Derek McDowell (Labour)

Indeed no. It is one of those frustrating Bills which sets out a convention the negotiation of which did not involve anyone in either House and which we cannot change. Nevertheless, it is a product of international negotiation over some years and improves conditions for passengers and cargo which is positive. This is necessary because the nature of international air travel has changed quite dramatically in recent years. It seems passengers feel the standard of service which they had come to expect is no longer available as of right and necessity. The emphasis in the past five or six years has been on low cost travel and no frills or low frills. Passengers now feel the most they can reasonably expect is to turn up, hope the flight is there and that they and their baggage arrive more or less on time at their destinations. Our expectations have diminished since ten or 15 years ago when air travel was regarded almost as a luxury to be enjoyed for its own sake. Now we take a more utilitarian view, namely to reach our destinations as quickly and cheaply as possible. In those circumstances it is important that there are standards and that there is an international body and convention or conventions that at least regulate basic standards of carriage. The Warsaw Convention sought to do that and the Montreal Convention now seeks to update it.

Others have set out the legal background to this Bill and I do not intend to repeat that. There are, however, some issues worth highlighting or exploring a little further. I read cursorily the two conventions as set out in the Schedules and the new Montreal Convention. There seems to be a significant improvement in the manner of dealing with liability which is crucial to the possibility of any passenger trying to enforce rights. One starts in a position of peculiar inequality between the parties concerned. If baggage is lost or an accident occurs, in most cases passengers have no idea how it happened. They may have checked luggage through in Dublin to Warsaw via Paris or London and do not know whether their baggage got lost or damaged, or whether something was taken out of it, in Dublin, London or Warsaw. They are not in a position to prove that the airline or the airport authorities in a particular place were responsible so they do not know against whom they should bring an action. The shift between the conventions from having to establish some level of liability to strict liability is crucial and provides a reasonable level of certainty to the passenger that even if he or she does not know what happened he or she can still hope to get some compensation.

The Minister of State gave the impression that liability was absolutely strict but it seems from reading the conventions that is not quite as strict as we would like. There are still ways in which the carrier can evade some responsibility, for example, for delay. According to Article 8.19 of the Montreal Convention the carrier is liable for damage occasioned by delay unless it proves that it took all reasonable measures to avoid the damage or that it was impossible to take such measures. There are still ways in which the carriers can use information known only to them to avoid liability. We have moved, however, from a position in which the passenger had to prove the negligence of the airline to one in which the airline must prove it was not negligent, which is a great improvement.

The Montreal Convention removes the upper limit for accident victims but in section 7 of the Bill we set a limit of €20,000 on the damages that can be provided for mental distress. Perhaps the Minister of State can clarify whether this is a specifically Irish provision. I am not sure whether that flows from the convention or whether it is a self-imposed limit. I recall from my practice of law that there is a similar limit in Irish law for compensation for mental distress arising out of someone's death being provided to dependants. Perhaps it is a Department decision to impose a similar limit for Irish purposes and to transpose it into the convention. I would be interested to know if that is the case and the rationale behind it.

The provision for state non-commercial flights is interesting. There is little persuasive reason that we should not extend the provisions of the convention, for example, with regard to the death of passengers or of people on the ground, to damage that might be caused by state or military aircraft. We have been fortunate here in having escaped this but there have been accidents in other countries involving military aircraft that have caused damage and killed people on the ground. For example, in Italy a few years ago some American military aircraft were involved in an accident with a ski lift. The convention does not appear to cover such incidents. We should perhaps consider that such an accident might occur here and it would be useful if the Minister made the declaration which is open to him to make under the terms of the Bill that state aircraft would also be included under the terms of the convention.

There is a provision in the Montreal Convention dealing with tickets but I am not sure what it means. A cursory layperson's reading of the earlier conventions makes it clear, strangely, that tickets were required to be in writing. They had to be on paper giving the details of the passenger's name, destination, time of flight etc. Recently we have seen an accelerated move towards electronic booking. The majority of people book airline seats on-line and frequently do not get tickets. Some airlines are trying to encourage a ticket-less flight. From my reading of Article 3 of the updated convention I am not clear whether this matter is covered. It seems the ticket comprises the contract between the airline and the passenger. While this does not nullify the existence of a contract, the absence of a ticket obviously provides difficulty in establishing whether one exists. Is it the Minister's understanding that the notion of ticket-less flight is to be included in the context of the new convention?

I wish to comment on enforceability. The convention has detailed provisions requiring compensation to be provided within a particular period of time and requiring passengers to complain within a particular period of time. A passenger whose baggage is lost is required to complain within 21 days. Following a delay of a few days or a week, the airline should be obliged to notify passengers of their rights under the convention or other EU law and that they are entitled to compensation. I do not know what is the current practice or whether there are many instances of passengers who would be entitled to compensation failing to claim it within the requisite period. People take it for granted that there is a risk of their baggage not showing up and it is tough luck if this happens. Most people are unlikely to follow through provided their baggage arrives at some time. It is important that the airline be up-front in advising passengers that they may be entitled to compensation in such circumstances.

I listened with interest to what Senators Browne and Dooley said about insurance. I confess to only having read the Schedules today and I did not see those provisions. They may be provided for elsewhere and perhaps the Minister could clarify this matter. I presume there is a liability on carriers to ensure they have a level of insurance that enables them to abide by the provisions of this convention and other EU law. I know updated regulations exist that oblige airlines to pay passengers in the event of a delay in flights and to provide accommodation if there is a delay overnight. While I do not believe it is contained in this convention, are airlines required to show they can abide by the provisions and look after passengers inconvenienced by their negligence?

This is not a Bill that can be amended in that it is dictated by an international convention. It is a significant move forward and we hope it will be adopted by the requisite number of countries within a reasonable period.