195Under the Warsaw regime there are analogies in contributory negligence. For example, in
Goldman v. Thai Airways International Ltd (1983) 3 All E.R. 693, it was held that a passenger is
not guilty of contributory negligence if he keeps his seatbelt unfastened through the .ight and
suffers injury when there is no sign given by the aircraft control panel to keep the seat belt on.
However, if a passenger removes a bandage or braces that he is required to keep on for an existing
injury and he suffers injury in .ight due to the removal of the support he would be found to have
contributed to the negligence resulting in his injuries.
196(1969) 2 N.B.R. (2d) 131 (S.C.A.D).
197Following the events of 11 September 2001, where civil aircraft were used as weapons of
destruction, aviation insurers gave seven days’ notice on 17 September that war risk third party
liability coverage according to policy terms applying to the write back coverage for war, hijacking
and other perils would be withdrawn. The most compelling reason for the cancellations was the
emergence of an exposure in terms of third party bodily injury and property damage that was
unquanti.able.
198See Report of the Special Group on the Modernization of the Rome Convention of 1952,
Montreal, 10–14 January 2005, SG-MR/1 at 1&2-4.
199See Report of the Special Group on the Modernization of the Rome Convention of 1952, Montreal,
10–14 January 2005, SG-MR/1 at 1&2-4.
200See Report of the Special Group on the Modernization of the Rome Convention of 1952,
Montreal, 10–14 January 2005, SG-MR/1 at 1&2-5.
With regard to insurance, the new draft Convention contains two signi.cant
provisions, the .rst being Article 5 which has been already discussed, and provides that States rights and obligations may be suspended, at the request of the Council where acts of terrorism or unlawful interference may severely disrupt the availability of insurance. The second is Article 13 which is consistent with the requirement of Article 50 of the Montreal Convention of 1999, providing that States Parties require their Operators to maintain adequate insurance or guarantees in order to cover their liability under the Convention. As regards compensation, in keeping with Article 28 of the Montreal Convention, the new draft Convention, in Article 23, provides for up-front or advance payments to be made by the Operator in the event of death or injury caused to passengers and immovable property which is left uninsured, provided in both instances the national laws provide for such payments. The new draft Convention offers only one jurisdiction for adjudication, which is the territory of a State in which the damage occurred.
Article 25 provides that the Convention shall not apply to damage caused by State aircraft and that aircraft used in military, customs and police services are deemed to be State aircraft. The inclusionary text is similar to that contained in Article 3(b) of the Chicago Convention. The determination as to whether an aircraft is “used” in military, customs or police services is largely determinant upon a multiplicity of factors such as the nature of the cargo carried and whether such cargo comprises military, customs or police equipment; the ownership of the aircraft in terms of private or public/State ownership; persons carried; registration markings of the aircraft; and the purpose of and publicity given to the .ight inter alia.201
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