Aviation Liability 2021 Aviation Liability 2021
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Aviation Liability 2021 Aviation Aviation Liability 2021 Contributing editor Andrew J Harakas © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Aviation Liability [email protected] Senior business development manager Adam Sargent 2021 [email protected] Published by Law Business Research Ltd Contributing editor Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Andrew J Harakas The information provided in this publication Clyde & Co US LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the fourth edition of Aviation Liability, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. October and November 2020. Be advised Throughout this edition, and following the unique Lexology Getting The Deal Through format, that this is a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes a new chapter on Austria. © Law Business Research Ltd 2020 Lexology Getting The Deal Through titles are published annually in print. Please ensure you No photocopying without a CLA licence. are referring to the latest edition or to the online version at www.lexology.com/gtdt. First published 2017 Every effort has been made to cover all matters of concern to readers. However, specific Fourth edition legal advice should always be sought from experienced local advisers. ISBN 978-1-83862-307-4 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri- butors to this volume, who were chosen for their recognised expertise. We also extend special Printed and distributed by thanks to the contributing editor, Andrew J Harakas of Clyde & Co US LLP, for his continued Encompass Print Solutions assistance with this volume. Tel: 0844 2480 112 London November 2020 Reproduced with permission from Law Business Research Ltd This article was first published in December 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Global overview 3 Latvia 68 Andrew J Harakas Ivars Mēkons Clyde & Co US LLP Novius Austria 6 Malaysia 76 Martin R Geiger and Irena Gogl-Hassanin Saranjit Singh and Dhiya Damia Shukri Benn-Ibler Rechtsanwälte GmbH Saranjit Singh, Advocates & Solicitors Brazil 13 Netherlands 84 Guilherme Amaral, Nicole Villa and Renan Melo Robert Pessers ASBZ Advogados Van Traa Advocaten Canada 21 New Zealand 92 Michael A Dery, Darryl G Pankratz and Shaun Foster Anna Barnett and Simon Cartwright Alexander Holburn Beaudin + Lang Hesketh Henry Lawyers China 29 Nigeria 100 Leslie Shen and Paul Zhou Etigwe Uwa SAN, Chinasa Unaegbunam, Omolayo Latunji and Wintell & Co Agbada S Agbada Streamsowers & Köhn France 37 Aurélia Cadain Switzerland 109 Kennedys Law LLP Andreas Fankhauser Proton Legal LLC Germany 45 Claudia Hess and Rainer Amann Turkey 116 Urwantschky Dangel Borst PartmbB M Ali Kartal Kartal Law Firm Italy 53 Maurizio Corain, Chiara Santoboni and Mario Barbera United Kingdom 122 R&P Legal Studio Associato Chloe Challinor and Patrick Bettle Stephenson Harwood LLP Japan 62 Mihoko Shintani and Kento Masakane United States 131 TMI Associates Andrew J Harakas, Jeffrey Ellis, Chris Carlsen and Kevin Sutherland Clyde & Co US LLP 2 Aviation Liability 2021 © Law Business Research 2020 New Zealand Anna Barnett and Simon Cartwright Hesketh Henry Lawyers APPLICABLE TREATIES Definition of ‘carrier’ 4 In your state, who is considered to be a ‘carrier’ under the Major air law treaties Montreal and Warsaw Conventions? 1 To which major air law treaties related to carrier liability for passenger injury or death is your state a party? There is no authority in New Zealand on who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions. New Zealand courts will New Zealand is party to: generally interpret domestic legislation that incorporates international • the Montreal Convention (1999) (ratified 2002); Conventions (including the Montreal and Warsaw Conventions) in the • the Tokyo Convention (1963) (ratified 1974); and same way as other common law jurisdictions. Accordingly, it is likely • the Warsaw Convention (1929) (ratified 1937) and its amending that the courts would follow Rolls-Royce plc & Anor v Heavylift-Volga instruments: the Hague Protocol (1955) (ratified 1967), the Dnepr Ltd & Anor [2000] CLC 1120 and would consider that ground Guadalajara Convention (1961) (ratified 1969) and the Montreal handling agents and other service providers are not carriers under the Protocol No. 1 (1975) (ratified 1999), No. 2 (1975) (ratified 1999) and Conventions. No. 4 (1975) (ratified 1999). Carrier liability condition The provisions of the Montreal Convention, the Warsaw Convention (as 5 How do the courts in your state interpret the conditions for amended by the Hague Protocol, the Montreal Protocol Nos. 1, 2 and air carrier liability – ‘accident’, ‘bodily injury’, ‘in the course 4) and the Guadalajara Convention have been implemented into New of any of the operations of embarking or disembarking’ – for Zealand domestic law by section 91C of the Civil Aviation Act 1990. passenger injury or death in article 17(1) of the Montreal The Aviation Crimes Act 1972 has given force to certain provi- Convention and article 17 of the Warsaw Convention? sions of the Tokyo Convention (1963), the Hague Convention (1970), the Montreal Convention 1971 and the Montreal Protocol (1988), in legis- New Zealand courts have not yet interpreted or considered the lating for offences on board and affecting aircraft and the safety of civil meanings of ‘accident’, ‘bodily injury’ or ‘in the course of any of the oper- aviation and airports in New Zealand domestic law. ations of embarking or disembarking’ under the Montreal and Warsaw Conventions. New Zealand courts will generally interpret domestic INTERNATIONAL CARRIAGE – LIABILITY FOR PASSENGER legislation that incorporates international Conventions (including the INJURY OR DEATH Montreal and Warsaw Conventions) in the same way as other common law jurisdictions. Montreal Convention and Warsaw Convention Accordingly, New Zealand courts would likely follow the positions 2 Do the courts in your state interpret the similar provisions of taken by the United Kingdom, Canada and Australia in applying the the Montreal Convention and the Warsaw Convention in the United States decision of Air France v Saks (1985) 470 US 392, where same way? the Supreme Court held that accident means ‘an unexpected or unusual event or happening that is external to a passenger’. New Zealand courts have not directly commented on this point. ‘Bodily injury’ is likely to be interpreted in accordance with the UK However, New Zealand courts will generally interpret domestic legisla- House of Lords decision Morris v KLM Royal Dutch Airlines [2002] UKHL tion that incorporates international Conventions (including the Montreal 7, which clarified that ‘bodily’ means physical injury to the body and as and Warsaw Conventions) in the same way as other common law such the only way to claim for mental injuries is where there is some jurisdictions. physical manifestation of the injury. It is less clear how the New Zealand courts will interpret ‘in the 3 Do the courts in your state consider the Montreal Convention course of any of the operations of embarking or disembarking’, but it is and Warsaw Convention to provide the sole or exclusive basis likely that the general tests of activity (what the passenger is doing at for air carrier liability for passenger injury or death? the time), control and location (is the passenger in a place where they are obliged to be for the process of embarkation or disembarkation) In Emery Air Freight Corp v Nerine Nurseries [1997] 3 NZLR 723 the New will apply. Zealand Court of Appeal expressly adopted the decision of the House of Lords in Sidhu v British Airways [1997] AC 430, which provided that the Montreal Convention and the earlier Warsaw Conventions provide the sole basis for liability of an air carrier performing international carriage. 92 Aviation Liability 2021 © Law Business Research 2020 Hesketh Henry Lawyers New Zealand No negligence defence New Zealand courts strictly applying the two-year limitation period. In 6 How do the courts in your state interpret and apply the ‘no this case, the passenger erroneously commenced proceedings under negligence’ defence in article 21 of the Montreal Convention, the Warsaw Convention in the admiralty jurisdiction of the High Court; and the ‘all reasonable measures’ defence in article 20 and however the Court of Appeal permitted the claim to be transferred to the the ‘wilful misconduct’ standard of article 25 of the Warsaw High Court’s civil jurisdiction. Convention? Liability of carriage New Zealand courts have not yet considered these standards, but would 10 How do the courts of your