Authored By :
[4th SEM .B.B.A.LL.B]
Editor - Yashika Malik
The Convention for the Unification of certain rules relating to international carriage by air, commonly known as the Warsaw Convention, is an international convention which regulates liability for international carriage of persons, luggage, or goods performed by aircraft for reward. Originally signed in 1929 in Warsaw (hence the name), it was amended in 1955 at The Hague, Netherlands, and in 1971 in Guatemala City, Guatemala. United States courts have held that, at least for some purposes, the Warsaw Convention is a different instrument from the Warsaw Convention as amended by the Hague Protocol.
On 17 August 1923, the French government proposed the convening of a diplomatic conference in November 1923 for the purpose of concluding a convention relating to liability in international carriage by air. The conference was formally deferred on two occasions due to reluctant behavior of the governments of various nations to act on such a short notice without the knowledge of the proposed convention. Finally, between 27 October and 6 November, the first conference met in Paris to study the draft convention. Since most of the participants were diplomats accredited to the French government and not professionals, it was agreed unanimously that a body of technical, legal experts be set up to study the draft convention prior to its submission to the diplomatic conference for approval. Accordingly, the International Technical Committee of Legal Experts on Air Questions (Comité International Technique experts Juridiques Aériens, CITEJA) was formed in 1925. In 1927–28 CITEJA studied and developed the proposed draft convention and developed it into the present package of unification of law and presented it at the Warsaw Conference, where it was approved between 4 and 12 October 1929. It unified an important sector of private air law.
The Convention was written originally in French and the original documents were deposited in the archives of the Ministry for Foreign Affairs of Poland. After coming into force on 13 February 1933, it resolved some conflicts of law and jurisdiction.
Between the parties of the Protocol, it was agreed that the 1929 Warsaw Convention and the 1955 Hague Protocol were to be read and interpreted together as one single instrument to be known as the Warsaw Convention as amended at the Hague in 1955. This was not an amendment to the convention but rather a creation of a new and separate legal instrument that is only binding between the parties. If one nation is a party to the Warsaw Convention and another to the Hague Protocol, neither state has an instrument in common and therefore there is no mutual international ground for litigation.
The Montreal Convention, signed in 1999, replaced the Warsaw Convention system.
Airplane Crash Liability
An airplane crash can be devastating. The crash itself can cause serious, often fatal injuries to passengers and crewmembers as well as extensive damage to property. Determining the cause of a crash and who is responsible for it can be a difficult, drawn out affair. There are resources available, however. This article provides a general overview of airplane crash liability.
Airplane Crash Injuries
Airplane crashes often involve serious injuries. Passengers can suffer neck and head injuries, broken limbs, internal bleeding, and organ damage. A loss of cabin pressure or a fire can lead to severe burns and respiratory injuries. Problems in the air can also lead to heart attacks, strokes, and similar medical problems. A study published in 2008 found that most airplane crash injuries involve blunt trauma: broken bones, burns, head injuries, and similar trauma injuries. As you might expect, these injuries tend to be significant.
While only 20% of airplane crashes are fatal, deadly crashes tend to dominate the news. Surviving family members of airplane crash victims suffer injuries of their own. These include pain and suffering from the loss of a loved one and financial loss from the death of a spouse, parent, or provider. The law recognizes these injuries and permits surviving family members to file a wrongful death lawsuit to recover compensation. Surviving relatives can receive compensation to help cover a victim’s lost wages, loss of support, funeral costs, and the emotional injuries that come fro such catastrophes.
There can also be damage to property. Airplane crashes can cause the destruction or loss of baggage, shipped goods, or personal possessions. General aviation pilots and owners of private aircraft can also suffer loss from damage or destruction of a plane. While we don’t often think of these things in airplane crashes, the law recognizes property damage as a form of injury too.
What Goes Wrong: Causes of Airplane Crashes
Pilot error is the leading cause of airplane crashes. Some sources calculate that pilot error accounts for 50% of crashes. Weather can be a contributing factor to both airplane crashes and pilot error as well, with visibility, storms, and ice causing problems for pilots and planes alike. Mechanical failure is another leading cause of airplane crashes.
Planes are complex machines consisting of many component parts, often produced by dozens or hundreds of manufacturers. A defect or failure in one part– in the electrical system, in the fuel system, or in the landing gear – can cause a crash. While there are agencies such as the National Transportation Safety Board (NTSB) that investigate airplane crashes, the evidence for what went wrong tends to be in the same condition as the rest of the airplane.
Determining Who’s Responsible: Causation and Liability
Who is responsible for an airplane crash is an important question. Victims and surviving family members want to know who’s at fault. Airlines and regulators want to know what went wrong to prevent future crashes. From a legal perspective, responsibility matters because it determines who is liable for resulting damages.
Airlines are often found liable for airplane crashes and resulting injuries. When pilot error, maintenance deficiencies, or other lapses cause a crash, a lawsuit can claim that the airline’s negligence was responsible. Airlines owe heightened duties of care to their passengers because they are common carriers, making them easier targets for lawsuits than might otherwise be the case.
Manufacturers of airplanes and component parts can also be found liable. American law holds manufacturers of defective products (including those used in constructing airplanes) responsible for resulting injuries. This is a legal theory known as strict products liability. Defective designs, errors in the manufacturing process, and failure to warn about potential dangers can result in manufacturer liability.
Compensation for Loss
Airplane crashes frequently involve severe injuries and extensive damages. Both of these tend to lead to lawsuits. Wrongful death lawsuits and lawsuits against airlines and manufacturers can potentially recover millions of dollar for victims and surviving family members. Most airlines provide some form of compensation on their own imitative too – crashes are bad for business.
International flights that crash can be governed by different rules. An international agreement called the Montreal Convention establishes airline liability for crashes involving death, injury, and damages on international flights. This includes a minimum compensation amount of around $150,000 per deceased passenger. Most Americans, through other legal processes, can generally recover significantly more than this amount.
The Montreal Convention
Considering the extensive history prefacing the 1999 Convention, the agreement's guiding principle is set out to protect "...the interests of consumers in the international carriage by air, and even more specifically the need for equitable compensation based on the principle of restitution." The Montreal Convention was created using elements of the previous carriage conventions and protocols. Three important and noticeable differences within the 1999 Convention include:
Under the 1999 Convention, various articles such as 3(1) and 4(1) demonstrate carriage laws' evolution into a digitalized era. Differing from previous agreements, Chapter II of the provisions: "Documentation and Duties," allows for documents of carriage and records of cargo to be "delivered." Further, requirements for individual or collective documents of carriage have been trimmed. Article 3(1) breaks down the carriage requirements by stating documents of carriage should contain "(a) an indication of the places of departure and destination...(b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place." Additionally, previous provisions in the Warsaw and Warsaw-Hague articles establishing non-compliance documentation regulations are eliminated.
Updated Provisions Surrounding Carrier Liability:
Recognizing "the low limits of the Warsaw System on compensation for passenger death or injury were what had been ailing it for some 50 years," a new two-tier carrier liability system was developed. The first-tier, under Article 21(1), forces a carrier to adopts absolute liability in the case of death or injury. The corresponding Act (21(1)) states, "For damage arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability." Notably, Article 21 confronts the previous low limits of the Warsaw System, setting a new limit at SDR 100,000. The second-tier, detailed in Article 21(2), places the burden of proof upon the carrier. For a carrier to not be held liable for damages under Article 17(1), the carrier must prove: "(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents...[or] (b) such damage was solely due to the negligence or other wrongful act or omission of a third party."
Article 33(2) allows an action to be brought before "the territory of a State Party in which at the time of the accident the passenger has his or her principal or permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement...." Previously, the Warsaw Convention restricted its jurisdiction (Article 28) to "the territory of either one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident or has his principal place of business...."
The UAE, The Montreal Convention, and Death or Bodily Injury on an Aircraft
The UAE is a signatory to the 1999 Montreal Convention. In 2000, Federal Decree No. 13 was enacted with the purpose of complimenting the Convention's requirements. Over the last 15 years, the Abu Dhabi Courts have seen a sharp influx in the number of cases involving claims attributed to the Montreal Convention. Recently, a discussion has surrounded the parameter of the definition "accident" detailed in Article 17.
March 2016, the Abu Dhabi Court of First Instance examined whether, under UAE Federal Law No. 17 (1991), UAE Federal Law No.9 (2005), and Article 17 of the Montreal Convention, an airline is considered liable for the unintentional death of a passenger. In the incident, the Abu Dhabi Court had to consider whether the term 'accident' in Article 17 of the Montreal Convention was applicable for a passenger who had experienced a fatal heart attack aboard an in-flight aircraft. The Plaintiffs claimed the airline was liable under several laws, including Article 17 of the Montreal Convention, UAE Civil Law, and Sharia Law. The Court's discussion referred to relevant Convention cases, local Sharia law, and local UAE Court procedure. Acknowledging previous U.S. holdings such as Air France v Saks (which concluded Article 17 is only applicable if death or injury transpires out of an uncommon event), Ford v Malaysian Airlines Systems Berhard (concluding unsuccessful attempts at medical assistance do not classify as an accident), Singh v Caribbean Airlines Limited (determining heightened illness following administration of in-flight medical procedure does not constitute an accident), and Kyrs v Lufthansa (asserting the inability of an aircraft to emergency land while a passenger experiences a heart attack does not find an accident). In court, an aviation expert successfully argued the international carrier was not accountable for the passenger's fatality. The specialist expressed that an emergency landing was not an option as the aircraft was flying overseas (and not on the ground medical guidance was given to do so), and the airline offered adequate medical assistance in an attempt to halt the heart attack. Relying on this opinion and considering previous international verdicts, the UAE Court determined the airline held no liability. According to the Court, the carrier could not be held responsible for death resulting from an act of God.
How a Wrongful Death Lawsuit Works
Wrongful death claims are brought against a defendant who has caused someone's death, either through negligence or as a result of some intentional action. Wrongful death claims allow the estate and/or those close to a deceased person to file a lawsuit against the party who is legally liable for the death. Though each state's wrongful death laws vary, these kinds of lawsuits are usually filed by a representatative of the deceased person's estate, often on behalf of surviving family members affected by the death.
Who Can File a Wrongful Death Lawsuit?
When a tragic death occurs due to the negligent or intentional act of another person, the state prosecutor may decide to bring criminal charges against the responsible party and hold a criminal trial. There are also civil legal remedies available to provide monetary compensation to the surviving family members. Read on to learn more about who can file a wrongful death lawsuit.
State Laws About Who Can File Wrongful Death Lawsuits
After a person is killed by the negligence or intentional act of another, that person's family or estate has the option of filing a wrongful death lawsuit. These sorts of civil cases are sometimes filed in the wake of criminal trials. Plaintiffs in a wrongful death lawsuit can seek a variety of damages, including:
Loss of past and future income and support
The pain and suffering that the decedent—the person who died—experienced before death
The family's loss of consortium and companionship with the decedent
Each state has its own laws regulating wrongful death lawsuits. Types of state limitations include "caps" on the amount and type of damages that can be recovered, as well as who can file a wrongful death lawsuit.
In some states, only the decedent's personal representative can file a wrongful death lawsuit. A personal representative is an individual or a company—like a bank—who is responsible for managing the estate of the decedent. In some states, a personal representative is also known as the "executor" of the estate. In addition to inventorying and distributing the estate assets, personal representatives are sometimes responsible for filing a wrongful death lawsuit, if appropriate. In fact, in many states—including Illinois, Indiana, Kentucky, and Maine—a personal representative is the only person who is allowed to file such a lawsuit.
A personal representative will file a wrongful death lawsuit on behalf of the decedent's estate, and in some circumstances, for the benefit of the decedent's surviving family members. The type of damages recovered will be distributed by the court between the estate and the decedent's family. The estate will be entitled to recover any damages that the decedent could have recovered, including pain and suffering, lost wages while the decedent was alive, and medical expenses. The decedent's surviving family members are entitled to recover damages for their loss of companionship with the decedent, and for the loss of future financial support from the decedent.
Spouse and Other Family Members
On the other hand, some states allow the decedent's surviving spouse, children, and other family members to file a wrongful death lawsuit. Many states require that a person filing a wrongful death lawsuit be within a certain degree of relation to the decedent. For example, in many states the right to sue is limited to a surviving spouse, children, parents, or siblings of the decedent. Other states, like Maryland, allow any beneficiary who would have inherited from the decedent to file a wrongful death lawsuit.
Other states give certain categories of surviving family members first priority to file a wrongful death lawsuit. For example, in Missouri, the decedent's surviving spouse, children, or other "lineal descendants" are given first priority. If no such people exist, then the decedent's siblings can file a wrongful death lawsuit. Other states place include time limitations in their wrongful death laws. Under Colorado's wrongful death law, in the first year following the death, only the decedent's surviving spouse can file a wrongful death lawsuit. This right becomes available to the decedent's surviving children in the second year following the wrongful death.
Case Law-National Aviation Company of India Vs S.Abdul Salam
An Air India Express on an International Flight from Dubai crashed on landing at the Bajpe International Airport at Mangalore on 22.5.2010 killing 158 and injuring the remaining 10 of the people on board including crew. The cause of the air crash is found to be pilot error and the National carrier does not dispute their liability for payment of compensation to the victims irrespective of whether claim is based on negligence of the carrier or not.
The provisions of the Montreal Convention though make the Air Carrier liable for compensation, no special Forum is constituted under the Act or Rules to determine compensation or to settle dispute between the claimants and the Air Carrier. However, the National carrier which has suffered few air crashes in the past have evolved a mechanism to settle claims through negotiated settlement by engaging qualified Attorneys. Following the practice in the past, the National carrier engaged their Attorneys M/s.Mulla & Mulla and Craigie Blunt and Caroe for receiving claim petitions in the format prescribed by Air India, for negotiations with the claimants and their Lawyers and for settlement of liability. However, later on a single bench of the Kerala HC directed the airlines to pay Rs.75 Lakh to each of the victims. But, again a division bench quashed the order. Furthermore, a petition to review that quashed order was also dismissed by the same bench.
After the division bench order in favor of Air India was announced, some of the relatives of the victims moved towards the settling for the first available offer from the airlines. But, again some of them filed a petition to get the exact amount as per the convention. But, all the pleas were dismissed and the Kerala HC gave a free hand opportunity to Air India so as to provide the compensation between Rs25 lakhs to Rs.75 lakhs. But, again this case was taken to the Supreme Court. Overruling the opposition from Air India, the SC admitted a petition against the Kerala HC and ordered the airlines to pay Rs.75 lakhs to the claimant and also served notices to Kerala HC, National Aviation Company Ltd. And the Central Govt.
US Laws on Wrongful death
The United States is a party to the following air law treaties, which have direct effect in the United States:
1. Warsaw Convention (1929) - Convention for the Unification of Certain Rules Relating to International Carriage by Air; US entry into force 31 July 1934.
2. Hague Protocol (1955) - Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929; US entry into force 14 December 2003.
3. Tokyo Convention (1963) - Convention on Offences and Certain Other Acts Committed on Board Aircraft; US entry into force 4 December 1969.
4. Montreal No. 4 (1975) - Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 as Amended by the Protocol done at The Hague on 28 September 1955; US entry into force 4 March 1999.
5. Montreal Convention (1999) - Convention for the Unification of Certain Rules for International Carriage by Air; US entry into force 4 November 2003.
For International Carriages, U.S follows the same laws as per the International Conventions.
Domestic carriage – liability for passenger injury or death
The state law of the relevant state in the United States would govern, subject to a choice of law analysis and resolution of federal preemption issues. However, where the death occurs on the high seas, the Death on the High Seas Act (DOHSA), 46 USC sections 30301 et seq, governs. The standard for liability for domestic carriage, however, is generally accepted to be governed by federal aviation standards for matters pertaining to aircraft operation and aviation safety. For claims involving aircraft or engine manufacturing defects as well as claims related to airport security issues, the law is still developing but the standard for determining liability will either be based on federal standards and regulations or state common law and reasonable care standards.
Nature of carrier liability
This is an issue that we believe should be governed by federal safety standards, but may be governed by the applicable state law and a duty of ‘ordinary care commensurate with the existing circumstances’ albeit the older cases in some states have found that there is a heightened duty for common carriers.
There are no specific limits of liability applicable to domestic carriage and the general rule followed in the United States is that any such limits would not be enforceable. Damage issues are generally governed by state law. For the most part, limits for personal injury and death do not generally apply although the parties entitled to recover and the types of damages recoverable will vary from state to state and be subject to choice of law analysis to determine which state’s damage law applies.
The defences will vary based on the facts and circumstances of the case but some of the more common defences include federal pre-emption, superseding and intervening cause, no duty, contributory or comparative negligence, foreseeability causation, acts of God and sudden emergency. In addition, pre-emption of state law liability standards, compliance with federal standards, absence of duty under either federal or state law, ‘price, route and service’ pre-emption under the Airline Deregulation Act.
This varies from state to state, but most states apply some type of joint and several liability and most states make the defendants jointly and severally liable for economic losses to a certain extent.
Rule for apportioning fault
The rule varies from state to state:
· In a pure contributory negligence state (minority rule), a plaintiff cannot recover any damages if the plaintiff is even 1 per cent at fault;
· In a pure comparative fault state, damages will be reduced by the plaintiff’s percentage of fault;
· In a modified comparative fault state (majority rule), each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage (eg, 50 per cent or 51 per cent), which would then bar or limit recovery by the plaintiff for economic or non-economic damages; and
· Most states also recognise that persons under a physical or age-related disability, such as minors, are held to a standard of care commensurate with their physical or age capacity while mental disability will generally preclude contributory fault.
Statute of limitations
The rule varies from state to state:
· Personal injury - the statute of limitations for a personal injury action can vary from one to six years (two or three years is most common; and
· Death - the statute of limitations for a death action can vary from one to six years (two or three years is most common).
Similarly, the tolling rules and discovery rules vary among the states but as a general rule a statue of limitations with respect to a minor is tolled until the age of majority. This minor tolling rule does not apply, however, in an action governed by the Warsaw or Montreal Convention. See question 9.
The rule varies from state to state. In most states, a cause for contribution can be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action. However, there are some states that preclude such claims if the defendant is accused of intentional or wilful misconduct. The procedure for instituting a third-party action requires jurisdiction over the third-party defendants and service of a third-party summons and complaint setting forth the grounds for contribution and indemnity.
The rule varies from state to state but the time is generally assessed from the date of liability assessment, settlement, or judgment (typically one to three years, but can be as long as five years). Most courts (including federal courts) establish a schedule for impleader and will generally adhere to it, especially if all discovery is completed and the action is otherwise ready for trial.
Liability for ground damage
The United States is not a party to the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (1952); the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft (2009); or the Convention on Compensation for Damage Caused by Aircraft to Third Parties (2009). Thus, the liability of air carriers is based upon the applicable local state law applying traditional negligence principles. There is debate, however, about whether federal or state law standards will apply for determining liability, but generally speaking, aircraft damage on the ground is recoverable. Most states will generally preclude recovery of emergency service costs.
Nature and conditions of liability
While earlier cases applied strict liability principles (many based on state statutes making the carrier absolutely liable), the modern cases apply standard negligence principles and have rejected claims based on trespass and invasion of property rights. But the debate is ongoing as to this issue as well as whether state or federal liability standards will apply.
The defences will vary based on the facts and circumstances of the case but some of the more common defences include federal pre-emption of state common law and compliance with federal standards, superseding and intervening cause, foreseeability, causation, Act of war, act of God and sudden emergency.