Encyclopaedia of International Aviation Law: Volume 3 English and French Version Version Englaise Et Francaise 2013 Edition

Encyclopaedia of International Aviation Law: Volume 3 English and French Version Version Englaise Et Francaise 2013 Edition

by Philip Forsang Ndikum
     
 

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The four volumes of the Encyclopaedia of International Aviation Law are intended for students, lawyers, judges, scholars and readers of all backgrounds with an interest in Aviation Law; and to provide the definitive corpus of relevant national and regional legislation, including global aviation treaties and legislation to enable all readers without exception, to… See more details below

Overview


The four volumes of the Encyclopaedia of International Aviation Law are intended for students, lawyers, judges, scholars and readers of all backgrounds with an interest in Aviation Law; and to provide the definitive corpus of relevant national and regional legislation, including global aviation treaties and legislation to enable all readers without exception, to develop the background, knowledge and tools to understand local, regional and international Aviation Law in contextual fashion.

The first volume has a detailed text of country legislation, including national cases and materials whilst the second, third and fourth volumes focus on International Aviation Law Treaties, international cases and materials and Aircraft Refueling Indemnity (TAR BOX) Agreements.

Product Details

ISBN-13:
9781466994522
Publisher:
Trafford Publishing
Publication date:
05/30/2013
Pages:
1200
Product dimensions:
6.00(w) x 9.00(h) x 2.34(d)

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ENCYCLOPAEDIA OF INTERNATIONAL AVIATION LAW

CASES AND MATERIALS


By PHILIP FORSANG NDIKUM, SERGE-DELORS NDIKUM

Trafford Publishing

Copyright © 2013 Philip Forsang Ndikum
All rights reserved.
ISBN: 978-1-4669-9452-2



CHAPTER 1

Treaty of Montreal United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24 (5 March 2012)

Last Updated: 14 March 2012

Court of Appeal New South Wales

Case Title: United Airlines Inc v Sercel Australia Pty Ltd

Medium Neutral Citation:[2012] NSWCA 24

Hearing Date(s): 1 March 2011 & 18 October 2011

Decision Date: 05 March 2012

Jurisdiction:

Before: Allsop P at [1] Macfarlan JA at [103] Handley AJA at [104]

Decision: The Court orders:

1. Leave to appeal granted.

2. Applicant to file a Notice of Appeal within 14 days.

3. Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: WORKERS' COMPENSATION—passenger on board aircraft suffered injury during flight while landing in Texas—passenger employed by and in course of employment with respondent at time of injury—respondent made workers' compensation payments through insurer—whether respondent could recover payments from applicant pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(d).

CARRIAGE BY AIR—right of indemnity and contribution pursuant to Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Act"), s 37—whether two year time bar provision in Art 29 of Warsaw Convention and amending instruments ("Convention") made applicable in Pt IIIC of Act applicable—discussion of Art 17 and Art 24 of Convention—two year time bar not applicable to respondent's claim.

STATUTORY INTERPRETATION—consistency between Parts of statute—avoidance of unjust or capricious result—applicable principles in construing Australian Act derived from or based on international instruments.

PRIVATE INTERNATIONAL LAW—choice of laws—respondent not barred from bringing proceedings—right of indemnity and contribution created by New South Wales statute—Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 distinguished.

Legislation Cited: Acts Interpretation Act, s 15A

Carriage by Air Act 1932 (UK), Sch II

Carriage by Air Act 1935 (Cth), s 3, Sch II

Carriage by Air Act 1961 (UK), s 5(2)

Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 8, 9B, 9D, 9E, 9F, 11, 12, 13, 14, 21, 24, 25J, 25K,25L, 28, 34, 35, 36, 37, 38, 39, Sch 1, Sch 5

Constitution, ss 76(ii), 109

Convention for the Unification of Certain Rules for International

Carriage by Air done at Montreal on 28 May 1999, Arts 17, 18,19, 35

Convention for the Unification of Certain Rules Relating to

International Carriage by Air done at Warsaw on 12 October 1929, Arts 1, 3, 17, 20, 21, 22, 24, 29, 39(2)

District Court Act 1973 (NSW), s 127

Judiciary Act 1903 (Cth), ss 39(2), 79

Limitation Act 1963 (UK), s 4

Limitation Act 1969 (NSW), s 14(1)(d)

Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol Done at The Hague on 28 September 1955 done at Montreal on 25 September 1975 Protocol to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 done at The Hague on 28 September 1955, Art 29 Vienna Convention on the Law of Treaties (1969), Arts 31, 32 Warsaw Convention as amended at The Hague, 1955, and by Protocol No 4 of Montreal, 1975, Arts 1, 3, 17, 18, 19, 20, 21, 22, 24, 29, 30A Workers' Compensation Act 1926 (NSW), s 64(b) Workers Compensation Act 1987 (NSW), ss 151Z(1)(d), 9AA

Cases Cited: Adan v Secretary of State for the Home Department[1997] EWCA Civ 1007; [1997] 1 WLR 1107

Adan v Secretary of State for the Home Department[1998] UKHL 15; [1999] 1 AC 293

Air France v Sté Méditerranéenne de Transit 1982 Revue Française de Droit Aérien 214 (Cour de Cassation Nov 1981) Attorney-General v Arthur Ryan Automobiles Ltd[1938] 2 KB 16 Australian Solar Mesh Sales Pty Ltd v Anderson[2000] FCA 864; 101 FCR 1

Benjamin v British European Airways [1978] USCA2 169; 572 F 2d 913 (1978 2nd CCA)

Chubb Insurance Co of Europe SA v Menlo Worldwide Forwarding Inc 634 F 3d 1023 (2011 9th CCA)

Cie d'Aviation Pakistan International Airline v Cie Air Inter 1981 Revue Française de Droit Aérien 143

Connaught Laboratories Ltd v Air Canada (1978) 94 DLR 3rd 586

Data General Corp v Air Express International Co676 F Supp 538 (1988)

El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999)

Fejo v Northern Territory [1998] HCA 58; 195 CLR 96

Felton v Mulligan [1971] HCA 39; 124 CLR 367

Fothergill v Monarch Airlines Ltd [1980] UKHL 6;[1981] AC 251

France Handling v Sabena 1982 143 Revue Française de Droit Aérien 345

Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516

Government Insurance Office of NSW v C E McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492

Gulf Air Company GSC v Fattouh [2008] NSWCA 225; 251 ALR 183

Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498

In re Mexico City Air Crash of October 31[1983] USCA9 859; , 1979 708 F 2d 400 (1979 9th CCA)

Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; 230 FLR 336

Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270

L B Smith Inc v Circle Air Freight Corporation 488 NYS 2d 547 (1985)

Magnus Electronics Inc v Royal Bank of Canada 611 F Supp 436 (1985)

Mitchell Shackleton & Co Ltd v Air Express International Inc 704 F Supp 524 (1989 SDNY)

Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457

Motorola Inc v MSAS Cargo International Inc 42 F Supp 2d 952 (ND Cal 1998)

NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52

Oriental Fire and General Insurance Co Ltd v Citizens National Bank of Decatur 581 NE 2d 49 (1991)

Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189

QBE Workers Compensation (NSW) Ltd v Dolan[2004] NSWCA 458; 62 NSWLR 42

R v Commonwealth Court of Conciliation & Arbitration; Ex parte

Barrett [1945] HCA 50; 70 CLR 141

Re McJannet; Ex parte Australian Workers' Union of Employees

Queensland (No 2) [1997] HCA 40; 189 CLR 654

Regie Nationale des Usines Renault SA v Zhang[2002] HCA 10; 210 CLR 491

Royal Insurance Company v Emery Air Freight

Corporation 834 F Supp 633 (SDNY 1993)

Sidhu v British Airways Plc [1996] UKHL 5; [1997] 1 AC 430

Smith's Dock Company v John Readhead & Sons[1912] 2 KB 323

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389;(1991) 31 FCR 100

South Eastern Sydney Area Health Service v Gadiry[2002] NSWCA 161; 54 NSWLR 495

Split End Ltd v Dimerco Express (Phils) Inc 19 Avi 18,364 (1986 DCNY)

Ste Roissy Fret v Ste Scandinavian Airlines Systems France 1984 38

Revue Française de Droit Aérien 442 (Cour de Cassation)

The Paquete Habana [1900] USSC 8; 175 US 677(1900)

Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321

Tooth & Co Ltd v Tillyer [1956] HCA 49; 95 CLR 605

Turner v George Weston Foods Ltd trading as Tip Top Bakeries (Newcastle); Turner v George Weston Foods Ltd [2007] NSWCA 67

Victorian WorkCover Authority v Esso Australia Ltd[2001] HCA 53; 207 CLR 520

Watson v The Council of the City of Newcastle[1962] HCA 6; 106 CLR 426

Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207

Workcover Queensland v Amaca Pty Ltd [2010] HCA 34; 241 CLR 420

Workers' Compensation Board of Queensland v The Nominal

Defendant (Qld) [1989] 1 Qd R 356

Texts Cited: G N Calkins "The Cause of Action under the Warsaw Convention" (1959) 26 Journal of Air Law and Commerce 217 and 323

R Gardiner Treaty Interpretation (Oxford 2008)

A F Lowenfeld and A I Mendelsohn "The United States and the Warsaw Convention" (1967) 80 Harvard Law Review 497

R H Mankiewicz The Liability Regime of the International Air Carrier (Kluwer 1981)

Martin et al Shawcross and Beaumont Air Law (4th Ed Butterworths 1977)

McClean et al Shawcross and Beaumont Air Law (Loose leaf Butterworths LexisNexis)

The Oxford-Hachette French Dictionary (1984)

Category: Principal judgment

Parties: United Airlines Incorporated (Applicant)

Sercel Australia Pty Limited (Respondent) Encyclopaedia of International Aviation Law

Representation

- Counsel: R S McIlwaine SC (Applicant) M J Jenkins (Respondent)

- Solicitors: Blackstone Waterhouse Lawyers (Applicant) Moray & Agnew Lawyers (Respondent)

File number(s): 2010/55277

Decision Under Appeal

- Court / Tribunal:

- Before: Robison DCJ

- Date of Decision: 01 March 2010

- Citation: - Court File Number(s)855 of 2009

Publication Restriction:


JUDGMENT

ALLSOP P: On 8 September 2005, Mr Sandeep Arora, an employee of the respondent ("Sercel"), was a passenger on United Airlines flight UA716 from Sydney to Houston. He was on the business of Sercel. As the plane was braking after landing, he was hit on the head by a hard plastic or metal object that detached from the interior of the aircraft. Mr Arora also suffered neck and knee injury which he blamed on the event in question. This evidence was accepted by the primary judge. No issue on appeal was taken with the fact of injury or with the amount awarded.

Sercel made workers' compensation payments through its insurer. Sercel now seeks to recover those payments under the Workers Compensation Act 1987 (NSW) (the "1987 Act"), s 151Z(1), which relevantly is in the following terms:

"(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:

...

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)"


No action was brought by Mr Arora against the applicant ("United"). United submitted below and on appeal that Sercel's claim for indemnity is out of time by reference to the governing statute, theCivil Aviation (Carriers' Liability) Act 1959 (Cth) (the "Act"). The primary judge, Robison DCJ, rejected that contention. In my view, he was correct to do so for the following reasons. The action was for a sum under $100,000. Leave is required: District Court Act 1973 (NSW), s 127(2)(c)(ii). The matter is one of importance. Leave should be granted.


The governing legislation

There was no issue but that the flight in question was governed by theConvention for the Unification of Certain Rules Relating to International Carriage by Air done at Warsaw on 12 October 1929 (the "Warsaw Convention") as amended by the Protocol that was opened for signature at the Hague on 28 September 1955 (the "Hague Protocol") and by the Protocol done at Montreal on 25 September 1975 and called "Montreal Protocol No 4 to amend the [Warsaw Convention] as amended by the [Hague Protocol]" (the "Montreal Protocol"). The Warsaw Convention, the Hague Protocol and the Montreal Protocol are to be read and interpreted together as one single instrument that is set out as Schedule 5 to the Act. I will refer to the combined convention hereafter simply as "the Convention" and I will refer to the Warsaw Convention as amended by the Hague Protocol as the "Warsaw/Hague Convention". Part IIIC of the Act (ss 25J-25N) concerns carriage to which the Convention applies. In due course, it will be necessary to discuss provisions in other Parts of the Act; for the present, it is of assistance to set out relevant provisions of Pt IIIC and of the Convention.
(Continues...)


Excerpted from ENCYCLOPAEDIA OF INTERNATIONAL AVIATION LAW by PHILIP FORSANG NDIKUM, SERGE-DELORS NDIKUM. Copyright © 2013 Philip Forsang Ndikum. Excerpted by permission of Trafford Publishing.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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