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1938年统一对水上飞机的海难援助和救助及由水上飞机施救的某些规定的国际公约 INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RE-LATING TO ASSISTANCE AND SALVAGE OF AIRCRAFT OR BY AIRCRAFT AT SEA, 1938

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颁布日期:19380928 实施日期:19380928 颁布单位:布鲁塞尔

  Having recognised the utility of adopting certain uniform rulesrelating to assistance and salvage of and by aircraft at sea, the Partieshave named for that purpose their respective Plenipotentiaries who, beingthereto duly authorised, have concluded and signed the followingConvention:

  Article 1

  The High Contracting Parties agree to take the necessary measures togive effect to the rules established by this Convention.

  Article 2

  1. Every person exercising the functions of commander on board anaircraft is bound to render assistance to everybody who is at sea indanger of being lost, in so far as he can do so without serious danger tothe aircraft, its crew, its passengers, or other persons.

  2. Every master of a vessel is bound, subject to the conditions statedin paragraph 1, and without prejudice to any more extended obligationsimposed upon him by laws and conventions in force, to render assistance toeverybody who is at sea in danger of being lost in an aircraft or as theconsequence of accident to an aircraft.

  3. For the purposes of this Convention, assistance means any helpwhich may be given to a person at sea in danger of being lost, even by themere giving of information, regard being had to the different conditionsgoverning maritime navigation and air navigation.

  4. The obligation of assistance shall exist only when the aircraft orthe vessel is in the course of a voyage or ready to depart, and only if itis reasonably possible for it to render useful aid.

  5. The obligation of assistance ceases only when the person boundthereby has knowledge that assistance is being rendered by others undersimilar or better conditions than it could be by himself.

  6. The national legislations shall determine the measures necessary togive effect to this undertaking and the High Contracting Parties willcommunicate to one another, through diplomatic channels, the texts of suchlaws.

  7. No liability shall rest with the owner or the manager of the vesselor with the owner or operator of the aircraft, as such, by reason ofcontravention of the foregoing provision except in the case where he hasexpressly forbidden its observance.

  Article 3

  1. Assistance rendered pursuant to the obligation defined in thepreceding Article gives a right to an indemnity in respect of expensesjustified by the circumstances and of losses suffered in the course of theoperations.

  2. If the assistance was rendered in the absence of any obligation todo so, the person rendering it shall have no right to indemnity unless hehas obtained a useful result by saving persons or by contributing thereto.

  3. The indemnity shall be payable by the operator of the aircraftassisted, or by the owner or manager of the vessel assisted and in thelatter case in accordance with the national law or any contracts relatingto such vessel.

  4. The indemnity shall not exceed the sum of 50,000 francs for eachperson saved, or a total sum of 50,000 francs if no rescue has beeneffected.

  In any case, the obligation of the aircraft operator shall be limitedto the sum of 500,000 francs.

  The sums fixed in this paragraph shall be deemed to refer to the goldfranc containing 651/2 milligrams of gold of a standard of fineness of900/1,000. These sums may be converted into any national currency in roundfigures.

  Furthermore, the owner or manager of the vessel shall not be liablebeyond the limits fixed by the laws and conventions in force with respectto his liability for maritime salvage.

  5. (a) Where assistance has been rendered by several vessels oraircraft, and the total sum of the indemnities due exceeds the limit fixedin the foregoing paragraph 4, a proportional reduction of the indemnitiesshall be made.

  (b) The persons who have rendered assistance must in such casetake action to enforce their rights or give notice of their claims to theparty who is bound to pay the indemnity within a maximum period of sixmonths from the day of the assistance.

  (c) When this period has expired, the payment of the indemnitiesmay be proceeded with; parties who have allowed this period to expirewithout taking action to enforce their rights or giving notice of theirclaims may not exercise their rights except in respect of any balancewhich may not have been distributed.

  Article 4

  1. In case of salvage of an aircraft at sea in danger of being lost orof the property on board the same, a salvor by vessel or aircraft shall beentitled to remuneration assessed on the basis of the followingconsiderations

  (a) First, the measure of success obtained, the efforts and thedeserts of the salvors, the danger run by the salved aircraft, itspassengers, crew and cargo, by the salvors and by the salving aircraft orvessel, the time expended, the expenses incurred and losses suffered, andthe risks of liability and other risks run by the salvors, and also thevalue of the property exposed to such risks, due regard being had, thecase arising, to the special adaptation, if any, of the salvor'sequipment;

  (b) Second, the value of the property salved.

  2. No remuneration is due if the services rendered have no beneficialresult.

  3. In no case shall the sum to be paid exceed the value of theproperty salved at the conclusion of the operations of salvage.

  4. Remuneration is due notwithstanding that the aircraft or thevessels belong to the same operator or to the same owner or manager.

  5. In case of salvage by several vessels or aircraft, the remunerationshall be divided among the salvors on the bases established in paragraph 1of this Article.

  6. The same rules shall apply in case of salvage at sea by an aircraftof a vessel in danger or its cargo, in which case the owner or manager ofthe vessel shall retain the right to avail himself of the limitation ofhis liability as determined by laws and conventions in force governingmaritime salvage.

  Article 5

  In case indemnities and remuneration are payable by reason of Articles3 and 4 of this Convention, there shall be an equitable apportionment,upon the bases and within the limits of the said Articles, of the expensesincurred and the losses suffered.

  Article 6

  The apportionment of the remuneration among the operator and otherpersons in the service of each salving aircraft is determined by the lawof the flag.

  Article 7

  In case of assistance to persons together with salvage of property,the salvors of human life are entitled to a fair share of the remunerationawarded for the salvage of property, without prejudice to the right toindemnity which the acquires under Article 3.

  Article 8

  1. No indemnity or remuneration is payable if the assistance wasrendered or salvage effected in spite of the express and reasonableprohibition on the part of the vessel or aircraft to which services wererendered.

  2. The court may reduce or deny the indemnity or the remuneration ifit appears that the salvors have, by their fault, rendered the salvage orassistance necessary, or increased the loss, or have been guilty of theft,receiving stolen goods or other acts of fraud.

  Article 9

  1. The remuneration due for the operations of salvage shall be payableby the operator of the salved aircraft, or by the owner or manager of thesalved vessel and in the latter case in accordance with the national lawsor with contracts relating to such vessel.

  2. The operator of the aircraft has a right of recourse against theowners of goods for such part of the remuneration as pertains to thesalvage of such goods; provided that such recourse shall be denied orreduced if it appears that the salvage of the goods has been renderednecessary by an act of the operator of such a nature as to render himresponsible to the owners of such goods.

  3. The owner of the goods may, in every case, on payment of that partof the remuneration which relates to the salvage of his goods, or ongiving good security for its payment, obtain delivery of the goods by theoperator and the vacation of any arrest which may have been effected.

  4. The recourse of the owner or of the manager of the vessel againstowners of goods remains subject to maritime rules

  。Article 10

  Neither the personal effects or baggage of the crew or passengers, norarticles transported under the regime of postal conventions or ofagreements relating to the postal service, are included in the property,either for the purpose of calculating the remuneration or in respect ofthe recourse to be exercised.

  Article 11

  1. Indemnity and remuneration actions must be brought within two yearsfrom the day on which operations of assistance or salvage are terminated.

  2. The recourse of the operator against the owners of goods is limitedto one year from the date of the payment of the remuneration for salvage.

  3. The method of calculating the period of limitation, as well as thegrounds upon which the said period of limitation may be suspended orinterrupted are determined by the law of the court where the case istried.

  Article 12

  Every agreement as to assistance or salvage entered into at the momentand under the influence of danger can, at the request of either party, beannulled or modified by the court if it considers that the conditionsagreed upon are not equitable, and in an excessive degree too large or toosmall in proportion to the services rendered.

  Article 13

  1. Actions for indemnity or remuneration may be brought at the optionof the plaintiff and in conformity with the rules of procedure andjurisdiction of each state, either before the judicial authorities of thedefendant's domicile, or before those of the place where the operations ofsalvage were effected, or if there has been an attachment of the aircraftor of the cargo, before the judicial authorities of the place of suchattachment.

  2. If different salvors bring actions before courts situated indifferent countries, the defendant may, before each of them, put in astatement of the total amount of the claims made upon him, with a view topreventing the limits of his liability being exceeded.

  Article 14

  Any person who has the right of disposal of, and who uses the aircraftfor his own account shall be termed “operator of the aircraft.”

  If the name of the operator is not inscribed in the aeronauticalregister or on some other official document, the owner is deemed to be theoperator until proved to the contrary.

  Article 15

  Any person who, without having the right to dispose of the aircraft,makes use of it without the consent of the operator, shall be liable forthe indemnities and remuneration, and the operator who has not taken theproper measures to avoid the unlawful use of his aircraft shall be liablejointly and severally with him, each of them being bound on the conditionsand within the limits provided for in the foregoing Articles.

  Article 16

  With exception of the provisions of Article 13 relative tojurisdiction, this Convention shall apply to Government vessels andaircraft, other than military, customs and police vessels or aircraft, towhich the rights and obligations resulting from the foregoing provisionsdo not apply.

  Article 17

  1. The provisions of the present Convention shall be applied asregards all the persons interested when either the assisting or salvingvessel or aircraft, or the vessel or aircraft assisted or salved, isregistered in the territory of one of the High Contracting Parties.

  2. The expression “territory of a High Contracting Party” includesevery subject to the sovereignty, suzerainty, protectorate, mandate orauthority of that High Contracting Party in respect of which the latter isa party to the Convention.

  3. Provided, however:

  (a) That as regards interested persons who are nationals of anon-Contracting State, the application of the above provisions may be madesubject by each of the Contracting States to the condition of reciprocity;

  (b) That where all the interested persons are nationals of thesame state as that of the court trying the case, the Convention shall notbe applicable;

  (c) That in a case where both vessels and aircraft are engaged inthe same operation of assistance, this Convention shall not apply torelations between the vessels.

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