The civil liability of an airline for the causing of death or injury to passengers has been established by international treaty and entrenched in law by judicial interpretation.
by Dr. Ruwantissa Abeyratne
Writing from Montreal
Sometimes bad luck hits you like in an ancient Greek tragedy, and it's not your own making. When you have a plane crash, it's not your fault.
Werner Herzog
If black boxes survive air crashes - why don't they make the whole plane out of that stuff?
George Carlin
On Friday the 7th of August, Air India Flight IX-1344 operated by a Boeing 737 aircraft from Dubai to India in adverse weather conditions, skidded on landing at Kozhikode International Airport and crashed into a valley 35 feet down. The fall broke the aircraft in two, killing at least 18 persons including the two pilots on board, and wounding several other passengers. The flight was operated by the airline to ferry Indian nationals working in Dubai who were stranded due to the Covid-19 restrictions and flew in what is called a “bubble” – an air corridor created for the specific purpose by the Indian government. Kozhikode airport, situated in the southern Indian state of Kerala, is a “tabletop” airport, meaning that the end of the runway has a drop instead of a continuation of flat land like most airports are.
Two main issues surface from a legal standpoint: how will those wounded, and the dependents of the deceased be compensated; and would the conduct of the airline be a factor for consideration in the award of compensation.
Before embarking on a discussion of these two points, it is relevant to consider the comment of an expert: The Times of India has reported that Captain Ranganathan, who had earlier voiced concerns about the Kozhikode airport runway, had opined that the regulator – Director General of Civil Aviation (DGCA) - should not allow landing of flights during monsoons on runway 10 - the particular runway on which the aircraft landed. This brings to bear the issue of State liability. Article 28 of the Convention on International Civil Aviation (Chicago Convention) - which is the multilateral treaty governing international civil aviation - reposes responsibility on the State to provide meteorological, air navigation services , radio and related services to incoming and outgoing aircraft in its territory. When this provision is linked to the statement of Captain Ranganathan, one sees at least an implicit responsibility and a duty of care that devolves on DGCA to ensure the safety of aircraft within its territory.
That aside, it is noteworthy that both the United Arab Emirates – the departure State of the flight – and India – the arrival State – have ratified the Montreal Convention of 1999, which means that compensation for death or injury will be governed by the relevant provisions of the treaty. The Montreal Convention prescribes that the carrier (in this case Air India) is liable for damage 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 same provision goes on to provide that the carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.
the Montreal Convention imposes a presumption of liability of the carrier based on strict liability for death or injury with in the first instance up to 100,000 Special Drawing Rights (SDR) - a basket of currencies established by the International Monetary Fund to address the fluctuation of currency values. Therefore, even before the issue of fault can be discussed, the carrier is liable to compensate plaintiffs up to 100,000 SDRs.
If this limit were to be exceeded the plaintiff would have to prove wilful misconduct on the part of the carrier but this could be obviated by the carrier if it proves that the damage in question was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or such damage was solely due to the negligence or other wrongful act or omission of a third party. There is also a provision in the treaty which stipulates that in the case of aircraft accidents resulting in death or injury of passengers, the carrier is liable, if required by its national law, to make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such payments are not presumptive of the carrier’s liability and could be offset against any subsequent compensatory amounts paid by the carrier.
Another provision in the Montreal Convention is on jurisdiction which, in addition to an action being possibly instituted in the usual four jurisdictions: the territory of one of the contracting parties that the flight involved, either before the court of the domicile of the carrier; its principle place of business or where the carrier has a place of business through which the contract was made or the court where the destination of the flight was to be, an action could also be instituted in the place of domicile or permanent residence of the passenger. Another feature of the Montreal Convention calls for the carrier to obtain adequate insurance. The State into which the carrier operates the flight is entitled to require the carrier to provide evidence to the fact of existence of adequate coverage.
The civil liability of an airline for the causing of death or injury to passengers has been established by international treaty and entrenched in law by judicial interpretation. The courts have attempted to balance the interest of both the airline and the passenger as indeed has been the perceived intention of the Montreal Convention. The predominant feature of this area of civil liability is that air transport in terms of the commercial transportation of passengers is incontrovertibly the mode of transport that involves the highest levels of technology. Therefore, courts may find difficulty in ascertaining negligence, wilful misconduct and the overall liability of the airline in the face of complex technical arguments and defence. However, this reason alone should not justify obviating the tortious element that has so carefully been entrenched in the legal structure of private air carrier liability.
Dr. Abeyratne, a former senior legal counsel at the International Civil Aviation Organization, now practices aviation consultancy in Montreal. He is the author of several books on aviation law and policy, among which the most recent are Legal Priorities in Air Transport and Aviation in the Digital Age. Additionally, he teaches aviation law and policy at McGill University.
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