Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents Dr. Bipin Kumar Assistant Professor at National Law University, Jodhpur, Rajasthan

Abstract Air craft accidents are very crucial and equally complex issue in litigation. It requires judicious determination as to who is liable, the nature of liability and its extent. The diversity of jurisdiction of the parties involved acts as a hindrance in determination of the liability. Further once the liability is determined, the next vital issue to be appropriately resolved compensation. Aviation is the newest mode of transportation subject to continuous modernization and thus resulting in unforeseen & unprecedented situations & problems. In such a scenario uniformity & predictability of the law & rules governing the aviation accidents becomes difficult to maintain. The “Warsaw Convention” of 1929 being the bedrock & the Montreal Convention in 1999 are significant attempt in providing for a uniform liability regime. Still, due to the constant dynamics of the aviation industry it is the courts and the judicial interpretation that serves the purpose of securing the ends of justice. This paper investigates interpretation & resolution of various issues relating to liability and compensation, in aviation accidents, by different courts across the globe.

Introduction standards and rules for air navigation and sets nternational aviation has brought down the liability regime in event of death or injury the distances between the nations making in aviation accidents. The Warsaw Convention it easier for passengers to travel cross for the Unification of Certain Rules Relating to I International Carriage by Air dated from 1929 time zones. However, there has been lot of uncertainty and non-uniformity among the laws is the first and the most important international governing damages awarded to passengers in convention in this regard. The Convention aviation accidents. Liabilities for damage claims firmly establish and elaborate the principles growing out of these aircraft accidents are of the air carrier’s liability for damage caused among the most difficult of all legal problems, to passengers, baggage goods and also for the since, in the present state of the law, they must damage caused due to delay in the aircraft. The be solved by applying some of the oldest legal Warsaw Convention rules are being followed rules of the common law to our newest mode of all over the world as most of the countries have transportation1.Aviation litigation is complex as ratified this convention and applied these rules. it involves liabilities under both domestic and These rules are considered reliable and have 2 international law regimes. They trial involves proved usefulness. Over the years it became many issues and many courts are also involved clear that the Convention requires amendment. into the litigations. If the International law is The Convention is followed by its most successful not applicable and where the domestic laws amendment by replacing it with the Montreal conflict, then court has to determine a choice Convention in 1999. The amendment consolidates of law to decide how much damages an injured the all earlier instruments into a single text and passenger will receive. provides the basis for genuine uniformity of laws governing the air transportation in the world. There are certain international conventions in Both these conventions provide for a uniform existence which provides for a uniform set of

1. Wherry, “Aeronautics and the Problem of Tort 2. I H. Ph. Diederiks- Versechoor, An Introduction to Air Liability”, (1939), 10 Air Law Rev. 537. Law, 8th Ed, Kluwer Law International, 2006, 101 6 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents liability regime for the benefit of the passengers Rules for International Carriage by Air in 1999 and their families. Both the Conventions coexist. which is popularly known as the Montreal The passengers now know that, whatever and Convention replaced the Warsaw Convention whenever he flies, there is certain degree of system. One of the cardinal achievements of the uniformity in the rules governing the carrier’s Convention was to re-establish the uniformity liability. The carrier’s now are also aware of the and predictability rules relating to air carrier extent of their liability, can make arrangement transportation. The convention consolidates to insure himself against all possible losses. The all previous Warsaw convention into one single present paper tries to analyses the liability of the text. The Convention removed the monetary international air carriers arising out of aviation cap limiting the carriers’ liability. However, accidents. contributory negligence on the part of the The Warsaw Convention of 1929 regulates passengers continued in the new rules. The the legal liabilities and relationships between liability of the carrier in case of delay was also carriers by air, one the one hand, and passengers fixed by the convention. The Convention also as well cargo consignees, on the other hand. The provides rules for the liability of the carrier for main purpose for which convention was drafted loss; damage or delay to baggage in SDR norms. was to avoid the conflicts of laws thorough Liability system & compensation harmonization and to protect an infant industry awarded under the International from excessive contractual liability. The Conventions – Status in the US, the Convention limits the liability of the air carrier. The Convention require the application of the UK & Australia: Warsaw Rules to any international carriage by Article 17 of the Convention states that the air between places of departure and destination “carrier is liable for damages sustained in the situated in two contracting states or in one event of death or wounding of a passenger or contracting state with an agreed stopover in any other bodily injury suffered by a passenger”. another state. Most countries have gradually Article 18 of the Convention provides that the come to ratify the Warsaw Convention. Apart “carrier is also liable for damage to checked from introducing extensive documentation baggage or goods”. Moreover, in Article 19 of the requirements, the Convention creates a scheme Convention, the carrier has been made “liable of liability that places the burden of proof on the for damage occasioned by delay in the carriage of carrier.3 The onus lies on the carrier to prove passengers, baggage or goods by air”. The Rules that the carrier and their servants and agents of the Convention are applicable exclusively in applied all the reasonable care. Over the years the spheres of international transportation. The the liability of the carriers were raised. The Convention Rules do not cover manufacturers liability proves to be too low keeping in mind the or air traffic controllers. These aspects of the changes in the life style. The process became so transportation will be governed by municipal complicated due to non-implementation of the laws of the countries concerned. amendment by many countries. The co-exiting Liability of the Carrier: conventions had significantly contributed in In Lear v. Helicopter5 case a US court creating a complex phenomenon.4 had extended the definition of the carrier used The Convention for the Unification of Certain under Article 17 to include not only the parent holding company of the carrier but also the 3. Indira Carr & Peter Stone, International Trade aircraft’s maintenance company and the operator Law, Fourth Ed. International Trade Law, Routlage- of the heliport from which the aircraft took off. Cavendish, 2010, , 331 4. Peter H. Sandt, “Air Carriers’ Limitation of Liability According to the court all defendants were part and Air Passengers’ Accident Compensation Under of the same corporate structure and operating The Warsaw Convention”, 28 J. Air L. & Com. 260 1961-1962 5. New York Sup. Court, 1990, 23 Avi 17, 887 7 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents in the same enterprise. The precedential value Article 17 of the Warsaw Convention according of the decision proved to be small as the court to the court cannot be circumvented by the seems to have mixed up Article 30 on successive reference to Montreal Convention. According carriers with this concept. The contract of to the court by referring to Article 20 ‘due care’ carriage puts the carrier under an obligation to defenses, Article 17 requirement of the ‘accident’ affect the transport without damage and without cannot be waived off. delay, so the carrier is compelled to accomplish In Olympic Airways v. Husain8, the Supreme the transport within reasonable period of time. Court of US followed the reasoning given by The legal basis of the liability of the carrier is Justice O’Conner in Sakes case referred above based on fault liability which means that the 6 and gave compensation to the passenger who onus of proof lies with the carrier. died aboard. In this case, the passenger was In Air v. Saks7, the U.S. Supreme Court allergic to second-hand smoke. Despite a request held that “liability under Article 17 arises only if made by his wife to the flight attendant to shift a passenger’s injury is caused by an unexpected his seat, the attendant falsely informed her that or unusual event or happening that is external to there were no vacant seats. Applying the Saks the passenger and not where the injury results definition of ‘accident’, Justice Thomas held that from the passenger’s own internal reaction some link in the causal chain was an unusual to the usual, normal and expected operation or unexpected event external to the passenger of the aircraft”. The court had taken the and failure of the flight attendant was such an drafting history of the Warsaw Convention into event. The dissenting opinion of Justice Scalia consideration and also weighed the precedents is of much importance as he held that such in foreign and US courts. It was held by the court inaction was a non-event and not an event and that liability under Article 17 of the Warsaw thus cannot be an ‘accident’ under Article 17. Convention arises “only if the passenger’s injury American jurisprudence on interpretation is caused by an unexpected or unusual event or of Article 17 has been subjected too much happening external to the passenger” and “not criticisms. In Povey v. Qantas Airways9, where is the injury results from the passenger’s the Australian High Court disapproved the own internal reaction to the usual, normal and definition of ‘accident’ given in Saks case as it expected operation of the aircraft, in which it does not exhaustively define the scope of Article has not caused by an accident under Article 17 of the Convention. The appellant in this case 17”. The Convention now here defines the term contended for the narrow meaning of the term “accident”. The Court further went into the “accident” under Article 17 of the Convention. textual meaning of the Convention. The court Justice McHugh disapproved the Saks case. held that Article 17 of the Convention imposes According to him “ there can be an accident for labiality on the part of the carrier for injuries the purpose of Article 17 when the employees caused to the passengers by an accident whereas of an air carrier engage in conduct that causes Article 18 of the Convention imposes liability an injury that is not intended or reasonably on the carrier for destruction or loss of baggage foreseeable”. The Convention works on the by an ‘occurrence’. The Court held that the basis of fault liability. Under this system it is drafters of the Convention treated ‘accident’ and not required on the part of the claimant to prove ‘occurrence’ differently. Therefore, for defining fault of the air carrier. According to the High the term ‘accident’ cause is the most important Court the interpretation of the US Supreme rather than the occurrence. The court had gone Court given in the Saks case is contrary to this into the French text of the Convention to reach object of the Convention. The bare wordings of this conclusion. The enforcement requirement of Article 17 gives an understanding that ‘accident’

6. Supra 2, 117 8. 124 S. Ct. 1221 (2003) 7. 470 U.S. 392 (1985) 9. 2005 HCA 33 (2005) 8 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents is “an event happening or occurrence that is the carrier had been, therefore, deemed to unusual, fortuitous, unexpected or unforeseen”. be declared as an ‘accident’ for the purpose of The event must have taken place on the aircraft Article 17 of the Warsaw Convention. itself. The action of the flight attendant may be considered relevant for the determination of an Issue of Emotional Damages accident. Thus, the definition given in Saks is The next issue is whether passengers can too wide as “it excludes cases where the causative recover for mental injuries and emotional conduct of a human actor has unintended and damages. Since the coming into force of Warsaw reasonably unforeseeable consequences and Convention in 1929, recovery for accident has which would constitute an ‘accident’”10. been limited to bodily injury. The Montreal Convention however chose to retain the same In re Deep Vein Thrombosis and Air Travel language of bodily injury but the member states Group Litigation11, Lord Scot stated that the had already interpreted it to include mental U.S. Supreme Court flawed jurisprudential injury. Earlier, no recovery was allowed for methodology by relying on Saks definition of emotional harm. The courts had applied the ‘accident’. A culpable act or omission which does ‘impact rule’ wherein plaintiffs were prohibited not amount to an unusual or unexpected event from recovering for emotional damages unless of happening has been held to be not in itself an suffered an actual impact13. However, some accident. For the purpose of determination the courts adopted ‘zone of danger rule’ wherein test is simple criteria of causation of an accident plaintiffs were allowed to recover damages i.e an ‘unusual or unexpected event of happening for emotional trauma where plaintiff was not external to the passenger’. The definition is actually injured, but nearly was14. required to be implemented in a flexible manner. In deep vein thrombosis [DVT] cases no recovery In Eastern v. Floyd15, the U.S. Supreme could have been met by the passengers if the two Court held that under Article 17 of the Warsaw requirements as set out in Saks are relied on. Convention, recovery is allowed when there is These two requirements were- firstly, normal either death or bodily injury. Article 17 does happenings on the aircraft cannot be considered. not allow recovery for purely mental injuries. For accident to be considered the event taken The Court tried to look into the translation place must be abnormal, and secondly, the event of the Convention in various languages in that caused the accident must be external to the order to find the meaning of the term “bodily passenger in the case. Similarly, the DVT cases injury”. Justice Marshall held that “Article 17 do not have the necessary elements as stated in of the Convention sets forth conditions under Hussein case. which an international carrier can be held liable for injuries to the passengers.” This case 12, the In a fairly recent case of Prescod v. AMR presents the question whether Article 17 of U.S. Court of Appeals cleared the controversy the Convention allows recovery for mental or regarding the interpretation of Article 17. In psychic injuries unaccompanied by physical this case the airline employees confiscated the injury or physical manifestation of injury. The bag from the possession of a senior citizen. The court stated that “an air carrier cannot be held life sustaining breathing devices and other liable under Article 17 when an accident has medications were found in the bag. According to not caused a passenger to suffer death, physical the court the confiscation of the bag of the senior injury, or physical manifestation of injury.” citizen on the mere suspicion was constituted an “unusual or unexpected event or happening external” to the passenger. The above act of 13. Marchica v. Long Island R.R., 31 F.3d 1197 (2nd Cir. 1994). 10. Id. at ¶ 79 14. Gillman v. Burlington Northern R.R. Co., 878 F.2nd 11. [2005] UKHL 72 1020 (7th Cir. 1989) 12. 383 F.3rd 861 (9th Cir. 2004) 15. 499 U.S. 530 (1991) 9 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents

In Jack v. Trans World Airlines16 wherein the strokes, miscarriages or peptic ulcers, the threshold flight at Kennedy Airport departed for San requirement of bodily injury is satisfied”. Francisco experienced an aborted takeoff and In New South Wales in Kotsambasis v. Sing subsequent fire. Although the fire had completed , Ltd21 case, the Court of Appeal of destroyed the plane but all the passengers got Australia followed Floyd. The Court had refused survived. Many passengers claimed that they recovery for a claimant who alleged purely got too much traumatized by the fire and the mental injury. The alleged injury had taken place crash. The court had considered the because of fire that has taken place during the four “possible approaches regarding emotional turning back of the flight. The Court of Appeal distress under the Warsaw Convention case: further clarified and held that recovery is allowed a. No recovery allowed for emotional only in those cases where psychological injury distress; must be accompanied by physical injury. b. Recovery allowed for all emotional Apart from these cases, herein below are few distress, so long as bodily injury occurs; other notable judgments. c. Emotional distress allowed as damages In Husserl v. Swiss Air Transport Co., Ltd.22, for bodily injury, but distress may include Secretary of State Hull expressed the effect distress about the accident; and of limiting liability as “it is believed that the d. Only emotional distress flowing from the principle of limitation of liability will not only bodily injury is recoverable.”17 be beneficial to passengers and shippers as affording a more definite basis of recovery and as The court agreed with the last criteria and tending to lessen litigation, but that it will prove on the same line stated that the “emotional to be an aid in the development of international distress be caused by the physical harm, fearing air transportation, as such limitation will afford the happenstance of getting scratched on the the carrier a more definite and equitable basis way down the evacuation slide might enable on which to obtain insurance rates, with the one passenger to obtain a substantially greater probable result that there would eventually be recovery than that of an unscratched co-passenger a reduction of operating expenses for the carrier 18 who was equally terrified by the plane crash”. and advantages to travelers and shippers in the Thus, the dicta of this case which was followed way of reduced transportation charges.” in international aviation jurisprudence stands 23 as recovery for emotional injury is allowed only In re Air Crash off I’ointMugu, California , to the extent that emotional injury is caused Judge Legge stated that the case was governed by physical injuries. However, one may also by the Warsaw Convention as modified by recover for physical manifestation of emotional Montreal Protocol No. 4. The Court further held harm caused by the accident19. that the modified Convention now is limited to compensatory damages and does not include The position in UK jurisprudence regarding and cover punitive damages. emotional distress is much clearer. In Morris v. 24 KLM 20 Lord Steyn held that any pain caused by In re Air Crash a1 Taipei, Taiwan , another physical injury in the air accident is recoverable. international air disaster that involved The court further clarified “if a relevant accident the crash of Singapore Airlines Flight on October causes mental injury or illness which in turn 31, 2000 while taking off from Taipei bound for causes adverse physical symptoms, such as in a typhoon-like condition and on a closed runway the plane crashed into construction

16. 854 F. Supp. 654 (N.D.Cal. 1994) 17. Ibid. 21. (1997) 140 F.L.R. 318, 323 (Austl.) 18. Id. at 668 22. 388 F. Supp. 1238, 1244 (S.D.N.Y. 1975) 19. Id. 23. 145 F.Supp. 2d 1156, I61 (N.D. Cal. 2001) 20. [2002] 2 AC 628 (U.K. House of Lords 2002) 24. U.S. Dist. LEXIS 5232 (J.I’.M.I,. 2001) 10 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents equipment killing eighty-one individuals. The of the lease. The period of the lease was for one court refused to take “All necessary measures” year. The claimant contended the air carrier defense and rejected the defense taken by the was vicariously liable for negligent operation carrier on ground of negligence an unnecessary of the airplane. The Florida Supreme Court take off in inclement weather on a closed runway interpreting the scope of Florida’s ‘dangerous that crashes into construction equipment. instrumentality’ doctrine extended to the air carrier. According to the court the doctrine Issue of Vicarious Liability imposes strict liability upon the owner of a Another issue that creates ambiguity in deciding motor vehicle who gives authority, express the liability in case of aircraft accidents is - can or implied, to other party operate the vehicle. an owner of aircraft be made liable? The liability The owner has a non-delegable obligation to of an aircraft owner on the basis of principle of ensure that the vehicle is operated safely. In vicarious liability is still an infant concept and such cases a plaintiff need not prove that the much uncertainty revolves around. Article 20 of owner negligently entrusted the vehicle to its the Convention sates that “carriers are not liable operator for liability to attach, but must prove if he proves that if he and his employees had taken some fault on the part of the operator, which all necessary steps to avoid the damage”, or “that is then imputed to the owner under vicarious it was impossible for him or for them to take such liability principles. Florida courts have applied necessary measures”. Further, if the carrier proves the doctrine to the owner of an airplane who that they were not in control of the maintenance was not in control of the aircraft at the time of or operation of the aircraft in all relevant times a crash that caused the death of a passenger.27 leading up to the accident. The carrier will also The liability of an aircraft owner, lessor, be exonerated; wholly of partly from liability or secured party arising from an aircraft if he proves that the damage was caused by or accident that results in the death of or injury contributed to by the negligence of the injured to passengers continues to be unsettled as a person. The carrier will also not be held liable for legal matter. Depending on the jurisdiction, an not having knowledge of any dangerous condition aircraft owner, lessor, or secured party may be or defect in the aircraft at the time of transfer of found liable even if it is not in actual possession control of the aircraft to another. If the air carrier or control of the aircraft at the time of the prove that they had not entrusted the aircraft to accident or incident.28 someone incompetent to fly they will not be held liable. The air carrier will not be held liable if Application of Doctrine of Res Ipsa any accident takes place because of the fault of Locquitur the maintenance personal if they had not been The Warsaw and Montreal Conventions have employed by the carrier. set out a uniform presumption of liability on the In Brown v. Astrin Enterprises & NAFTA25, the carrier’s side. Under the common law rules of court held that without specific legislation an liability it requires on the part of the passenger air craft carrier cannot be held liable for any to prove the carrier’s negligence unless “the accident where an innocent owner, who loans, case speaks for itself” (res ipsa loquitur). This rents or leases an aircraft to another party. In the presumption again is a rebuttable presumption.29 absence of the specific statute innocent owners This doctrine has been applied where plaintiff is usually not held liable for the negligence of that party in most states. 27. M. Speiser, “Dynamics of Airline Crash Litigation: In another case decided in 2011 in Vreeland v. What Makes The Cases Move?” 43 J. Air L. & Com. 565 Ferrer26, the aircraft crashed during the period 1977 28. Supra 2 29. Goldberg, “Jurisdiction and Venue in Aviation 25. 989 F. Supp. 1399, 1406 (N. D. Alabama, 1997) Accident Cases including Workmen Compensation 26. 71 So. 3d 70 (Fla. 2011) Claims”, 36 Cal. L. Rev. 41 (1948) 11 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents proves that firstly, that the accident happened is increased to a maximum of 250,000 francs. was under the exclusive control or management Section 5(1) of the Act declares that “in the of the Defendant, secondly, that the accident event of death of passenger, the liability of the is such as does not in the ordinary course of carrier” which is unlimited shall be determined things happen if due care has been exercised, in accordance with the provisions of the First and thirdly, that the injury would have occurred and Second Schedules and not by the Fatal without voluntary action or contribution on the Accidents Act, 1855 or any other law for the part of the person injured30. Under this doctrine, time bearing in force. The Montreal Convention a Plaintiff suing an airplane operator has to of 1999 which is now implemented in India prove that the airplane was under the exclusive does not fix any upper limit of liability for the control of the operator and the accident is of carrier towards compensation payable for death such character that it would not have occurred or injury suffered by a passenger. For inland unless the airplane operator was negligent, and carriage by air common law rules are still there was no contributory negligence on part applicable as it has not been modified by any of the plaintiff31. This proof makes out a prima statute in India, it follows that absolute freedom facie case for the Plaintiff. of the carrier to contract out his liability even in 33 In Smith v. O’Donnell32, the California Supreme cases where negligence remains. Parties to the Court stated that “when it is shown that the contract make their own laws. It is not for the occurrence is such as does not ordinary happen court to make a contract for the parties outside without negligence on part of those in charge of the words they use. Where the contract offends the instrumentality and the thing due to which the provisions of the Indian Contract Act, 1872, injury happened was in charge of the party if opposed to public policy, only then a court may who is sought to be charged, and there were no strike down the contract. There is an absence of negligence which the defendant can prove, then specific statute for internal air carriage in India. a presumption is raised of negligence which In the absence of the statute the liability of the common carrier is determined by the English defendant must overcome by proof that there 34 was in fact no negligence”. common law as administered in India. In National Aviation Company of India Ltd. V. Judicial Perception on Compensation S. Abdul Salam & others35, popularly known as for Aviation Accident in India Mangalore Air Crash, wherein an international Law of carriage by air in India is largely air flight crashed killing 158 people and governed by international convention. India had injuring 10 people including the crew. The flight signed the Warsaw Convention of 1929 at the was there from Dubai to Mangalore. The pilot time of independence in 1947. Indian Carriage error was the reason for the accident. In the of Air Act 1972 is based upon the Convention. lower court the compensation awarded was 1 India chose to ratify the Montreal Convention lakh SDRs. The writ petition was filed by the 1999 in 2009. The Act provides for liquidated respondent in the Kerala High court for raising damages to a maximum of 2, 50,000 francs or the compensation. The main controversy was its equivalent currency. whether Rules 21 (1) of the Act fixes a minimum The Warsaw Convention is scheduled to the no fault or strict liability on the air carrier to Carriage by Air Act, 1972 and applies to all pay compensation of Rs. 1 lakh SDRs in the international carriage by aircraft for reward. case of death of each passenger, irrespective of The liability of the carrier for each passenger actual damage suffered? The Kerala High Court

33. Air Carrying Corporation v. Shidendra Nath 30. Rhyne, “A Review of Recent Aviation Accident Bhattacharya AIR 1964, Cal 396 Decisions”, 13 Ins. Counsel J. 25 1946, p. 11 34. National Tobbaco Co. of India v. Indian Airlines 31. Id. Corporation, AIR 1961 Cal, 383 32. 215 Cal. 714, 722 35. 2011 (4) KLJ 235 12 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents provided certain factors that influence the was caused by the negligence or other wrongful determination of the air carrier. These factors act or omission of a third party. The entire can be the age of the deceased passenger, burden of proof is there on the carrier to prove their educational background, their status of these defenses. In case of the failure this will the job, their last salary drawn, their marital be presumed the negligence of the carrier and status, their economic status, the number of that will entitle the claimant for actual damage dependents, and the extent of dependency. irrespective of the limit. The Kerala High Court further clarified that In another judgment in Airport Authority of India the liability of the carrier is unlimited in the v. Ushaben Shirishbhai Shah37 an appeal was case of death or injury in an air bound accident. filed by the widow and two sons of Shirishbhai The Court analyzed the history of the claim in who died while travelling as a passenger in the Warsaw Convention and its subsequent an Indian Airlines flight which crashed near amendments. The carrier is liable to pay only the Ahmadabad Airport on 19-10-1988. It was actual damages suffered by the person. To claim proved that the accident was on account of acts or such damages the claimants are required to omissions and on account of negligence of Indian prove and demonstrate such damages. These Airlines and the Airport Authority of India and damages will cover only the cases of death and the accident occurred due to negligence of the injury. There is no provision in Rule 21(1) of pilot. Thus, a compensation on account of the the Third Schedule to the Act or in the Act for composite negligence of the Indian Airlines and payment of any minimum compensation by the its employees on the one hand and the Airport air company for death or injury of a passenger Authority and its employees on the other hand in an air accident. The provisions of the Third in the ratio of 70:30 respectively. Schedule of the Act apply equally without In K. Bharathi Devi v. The General Insurance discrimination. The Act doesn’t treat the Indian Corporation of India38, wherein the issue raised and foreigners differently. The Act is available in the Andhra Pradesh High Court was on to all who perished or survived with injuries whether the amount received by the claimants in the air crash. The Court ruled that “the as collateral benefits accrued out of the death of carrier as a matter of goodwill as in this case the passenger in an accident on an international should offer a reasonable minimum, even if the carriage could be set off against compensation actual damages payable in law may be low, so payable under the Act for damages? The that unnecessary litigation is avoided through 36 Andhra High Court held that the “provisions settlement.” of the Act including the Third Schedule though The High court further ruled that only the imposes certain limitations and disabilities on minimum damages are prescribed in case of an Air Companies in their defence against claims air accident. The carrier is bound by law to pay of compensation made for injury or death of up to 1 lakh SDRs to the claimants irrespective of passengers the general law on tort based on the reasons for such an accident. Such accident which damages has to be determined, is not may be due to negligence of the carrier or due dispensed with”. to the acts of the servants or of third parties. In Compensation according to the court has to be all cases carrier is required to pay a minimum claimed by claimants of or by victims of air crash damage. In case where damages claimed is based on sound principles of law on tort. The above 1 lakh SDRs, the carrier is having certain principles applicable in the determination of defenses. In these cases the carrier can plead compensation in the air accident cases of death and prove that such accident was not caused and injury are age, income, loss of dependency on account of the negligence of the carrier or their employees or agents or that the accident 37. AIR 2009 Guj 264 36. Ibid. 38. AIR 1988 AP 361 13 Judicial Perception (International & Indian) of Liability & Compensation in Air Craft Accidents etc. The carrier cannot invoke the principle of set to mechanical maintenance and structural off to reduce its liability of the damages payable integrity of the aircraft. Liability issues can as reparation to the members of the family thus be just as complex. of the deceased for the death caused by the The problems with aviation litigation are carrier’s negligence, default or statutory duty, numerous such as: to the deceased. The entitlement to receive the personal accident benefit policy is the contract ● Aviation accidents invoke the interests of and happening of the accident is only an numerous jurisdictions and potential laws incident or a chance to receive but the primary ● Application of strict lex loci delicti rule entitlement is his contract. Thus the collateral and lex loci bars recovery to passengers benefit received by the members of the family and their families of the deceased for personal accident insurance ● There is no efficient common jurisprudence policy cannot be a set off or a ground to relieve developed on compensation awarded in the respondent of its statutory liability. accident In another case of Sangeeta Barring v. Air ● Choice of law is complex, difficult and India Ltd.39wherein an accident occurred varies from jurisdiction to jurisdiction. at Mumbai airport. The Singapore born flight is this case met with an accident while Further another new issue of liability of returning. At the time of landing of the flight government in aviation accidents is an issue the petitioner got injured because of several that requires serious deliberations and uniform jerky movements. Pilot applied speed brakes rules for efficient dispute resolution and remedy in excess of the permissible limits. The provision mechanism Presently, both the air petitioner filed the criminal action against traffic controller and the pilot have a duty of the pilots and also asked for cancelling of care towards the passenger and an additional licenses. The compensation asked under the duty of care has been extended on the air traffic petition to the tune of 90 lakh and also to bear controller to exercise his own judgment. Liability the medical expenses of the petitioner. The of government in such cases is also being voiced High Court expressing the full sympathy with by various scholars but there is no settled and the petitioner had held that the case is not fit uniform status on the same today. to award exemplary damages. The Court held The Montreal Convention of 1999, however, that Air India in this case is not vindictive nor has contributed significantly as it has violated the basic principle of natural justice. strived to a considerable extent in unifying The Court further held that the petitioner was the rules on international carriage by air entitled to compensation and other dues. The and modernized limitation of liability for Court had directed that Air India to spend international air transport. The Convention money on her treatment as the petitioner has entered into force on 4th November2003. had suffered the accident while on board and It introduced a two-tier liability system. In that too while imparting her duty. The Court the first tier it is known as strict liability further directed the air carrier to pay the full regime where the maximum damages salary during the pendency of her treatment awarded is up to 100,000 SDRs. In the in India and abroad. second tier liability which is based on the Conclusion: presumed fault rule where the carrier is having unlimited liability. In spite of all The safety of the flight depends on several the merit of the Montreal Convention, complex, interconnected systems, encompassing nevertheless it will take much time to reach pilot training and experience and ranging the worldwide acceptance enjoyed by the Warsaw Convention. 39. 103 (2003) DLT 5 14