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The Committee placed on record its view that the 1933 Rome Convention’s de.nition of “in .ight” caused consider-able dif.culty, along with its concern with regard to the double system enforced by the Convention of a ceiling of 2,000,000 francs on liability which was made unlimited for gross negligence or wilful misconduct on the part of the operator or his servants or agents or if the operator has not furnished adequate security in accordance with the Convention to cover his liability.139
The Legal Committee suggested that a new Convention should raise the liability of the operator to 6,000,000 francs.
The ICAO Air Transport Committee (ATC), at the 14th Session of the Council, in December 1951, considered a draft Convention developed by the Legal Committee at its 7th Session in Mexico City. The ATC noted that the Mexico City Draft Conven-tion, like the original 1933 Rome Convention, attempted to regulate the liability of aircraft operators to persons on the surface who sustained injury, death or property damage as a result of aircraft accidents involving foreign aircraft. The ATC noted that the Legal Committee wished States to balance legitimate interests of aircraft opera-tors engaged in international air transport against those of the general public who may suffer as third parties in accident involving foreign aircraft.140

It was recognized that the operator needed protection against the risk of cata-strophic loss and the draft Convention (1952) accorded him this protection by providing that in no one accident shall his liability to third on the surface exceed a certain maximum .gure. On the other hand, it was also noted that the third party on the surface needed the assurance that in accidents in which he suffered loss, he would be able to recover, with a minimum of litigation, the full amount of his damages. The courts gave him this assurance by:
(a)
Allowing him to sue where the damage occurred

(b)
In certain cases a right of direct action against the insurer

(c)
Taking from the operator the “no negligence” defence and ensuring adequate

141

recompense
Representatives of the aviation insurers expressed the view that the policy suggested in the Draft Convention, of making aircraft operators absolutely liable for damage to third parties on the surface, would likely have resulted in a substantial increase in claims and settlements142
and therefore the Legal Committee had
138Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 355.
139Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 357.
140AT-WP/247, 7/12/51, p. 3.
141AT-WP/247, 7/12/51, p. 4.
142AT-WP/224, 10 October 51 at 10.

except in four cases:
–  
When an aircraft was made use of without the consent of the owner

–  
When damage was a direct consequence of armed con.ict or civil disturbance

–  
When the operator was deprived of the use of the aircraft by public authority

–  
When the injured person was himself responsible for injury due to negligence or other wrongful act143

 

The Committee believed that the limits should not be set so high as to cause the cost of third party insurance to become an excessive burden to the development of air navigation. Furthermore, it was thought that the limits should be set high enough to cover compensation to third parties in all but extremely rare catastrophic circumstances.144

The basic issues regarding compensation (in chapter 3 of the Draft Convention) were whether the Convention should include provisions indicating that Contracting States would accept certain speci.ed proof that aircraft wishing to .y over their territory were adequately insured according to the terms of the Convention, proof to the effect that:
(a)
The operator was insured for the aircraft in question against his liability under the Convention.
　
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