paragraph 1.
228General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 2.2.
229General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 3,
paragraph 1.
limits of liability in the Convention,but it does not say that claims can be brought against the operator only. The owner, lessor or .nancier of an aircraft, not being an operator, is not liable under the General Risks Convention or under the domestic law of States Parties, so there wouldbe no interest in bringingclaims against these persons, but other potentially liable persons can be subjected to claims.230 It is also provided that the Convention shall enter into force 60 days after the deposit of the 35th instrument of rati.cation.
The quantum of liability of the Operator is based on the weight of the aircraft and ranges from 750,000 Special Drawing Rights (SDR) for aircraft having a maximum mass of 500 kg or less to 700,000,000 SDR for aircraft having a maximum mass of more than 500,000 kg.
At the Conference, the International Air Transport Association and its member airlines expressed their .rm belief that the proposed General Risks Convention is not necessary. Their contention was that the domestic laws of ICAO Member States have adequately dealt with major aviation incidents involving damage to third party victims on the ground. Aviation insurance for this type of damage has always been available, and the insurance industry has no record of leaving such claims uncom-pensated. Furthermore, it was claimed that the casualty rate as a result of third party damages has historically been extremely low.231
The manufacturers of aircraft had a much more serious complaint against the General Risks Convention. The Aviation Working Group (AWG)which is a group of manufacturers of aircraft and components and lessors contended that in the event of an accident, manufacturers shared an equal burden of liability as operators of aircraft and therefore, singling out operators in the Convention and capping their liability would give the operators more protection than the members of AWG. They further contended that the introduction of the operator’s cap fundamentally changed the balance of liability exposure between affected parties. Prior to that change, an operator was potentially liable to all third parties, with a broad recourse against other parties. Following that change, absent fault (for example, in a weather-related incident) an operator would be exonerated from liability above the cap. The AWG concluded that this imbalance has the effect of shifting liability and settlement risk to manufacturers in a number of cases, causing signi.cant, if unintended, potential adverse and unjust consequences.232
II. The Unlawful Interference Compensation Convention
The International Conference of Air Law also adopted the Convention on Compen-sation for Damage to Third Parties Resulting From Acts of Unlawful Interference
230General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 13.
231DCCD Doc No. 17, 17 April 2009.
232DCCD Doc No. 5, 27 February 2009.
A. The Two Liability Conventions 99
Involving Aircraft.233 (hereafter referred to as the Unlawful Interference Compen-sation Convention). Which imposes strict liability on the operator234 of an aircraft to compensate235 for damage caused to third parties within the scope of the Convention236 if that damage was caused by an aircraft in .ight.237 It will mainly
233DCCD Doc No. 43, 1/5/09. 234According to the Convention, “Operator” means the person who makes use of the aircraft, provided that if control of the navigation of the aircraft is retained by the person from whom the right to make use of the aircraft is derived, whether directly or indirectly, that person shall be considered the operator. A person shall be considered to be making use of an aircraft when he or she is using it personally or when his or her servants or agents are using the aircraft in the course of their employment, whether or not within the scope of their authority. The operator shall not lose its
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