The two recent international aeroplane crashes (the Lion Air crash and the Ethiopian Air crash) resulted an international outcry over the safety of passengers aboard international flights. Consequently, the question of which entity can be held accountable for these disasters is on the mind of many. The answer lies in international air law, particularly the various international aviation treaties that have been signed and ratified to regulate aeroplane crash liability.
Overview of International Air Law Instruments Governing Air Crash Liability
Several international air law instruments have been signed and ratified by countries. To regulate and oversee the aeroplane crash liability. One hundred fifty-two states ratified the Warsaw Convention of 1929. Article 17 of this Convention states that the carrier or airline is legally liable for harm or damage sustained if death or wounding of a passenger or any other bodily injury occure. The carrier is responsible, if the accident in which the passenger suffered kharm happened on board the carrier's aircraft or during the operations of embarking or disembarking the said carrier . Article 18 of the Convention states that a carrier “is liable for damage sustained in the event of the destruction or loss of, or damage to, any registered luggage or any goods if the occurrence which caused the damage so sustained took place during the carriage by air”. It is clear from these provision that the carrier or airline is liable for death or sustaining of bodily injury of passengers, as well the destruction of luggage or goods on board an ill-fated aircraft.
Article 20 (1) of the Warsaw Convention provides a way for a carrier or airline to escape liability by proving that the airline and its agents took all necessary measures to avoid the damage. Furthermore, the carrier is not liable if they can show that it was impossible to take all the actions required to prevent the accident. The airline is not responsible, in terms of Article 22 for the destruction of luggage and goods provided that such damage was occasioned by negligent pilotage or negligent handling or navigation of such aircraft. Pilot error must be the sole reason for damage to goods and luggage, should the carrier wish to escape liability. Article 21 invites a carrier to prove contributory negligence for the carrier to be exonerated in whole or in part from liability. The carrier may also escape liability if they can show that the damage caused was due by a negligent act, a wrongful act or an omission that is attributable to a third party.
If the carrier fails to discharge the burden of proof placed on it in articles 20 (1), 20(2) and 21, article 22 (1) protects the carrier by putting a cap on the liability if the carrier for each passenger to a sum of 125,000 Francs or USD 12,000. The Hague Protocol of 1955 doubled this amount to USD 24,000. For destroyed goods and luggage, a cap of 250 Francs or USD 25 per kg is permitted. Article 28 states that action for damages must be brought at the option of the plaintiff before the Court having jurisdiction. A court will have jurisdiction provided that the carrier is an ordinary resident, carries on business, or has an establishment in that area. The court at the place of destination will also have jurisdiction. Article 29 states that the right to damages prescribes after two years from the date on which the aircraft ought to have arrived.
The drafters of the Guadalajara Protocol of 1961 considered advancement in aviation which included carriers concluding subcontracts with other airlines to transport passengers and goods. The subcontractors, in the event of a plane crash, were only liable up to the limit set out in Article 22 of the Warsaw Convention. The limit set in the Hague Protocol of 1955 was only available to passengers onboard original carriers.
The Montreal Convention “the Unification of Certain Rules for International Carriage by Air” of 1999 ratified by 132 States and came into effect on 4 November 2003. The significant changes made by this convention increased the amount that a passenger could claim for injury or death to USD 170,000 from the US Guatemala City Protocol of 1971 increased the limit for passenger death to about USD 100,000. To avoid paying more than USD 170,000 the carrier must prove that their negligence did not cause the aeroplane crash, or show that the negligence of a third party created it. Article IV states that the carrier cannot be held responsible for death or injury solely caused by the state of health of the passenger.
The Montreal Convention allows a passenger to not only claim in the domicile of the carrier, where the carrier mainly carries on business, where the contract was made, the place of destination, but also the passenger’s domicile. This allows the family of a deceased passenger to claim in the most convenient forum and the most legally beneficial to them, provided that the limits set out in the Convention are observed in such claim. Under the Montreal Convention, the carrier must compensate the owner of destroyed goods or baggage at a rate of USD 27 per kg. In terms of the Montreal Convention, the carrier can also escape liability if they can prove a wrongful act or an omission on the part of the passenger. Thus, a strict liability regime applies to aeroplane crashes. The passenger is not required to prove negligence on the part of the carrier. It is the airline who bears the onus of defending itself against the passenger’s claims.
The Montreal Convention also includes an obligation on the part of carriers to obtain insurance in their home country. The insurance policy must be enough to cover their liability under the Convention. This provides passengers with the assurance that, should an aircraft crash occur, the carrier will be able to meet their obligation to pay to compensate all the victims' families fully. In the same vein, a state wherein a carrier operates has the right to require a carrier to furnish evidence of such insurance cover thereby protecting its citizen from obtaining inadequate compensation in the event of an air crash.
The Montreal Convention regime also imposes liability on a carrier who has been contracted by a carrier who is party to the Convention to transport passengers and cargo. Carriers can no longer be exonerated of liability because they outsourced another airline or carrier who is not a party to the contract contracted by the carrier and the passenger in the event of an aeroplane crash.
The protection of passengers was a paramount consideration in the drafting of the Montreal Convention. The Convention prevents States from excepting themselves from the rules of the Convention. The regulations of the Montreal Convention only free states if the State operates an aircraft for non-commercial purposes. The State must also ensure that the plane in question is carrying out the functions and duties of the State. A state is also exempted from the provisions of the Montreal Convention if it involves the carriage of the military equipment and personnel on aircraft that was leased by the State.
For the provisions of the Conventions to be triggered, the flight must have been an international flight, meaning the plane was travelling from one country to another. For a treaty to apply to a specific aeroplane crash, it must have been ratified in the country of departure and county of the passenger’s destination. Where the departure country ratified a treaty, but the destination country did not, then neither the Warsaw Convention or The Montreal Convention applies. Where the departure country had ratified the Warsaw Convention, but the destination country ratified the Montreal Convention and the Warsaw Convention, then the Warsaw Convention applies. Consequently, this places the deceased passenger's family in the difficult position of having to institute legal proceedings against the carrier in another country or another jurisdiction. In addition, this limits the legitimate claim to the low amount set out in the Warsaw Convention. In the case of Chubb & Son v Asiana Airlines, South Korea had ratified the Hague Protocol of 1955 while the US had ratified only the Warsaw Convention of 1929. The court held that the adhering to two different versions of the same treaty does not create a separate treaty between the countries. The land of departure and the land of destination must have ratified the identical treaty for any one of the Conventions to apply
Another problem that may arise of where the Warsaw Convention applies is that it refers to “passengers” which means that the family of a pilot or a crew member will not be able to hold a carrier liable for an aeroplane crash.
A significant detail to note is that a carrier is liable according to the limits set out in the two conventions if the airline issued a ticket. A valid ticket must include the place and date of issue, name and address of the carrier, the location of departure and destination, as well as an indication that the carrier is subject to the provisions of either the Montreal Convention or the Warsaw Convention. If the carrier fails to issue a ticket, then the carrier is exposed to unlimited and indeterminate liability.
Carrier Defences to Negate Airplane Crash Liability
The definition of an accident is set out in the Air France v Saks 470 U.S. 392. 405 (1985) case by the United States Supreme Court. According to this judgment, liability arises under Article 17 if the passenger’s death or injury is caused by an unexpected or unusual event or happening that is external to the passenger. An aeroplane crash, considering its rarity and magnitude, can be classified as one such event. In the case of Wallace v Korean Air, it was held that an accident within the meaning of Article 17 referred to a risk characteristic of air travel or related to the operation of an aeroplane and where carriers are in a unique position to take all necessary measures to prevent such incidents. An aeroplane crash also falls under this definition.
The Warsaw Convention and Montreal Convention neglect to impose liability on aircraft manufacturers expressly, in cases where the negligence or wrongful act of a manufacturer causes an aeroplane crash. This consideration is necessary concerning the Lion Air and Ethiopian Air disasters as they may have been caused by a software or mechanical malfunction of the Mcas flight control system in the aircraft. In that case, Boeing as the manufacturer of the aeroplane would be liable as a “third party” under both the Warsaw and Montreal Conventions. If there are multiple manufacturers of the said aircraft, then those manufacturers will be jointly or severally liable for the crash. Maintenance companies and part providers must also be held liable for aeroplane crashes. To use the Ethiopian air crash as an example, it was stated that a sensor malfunctioned, which led to the above stated mechanical fault that allegedly led to the accident. It would appear in such a case that the carrier, Ethiopian airlines may be exonerated of liability by demonstrating a causal link between the malfunctioning software and the crash. International air law should evolve to recognise the role of manufacturers and maintenance companies in aeroplane crashes and impose liability accordingly.
The pilot's error will rarely give rise to rise to liability on the part of the pilot unless the pilot is found to have erred in steering the plane. If the pilot's training was inadequate, then whichever party is responsible for providing such training, whether it is the manufacturer or the airline, then that party will be found to be liable if the failure to provide adequate training is causally linked to the aeroplane crash. The Ethiopian Air crash investigators allege that could have been caused by a lack of knowledge of how to disable faulty software on the Boeing 737 Max 8 jet. The manufacturer should have facilitated such training.
Another question to be answered is whether a carrier can incur liability for mental or emotional injuries sustained by the plaintiff. In Eastern Airlines v Floyd (499 U.S. 530 (1991)), the United States Supreme Court said allowing for emotional and psychological injuries would result in indeterminate liability. It is clear from the Jack v Trans World Airlines (854 F. Supp. 654 (N.D. Cal. 1994)) case that psychiatric damages that are unrelated to physical injury cannot be recovered. Relatives of the deceased in an aeroplane crash may only bring an action for emotional harm if they witness an aeroplane crash with the knowledge that their relative is on board.
Undoubtedly, a plane crash will result in death or bodily injury of passengers as well as the destruction of damage to cargo. Therefore, some of the definitional loopholes available to carriers may not be applicable as they would be in the case of delay or another minor mishap during a flight. In the case of an aeroplane crash, the most likely way a carrier would escape liability is if the departure and destination countries did not ratify identical treaties. If both the departure country and destination countries ratified the Warsaw Convention, the passengers and their families are only entitled to a portion of the compensation that is possible under international air law.
The two main pieces of international air laws are the Montreal Convention and the Warsaw Convention. The Montreal Convention created a unified regime of international air law. However, the fact that some countries ratified the Warsaw Convention and not the Montreal Convention and vice versa have significant implications on aeroplane crash liability. Several states have chosen only to ratify the Warsaw Convention which disadvantages international air travellers. Although containing some definitional loopholes, these loopholes are unavailable to carriers of an aircraft that has crashed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.