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Where an operator fails to collect or remit contributions, the Director is empow-ered to take appropriate measures for recovery of the amount due.260 Each State Party is required to ensure that certain statistics and other data are provided to the International Fund; failure to do so could result in the liability of the State Party for
254
Article 18.3.
255
Article 18.2. 256A full list of the powers and duties of the COP is provided in Article 9.
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Article 12.
258
Article 14.3.
259
Article 14.
260
Article 15.2.
A. The Two Liability Conventions 105
any resulting shortfall in contributions.261 Where the damage was caused, or contributed to, by the claimant, or the victim, the operator or the International Fund is wholly or partially exonerated from the liability topay compensation.262
The operator has a right of recourse against any person who has committed, organized or .nanced the act of unlawful interference; and also against any other person. 263 Similarly, where the International Fund has made payments to claimants, it has a right of recourse against any person who has committed, organized or .nancedthe act;against the operator under the conditions established in Article 23; and against any other person.264 The Convention does not grant a plaintiff a right or recourse against an owner, lessor or .nancier of the aircraft which is not an operator, or against a manufacturer in certain circumstances.265
Another special and unique feature of the Convention is in a special remedy it offers. It provides that essentially, any action for compensation for damage to a third party due to an act of unlawful interference can only be brought against the operator or the International Fund subject to the conditions and limits of liability in the Convention. No claims by a third party shall lie against any other person.266
Finally, the Convention provides that it will enter into force 180 days after the deposit of the 35th instrument of rati.cation on condition that the total number of passengers departing in the previous year from airports in the States that have rati.edisat least 750,000,000as appears from declarationsmadeby these States.A State which has made an opt-in declaration for domestic .ights shall declare the total number of passengers that departed on international commercial .ights from airports in its territory in the previous year and that number shall be counted toward the 750,000,000.267
At the Diplomatic Conference the position of the airline industry with regard to this Convention was clear. In a paper submitted to the Conference the industry maintained that it was important to recognize that terrorists’ actions which cause damage to persons and property on the ground are aimed at governments, not airlines. It was also contended that in such instances, prompt compensation should be provided to third party victims on the ground in amounts that would likely exceed the assets of the airline involved and that a punitive approach to dealing with
261
Article 16.
262
Article 20.
263
Article 24. 264Article 25. Article 26 sets out certain restrictions on the rights of recourse.
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Article 27. 266Article 29. However, the exclusive remedy provision does not apply to an action against a person who has committed, organized or .nanced the act. There are other procedural provisions found in Chapter VII. Actions for compensation may be brought in a single forum only, namely, before the courts of the State Party where the damage occurred (Article 32, paragraph 1). Also, judgments entered by a court shall, when they are enforceable in the State Party of that court, be enforceable in any other State Party, although recognition and enforcement of a judgment may be refused under certain speci.ed circumstances (Article 34).
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Article 40.
the innocent airline victims of criminal or terrorist interference with their aircraft should be avoided; airlines, which are also victims of terrorism, shouldbe accorded the .exibility of strict but limited liability, capped at insurable amounts. Further-more it was claimed that if a government, with all of its resources, can fail to prevent a terrorist attack, then any industry failure should not result in punitive liability. The industry also maintained in its paper that industry bankruptcies should be avoided and jobs protected in the face of any terrorist atrocity.268 The paper admonished that if the Conference did not result in a Convention that provided a balance between compensating innocent third party surface victims and protecting innocent airline victims and other industry stakeholders against acts of terrorism, any other alternative wouldbea treatythatdid not have the supportof the aviation industry as a whole.269
　
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