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International Carriage by Air Act, B.E. 2558 (“the Act”) has just been passed by the National Legislative Assembly of Thailand and was announced in the royal gazette on 13 February 2015. Due to the 90-day grace period of the Act, it came into force on 15 May 2015.

However, it is important to note that Thailand is not in a position to ratify the Montreal Convention 1999 (MC99) although the Act has come into force since May 2015. The problem arises from the fact that the Act itself adopts the MC99’s regime of liability of air carriers, but it does not perfectly reflect or mirror the MC99, particularly the Act does not provide for choice of courts or additional jurisdiction (corresponding to Art. 46 of MC99) and arbitration proceedings (Art. 34 of MC99) and some areas of the MC99. Therefore, a draft act to amend the Act has been prepared in advance in order that, in the future, Thailand will be able to ratify the MC99. Currently, the draft act is under scrutiny of the National Legislative Assembly. It is likely that once the draft act has been passed, Thailand would be in a position to ratify the MC99.      

The Act is intended to apply to international carriage by air, but also applies to domestic carriage mutatis mutandis. Due to the Provisional Clause of the Act, it does not apply to the domestic air claims filed with the Court before the Act coming into force, and in such case, the Thai courts will apply the Civil and Commercial Code (“the Code”) to the pending court cases.

The Act is deemed a positive development of Thai transport law. Once the Act has come into effect, all air claims (both domestic and international passenger and cargo claims) shall fall within the jurisdiction of the Intellectual Property and International Trade Court.   Also, the provisions of the Code which have been applied since 1929 will no longer apply to international air claims arose after the effective date of the Act. This shall result in a substantial change in the Thai law on carriage of passenger and goods by air, inter alia, that:

1.       Prescription: the one-year prescription for air claims under the Code will be replaced by the two-year time limit of the Act.

2.       Limitation of liability for cargo claim: the concept of “contractual limitation” in the Code which, as per the Thai Supreme Court judgments, is subject to the NVD declaration (being the express agreement of the shipper to the limitation) will be replaced by the unbreakable limitation (19 SDR per kg).  

3.       Liability for death or injury of passengers: the doctrine of strict liability and presumed negligence for the respective first tier and second tier of compensation (not exceeding 113,000 SDR and over 113,000 SDR) is well recognized and endorsed by the Act in the same manner of Art. 21 of the MC99.  

There are some unclear areas of the Act which arise from the Thai language. However, it is likely that the Thai Court can explore the true meaning or spirit of those parts by referring back to MC99 as the original source of the Act.  

For more information, please contact our aviation team headed by Prof. Pramual Chancheewa, Sken Kongkaew and Witchupong Chittchang.

(updated 31 July 2015)

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