Civil Aviation Amendment Act 2004

37 New Part 9B inserted
  • The principal Act is amended by inserting, after Part 9A, the following Part:

    Part 9B
    Domestic carriage by air

    91U Interpretation
    • (1) In this Part, unless the context otherwise requires,—

      actual carrier means a person, other than the contracting carrier, who—

      • (a) performs the whole or part of the carriage contracted for by the contracting carrier with the authority of the contracting carrier; but

      • (b) is not, in relation to that carriage, a successive carrier

      aeroplane means a power-driven heavier-than-air aircraft deriving its lift in flight chiefly from aerodynamic reactions on surfaces that remain fixed under given conditions of flight

      carrier includes a contracting carrier and an actual carrier

      contract includes an arrangement made without consideration

      contracting carrier

      • (a) means a person who, as a principal, makes a contract for carriage with a passenger, or with a person acting on behalf of the passenger; and

      • (b) includes a successive carrier

      international carriage, in relation to carriage by air, means carriage in which, according to the contract between the parties, the place of departure and the place of destination, whether or not there is a break in the carriage or a transhipment, are—

      • (a) within the territories of 2 countries; or

      • (b) within the territory of a single country if there is an agreed stopping place within the territory of another country

      passenger means a person carried under a contract for carriage other than a person—

      • (a) assigned by the carrier for duty as a member of the crew of the aeroplane; or

      • (b) carried for the sole purpose of receiving or giving instruction in the control or navigation of an aeroplane in flight

      successive carrier means a person who performs part of the carriage if the carriage—

      • (a) is performed by 2 or more persons in successive stages; and

      • (b) has been regarded by the parties as a single operation, whether it has been agreed on by a single contract or by 2 or more contracts.

      (2) If any question arises as to whether or not an actual carrier has authority from a contracting carrier to perform any carriage, that authority is, in the absence of proof to the contrary, to be presumed.

      Compare: 1967 No 151 s 18

    91V Application of this Part
    • (1) This Part applies to any carriage by air (other than international carriage) in which, according to the contract between the parties,—

      • (a) the place of departure and the place of destination are both in New Zealand; and

      • (b) there is no agreed stopping place outside New Zealand.

      (2) Subsection (1) applies even if—

      • (a) the aeroplane in which the carriage takes place is at the same time engaged in international carriage; or

      • (b) the contract for the carriage of any passenger is made without consideration.

      (3) This section applies subject to section 91W.

      Compare: 1967 No 151 s 19(1)

    91W Exclusions
    • (1) This Part does not apply to any carriage by air by an aeroplane while it is being used solely for military purposes by the Armed Forces.

      (2) This Part does not apply to any carriage by air on a single flight in respect of which, according to the contract between the parties, the place of departure and the intended place of destination are the same.

      Compare: 1967 No 151 s 19(3), (4)

    91X Provisions if carriage performed by actual carrier—
    • (1) If the whole or any part of any carriage to which this Part applies is performed by an actual carrier,—

      • (a) both the contracting carrier and the actual carrier are subject to any liability imposed by this Part as follows:

        • (i) the contracting carrier is liable in respect of the whole of the carriage contemplated in the contract between the contracting carrier and the passenger; and

        • (ii) the actual carrier is liable solely in respect of the carriage that the actual carrier performs:

      • (b) the acts and omissions of the actual carrier, and of the actual carrier's servants and agents acting within the scope of their employment, must, in relation to the carriage performed by the actual carrier, be treated as also those of the contracting carrier:

      • (c) the acts and omissions of the contracting carrier, and of the contracting carrier's servants and agents acting within the scope of their employment, must, in relation to the carriage performed by the actual carrier, be treated as also those of the actual carrier:

      • (d) any special agreement under which the contracting carrier assumes obligations not imposed by this Part, or any waiver of rights conferred by this Part, does not affect the actual carrier unless agreed to by the actual carrier.

      (2) An act or omission specified in subsection (1)(c) does not subject the actual carrier to liability exceeding the limits specified in section 91ZC.

      Compare: 1967 No 151 s 20

    91Y Provisions if carriage performed by successive carriers
    • If carriage is performed or is to be performed by successive carriers, the contracting carrier who is liable is the successive carrier who performed or was to perform the carriage where the delay occurred.

      Compare: 1967 No 151 s 21

    91Z Liability of carrier in respect of delay
    • (1) A carrier is liable for damage caused by delay in the carriage of passengers.

      (2) Despite subsection (1), a carrier is not liable for damage caused by delay if the carrier proves that the delay—

      • (a) arose by reason of—

        • (i) meteorological conditions; or

        • (ii) compliance with instructions, advice, or information given by an air traffic control service; or

        • (iii) obedience to orders or directions given by a lawful authority; or

      • (b) was made necessary by force majeure; or

      • (c) was necessary for the purpose of saving or attempting to save life.

      Compare: 1967 No 151 s 25

    91ZA Avoidance of liability
    • The carrier is not liable under this Part if the carrier proves that—

      • (a) the carrier, or the carrier's servants or agents, had taken all necessary measures to avoid the damage; or

      • (b) it was not possible for the carrier, or the carrier's servants or agents, to have taken those measures.

      Compare: 1967 No 151 s 26

    91ZB Contributory negligence
    • If the carrier proves that the damage was caused, or contributed to, by the negligence of the passenger, the court may, in accordance with the Contributory Negligence Act 1947, exonerate the carrier wholly or partly from liability.

      Compare: 1967 No 151 s 27

    91ZC Limitation of liability
    • (1) The liability of the carrier in respect of damage caused by delay is limited to the lesser of—

      • (a) the amount of damage proved to have been sustained as a result of the delay; or

      • (b) an amount representing 10 times the sum paid for the carriage.

      (2) Despite subsection (1), the carrier may, by special contract, increase the amount of the carrier's liability under that subsection.

      (3) This Part does not affect any rule of law relating to remoteness of damage.

      Compare: 1967 No 151 s 28

    91ZD Contracting out
    • (1) A provision in a contract of carriage or in any bylaws made by a carrier purporting to relieve the carrier of liability, or to fix a lower limit than the appropriate limit of liability referred to in section 91ZC, has no effect.

      (2) The invalidity under subsection (1) of a provision in a contract of carriage or in any bylaws does not, by itself, make any other provision of that contract or those bylaws invalid.

      Compare: 1967 No 151 1967 No 151 s 30

    91ZE Wilful or reckless misconduct
    • (1) The limits of liability referred to in section 91ZC do not apply if it is proved that the damage resulted from an act or omission of the carrier done—

      • (a) with intent to cause damage; or

      • (b) recklessly and with knowledge that damage would probably result.

      (2) The limits of liability referred to in section 91ZC do not apply if it is proved that the damage resulted from an act or omission of the carrier's servants or agents done—

      • (a) with intent to cause damage; or

      • (b) recklessly and with knowledge that damage would probably result; and

      • (c) while the servant or agent was acting within the scope of that servant's or agent's employment.

      Compare: 1967 No 151 1967 No 151 s 31

    91ZF Servants or agents of carrier
    • (1) If an action in respect of any damage is brought against a servant or agent of a carrier, and the servant or agent proves that the servant or agent acted within the scope of the servant's or agent's employment or authority, the servant or agent is entitled to rely on the limits of liability, if any, that the carrier would be entitled to invoke under section 91ZC in an action against the carrier in respect of that damage.

      (2) Subsection (1) does not apply if it is proved that the damage resulted from an act or omission of the servant or agent done—

      • (a) with intent to cause damage or recklessly; and

      • (b) with knowledge that damage would probably result.

      Compare: 1967 No 151 s 32

    91ZG Aggregation of damages
    • The aggregate of the amounts recoverable from the carriers, and from their servants or agents acting within the scope of their employment who are jointly and severally subject to liability under this Part, must not exceed the limits referred to in section 91ZC.

      Compare: 1967 No 151 s 33

    91ZH Aggregate liability
    • The limitations referred to in section 91ZC apply to the aggregate liability of a carrier, or a servant or agent of a carrier acting within the scope of the servant's or agent's employment, in all proceedings that are brought against the carrier or servant or agent under the law of New Zealand, together with any proceedings brought against the carrier or servant or agent outside New Zealand.

      Compare: 1967 No 151 s 34

    91ZI Just and equitable orders and awards
    • (1) A court before which proceedings are brought to enforce a liability that is limited by this Part may, at any stage of the proceedings, make any order that appears to the court to be just and equitable in view of—

      • (a) the provisions of this Part; and

      • (b) any other proceedings that have been, or are likely to be, commenced in New Zealand or elsewhere to enforce the liability in whole or in part.

      (2) Without limiting subsection (1), a court before which proceedings are brought to enforce a liability that is limited by this Part may, if the liability is, or may be, enforceable in other proceedings in New Zealand or elsewhere,—

      • (a) award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court; or

      • (b) make any part of its award conditional on the result of any other proceedings.

      Compare: 1967 No 151 s 35

    91ZJ Tortfeasors
    • (1) The limitations on liability referred to in section 91ZC apply if—

      • (a) proceedings are brought by a tortfeasor to obtain a contribution from another tortfeasor; and

      • (b) the tortfeasor from whom contribution is sought is the carrier, or a servant or agent of the carrier.

      (2) Proceedings to which subsection (1) applies may not be brought by a tortfeasor to obtain a contribution from another tortfeasor after 2 years from the time when judgment is obtained against the tortfeasor seeking to obtain the contribution.

      (3) This Part does not affect proceedings brought against any tortfeasor (other than the carrier or its servant or agent).

      Compare: 1967 No 151 s 36

    91ZK Relationship between carriers
    • This Part does not—

      • (a) prevent a carrier from entering into special contractual arrangements with another carrier; or

      • (b) affect the rights and obligations of the carriers between themselves.

      Compare: 1967 No 151 s 37

    91ZL Limitation of actions
    • (1) An action may not be brought under this Part against a carrier, or a servant or agent of a carrier acting within the scope of his or her employment, after 2 years from the later of the following dates:

      • (a) the date of the arrival of the aeroplane at the destination; or

      • (b) if the aeroplane did not arrive at the destination,—

        • (i) the date on which the aeroplane ought to have arrived at the destination; or

        • (ii) the date on which the carriage stopped.

      (2) Despite subsection (1), application may be made to the court, after giving notice to the intended defendant, for leave to bring an action at any time within 6 years after the date on which the cause of action accrued as provided in subsection (1).

      (3) On application under subsection (2), the court may grant leave accordingly if it considers that it is just to do so and if it considers that—

      • (a) the delay in bringing the action was caused by—

        • (i) mistake of fact; or

        • (ii) mistake of any matter of law other than the provisions of this subsection; or

        • (iii) any other reasonable cause; or

      • (b) the intended defendant was not materially prejudiced in the defendant's defence or otherwise by the delay.

      (4) If the court grants leave under subsection (3), that leave may be subject to such conditions (if any) that the court thinks just to impose.

      (5) This section applies subject to the special provisions relating to tortfeasors in section 91ZJ.

      Compare: 1967 No 151 s 39

    91ZM Combined carriage
    • If a contract of carriage made with an air carrier provides for the carriage to be performed partly by air and partly by a mode of carriage other than by air, this Part applies only to the carriage by air.

      Compare: 1967 No 151 s 40.