General Risks Convention of 2009

Anna Tsirat, Doctor of Laws | JVS Law

An aircraft comes down on a populated area. Who answers to the people on the ground, and under which law if the aircraft is foreign? The Rome Convention 1952 answered that badly, and after 11 September 2001 ICAO set out to modernise it. The result was the Convention on Compensation for Damage Caused by Aircraft to Third Parties, adopted at Montreal on 2 May 2009 and known as the General Risks Convention.

Seventeen years on, it is still not in force. This page sets out what the Convention would do, why it stalled, and what governs third-party liability in Ukraine in the meantime.

Source: ICAO, Current List of Parties, Doc 9919. Twelve states in seventeen years, against the thirty-five required.

Scope. Damage on the territory of a State Party, caused by an aircraft in flight on an international flight. “In flight” runs from the moment all external doors close after boarding until they open for disembarkation — wide enough to cover mid-air collisions.

A definition of “third party” — for the first time. Not only persons on the surface, but passengers and crew of another aircraft involved in a collision, people at the aerodrome, and the aerodrome’s owners, administration and operators. Excluded: the operator, its own passengers, and the consignor or consignee of cargo aboard the aircraft that caused the damage.

Four heads of damage: death or bodily injury; mental injury, but only where it results from bodily injury or from the direct and unavoidable likelihood of death or injury; property; and environmental damage, to the extent the law of the State where the damage occurred provides for it. Only direct damage — consequential loss is out.

One defendant. The operator alone is liable. Owners, lessors and financiers holding title or security over the aircraft are expressly excluded — the point being to channel every claim to the party best placed to exercise rights of recourse. For lessors and lenders this exclusion is the Convention’s most commercially significant feature.

Two tiers, borrowed from Montreal 1999. Liability is capped by reference to the aircraft’s maximum mass if the operator proves the damage was not caused by its own negligence or wrongful act or omission, or was caused solely by a third person. Fail that proof, and liability is unlimited. Full exoneration applies where the damage resulted from armed conflict or civil disturbance, or from the claimant’s own negligence; partial exoneration follows the degree of contribution. This removal of the flat cap was the fix for the defect that kept the Rome Convention 1952 from being widely adopted.

Insurance. States Parties may require foreign operators to evidence adequate insurance or guarantee, on a non-discriminatory basis — no more may be demanded of a foreign operator than of a national one.

One forum. Claims lie only in the courts of the State Party where the damage occurred (Art. 16). The two-year limitation period survives; the Rome Convention’s six-month notice bar does not. Recognition and enforcement follow the Rome pattern, with refusal available for public policy, want of due notice, res judicata, fraud, want of standing, and punitive damages — the last because the Convention covers direct damage only.

Ukraine has neither signed nor ratified the Convention, so third-party liability on the surface is governed by general domestic law: Article 96 of the Air Code, which routes to the general delict rule in Article 1187 of the Civil Code, together with the compulsory aviation insurance rules.

The 2012 article criticised the minimum insurance limits then set by Cabinet of Ministers Resolution No. 1535 of 12 October 2002 — fixed in hryvnia, never revised, and eroded by the 40% devaluation at the end of 2008. That resolution was repealed on 20 December 2017 and replaced by Resolution No. 676 of 2017. The instrument changed; the underlying gaps — the regime for advance payments to victims, and how long documentation takes before an insurer pays — did not.

Practical consequence. For a foreign operator, lessor or insurer with Ukrainian exposure, there is no Convention-based channelling of claims and no Convention-based cap. Liability is assessed under Ukrainian delict law, and the exclusion of owners and financiers that the Convention would provide simply does not apply.

Tsirat A. V. The General Risks Convention of 2009 // Bulletin of the Academy of Advocacy of Ukraine. — 2012. — No. 3(25). — pp. 137–142. Full text in Ukrainian: original article (PDF, 6 pp.).