Of Liability & Compensation in Air Craft Accidents
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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 aviation 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. New York 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 France 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.