An Introduction to Aviation Laws:
International Aviation Law, also referred to as Airline Laws, is an underdeveloped subject of Aerospace laws. An essential function of these, especially aviation disaster laws is to deal 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. Apart from this aspect, the subject also deals with the operation and management of air transportation modes including aircraft carriers, hangars, associated navigational and supervisory systems, and commercial contracts therein[3]. It is not only limited to isolated transportation operations, but also governs the use of airspace over countries, specifying acceptable routes and safety measures needed.
These needs were recognized in general public interest, especially around the time of World War I. Prior to that, in 1910, the French Government attempted to frame one of the first air laws in the form of an agreement with the German government to regulate the unauthorized movement of German air balloons over France[4]. This led to the Paris Conference of 1910 where the sovereignty of nations over the airspace above their lands was deliberated upon.
The Lack of Uniformity on the International Front:
This field is a specialty that requires a complete and in-depth understanding of the numerous characteristics of the sector itself, and its requirements of safety, efficiency, coordination and overall development. However, as of today, no internationally recognized governing authority exists with the power to frame and enforce laws and rules that uniformly govern every nation. The general practice is, thus, to follow certain internationally ratified or adopted treaties such as the Chicago, Rome and Geneva Conventions as guidelines to frame national laws and agreements. In fact, when the IATA or International Air Transport Association was formed in 1919 at the Hague Conference, the international consensus was that more cooperation and coordination was necessary between nations and their airlines to improve the commercial and legal aspects of the sector[5].
However, this was never able to translate into a single uniform guiding law, especially in respect of the legal obligations of international airlines. 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[6]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. 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[7]. When applying 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[8].
This proves to be a challenge that requires more research and deliberation in the field. However, certain international and national laws and treaties do exist to govern these ingredients.
A Brief Understanding of the International Treaties and Conventions:
International Air Laws can be broadly categorized into:
- Public International Law
These laws govern the relationship between various signatory countries and international authorities through agreements and treaties which address and regulate their commercial activities, political relations especially with regards to airspace and trespass, legal disputes and technical guidelines. Some of the laws include the Geneva Convention and Chicago Convention.
- Private International Law
These include several rules and norms that monitor and guide the relations and activities between private persons and bodies that are involved in the management, operation and use of airlines such as aircraft owners, pilots and staff, passengers, ATC, and airport authorities. An example is the Tokyo Convention which mentions the acts considered unlawful and prohibited on an airplane.
- Supranational Law
These are more idealistic and binding laws usually imposed by nations to exercise certain legal force on another State when determining liability. These laws could play a vital role in case the civil aircraft of one State meets with an accident over the territory of another State, and the cause is to be determined to establish criminal liability. An example is the EU Air Laws which specifically provide for sovereignty as a right of a State to impose its domestic laws and rules on any airline entering its airspace.
Two major Conventions that were signed and ratified by member nations, and mainly govern the issues of aircraft accident liabilities are the Warsaw and Montreal Conventions.
- The Warsaw Convention
The Warsaw Convention[9] was important since it placed legal liability on the airline company when a passenger is fatally wounded or sustains severe bodily harm while on the aircraft, or while the passenger is 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. This ensures that the companies act in a responsible manner and exercise a sufficient amount of precaution, thus improving safety standards in the industry. The Convention also places liability on airports, security companies and other service oriented parties which were conducting a function of the airline.
The Convention is also considered comprehensive since it was the first international law to deal with the extent of liability[12] if the company is found guilty of such damage or harm, and fails to discharge the condition of burden of proof, by imposing a maximum penalty of 12,000 USD as damages. This amount was made 24,000 USD by The Hague Protocol of 1955 and 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[13] increased the said limit to 100,000 USD which was then later increased to 170,000 USD by the Montreal Convention[14].
- The Montreal Convention, 1999
Until the Montreal Convention, none of the previous Conventions and Protocols specified the procedure for 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[15], and to place liability on subcontracted parties as well[16].
- The Convention on International Civil Aviation
This was a Convention drafted and signed in 1944 in Chicago to formulate certain detailed guidelines and principles which would focus on improving safety standards and provide a framework for the orderly management of civil aviation, especially related to international passengers. To monitor the same, it also established the ICAO or International Civil Aviation Organization as an organ of the UN. The ICAO is a body consisting of contracting States managed by a Council and Secretariat with its headquarters in Canada. It deals with the effective governance of international air navigation to grow a global civil aviation network and also provides guidelines for the design, development and management of aircrafts for peaceful purposes, the setting up and operation of airports and airways in a safe, efficient and economical manner to meet the needs of passengers globally and to ensure that each nation that is a signatory to the Convention has a fair commercial opportunity to have its own international airline.
- The Tokyo Convention of 1963
This Convention ratified by 186 countries[17] is an important private international law since it was one of the first to provide definite rules for how passengers must behave while on board an aircraft, thus terming certain acts as offences. It becomes necessary to avoid any disruptive acts on board an airline that could compromise the safety of other passengers, and affect the quality of airline services leading to possible financial loss. The Convention also effectively adapts to national criminal laws by stating that its provisions apply to an act considered an offence under the criminal laws of that particular nation[18]. To resolve the question of jurisdictional application of its provisions, the Convention gives jurisdiction to the State where the aircraft is registered[19] unless the particular circumstances of a dispute fall within the specific conditions listed in Article 4 in which case, jurisdiction is transferred to the responsible contracting State. This Convention also upholds the interests and well-being of airline pilots and crew by providing immunity from any criminal or civil action if they have to exercise the powers vested in them[20] when dealing with such incidents on board.
- The Montreal Convention of 1971, and the subsequent Montreal Protocol of 1988
Finally, following the Tokyo Convention, the international community brought into force the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971 also called the Montreal Convention of 1971. This comprehensively added to the list of penal offences while inherently being adapted into national laws of its member States. These were especially important since they widened the scope of such offences to acts committed in airports as well, and gave certain rights to aircraft carriers to be able to legally recover any damages incurred due to the offences of a passenger.
These are just some of the many international laws and treaties in force today, with other aspects including contracts, airplane certification, staff management and carriage of goods by air being governed by separate conventions followed and adopted by certain member States.
- The Essential Laws and Regulations in India
While India is a signatory to some of these international treaties, it also has stringent domestic norms to regulate its aviation industry. These laws and policies are prepared by the Ministry of Civil Aviation whose main responsibility is to encourage and facilitate the development of this sector by improving services of air transportation, air traffic services, airports and other ancillary facilities. However, the MoCA does not function alone and is aided by other authorities such as:
- The Directorate General of Civil Aviation which is empowered to bring these policies and regulations into effect and to ensure proper adherence in respect to safety and quality of airline services, as well as standards of airworthiness to be certified before granting airlines the right to operate.
- The Bureau of Civil Aviation Security primarily works towards the security of passengers in line with the standards set by international Conventions signed and adopted by India.
- The Airports Authority of India whose main function is to manage the development, operation and maintenance of airports and other infrastructure to ensure that a certain quality of service is maintained throughout.
Some of the laws existent in India that are enforced and upheld by these organizations includes:
- The Aircraft Act of 1934 and the Aircraft Rules of 1937 which govern the commercial aspects of manufacturing, owing, operating of aircrafts, and the sale and import or export of aircrafts and their parts. These laws specify standards of quality that need to be maintained by airline companies to be considered airworthy. This also covers the registration and regular maintenance of aircrafts.
- The Carriage by Air Act of 1972 specifies the liabilities of aircraft carriers in line with those given in the Warsaw Convention. However, this Act also protects the interests of these companies since its provisions widely apply to domestic and international carriers irrespective of the nationality of the airline.
- The Civil Aviation Requirements are policies framed by the DGCA[21] which mention the conditions and obligations that airline companies have to satisfy before the DGCA can grant permissions, licences and certificates allowing for operation.
- The Airports Authority of India Act of 1994 governs the functioning of the Airports Authority, holding it responsible for overlooking all financial, developmental and maintenance aspects involved in operating airports. This Act is necessary to ensure accountability in case of deficient service.
Conclusion
International Aviation Laws are underdeveloped and provide no clear procedural standards on several aspects, including liability in complicated cases of airline accidents. There is an imperative need for this field of law to grow, especially in detailing the involvement of third parties. 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 responsibility of contracting parties as defined in these Conventions.
Until international laws are made universally applicable and procedurally sound, it is recommended that more focus be given to strengthening the enforcement of domestic laws so as to make the extent of rights and liabilities on various parties more definitive.
Finally, certain international laws such as DOHSA also need to be repealed for reasons that they have failed to adapt with the times and remain unfair and inconsiderate of victims harmed by negligence. Such draconian laws from decades ago need to be repealed as has been proposed by the US Congress[22]. 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 2 decades[23] 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] Francis Shubert, “An Introduction to Air Navigation Services: From Conventional Air Traffic Control to CNS/ATM”, IASL McGill, October 2014
[4] Sand, Peter H. “An Historical Survey of International Air Law before the Second World War“, McGill Law Journal, 7 (1): 24–42
[5] Alexander, Arthur J, “Japan’s Aviation Industry: Deregulation Advances on Broad Front“, May 2000, Japan Economic Institute Report (21)
[6] Air Vanuatu Emergency Response Plan Version 1.1
[7] G. Miller, “Liability In International Air Transport”, 1977, 18th edn
[8] FitzGerald, “The International Civil Aviation Organization and the Development of Conventions on International Air Law”, 3 ANNALS AIR & SPACE L. 51, 72 (1978)
[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] Article 22(1), Warsaw Convention, 1929
[13] US Guatemala City Protocol, 1971
[14] Montreal Convention for the Unification of Certain Rules for International Carriage by Air of 1999, enforced 2003
[15] Article 50, Montreal Convention, 1999
[16] Chapter V, Montreal Convention, 1999
[17]https://sarinlaw.com/policing-in-the-sky-a-brief-introduction-to-the-laws-governing-unruly-passengers-in-india/
[18] Article 1, Tokyo Convention, 1963
[19] Article 3, Tokyo Convention, 1963
[20] Articles 6 to 10, Tokyo Convention, 1963
[21] Under Rule 133 A of the Aircraft Rules, 1937
[22] Recommendations by Senator John McCain to the US Congress
[23] FAA Report of 2019
YLCC would like to thank Dylan Sharma for his valuable inputs in this article.
