An Introduction:
The field of aviation law is relatively new and underdeveloped to the extent that there is no uniform consensus on how various points of law must be decided upon. With the lack of a single definitive legislation that governs the entire sector and its management, most instances, especially in respect of private international aviation laws rely on the decisions of Courts to introduce a particular aspect afresh or to provide clarity on certain points of ambiguity.
In the past couple of years, the world of aviation is making its headway towards fostering rapidly advanced technologies. Whilst the scientific and technological slant of the industry is developing by the day, it wouldn’t be wrong to insinuate that the legal aspects of the aviation industry are rather, inchoate. There are numerous aviation disaster laws that one could deem to be dubious and vague which have indirectly or directly contributed to obscure judgements over the years. The Montreal convention and the Warsaw convention have had a key role to play in several judgments when it comes to the issues related to liability in case of an ill-fated International aviation accident. The 1999 Montreal convention attempts to establish a unique system of airline liability, one that is radically different from the 1929 Warsaw convention[1], which, back then, was hoping to be replaced by the Montreal convention. In 1929, over 156 parties from the aviation industry signed the Warsaw convention in order to establish uniformity in the rules for international airlines. The same was further amended at The Hague in 1955. Roughly 16 years later the document was amended again in Guatemala City. In the 1990s, the aviation industry discerned the necessity to modernize and streamline the existing regulations. The replacement of the Warsaw convention with the Montreal Convention in the year 1999 was a consequence of this necessity.
These precedents set by State and federal Courts have thus become particularly essential in establishing liability of airline companies or passengers. The most essential developments in law have been in respect of airline accidents and when such incidents occur, the investigation and determination before a Court of law deals with establishing the person/flight personnel responsible and the extent of their involvement, and also determining whether the right to sue and extent of compensation guaranteed to affected passengers must lie with the airline company, the country of origin of the particular flight, the country over whose territory the incident occurred or the base country of which the aircraft is a national airline. However, international aviation laws face challenges that hamper their direct application in determining these questions of extent of liability in case of criminal negligence.
Most cases are self-explanatory on the salient features of aviation law that have been codified under various international treaties such as the Montreal Convention or the Tokyo Convention and the domestic laws of various nations such that the judgements tend to chronologically and historically analyse the evolution of a particular legal principle when arriving at a conclusion on the position of law.
The Challenge with Following Precedents:
Most cases do not directly apply the rules laid down in international Conventions such as the ICAO rules to investigations since the rules were only enforced to recommend particular standards and practices of civil aviation that States are supposed to uphold.
This leads to an inconsistency seen in cases where, in the absence of a universal law to determine the compensation to be given to injured passengers or their families and the procedure for this based on the cause, each case has provided a differing opinion. In cases involving domestic flights, domestic laws which have provisions for compensation are applied and this is easy. But, when the aircraft is flying on a trans-national route, cases have to decide whether to follow the Montreal Agreement, the Warsaw Convention or the ICAO Rules based on whether the nation of origin and nation of disembarkation are signatories or not. This is where the complications arise. Also, while international laws like The Hague Protocol, Montreal and Warsaw Conventions have specific provisions for liability, they can only apply to a particular accident if the country of departure and country of arrival is a signatory, as was held in the case of Grein v. Imperial Airways Ltd.[2].
Cases that examined the liability of the aircraft manufacturer or parts manufacturer follow a general norm that this liability can only arise if investigations can prove that the crash was solely caused by a negligent act or omission of these parties. This negligence can also extend to the failure of such parties in fulfilling their duty to report and warn airlines about any possible faults and dangers with the mechanical operation of those parts or systems.
But the question of liability doesn’t simply end here and further classifications have been made in cases between wet-leased and dry-leased aircrafts. In the case of the former, liability also lies on the lessor since they also exercise an extent of control on the operations of the aircraft and in the latter, the lessor can only be liable if his act was negligent and directly caused the accident as determined in the case of Vreeland v. Ferrer[3]. This rarely happens due to reduced involvement in dry-lease airlines.
Thus, with every case, the opinion and practice of establishing liability varies based on situational factors, especially fuelled by the lack of definitive rules in international conventions.
Some Principal Case Laws in the Field of Aviation Law:
- Air France Vs. Saks[4]:
This case specifically dealt with Article 17 of the Warsaw convention before the replacement of the Warsaw convention with the Montreal convention, which made air carriers liable for the injuries that were sustained by a passenger. It was decided that liability under Article 17 arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger, and not where the injury results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, in which case it has not been caused by an accident[5]”.
In the aforementioned case the plaintiff, Valerie Saks, boarded a 12-hour flight to Los Angeles by Air France jetliner in Paris. The flight had a smooth course in all respects before Saks felt extreme pressure and pain in her left ear as the plane descended to Los Angeles. The pain intensified after the plane landed but Saks disembarked without notifying any member of the Air France crew or employee of her condition. Saks visited a doctor five days later who believed she had become completely deaf in her left ear. Saks lodged a complaint in California state court against Air France, claiming that her hearing loss was caused by improper maintenance and operation of the jetliner’s pressurisation system.
After thorough investigation, on the grounds that the respondent could not show that her injury was caused by an “accident” within the scope of the Warsaw Convention, Air France moved for summary judgement. According to Air France, the word “accident” implies an “abnormal, unusual or unexpected occurrence aboard the aircraft”. All the available documentation, including the post flight papers, the affidavit of the pilot and the testimonies of passengers, suggested that the aircraft’s pressurisation device had worked as normal.
The airline then pleaded that the suit should be dismissed because the only possible cause of injuries to the plaintiff which here is the operation of a pressurization system does not count as an “accident”. She further argued that “accident” should be defined as a “hazard of air travel,” and that her injury had indeed been caused by such a hazard[6].
Hence, one could conclude that liability under article 17 in Air France vs. Saks arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger[7]. Article 17 would not be applicable in this case. The rationality that the court upheld was that the hearing loss was a consequence of the plaintiff’s natural, internal reaction to the pressure change while landing and it wasn’t a factor that was external to the passenger.
In totality, Liability under Article 17 shall only arise if the injury of a passenger is caused by an unforeseen or unusual occurrence or occurrence external to the passenger and not if the injury results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft, in which case it was not caused by an accident as defined under Article 17.
Over the years, several European scholars have interpreted the term “accident” (According to article 17 of the Montreal convention) to require that the passenger’s injury be caused by a sudden or unexpected event other than the normal operation of the plane[8]. It is to be noted that the Swiss and the German law argues that an “accident” should be interpreted as an occurrence which is unexpected and independent of the will of the carrier.
- Olympic Airways Vs. Hussain[9]:
It is a case that has cited the aforementioned Air France Vs. Saks while delivering its judgement and it attempts to explore the question if an airline is liable for a passenger’s pre-existing medical condition being aggravated due to their (the passenger’s) exposure to normal airplane conditions.
In the instant case, the plaintiff Rubina Hussain was on an Olympic airways flight accompanied by her husband Abid Hanson. Abid Hanson was allergic towards second hand smoke. Hussain and her husband sat in non-smoking seats; however, the seats were placed close to the smoking section of the flight. Mr. Hanson was experiencing discomfort due to the smoke due to which his wife, Rubina Hussain, requested the crew if their seats could be swapped with a different passenger. Her request was denied twice by the in-flight crew and as a result, Hanson died during the course of the flight since his health ailment had aggravated due to secondhand smoking. Hussain demanded damages from the airways under article 17 of the Warsaw convention.
The Federal district Court of California explored the possibilities of an airline being held liable for a passenger’s pre-existing medical condition being aggravated due to their exposure to normal airplane conditions. The Court provided the rationale that “injury is the product of a chain of causes” and that an accident occurs when “some link in the chain was an unusual or unexpected event external to the passenger”[10]. The Court further elucidated that here, the flight attendant’s refusal to swap the seats could be deemed to be a “link of the chain” that caused the plaintiff’s husband’s death and the rejection of a request for assistance is an “event”. As a result, Hussain was awarded $1.4 Million. One could conclude that Hanson’s death would come under the ambit of the definition of “accident” in Article 17 of the convention. Thus, the case made the airways liable for the death of the passenger on board.
- Doe Vs. Etihad[11]:
This is one of several cases that explored the possibilities of expanding the scope of liability under the Montreal convention. In this case, the plaintiff, Jane Doe, was returning on a flight run by Etihad Airways (“Etihad”) from Abu Dhabi to Chicago. During the course of the flight, while she reached out for the seatback pocket in front of her, she pricked her finger on a hypodermic needle which was concealed in the bag, causing her finger to bleed. Jane Doe was given a bandage for her finger and she was tested several times for potential disease transmission. Doe sued Etihad, seeking damages due to her potential susceptibility to multiple illnesses as well as for the physical injury (the needle prick) and for “mental distress”.
The Court applied Article 17(1) of the Montreal Convention[12] which states that “an air carrier is liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” The district court issued the judgement in favour of Etihad airways, stating that the bodily injury suffered did not cause Doe’s mental distress. Instead, the district court concluded that the harm caused by emotional distress that was caused due to the needle prick, was unconnected to the physical injury and was therefore not compensable under Article 17(1) of the Convention. The matter of extending the scope of the liability of the convention came into play when the Sixth circuit reversed the District court’s order and held that emotional and mental distress, if they are traceable to an accident, the plaintiff could claim damages even if the mental distress was unrelated to the physical injury that the plaintiff had experienced. This was a rather fundamental expansion when it came to the scope of the liability under the Montreal Convention since it also dealt with an interlink between emotional damages and bodily injuries.
- Liaw vs. United Airlines[13]:
This was a recent case that attempted to apply the legal principles of the aforementioned Doe Vs. Etihad case. This was deemed to be an unsuccessful attempt at applying the said rationale.
In the instant case, the plaintiff, Mr. Liaw was travelling from Chicago to London on a United airlines flight. Due to a crack in the outer layer of the cockpit windshield, the flight had to make an emergency landing at Goose bay. Ten months later, Mr. Liaw brought a claim against United Airlines under article 17 of the Montreal Convention. He claimed that he had sustained a back injury as well as emotional distress due to the emergency landing that was performed. However, no other passengers had to sustain any injuries nor had anyone brought a claim against United airlines regarding the same.
The plaintiff attempted to apply the rationale that was used in the Doe Vs. Etihad judgement wherein it was held that mental injuries that accompanied bodily injuries were recoverable under the Montreal Convention. Nevertheless, this attempt misfired for two reasons- one, it was duly noted that the speed rate of the aircraft during the emergency landing was not anomalous in any way. The injury was a result of an unexpected event that was external to the passenger. The second reason stated was that the finding that the alleged back injury was a result of the descent was merely a speculative conclusion drawn by the plaintiff’s medical expert. The instant case was dismissed.
- Wallace v Korean Air[14]:
These cases were important to understand that an international aviation accident refers to an incident related to the operation and use of an airplane, from the moment the affected passenger boards the plane till he/she disembarks, and where such passenger is fatally or severely injured, or where such airplane suffers major structural damage or mechanical failure, or goes missing and untraceable[15]. This accident was also further defined by the Courts under which it was held that an accident will include any incident in the operation of an aircraft which resulted in such harm and the airline failed to take necessary steps to prevent its happening.
- Block v. Compagnie Nationale Air France[16]:
This case saw a direct application of the Warsaw Convention[17] where it upheld the principle that legal liability must fall on the airline company when a passenger is fatally wounded or sustains severe bodily harm while on the aircraft, or while the passenger was boarding or disembarking. Further, it was recognized that Article 18 of this Convention provides that the airline company will also be specifically liable for any loss of or damage to passenger luggage or any other goods caused while being carried in air. Thus, this Convention had explicitly placed legal liability on the airline company.
- Eastern Airlines v Floyd[18]:
This case laid down an important precedent with respect to the extent of liability that can be claimed in case liability has been proven. The US Supreme Court identified two kinds of damages to be paid, pecuniary and non-pecuniary. Pecuniary compensation includes all medical costs in case of a bodily injury and amounts claimed by the family for loss of its financial support in case of death. Non-pecuniary damages are in addition to these and include amounts for the physical suffering caused or the trauma suffered by the victim and family.
However, these non-pecuniary damages are not always awarded and in this case the US Supreme Court stated that the Conventions cannot compensate for emotional or mental harm caused by a crash as this would place indeterminate liability on the airline. Furthermore, if the incident didn’t result in any actual physical injury, despite falling under the scope of the term “accident”, the passenger would have no claims under any of these conventions. This particular principal was also upheld in the case of Husserl v. Swiss Air Transport Co., Ltd [19].
- Chubb & Son v Asiana Airlines[20]:
In this case, it was found that while the country of departure (South Korea) was a signatory to the 1955 Hague Protocol, the country of landing (USA) was a signatory to the 1929 Warsaw Convention. The United States Court of Appeal, Second Circuit held that the similarity in provisions of both these treaties could not act as an exception to the rule and both countries must ratify the same treaty for any one law to apply in determining liability. Another issue with the Warsaw Convention is that its language specifically refers to “passengers” and this implies that the family of a pilot or flight crew member cannot claim such liability in case of a crash.
The investigative reports in these cases identified that Conventions such as the Warsaw Convention fail to specifically place any liability on the manufacturers of aircraft parts where any negligent or intentional act or omission by such manufacturer led to the crash. Both crashes were allegedly caused by issues with the flight computers and mechanical malfunctions with the MCAS[23] system. While the Conventions would specifically hold BOEING liable as the manufacturer of the aircraft[24], they fail to place any liability on the manufacturers of individual mechanical components.
Thus, these cases recognized that present international laws have several loopholes in deciding liability and such conflicting factors and possible circumstances can create unclear questions which have been decided on a case-by-case basis.
- Jack v. Trans World Airlines Inc.[25]:
In this case, the matter before the Court was that when Trans World Airlines Flight 843 crashed after take-off from JFK Airport, New York towards San Francisco, five passengers filed lawsuits in the San Francisco Superior for recovery of damages as compensation.
The U.S District Court for the Northern District of California had to analyse the issue of complete preemption as raised in this case, and had to decide if the State laws regarding recovery could apply under the Warsaw Convention which was being relied on by the Defendant Company.
After conducting a detailed review, the Court decided that the intention of the drafters of the Warsaw Convention was clearly to establish it as the only basis to recover damages in case of personal injury or death during an international flight. The Convention had already taken into consideration all causes of action under State Law and had provided sufficient remedies for the same.
- Malaysian Airlines MH17 Crash of 2014:
In this 2014 accident, the airline was shot down by rebels reportedly backed by Russian forces. Russia claimed that it was not involved and was not aware of the activities of these rebel forces in the area of the accident. But, the Court of Netherlands issued international arrest warrants to hold the State parties liable and Russia was held liable by the ICJ despite its defence[26]. Thus, where an airline has been shot down by a country that believes it is a threat, and if later investigations prove that the State had made a mistake in judging the intention of the aircraft and had wrongfully shot it down, liability has been placed on that State to compensate the families. However, this liability can only be placed if investigations can prove that the use of force was improper and negligent.
Conclusion:
Based on these cases, it can be concluded that the only major defence airlines have against compensatory damages under the IATA and similar laws is to prove that the crew and flight members had taken all necessary steps to prevent the accident from happening. One must consider that airlines are expected to uphold a responsibility of care to passengers since they are service oriented to the public at large as populous modes of transport. If these standards were to be theoretically analysed in cases of air accidents, it would be almost impossible for an airline to prove lack of negligence since any air accident would mean a failure in upholding this duty. This means that the condition of “necessary steps” would be almost impossible to meet.
In order to provide a definitive ground for these standards of care, most aviation law experts opine[27] that cases involving the use of weapons and missiles, or any act of intentional sabotage in the operation of the aircraft unknown to the airline and flight crew would be considered the most definitive grounds for the airline to claim absence of negligence.
In India, the cases under this field of law primarily relate to the service aspect of the sector, including employment terms, contractual disputes, and license approvals. These include cases like Air India Express Ltd vs. Capt. Gurdarshan Kaur Sandhu[28] which provide clear decisions and clarifications on rules in force in India including the Aircraft Rules, 1937. However, India also upholds and applies the provisions of international treaties such as the Montreal Convention of which it is a signatory, when deciding on cases pertaining to liability within the sector.
[1] Rodriguez, B.I., 2000, “Recent developments in aviation liability law”, J. Air L. & Com., 66, p.21
[2] [1937] 1 K.B. 50, 1 Av. Cas. (CCH) 622, 635 (Ct. App. Eng. 1936)
[3] 71 So.3d 70 (2012)
[4] (1985) 470 U.S. 392
[5] Article 17, Warsaw Convention, 1929
[6] Goldhirsch, L., 2001, “Definition of Accident: Revisiting Air France v. Saks”, Air & Space L., 26, p.86.
[7] Supra note 42
[8] Hiller, W.E., 1977, “An Interpretation of the Embarking and Disembarking Requirements of Article 17 of the Warsaw Convention”, Colum. J. Transnat’l L., 16, p.105
[9] Olympic Airways Vs. Hussain (2004), 540 US 644
[10] DiGiacomo, D., 2004, “The End of an Evolution: From Air France v. Saks to Olympic Airways v. Husain-The Term Accident under Article 17 of the Warsaw Convention Has Come Full Circle”, Pace. Int’l L. Rev., 16, p.409
[11] (2017), P.J.S.C., No. 16-1042
[12] Article 17(1), Montreal Convention, 1999
[13] Liaw Vs. United Airlines (2019), No. C 19-00396 WHA.
[14] 214 F.3d 293, 295 (2d Cir. 2000)
[15] Convention on International Civil Aviation, 1947 Annexure 13
[16] 386 F.2d 323, 325 n.1 (5th Cir.1967)
[17] Article 17, Warsaw Convention, 1929
[18] 499 U.S. 530 (1991)
[19]388 F. Supp. 1238, 1244 (S.D.N.Y. 1975)
[20] Docket No. 99-7617, Decided June, 2000
[21] Final KNKT.18.10.35.04 Aircraft Accident Investigation Report
[22] “Aircraft Accident Investigation Bureau Preliminary Report”, Ethiopian Civil Aviation Authority, Ministry of Transport (Ethiopia), March 2019
[23] Manoeuvring Characteristics Augmentation System
[24] Article 15, Montreal Convention, 1999
[25] 820 F. Supp. 1218 (N.D. Cal. 1993)
[26] Paul Stephen Dempsey, “Aviation Security: The Role of Law in the War against Terrorism”, 41 COLUM. J. TRANSNAT’L L. 649, 653-55 (2003)
[27] Kennelly, “Litigation of Foreign Aircraft Accidents – Advantages (Pro and Con)”, 16 FORUM 488, 518 (1981)
[28] Civil Appeal No. 6567 of 2019
YLCC would like to thank Dylan Sharma for his valuable inputs in this article.
