What are International Aviation Disaster Laws?
International Aviation Disaster Laws, also referred to as Airline Accident Laws, is an underdeveloped subject of Aerospace laws that deals with the legal issues that arise when an aircraft crashes, either due to human error like mistakes made by the pilot, Air Traffic Controllers or negligence by airline service station employees, or uncontrollable conditions such as defective systems or poor weather conditions[1]. One must understand that air travel is considered one of the safest means of long distance travel, where statistics state that between 2015 and 2019, there were only 69 fatal accidents[2]. But, when crashes do take place, the legal consequences of understanding the reason, extent of damage and the nature of compensation are dealt with under this area of law.
While the process of investigating the cause is the responsibility of national boards such as the NTSB (National Transportation Safety Board), the Federal Aviation Agency or Civil Aviation Authorities[3], challenges with the application of these laws arise when the crash is caused by a series of factors and in circumstances not usually governed by domestic civil aviation rules. An example of this is where laws in the US state that at least two flight crew staff members need to remain inside the cockpit throughout flight time, which is not a compulsory rule for airline companies outside the US. Further, the safety norms and standards of aircraft design and pilot training, maintenance checks and equipment repairs differ. This is also affected by the demands of private companies and corporations that privately own passenger aircraft fleets[4]. Some countries have criminal laws with provisions for liability in case of negligence, and when applying these national laws, the international investigation to establish a series of causes can be diluted, especially if the country which serves as the base nation for an airline isn’t a signatory to the Montreal Convention[5]. These respective criminal laws cannot be universally applied especially when dealing with international accidents and crashes. There are laws existing, such as the Warsaw Convention and Montreal Agreement which are specifically in place to deal with the legal right of passengers who were harmed or injured, to sue negligent airlines.
Before dealing with these laws and how they assign liability, one must 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[6]. This accident was also further defined under Air France v Saks[7] and Wallace v Korean Air[8] where 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. When such incidents occur, the investigation 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.
Criminal Liability Provisions of International Aviation Disaster Laws:
Aviation Disaster Laws do not specifically exist as substantive laws but are provided under International Air Laws and agreements such as the Warsaw and Montreal Conventions, signed and ratified by member nations, and mainly govern the issues of aircraft accident liabilities. Some of these laws are:
- The Warsaw Convention[9] – It provides 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[10]. Further, Article 18 of this Convention[11] 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. However, Article 20 (1) of the Convention[12] states that the company can avoid this liability if it can sufficiently prove that the flight crew and other employees had taken all the necessary steps needed to prevent such damage or harm, or that such steps were made impossible to follow due to uncontrollable conditions. Similarly, under Article 22, liability for damage to the luggage or goods can be avoided if it is sufficiently proved this was caused entirely by negligence of the pilot in navigating and flying the aircraft. The Convention also places liability on airports, security companies and other service oriented parties which were conducting a function of the airline.
- Montreal Convention[13] – Until the Montreal Convention, none of the previous Conventions and Protocols specified the procedure for such liability to be claimed by the passenger or his family. With the 1999 Convention, Article 33 provides that the passenger can claim liability of the airline in the base country of the company, the country where the company majorly carries out its business, the country of disembarking, or the passenger’s country of domicile. The Montreal Convention places further liability on the airline company to obtain an insurance policy in their country of origin to cover this liability and to guarantee that sufficient compensation can be guaranteed to victims[14], and to place liability on subcontracted parties as well[15].
- Chicago Convention[16] – When analysing this law, Article 26 provides that the nation in which the accident occurred must investigate the extent of responsibility and the liability may lie on the nation where the accident occurred, the country of registration of the aircraft, the country to which the airline manufacturer belongs or the country of the operator.
However, unless these countries are signatories, none of the provisions can be applied. India has not ratified these conventions, and thus the investigation and determination of extent of liability is dealt with under the Aircraft (Investigation of Accidents and Incidents) Rules, 2012 which provides that the Central government, through the Aircraft Accident Investigation Bureau, must carry out inquiries into crashes that occur in the territory of India or if the airline is registered in India and the crash occurs outside the territory of India.
- DOHSA, 1920[17] – There is another law that must be analysed which is the DOHSA, which deals with liability in different scenarios. If a domestic airline has an accident on land and if a passenger is fatally injured, the family can recover complete damages from the airline company under the domestic laws of that nation. Similarly, if an international airline crashes resulting in fatality, the party can seek complete damages from liable parties based on the convention applied. Thus, if such deaths occur over the territorial waters[18] in the US, the family can claim damages in a US Court.
However, when the death occurs over the “high seas”[19], DOHSA applies and the family can only claim damages of pecuniary loss caused by the accident which limits the extent of liability on an airline. This means that, under the Act, if the victim is a non-earning member of the family such as the child and aged parents who no longer financially provide, the family cannot claim any compensation. DOHSA not only protects the airline companies from liability, but also third party manufacturers and service providers connected to the airline, the government and such other responsible parties to an accident.
Provisions Dealing with Payment of Damages on Determination of Liability:
If the company is found guilty of damage or harm, and fails to discharge the condition of burden of proof, the Convention[20] places a limit of 12,000 USD on the amount of damages to be paid. Later, this amount was made 24,000 USD by The Hague Protocol of 1955. This limit of liability was then expanded upon by the 1961 Guadalajara Protocol where a provision stated that the limit of the Warsaw Convention was to apply to subcontractors of airline companies, while the limit of The Hague Protocol applied to aircrafts of the parent company. In 1971, the Guatemala Protocol of 1971[21] increased the said limit to 100,000 USD which was then later increased to 170,000 USD by the Montreal Convention[22]. Further, this liability can be avoided if the company can sufficiently prove that the death or injury of a passenger was caused entirely by prior health issues of the passenger[23]. However, with certain legal experts stating that the limit on the amount of compensation was unfair since a victim could only claim damages to the extent of the limit specified in these Conventions irrespective of the severity of harm caused, the international community adopted the IATA[24] guidelines which provided conditions on liability towards a victim by removing the limit placed and allowing affected passengers to claim complete damages as awarded by a Court or investigatory committee, based on the laws of that nation.
The extent of liability extends to 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. But, these non-pecuniary damages are not always awarded and placing reliance on the judgements of cases such as Eastern Airlines v Floyd[25] and Jack v Trans World Airlines[26], the US Supreme Court stated that the Conventions cannot also 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[27].
Final thoughts and suggestions
International Aviation Disaster Laws are underdeveloped and provide no clear procedural standards for how liability can be established when international airline crashes occur involving a number of parties and series of events. Thus, despite the laws clearly providing for the right to sue, the amount of compensation and the nature of liability in different kinds of accidents, there is an imperative need for this field of law to grow, especially in detailing the involvement of third parties.
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. We 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.
Until international laws are made universally applicable and procedurally sound, it is recommended that damages be awarded based on the domestic laws of their country of domicile irrespective of where the suit is instituted. This would mean that the extent of liability on responsible parties would be more definitive under these domestic laws.
Finally, laws such as DOHSA are unfair and inconsiderate of victims who were harmed by negligence. When DOHSA claims that non-earning victims cannot give the families a right to damages, it simply renders the lives of such victims unimportant and worthless. Such draconian laws from decades ago need to be repealed as has been proposed by the US Congress[28]. This will also serve the purpose of reducing the number of conflicting aviation laws and allow for just a few, more well-defined laws to govern this subject.
These become important matters to discuss and execute since the rate of air travel is expected to be twice the existing value within the next two decades[29] and this will mean that the number of aircraft accidents will also increase. While airlines and aviation authorities such as the NTSB can govern standards of safety, the legal practice has to be solidified through unambiguous laws.
[1] Lipton & Cooper, “International Air Travel – An Air Carrier’s Liability For Personal Injury”, ADVOCATE’S Q. 403, (1984-85)
[2] Aviation Safety Network, 2019
[3] Air Vanuatu Emergency Response Plan Version 1.1
[4] G. Miller, “Liability In International Air Transport”, 1977, 18th edn
[5] FitzGerald, “The International Civil Aviation Organization and the Development of Conventions on International Air Law”, 3 ANNALS AIR & SPACE L. 51, 72 (1978)
[6] Convention on International Civil Aviation, 1947 Annexure 13
[7] 470 U.S. 392. 405 (1985)
[8] 214 F.3d 293, 295 (2d Cir. 2000)
[9] Article 17, Warsaw Convention, 1929
[10] Block v. Compagnie Nationale Air France, 386 F.2d 323, 325 n.1 (5th Cir.1967)
[11] Warsaw Convention, 1929
[12] ibid
[13] Montreal Convention for the Unification of Certain Rules for International Carriage by Air of 1999, enforced 2003
[14] Article 50, Montreal Convention, 1999
[15] Chapter V, Montreal Convention, 1999
[16] Chicago Convention on International Civil Aviation, 1944
[17] Death on the High Seas Act, 1920 (Pub.L. 66–165)
[18] Schaffer, Richard; Agusti, Filiberto & Earle, Beverley, “International Business Law and Its Environment”, 2008, South-Western College, 7th edn
[19] Force, Robert; Yiannopoulos, A.N. & Davies, Martin, “Admiralty and Maritime Law”, 2006, Beard Books [Abridged Edition]
[20] Article 22(1), Warsaw Convention, 1929
[21] US Guatemala City Protocol, 1971
[22] Montreal Convention for the Unification of Certain Rules for International Carriage by Air of 1999, enforced 2003
[23] Chapter IV, Montreal Convention, 1999
[24] International Air Transport Association, 1945
[25] 499 U.S. 530 (1991)
[26] 854 F. Supp. 654 (N.D. Cal. 1994)
[27] Husserl v. Swiss Air Transport Co., Ltd., 388 F. Supp. 1238, 1244 (S.D.N.Y. 1975)
[28] Recommendations by Senator John McCain to the US Congress
[29] FAA Report of 2019
YLCC would like to thank Dylan Sharma for his valuable insights in this article.
