An Introduction to the Ambiguities Surrounding International Aviation Laws:
At the beginning of 2020, Ukraine International Airlines flight PS752 went missing during a routine flight from Tehran to Kiev. After 3 days of investigation, the President Rouhani of Iran admitted before the international community that the airline had been mistakenly shot down by a missile fired unintentionally. Investigations were conducted by the Aircraft Accident Investigation Board and the Civil Aviation Organization of Iran[1] and reports claimed that there was a raging fire on the plane before the crash which caused an explosion mid-air. This also allegedly pointed towards worsening political relations between Iran and the US.
In this case, when legal advice was sought on extent of liability, popular opinion was that international norms state that the country in which the incident occurred would have to be held responsible and would have to bear damages to the families of victims[2]. But this opinion was disregarded since a similar incident had occurred in 2001 when Siberian National Airlines flight 1812 was shot down mistakenly during a routine training session conducted by the Ukrainian military, and the international community had believed it was necessary to determine liability by applying domestic criminal laws, instead of ICAO rules.
Most cases also do not directly apply the ICAO rules to such investigations since the rules were only enforced to recommend particular standards and practices of civil aviation that States are supposed to uphold.
But, 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.
Further, in cases such as the Ukraine Air accident, where a State was responsible for the accident irrespective of whether it was an ordered attack or not, these aviation laws are not specifically clear about the extent of liability when it is a mistake or error of political conflicts. Also, while the Chicago Convention recommends the non-use of weapons by a State against civil aircrafts[3] provided that the State has reasonable grounds to believe that the civil aircraft was a threat to the State in some way, it does not explicitly prohibit or criminalize such an act. Reports also state that an interpretation of this Article would imply that a State can shoot down a plane if it is of the opinion of that the particular aircraft has been hijacked for terror purposes, if the pilots are not responding to radio and interception communication, if the aircraft is flying towards a highly populated area or strategic key place[4]
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[5]. While analysing the case of Chubb & Son v Asiana Airlines[6], 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.
These Conventions also 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. This was raised in the investigation reports of the Lion Air crash[7] and the Ethiopian Air crash[8]. Both were allegedly caused by issues with the flight computers and mechanical malfunctions with the MCAS[9] system. While the Conventions would specifically hold BOEING liable as the manufacturer of the aircraft[10], they fail to place any liability on the manufacturers of individual mechanical components.
Thus, 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.
Establishing the Extent of Liability: Possible ramifications
Since these international laws have multiple ambiguities, in past matters dealing with determining the liability of parties, several scenarios emerge.
Case 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. This was seen in the 2001 accident involving Siberia Airlines which was brought down by Ukraine’s military, after which Ukraine was held liable and had to pay the families of Israeli victims up to 200,000 USD. However, this liability can only be placed if investigations can prove that the use of force was improper and negligent. Thus, when Air Iran was shot down in 1988 by the US Navy, it was established that the US saw a credible threat and exercised proportionate force following which it was exempted from any liability.
In the 2014 accident involving Malaysian Airlines MH17 which 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[11].
Cases that examine 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 does not 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[12]. 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.
Cases dealing with the issue of liability in International aviation accidents
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, as elucidated earlier, has 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[13], which, back then, was hoping to be replaced by the Montreal convention. In the year 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 Hague in 1955. Roughly 16 years later the document was amended again at 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.
Before the replacement of the Warsaw convention with the Montreal convention, there were several cases that dealt with Article 17 of the Warsaw convention which made air carriers liable for the injuries that were sustained by a passenger. An exposition provided by several judgements that are related to article 17 of the Warsaw convention is 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[14]”.
- Air France Vs. Saks[15]: This case in 1985 is one such case that has delivered a judgement where this exposition was used. 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 a “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[16].
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[17]. 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. 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[18].
In the instant case, as mentioned earlier, the plaintiff had claimed that her hearing damage was a result of improper pressurization systems in place during the due course of the disembarkation of the aircraft. However, 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.
- Olympic Airways Vs. Hussain[19]:This cited the aforementioned Air France Vs. Saks and attempted to explore 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 the second hand 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”[20]. 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 airline is liable for the death of the passenger on board.
- Doe Vs. Etihad[21]:This was one such case 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”.
Article 17(1) of the Montreal Convention[22] 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[23]: This was one of the most recent cases 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 rationale from the Doe Vs. Etihad case.
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 passenger 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 findings that the alleged back injury was a result of the descent were merely a speculative conclusion drawn by the plaintiff’s medical expert. Thus, unable to apply the Doe rationale, the instant case was dismissed.
Conclusion and Recommendations:
On examining the provisions of the Warsaw Convention and Montreal Convention, 1999, it is clear that the laws are archaic and need to be amended in light of new airline practices and policies, and political and military practices of signatory States. This can involve the codification of questions related to the joint liability of contracting parties as defined in these Conventions. While the laws already specify how jurisdiction can be decided when such suits for damage are filed, an amendment to the law allowing for the suit to be initiated in in the country of permanent residence of the victim would solve any issues where a passenger on an international flight could only file such suits in the country of boarding or landing, or in the country in which the accident occurred, or in the base country and country of operation of the airline.
Another issue that was observed was the application of the “choice of law” principle. This is a common concept especially followed in US Courts. When an international aircraft accident is brought before a US Court under the Warsaw Convention, this principle is applied to establish which domestic laws must be used to determine the extent of liability. Previously, under the Warsaw Convention, complications arose since the jurisdiction was didn’t include the country of domicile, and these could be solved by the recommendation proposed.
In order to provide a definitive ground for these standards of care, most aviation law experts opine[24] 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.
However, unless the international community, through its international agencies, works together to create a consistent set of rules and guidelines which effectively take into consideration issues such as the choice of law and differing jurisdictions, inconsistency will always trouble this area of law. Uniform laws that are harmonious with the criminal laws of each signatory country and that take into account the process of establishing liability in each will help resolve these issues and help authorities such as the NTSB provide more definitive answers as to who must take responsibility when an airline accident results in loss of life or property, or leads to severe harm.
[1] In Accordance with International Civil Aviation Organization Rules, Annex 13
[2] David Learmount, Aviation Journalist and Editor at FlightGlobal
[3]Article 3bis, Protocol Relating to an Amendment to the Convention on International Civil Aviation, May 10, 1984
[4] Sofia Michaelides-Mateou & Andreas Mateou, “Flying In The Face Of Criminalization: The Safety Implications Of Prosecuting Aviation Professionals For Accidents” (2010); AERoSAFETY WORLD
[5] Grein v. Imperial Airways, Ltd., [1937] 1 K.B. 50, 1 Av. Cas. (CCH) 622, 635 (Ct. App. Eng. 1936)
[6] Docket No. 99-7617, Decided June, 2000
[7] Final KNKT.18.10.35.04 Aircraft Accident Investigation Report
[8] “Aircraft Accident Investigation Bureau Preliminary Report”, Ethiopian Civil Aviation Authority, Ministry of Transport (Ethiopia), March 2019
[9] Manoeuvring Characteristics Augmentation System
[10] Article 15, Montreal Convention, 1999
[11] Paul Stephen Dempsey, “Aviation Security: The Role of Law in the War against Terrorism”, 41 COLUM. J. TRANSNAT’L L. 649, 653-55 (2003)
[12] Vreeland vs. Ferrer, 71 So.3d 70 (2012)
[13] Rodriguez, B.I., 2000, “Recent developments in aviation liability law”, J. Air L. & Com., 66, p.21
[14] Article 17, Warsaw Convention, 1929
[15] Air France Vs. Saks, (1985) 470 U.S. 392
[16] Goldhirsch, L., 2001, “Definition of Accident: Revisiting Air France v. Saks”, Air & Space L., 26, p.86.
[17] 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
[18] Supra note 42
[19] Olympic Airways Vs. Hussain (2004), 540 US 644
[20] 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
[21] Doe Vs. Etihad (2017), P.J.S.C., No. 16-1042
[22] Article 17(1), Montreal Convention, 1999
[23] Liaw Vs. United Airlines (2019), No. C 19-00396 WHA.
[24] Kennelly, “Litigation of Foreign Aircraft Accidents – Advantages (Pro and Con)”, 16 FORUM 488, 518 (1981)
YLCC would like to thank Dylan Sharma for his valuable insights in this article.
