Dealing with Air Carrier Liability and Related Matters: Practical Perspectives
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DEALING WITH AIR CARRIER LIABILITY AND RELATED MATTERS: PRACTICAL PERSPECTIVES Professor Fabian Ajogwu, SAN, FCIArb A paper prepared by Professor Fabian Ajogwu, SAN, FCIArb and presented at the Nigeria Civil Aviation Authority Seminar on Aviation at Sheraton Hotel and Towers, Ikeja, Lagos, on Wednesday July 2, 2014 Dealing with Air Carrier Liability and Related Matters: Practical Perspectives It is a privilege to be invited to speak at this INTRODUCTION seminar on the subject of Dealing with The issue of Air Carrier liability arises from Air Carrier Liability and Related Matters various circumstances. In a situation where organised by the Nigerian Civil Aviation there is an accident occasioning death or injury Authority (NCAA) with the assistance of the or where there is a loss of baggage or cargo, the Socio Economic Rights Initiative (SERI). I liability of the Air Carrier can arise. Nigeria as would like to share with you my thoughts on a country has witnessed several mishaps as it a subject, whose importance has been brought relates to aircraft accidents. Incidents of loss to the front burner as it rightfully should. It of baggage or cargo have arisen from several is the subject of understanding the practical occasions not only in Nigeria but the World perspectives to the concept of air carrier over. Where liability against the Air Carrier is liability and the legal framework for this special proved, the issue of compensation will arise and class of contractual relationship. this can lead to either a negotiated settlement This discussion is segmented into six parts, with the parties involved, or litigating the namely — dispute where amicable resolution of the disputes fail. However, paying compensation to • Introduction customers or relatives often times poses a great • Legal framework for Air Carrier liability problem. • Concept of Air Carrier liability As at the first anniversary of the Dana air1 • Limitation period for Air Carrier liability • Air accident and Carrier liability: Practical Perspective 1 Dana Air Flight 992 was a McDonnell Douglas MD-83 aircraft making a scheduled commercial passenger flight from • Recommendations/Conclusions Abuja to Lagos, Nigeria. On Sunday, June 3, 2012, the aircraft crashed into a furniture works and printing press building in the |ju-Ishaga neighbourhood of Lagos. Professor Fabian Ajogwu, SAN, FCIArb is the principal partner of the Lagos law firm, Kenna Partners, and has prepared this paper for presentation at the Nigeria Civil Aviation Authority Seminar on Aviation at the Sheraton Hotel and Towers, Ikeja, Lagos on Wednesday July 2, 2014 2 | www.kennapartners.com crash, only about 30% of victims of the crash ingenuity of our Courts. In relation to the had received compensation. The low level of question of applicable law, there are several compensation achieved could be attributable to issues which have arisen. The first issue relates a number of factors including but not limited to the precise law which ought to govern the to internal family squabbles, the submission transaction of the parties. This question is vital of incomplete documentations or even the because it is tied to the options available to the unwillingness of the Airline to pay full or any court in the award of damages. The incidence compensation. Given the recent incidents of of divergences of laws in the countries involved severe and fatal air tragedies recorded in the in the carriage of goods and persons by air, Country’s aviation history, and the ability often resulted in a great deal of uncertainty of Airlines to seemingly disappear without and confusion as to the applicable law. clear evidence of fully compensating victims’ The response of the International Community families, or even the Accident Investigative to the desirability of removing such uncertainties Unit’s inability to unravel the cause of crashes, was the adoption of the Convention for the there is increased interest among aviation Unification of Certain Rules to International stakeholders mainly the air travellers in the Carriage by Air. The Rules laid down are in outcome of this process. This is more so in essence an international code declaring the situations where there are both on board and rights and liabilities of the parties to contracts outside casualties referred to as collateral of international carriage by air; and they are damages on the ground as; a result of the crash given the force of law in the territory of the occurring in a residential neighbourhood. contracting party (or parties) they govern. There is relatively a low awareness of what The desirability of such an international code the Regulations are that govern air travel, for air carriage is obvious. Without it, questions the practicability of these regulations and of great difficulty as to the law applicable to a payment for compensation to victims of air contract of international carriage by air would related injuries, loss or death. In discussing constantly arise. Our Courts are familiar the issue of air carrier liability, the question with similar questions arising under contracts of what constitutes air carrier liability, persons through carriage otherwise than by air; and affected, legal framework for same, attitude of it is easy to imagine cases where questions of the courts as it relates to limitation of time and the greatest difficulty might arise as to which practical approach towards air carrier liability law or laws governed the contract and whether will be considered in details. different laws might not apply to different LEGAL FRAMEWORK FOR AIR stages of the journey. CARRIER LIABILITY The Warsaw Convention2, as amended by the Aviation law, like most other aspects of the Hague Protocol, 1955, provided the exclusive judicial system, is fraught with many complex cause of action and remedy in respect of issues which task the intellectual acumen of claims for loss, injury and damage sustained in practitioners and exact the interpretative the course of, or arising out of, international 2 Now subsumed under the Montreal Convention of 1999 www.kennapartners.com | 3 carriage by air. What is more, claims in Warsaw Convention5 international carriage were subject to the The Warsaw Convention is an international strict terms and provisions contained within convention which regulates liability for it. As such, an air passenger was not at liberty international carriage of persons, luggage, or to choose as between the provisions of the goods performed by aircraft for reward. In Convention and the domestic/common law for particular, the Warsaw Convention6: claims for damages against the Carrier. Such claims had to be asserted only in accordance a) Mandates Carriers to issue passenger with and subject to the terms and conditions tickets; of the Convention and could not be pursued b) Requires Carriers to issue baggage checks under any other law. for checked luggage; c) Creates a limitation period of two years The position is the same under the Montreal within which a claim must be brought (Article Convention of 19993 . Nigeria ratified the said 29); and Convention through the instrumentality of the Carriage by Air (Colonies, Protectorates d) Limits a Carrier’s liability to at most: and Trust Territories) Order, 1953. Thus, Dealing with Air Carrier Liability and Related the current law that regulates or governs the Matters: Practical Perspectives international carriage of goods and persons by i. 250,000 Francs or 16,600 special air in Nigeria is the Civil Aviation Act, 2006, drawing rights (SDR) for personal injury: which domesticated the Montreal Convention, 19994, by reference. However, one procedural ii. 7 SDR per kilogram (pound) for checked issue must be noted here. Although the luggage and cargo, or US$20 per kilogram current law is the Montreal Convention (as (pound) for non- signatories of the amended domesticated by the 2006 Act) all disputes Montreal Convention; that arose prior to 2006 were determined at iii. 5,000 Francs or 332 SDR for the hand first instance and even on appeal based on luggage of a traveller. the Warsaw Convention, being the applicable The sums limiting liability were originally given law at the time the cause of action arose. in gold francs (defined in terms of a particular Since most of the cases we shall consider in quantity of gold by article 22 paragraph 5 of this paper were decided under the Warsaw the convention). These sums were amended Convention, references shall still be made both by the Montreal Additional Protocol No. 2 to it and the corresponding provisions in the to substitute an expression given in terms of Montreal Convention. The various laws shall SDR’s. These sums are valid in the absence of be discussed briefly. a differing agreement (on a higher sum) with 3 It is informative to note that all international travel tickets and airway bills, which constitute prima facie evidence of the conclusion of the contract, incorporate the terms of the Convention. 4 See Section 48 and 49 of the Civil Aviation Act, 2006 5 The Warsaw convention was originally signed in 1929 in Warsaw (hence the name), it was amended in 1955 at The Hague in Netherlands, and in 1971 in Guatemala City. The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage, or goods performed by aircraft for reward 6 De Remer, Dale; Mc Lean, Donald W. (1998). Global Navigation for Pilots (2nd ed.). Aviation Supplies & Academics, Inc. p. 370. 4 | www.kennapartners.com the Carrier. Agreements on lower sums are null other related instruments to the harmonization and void7. A Court may also award a claiming of private international air law; recognizing party’s costs, unless the Carrier made an offer the need to harmonize and consolidate within 6 months of the loss (or at least 6 months the Warsaw Convention and other related before the beginning of any legal proceedings) instruments; recognizing the importance which the claiming party has failed to beat.