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 Civil Aviation Authority Seminar on Aviation at Sheraton Hotel and Towers, , , 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 Dana1 air • Limitation period for Air Carrier liability • Air accident and Carrier liability: Practical Perspective 1 Flight 992 was a McDonnell Douglas MD-83 aircraft making a scheduled commercial passenger flight from • Recommendations/Conclusions 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 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 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. The of ensuring protection of the interests of Warsaw Convention provides that a Plaintiff consumers in international carriage by air and can file a lawsuit at his or her discretion in one the need for equitable compensation based of the following forums8: on the principle of restitution; reaffirming the desirability of an orderly development of • the Carrier’s principal place of business; international air transport operations and the • the domicile of the Carrier; smooth flow of passengers, baggage and cargo; • the Carrier’s place of business through and convinced that collective State action for which the contract was made; further harmonization and codification of • the place of the destination. certain rules governing international carriage According to Clauses 17 and 18 of the Warsaw by air through a new convention was the most Convention, airline companies are liable for adequate means of achieving an equitable any damage that occurs to passengers or their balance of interests, agreed amongst other 10 belongings during in-flight. However, airline things that. companies will not be held responsible if • The Montreal Convention applies to all the damage results from the passenger’s own international carriage of persons, baggage fault. It is apposite to state that the Montreal or cargo, performed by aircraft for reward. Convention, signed in 1999, replaced the It equally applies to gratuitous carriage Warsaw Convention system. by aircraft performed by an air transport Montreal Convention undertaking. The Montreal Convention (the “Convention”), • For the purpose of the Montreal Convention, (formerly the Convention for the Unification an international carriage is any carriage of Certain Rules for International Carriage in which the place of departure and the by Air) is a multilateral treaty adopted by a place of destination are situated within diplomatic meeting of International Civil the territories of two state parties, whether Aviation Organization (ICAO) member there is a break in the journey or not, or states in 1999. ICAO defines the protocols where the place of departure is within the for air accident investigation followed by territory of a state party and the place of transport safety authorities in countries destination is not. Carriage between two that are signatories to the Convention on points within the territory of a single state International Civil Aviation. The State parties party without an agreed stopping point to the Convention9, recognizing the significant within the territory of another state party is contribution of the Warsaw Convention and

7 ibid 8 ibid 9 As of May 2014, there are 107 parties to the Convention. Included in this total is 106 of the 191 ICAO Member States plus the European Union. The states that have ratified represent 105 UN member states and the Cook Islands. 10 www.montrealconvention.org accessed on May 30, 2014.

www.kennapartners.com | 5 not international carriage for the purpose governed by the original Warsaw Convention of this Convention.11 because although Uganda is a party to the original Warsaw Convention, it has not yet The Montreal Convention and the Warsaw ratified any further versions of it, nor has it Convention (in all its various forms) ratified the Montreal Convention. A flight contain substantially the same definition of from London to Glasgow Scotland is however “international carriage” at Article 1(2).12 For governed by the Non International Carriage the purpose of this definition, forced landings Rules because it is a flight within the territory in places other than as agreed between of the same state. Similarly, a flight from the parties to the contract of carriage are Lagos to is governed by the Nigerian disregarded. Included within this common Civil Aviation Authority Regulations 2009, concept of international carriage is carriage because it is a flight within one territory. A by a succession of air carriers which will be flight from London to Glasgow Scotland via deemed one undivided carriage where the Dublin is however governed by the Montreal parties to the contract of carriage regard it as Convention because whilst the places of a single operation, even if a particular flight departure are within the territory of the or series of flights is performed entirely within UK, there is an agreed stopping place in the the territory of the same state13.Consequently, territory of another State, which does not have a flight between two States which have ratified to be a party to the Convention. A flight from the Montreal Convention is international London to Somalia is governed by the UK carriage as defined in the amended Convention Non-International Carriage Rules, because and is governed by the Rules of the Montreal Somalia is party to neither the Montreal Convention. However, a flight between two Convention nor the Warsaw Convention in contracting states to the same version of the any of its various forms.15 Nigeria is a party to Warsaw Convention (Re amended, Amended, the Montreal Convention, as it ratified same Un amended or Original) where only one or on May 10, 2002.16 neither has ratified the Montreal Convention, will be international carriage, only as defined Civil Aviation Act17 by the applicable version of the Warsaw The Civil Aviation Act (the “Act”) was enacted Convention (and not as defined by the Montreal by the Nigerian National Assembly in 2006. Convention).14 Section 48 (1) and (2) of the Act provides that Thus a flight from London to Paris is governed the provision of the Montreal Convention shall by the Montreal Convention as it has been from the commencement of the Act have force ratified by both the and of law and apply to international carriage by air France. A flight from Lagos to Uganda is to and from Nigeria, in relation to any carriage by air to which the Rules as contained in the

11 ibid 12 Brian Harris “Ridley’s Law of the Carriage of Goods by Land Sea and Air” Sweet & Maxwell 2012 8th Ed. Page 343 13 Article 1(3) of the Montreal Convention and all the versions of the Warsaw Convention. 14 See fnn. 3. 15 ibid 16 Attached as Schedule A is the list of State Parties to the Montreal Convention 17 Civil Aviation Act, 2006 was enacted to repeal the Civil Aviation Act CAP. 51 Laws of the Federation of Nigeria, 1990 (as amended) and to re-enact the Civil Aviation Act to Provide for the Regulation of Civil Aviation, Establishment of the Nigeria Civil Aviation Authority and other related matters.

6 | www.kennapartners.com Convention apply. It provided further that its a. Passengers: application is irrespective of the nationality of Article 17 (1) of the Montreal Convention the aircraft performing the carriage, and shall, provides that the Carrier is liable for damage subject to the provisions of the Act, govern the sustained in case of death or bodily injury of a rights and liabilities of Carriers, passengers, passenger upon condition only that the accident consignees and other persons. The provision which caused the death or injury took place on of the Montreal convention shall also apply to board the aircraft or in the course of any of and have the force of law in relation to non- the operations of embarking or disembarking. international carriage by air within Nigeria, irrespective of the nationality of the aircraft Under the Montreal Convention, air Carriers performing the carriage, and shall, subject to are strictly liable for proven damages up to the provisions of the Act govern the rights and 113,100 special drawing rights20 (SDR) for each liabilities of carriers, passengers, consignors, passenger, the Carrier shall not be able to limit consignees and other persons. or exclude its liability. However the Carrier may avoid liability where damages of more than CONCEPT OF AIR CARRIER 113,100 SDR are sought, by proving that the LIABILITY accident which caused the injury or death was Air Carrier liability arises where there is a form not due to their negligence or was attributable of loss or injury to customers of an aircraft. It to the negligence of a third party. This defence can be as a result of an aircraft accident which is not available where damages of less than is an occurrence associated with the operation 113,100 SDR are sought. Furthermore section of an aircraft, which takes place between the 48(3) of the Civil Aviation Act, 2006 provides time any person boards the aircraft with the in very mandatory terms thus: intention of flight until such time as all such persons have disembarked, and a person In any case of aircraft accident resulting in suffers a fatal or serious injury as a result of death or injury of passengers, the Carrier shall being in the aircraft18. An Air carrier liability make to its passengers or customers could arise in advance payments of at least US $30, 000 the following circumstances: where an injury (Thirty Thousand United States Dollars) within is sustained on board an aircraft; death arising 30 (Thirty) days from the date of such accident, from the course of a journey; damage to or to the natural person or such natural persons loss of goods; delayed or denied boarding; who are entitled to claim compensation in order interactions of preparing for or the actual to meet the immediate economic needs of such conduct of flight operations19. Liability can persons and such advance payments shall not arise from death or injury of the passengers of constitute recognition of liability and may be the aircraft, loss of baggage, damage to cargo, off set against any amounts subsequently paid delay etc. Some of these instances where as damages by the carrier. liability arises will be discussed below.

18 See Harka Air Services (Nig.) Ltd v. Keazor [2011] 13 NWLR (1264)320 19 ibid 20 The air carrier liability upon proof of damage was formerly 100,000 SDR as at 1999, however it has been updated from 100,000 to 113,100 SDR on 31 December 2009). This was done pursuant to Article 24 of the Convention which provides for the review of the limits

www.kennapartners.com | 7 The Courts have decided that for a Claimant liability of airlines for lost baggage to a fixed to establish liability, there must be proof that21: amount 1,131723 special drawing rights (SDR) per checked item (the amount in the Warsaw • The passenger got wounded or suffered Convention is based on weight of the baggage). bodily injury: It requires airlines to fully compensate travellers • That the injury arose from the accident: the cost of replacement items purchased until • That the accident occurred on board the the baggage is delivered, to a maximum of aircraft or during the course of embarking 1,131 SDR. At 21 days any delayed baggage or disembarking. is considered lost, even if the airline delivers it b. Baggage: after that period. Article 17(2) of the Convention provides that c. Cargo: the Carrier is liable for damages sustained in Article 18 stipulates that the Carrier is liable the case of destruction or loss, or of damage for damages sustained in the event of the to, checked baggage upon the condition only destruction or loss of, or damage to cargo upon that the event which caused the destruction, condition only that the event which caused loss or damage took place on board the aircraft the damage so sustained took place during or during the period within which the checked the carriage by air. The Carrier is however baggage was in the care of the Carrier. The not liable if the Carrier can prove that the Carrier is however not liable if and to the destruction or loss of, or damage to, the cargo extent that the Carrier can prove that: resulted from one or more of the following: • The damage resulted from the inherent • An inherent defect, quality or vice of that defect, quality or vice of the baggage. cargo; • Defective packing of the cargo performed • Defective packing of that cargo performed by a person other than the carrier or its by a person other than the carrier or its servants or agents; - An act of war or an servants or agents; armed conflict; • An act of war or an unarmed conflict: • An act of public authority carried out in connection with entry, exit or transit of the • An act of public authority carried out in cargo; connection with the entry, exit or transit of the cargo. • lt and its servants and agents took all measures that could reasonably be required The compensation upon proof of liability for to avoid the damage or that it was impossible loss of Cargo is same as that of a lost baggage for it or them to take such measures.22 as shown above. In the case of unchecked baggage, including d. Limitation of Liability: personal items, the Carrier is only liable if the It should be noted that by Article 22 of the damage resulted from its fault, or that of its Warsaw Convention of 1929, the liability servants or agents. The Montreal Convention of an Airliner in an accident involving a changes and generally increases the maximum passenger carrier is limited to the sum of

21 See Harka Air Services (Nig.) Ltd v. Keazor [2011] 13NWLR (1264)320, part at pg.345, paras. C-E per Adekeye J.S.C. 22 Article 19 of the Montreal Convention 23 This was formerly 1,000 SDR in the 1999 Convention

8 | www.kennapartners.com 125,000 Francs. But the provisions of Article $11,000 against it by the Court of Appeal. In 22 are circumscribed by Article 25 of the dismissing the Appeal, the Supreme Court same Convention, which provides that the agreed with the lower Court that the pilot was Carrier shall not be entitled to avail itself guilty of willful misconduct for the following of the provisions limiting or excluding its reasons: liability if the damage is caused by the “willful • The Airline operated the flight when others misconduct” of the Airline or of its agent who had their flights cancelled due to bad is acting within the scope of his employment. weather conditions; Although case law on claims in aircraft • The aircraft in question was not given accidents are few in Nigeria, the few decisions clearance to land at the threshold because on the issue, coupled with a consideration of it was at a height above the normal and few others from other jurisdictions, will be regular height and sufficient for this purpose and the definition of • The pilot did not respond to the air traffic “willful misconduct”. controllers’ questions about the landing In the English decision of Horabin v BOAC24, mode “willful misconduct,” contained in Article 25 Adekeye, JSC, who delivered the lead judgment, of the 1929 Convention, was described as held on page 348 thus: “Knowledge would follows: “Misconduct is misconduct which the be imputed where the nature of the damage will is a party and it is wholly different from would ordinarily flow from the reckless conduct mere negligence or carelessness, however gross of the pilot. In other words, from the foregoing that negligence or carelessness may be.... To prevailing circumstances and especially the be guilty of willful misconduct, the person pleadings of the Respondent..., it is glaring concerned must appreciate that he is acting without more that the learned trial Judge was wrongfully, or is wrongfully omitting to act, right in holding that the Appellant was guilty and yet persists in so acting or omitting to act of misconduct as provided in section 25 of the regardless of the consequences, or acts or omits Warsaw Convention of 1929.” to act with reckless indifference as to what the Rhodes-Vivour, JSC, in his concurring result may be ....” judgment, held at page 364 tersely thus: “Wilful The Supreme Court in the case of Harka Air misconduct is a deliberate wrong... by a pilot, Services (Nig.) Ltd. v. Keazor25 also adopted airline staff, or its agent which gives rise to a the above definition. In the case, the Court claim for damages by passengers.” Bringing was called upon to determine the liability of these decisions within the context of the recent Harka Airline, which aircraft had crash landed air mishaps in Nigeria, if there is evidence that at the Lagos Airport, resulting in fire outbreak the Airline officials knew or had reason to know that caused the plaintiff personal injuries and that the ill-fated aircraft was faulty or needed loss of luggage. The appeal by the Airline to to be worked on; or if they knew or had reason the Supreme Court was against the award of to know that the said aircraft was too old to still

24 (1952) 2 All ER 1006 see, also Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt. 163) 489. 25 [2011] 13NWLR (1264)320

www.kennapartners.com | 9 be flown but persisted in flying it, then their cause of action” in the provision means that liability to pay more than 125,000 francs26 to apart from the cause of action created under each passenger will not be limited or excluded the subsection, claims could also be made by by Article 22 of the Warsaw Convention of such persons under other laws. Consequently 1929. third parties who have suffered loss from an aircraft crashing into their neighbourhood, e. Third Parties: for example the Dana air crash, ought to be As stated earlier, the Montreal Convention compensated and they can proceed to enforce which Nigeria is a signatory expressly this right to compensation. makes provisions for liability in respect of the passengers, however there is no specific LIMITATION PERIOD FOR AIR provision for third parties like the owners of CARRIER LIABILITY properties or those inside a house into which an As it is often said, “everything that has a aircraft crashes. Notwithstanding this loophole, beginning has an end”. So also is the right the Civil Aviation Act, 2006 makes provision of action arising from air accident or loss of for such affected third parties. Section 49 (2) baggage/ cargo. The Montreal Convention27 of the Act provides that “Where injury, loss or expressly stipulates that the right to damages damage is caused to any person or property on shall be extinguished if an action is not brought land or water by an article or a person in or within a period of two years, from the date of falling from an aircraft while in flight, taking off arrival at the destination or from the date on or landing, then, without prejudice to the law which the aircraft ought to have arrived, or relating to contributory negligence, damages from the date on which the carriage stopped28. in respect of the injury, loss or damage shall The Courts generally have in a plethora of be recoverable without proof of negligence or decisions determined the issue of limitation intention or any other cause of action, as if of time in commencing an action. In Ibidapo the injury, loss or damage had been caused by v Lufthansa Airlines29 the Appellant was a the wilful act, neglect or default of the owner passenger on the Respondent’s aircraft flight of the aircraft.” It went further to state that LH 561 from Lagos to Frankfurt on 16th where the owner of the aircraft is liable to be January, 1987. The Appellant checked in along indemnified by a third party, that third party with a baggage containing an IBM typewriter shall be liable to indemnify the owner against which he claimed he bought for US $1,785. On any claim in respect of the said injury, loss or arrival at Frankfurt the next day, the typewriter damage. was missing and the Appellant promptly The provisions of the subsection have made it lodged a complaint with the Respondent. easy for persons who have suffered injury while The Respondent being unable to provide the still on the ground to claim damages from a missing typewriter opted for settlement which defaulting Airline. Also, the phrase “any other the Appellant rejected. On March 21, 1989

26 It is currently 113, 100SDR, a mix of currency values established by the International Monetary Fund (IMF). It was approximately $138,000 per passenger at the time of its ratification by the United States in 2003 (as of December 2011, it was around $175,800). Accessed at http://en.wikipedia.org/wiki/Montreal_Convention June 4, 2014 27 See Article 35 of the Convention 28 Note that the method of ascertaining the period shall be determined by the law of the court seised of the case. See Article 35 (2) of the Convention. 29 11997] 4NWLR (498) 124 30

10 | www.kennapartners.com the Appellant commenced an action vide a predetermined nature and cannot be suspended writ of summons against the Respondent. The or interrupted by the agreements of parties. In Respondent filed a defence and an Application the instant case, the series of correspondence raising the issue of limitation since the action between the Appellant and the Respondent go for the loss of the typewriter was commenced to no issue as the condition precedent that an after two years. The trial Court upheld the action should be brought by the Plaintiff within Respondent’s Application and dismissed the the two years of the arrival or scheduled arrival claim of the Appellant. On Appeal to the of the aircraft at the destination admits of no Court of Appeal, the Court upheld the trial negotiation between the parties. Court’s decision. The Appellant thereafter AIR ACCIDENTS AND LIABILITY: appealed to the Supreme Court. In dismissing PRACTICAL ISSUES the Appeal the Supreme Court per Ogundare J.S.C (P.161, paras. A-B) stated that: Since 1925 when Nigeria made its way into the Aviation Industry with the first aeroplane It is not in dispute that the Plaintiff arrived at landing in Lagos, the country has experienced Frankfurt on January 17, 1987. If he had any over 50 serious air disasters. The first major claim against the Defendant he must bring air crash in the aviation industry was that of his action within two years of that date-see: a Federal Government owned VC-10 aircraft Article 29(1)30 of the Warsaw Convention. on November 20, 1969. It was flying in from As the Plaintiff did not commence his action London and crashed as it prepared to land until March 21, 1989, well outside the two- at the Ikeja Airport. Some of the air mishaps year period laid down in Article 29(1), the include: two Courts below are right in holding that the Plaintiff’s action is barred by the said Article. • The 1983 Fokker that crashed at airport A lot of people faced with injuries or loss • The June 26, 1991 Okada Airlines plane arising from aircraft accident or loss of carrying 55 passengers which crashed in baggage/cargo have encountered this pitfall Sokoto State. as they spend time exploring settlement option • The crash of Boeing 727 (Flight 086) or waiting for the Air Carrier insurance owned by Aviation Development Company company to compensate them. What people (ADC) Airlines which plunged into the fail to understand is that the time spent waiting Lagos lagoon 85 kilometres from Lagos is or negotiating compensation does not stall worthy of note. the limitation period. Accordingly, time is of the essence and affected persons must act in • (Flight 210) good time. In Oshivere v. British Caledonian crashed in 2005 soon after take-off from Airways Ltd31, the Court of Appeal per Joseph Lagos near Lisa Village, Ogun State. Diekola Ogundere J.C.A. stated that: • In December the 2005, Sosoliso Airline DC-9 (Flight 1145) crashed in Port The limitation period laid down in Article Harcourt, Rivers State. 29(1) of the Warsaw Convention is of a • The Dana Airline also crashed in 2012.

30 The Article provides that: “the right to damages shall be extinguished if any action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped”. 31 [1990]7NWLR (163) 507

www.kennapartners.com | 11 • The most recent of these crashes is the final analysis, there cannot be said to be a dearth Associated Airlines32 (Flight 361) which of regulatory framework but adherence to same. crashed in Lagos. RECOMMENDATION/CONCLUSION With all these air mishaps, the issue of whom Conclusively, the Insurance companies have to be held liable and payment of compensation a major role to play in compensating victims/ will come into play. Taking a cue from foreign families where loss arises. The issue of Jurisdictions for example, the Insurance bureaucracy and bottlenecks in the payment companies play a major role as it is their duty to of compensations should be avoided both by offer and pay compensation to victims or their the Insurance Companies and the Air Carrier. families. For example, the families of Air France Nigerians should also be aware of their rights in Flight 44733 victims were provided with an respect of receiving compensation/ damages as advance in the compensation they will receive a result of liability incurred by the Air carrier. from the Airline’s insurers34 Due to the limitation period, delay should be However, in Nigeria getting compensation from avoided in instituting an action against the Air the Insurance Companies pose a difficulty. Carrier. Months after the Dana Air crash, families Once investigations have been concluded to and legal representatives of victims were seen determine the cause of the air mishap, an complaining of not being compensated by the action can be instituted at the appropriate Court Dana Air Insurers. The families as provided by the without prejudice to ongoing negotiations. Civil Aviation Act are entitled to receive $30,000 This is to avoid the pitfall of the limitation of initial compensation35. Some of the families that action principle as it will be fatal to commence received compensation were not paid fully. Only compensation proceedings after the statutory a couple of weeks ago, the second Anniversary time limit36. of the Dana Air mishap was observed amidst claims by the Victim’s families that the Airline ______had not paid any or full compensation to them. The unsavoury truth however is that for those Professor Fabian Ajogwu, SAN who have not commenced an action in respect July 2, 2014 Lagos thereof may have had their rights extinguished forever. Given the provisions of the Convention and our local legislation, one can safely say that the provisions will suffice. However in a Society where there is a lax attitude towards obeying the law, the law will be seen as ineffective. In the

32 The Accident Investigation Bureau (AIB) revealed that the October 3, 2013 Associated Airlines crash which killed 14 people was caused by pilot error. 33 CBC News “Air France to give compensation advances to crash victims’ families” accessed June 4, 2014 34 The Airbus 330 disappeared from radar screens as it flew through stormy weather after leaving Rio de Janeiro en route to Paris. All pas- sengers who were on the plane were believed to have died. 35 N.B the payment of this compensation does not mean that liability is admitted by the Air Carrier 36 For example relatives of those involved in the ill-fated Dana Aircraft can as at the 3rd day of June, 2014 no longer institute a valid action against Dana Air since the two years period has lapsed.

12 | www.kennapartners.com REFERENCES • Brian Harris “Ridley’s Law of the Carriage of Goods by Land Sea and Air” Sweet & Maxwell 2012 8th Ed. Page 343 • CBC News “Air France to give compensation advances to crash victims’ families” accessed June 4, 2014 Civil Aviation Act, 2006 • DeRemer, Dale; Mc Lean, Donald W. (1998). Global Navigation for Pilots (2nd ed.). Aviation Supplies & Academics, Inc. p. 370. • http://en.wikipedia.org/wiki/Montreal_Convention June 4, 2014. • Montreal Convention • Montreal Convention of 1999 • Warsaw convention • www.montrealconvention.org accessed on May 30, 2014.

www.kennapartners.com | 13 About Professor Fabian Ajogwu, SAN, FCIArb

Professor Fabian Ajogwu is the Principal Partner Global, amongst others. He is a Non-Executive of Kenna Partners, a Senior Advocate of Nigeria, Director of Stanbic IBTC Holdings Plc, a Non- and a Professor of Corporate Governance at the Executive Director of Guinness Nigeria Plc, and Lagos Business School. He is an Alumnus of both has served as Honorary Counsel to the State the Saïd Business School of Oxford University and of Israel and the Republic of , in the Lagos Business School. He holds a doctorate Nigeria. He assisted the Securities and Exchange degree in Law from the University of Aberdeen, Commission in drafting Nigeria’s pioneer Code of Scotland; an MBA from the IESE Business School, Corporate Governance. He chaired the Nigerian University of Navarra, Barcelona; and Law degrees Communications Commission Committee (NCC) from the University of Nigeria, and University of on Corporate Governance that produced the Lagos. pioneer NCC Code of Corporate Governance for The Learned Senior Advocate has been Lead the Telecommunication sector in the year 2014 Counsel to the Federal Government of Nigeria and assisted with the Code’s review in 2016. He and its Agencies in several cases of national also served on the Committee of the Financial importance. He has extensive experience in Reporting Council of Nigeria that produced the deal structuring and has advised on complex 2018 National Code of Corporate Governance. transactions in several industries including Energy, He is a member of the Editorial Board of the Maritime, Banking and Financial services, Real ‘Journal of Corporate Governance’, a publication estate and Infrastructure. He chairs the Board of the Society for Corporate Governance Nigeria of the Novare Group in Nigeria (owners of the and a member of the Editorial Board of the Novare malls), ARM Harith Infrastructure Ltd ‘Journal of Law Practice’ of the body of Senior (Nigeria’s pioneer infrastructure fund), and NES Advocates of Nigeria.

14 | www.kennapartners.com Lagos Abuja Enugu 8, Ogunyemi Road, Plot 1015, Gwandal Centre, Fria Close, 23, Umuawulu Street, Palace Way, Oniru, Ademola Adetokunbo Crescent, Wuse II, Independence Layout, Victoria Island, Lagos, Nigeria Abuja, Nigeria Enugu, Nigeria

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