Seanad Éireann - Volume 175 - 10 March, 2004

Air Navigation and Transport (International Conventions) Bill 2004: Committee and Remaining Stages.

Sections 1 to 6, inclusive, agreed to.

SECTION 7.

  An Leas-Chathaoirleach: Amendments Nos. 2 and 3 are related to amendment No. 1 and they may be discussed together, by agreement.

Government amendment No. 1:

In page 5, subsection (1), to delete lines 37 to 44 and substitute the following:

“‘dependant’, in relation to a passenger in respect of whose death a liability is imposed on a carrier by a relevant Article, means any of the following persons who has suffered injury or mental distress because of the death:

(a) the wife, husband, father, mother, grandfather, grandmother, stepfather, [1669]stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister, stepbrother or stepsister of the deceased;

(b) a person whose marriage to the deceased——

(i) has been dissolved by a decree of divorce that was granted under the Family Law (Divorce) Act 1996, or

(ii) has been dissolved in accordance with a law of a country or jurisdiction (other than the State), but only if the dissolution is recognised in the State;

(c) a person who, although not married to the deceased passenger, had, until the date of death, been cohabiting with the deceased as the deceased’s spouse for a continuous period of not less than 3 years;”.

  Mr. Treacy: Let me put these three amendments in context and state why they are before the House. They are all similar because they are based on the 1996 Act. Section 7 of this Bill is based on section 18 of the Air Navigation and Transport Act 1936 which has been amended several times, most recently by the Civil Liability (Amendment) Act 1996. Due to an oversight the text of this Bill as initiated did not include the changes made in 1996 and in section 7(4)(g) set a lower limit for damages for mental distress than is named in the Civil Liability Act. Three amendments are now proposed to section 7 to ensure it fully reflects the current position. Amendments Nos. 1 and 3 insert the changes introduced by the 1996 Act for the definition of dependants and takes account of marriages that are dissolved. Amendment No. 2 creates a link to the Civil Liability Act on the limit on damages for mental distress. This will ensure the limit of 20,000, or just over €25,000 in the Civil Liability Act, will apply and that any adjustments to that amount by the Minister for Justice, Equality and Law Reform will also automatically apply without the need for future amendments to the Air Navigation and Transport (International Conventions) Act.

Amendment No. 1 includes in the Bill provisions inserted into section 18 of the Air Navigation and Transport Act 1936 by section 4(1)(a) of the Civil Liability (Amendment) Act 1996 and I place this before the House for its acceptance.

  Mr. Browne: I accept the Government amendments. I noticed a problem with that point yesterday and asked my colleagues to look at it. We then received the Government amendment which I could not have matched but I am glad to have spotted the difficulty there.

[1670]In the case of annulment of a marriage if, for example, a man who had obtained a State annulment was killed in a car accident would his former wife receive nothing? Divorce is mentioned in this amendment but some people whose marriages break down very quickly do not go through divorce proceedings and instead have their marriages annulled by the Church and the State. Does this amendment cover them?

  Mr. Dooley: I thank Senator Browne for raising that issue. Could the Minister of State please clarify this point? Section 3 refers only to “mental distress” whereas section 7(1) refers to a person “who has suffered injury or mental distress”. Is that discrepancy a typographical error or does it allow a person to claim for an injury other than mental distress, associated with those who are divorced? It does seem to provide for someone who had an association with the deceased, either in a common law relationship or another association involving some level of financial maintenance. It is not uncommon for that to be the case for couples who have divorced but why is there a difference for those whose divorce has been granted whereas for a cohabiting couple the overriding point seems to be the existence of a financial maintenance arrangement? If such an arrangement was in place for a divorce could that be overcome or made part of the Act?

  Mr. Treacy: I thank both Senators for their questions. In response to Senator Browne, the question of annulments is a matter for the Civil Liability Acts which fall within the remit of the Minister for Justice, Equality and Law Reform. Technically, annulments may not be recognised but depending on the documentation, it may be the case that a person has an annulled marriage and may be remarried. The Minister for Justice, Equality and Law Reform would have to adjudicate on that situation and the Department of Transport or the courts would accept that interpretation of the documentation, or a decision made by the Minister for Justice, Equality and Law Reform. It is somewhat complicated and can be vague because individual situations are very complex and while they may have much in common there may also be great differences between them so that finally each case must be judged on its individual merits.

In response to Senator Dooley, liability exists for normal damages such as loss of income. The only upper limit applies to mental distress. One can have a claim and liability accepted for normal damages such as loss of income and injury on which there is no limit, depending on the situation. There is a de facto upper limit for mental distress beyond which one cannot go. That is why this provision is included in the Bill. We [1671]want to ensure this legislation is compatible with existing legislation in this area.

  Mr. Browne: I thank the Minister of State for his reply. It is important to look at this from the perspective of a marriage that has been annulled. Probably neither party would wish to see an ex-spouse benefiting in the future through the other’s death or injury. Some specify in their wills that they do not want the previous spouse to receive any benefit. One’s spouse can be entitled to one’s pension and it can happen that a spouse who has been divorced, or whose marriage has been annulled for several years, may claim this, unless there is a very clear direction to the contrary in one’s will. Perhaps the Minister of State can reflect on this point and speak to the Minister for Justice, Equality and Law Reform before the Bill goes before the Dáil.

  Mr. Dooley: Could the Minister of State clarify what happens to a divorcee whose husband, for example, is killed in an air accident? Does she still receive compensation based on an existing financial maintenance agreement between her and the deceased? Amendment No. 1 to section 7(1)(c) seems to cover the case of a deceased who is in a second relationship but it is not clear whether, if there was an obligation on the deceased to discharge duties determined by a financial arrangement with the divorced wife, she would be covered.

  Mr. Treacy: Questions of changes to the arrangements about annulments, divorces or similar situations are not appropriate to this Act. Those matters must be settled in the Civil Liability Acts. A former wife’s compensation entitlement is a matter for the courts. It is likely that the person who is entitled to maintenance would have a claim and unless a person specifies in his or her will that somebody is exempt that person may not be exempt. In a situation pertaining particularly to pension entitlements whereby a person originally married to another took out a pension, whether in both names or in his or her name, and did not specify later at divorce or annulment proceedings that the spouse was not entitled to benefit from that pension on the death of the contributor, or of the main partner, if there was such a thing, the second partner could claim but this is not relevant to this Act. The Civil Liability Acts would have to use this for a conclusive adjudication. However, given that the Senator has raised the matter, about which we would all have questions, I will bring it to the attention of our officials and I hope we can clarify the issue during the Bill’s passage through the Dáil.

  Mr. Browne: I was referring essentially to the case of a childless couple with no dependants [1672]where the marriage had broken down very quickly. Obviously in cases involving dependants, they must be provided for.

Amendment agreed to.

Government amendment No. 2:

In page 6, subsection (4), lines 45 and 46, to delete paragraph (g) and substitute the following:

“(g) the total of all amounts (if any) awarded under paragraph (f)(ii) may not exceed—

(i) the amount specified in paragraph (b) of section 49(1) of the Civil Liability Act 1961 (as amended by the Civil Liability (Amendment) Act 1996), or

(ii) if an order made under subsection (1A) of that section (as inserted by section 2 of the Civil Liability (Amendment) Act 1996) specifies another amount for the purposes of that paragraph, that other amount;”.

Amendment agreed to.

Government amendment No. 3:

In page 7, to delete line 28 and substitute the following: “passenger;

(n) a person referred to in paragraph (b) of the definition of ‘dependant’ in subsection (1) is not entitled to be awarded damages in respect of mental distress alleged to have been caused to the person by the deceased’s death;

(o) in fixing damages to be awarded to a person referred to in paragraph (c) of the definition of ‘dependant’ in subsection (1), the court shall consider whether or not the person had an enforceable right to financial maintenance by the deceased and, if it finds that the person had no such right, shall take that fact into account, along with any other relevant consideration.”.

Amendment agreed to.

Section 7, as amended, agreed to.

Sections 8 to 11, inclusive, agreed to.

Schedule 1 agreed to.

SCHEDULE 2.

Question proposed: “That Schedule 2 be Schedule 2 to the Bill.”

  Mr. Dooley: Yesterday we discussed the term SDR. I would like the Minister to give a [1673]definition of this term, as there was some confusion in the House yesterday.

  Mr. Treacy: Special drawing rights represent a unit of currency drawn up by the International Monetary Fund for use whenever currency amounts need to be referred to internationally, including in international conventions. Nearly all countries are members of the International Monetary Fund, which has 184 member states. The SDR unit was drawn up so that it would not be necessary to refer to the value of gold or major currencies such as the US dollar or the euro. One SDR is worth €1.18 at the moment. The value of SDRs is based on a basket of currencies of all IMF member states, including the euro. Ireland has been a member of the International Monetary Fund since 1957. For any countries which ratify the Montreal Convention but are not members of the International Monetary Fund, provision is made in the convention at Article 23(2) for using a currency unit based on gold and that definition is included in the Bill.

Question put and agreed to.

Schedule 3 agreed to.

Title agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

  Mr. Browne: I thank everybody involved in the Bill. This time last week, I knew nothing about international conventions on air navigation and transport. I know considerably more now. I thank the departmental officials for the briefing they gave me. I also thank my researchers and the Minister who gave a very comprehensive speech yesterday. The Bill gives people the option of taking legal action in their own state, which is of major benefit. The trial resulting from the Lockerbie crash took place outside Scotland and caused considerable distress to the families involved. We should not see a recurrence of that.

This is a good Bill and I wish it a speedy passage. I am glad that it should be passed before 1 May thus allowing the ten accession countries to be covered. I congratulate all those involved.

  Mr. Dooley: I thank the Minister for his assistance in guiding us through this very technical legislation relating to a number of conventions. I congratulate the Minister for Transport and his officials on consolidating all legislation in this area into this Bill. I join Senator Browne in thanking the Minister of State and his officials for coming back to us with the information on the amendments. However, as some concerns have been raised, I hope these will be addressed during the Bill’s passage through the Dáil and that we will receive an update.

[1674]I recognise the importance of the speedy passage of the Bill, particularly in light of the Irish Presidency of the European Union. By doing our own parliamentary housekeeping, we can ensure that we do not place further encumbrance on the ten accession states. The legislation should be enacted before 1 May to allow for the automatic reference to this legislation by the ten accession countries.

  Mr. Treacy: On behalf of the Minister for Transport, Deputy Brennan, the Minister of State at the Department of Transport, Deputy McDaid, and their officials, I thank the Senators for their positive contributions to the debate on this important Bill. From those contributions it was clear there is universal support for this important measure. As discussed yesterday, the Warsaw Convention was established in 1929. The new Montreal Convention will update the Warsaw Convention and the Bill will give it the force of law in Ireland. We are updating, modernising and ensuring there is equity in value for the compensation to be paid taking account of various circumstances, including injuries, accidents, deaths, mental distress or otherwise. Senator Browne made a very relevant point in that this legislation will accommodate people in allowing claims to be made in the simplest way, thus reducing the cost and ensuring fairness for all involved including the airlines. As an island nation this legislation is important to our economic growth as international aviation is critical to our future.

I thank the Senators for their positive attitude. I thank Senator Dooley, as spokesperson on the Government side, Senators Wilson and McDowell, and the others who spoke. I particularly thank the officials from the Department of Transport for the excellent work they have done in ensuring the law is modernised to take account of domestic and international circumstances.

Question put and agreed to.

Sitting suspended at 11.50 a.m. and resumed at 2 p.m.