. 6 of 1935. The Carriage by Air Enactment 1935 Johore Enactment No. 3 of 1935. The Carriage by Air Enactment 1935 Kelantan Enactment No. 5 of 1935. The Carriage by Air Enactment 1354 Kedah Enactment No. 6 of 1354. The Carriage by Air Enactment 1353 Perlis Enactment No. 7 of 1353.