The Air Crash at Nepal – Liabilities And Damages
There are two key factors which govern the civil liability of airlines. They are, the presumption of liability that is imposed upon the airline and the liability limits that apply to the protected the airline from unlimited liability and spurious claimants.
( March 14, 2018, Montreal, Sri Lanka Guardian) On Sunday 10 March an aircraft operating Flight BS211 flying between Bangladesh and Nepal carrying 71 passengers veered of the runway upon landing and crash landed on Nepal’s Kathmandu airport, killing 49 people. Several others were injured, some seriously. This article is about how much the estate of the deceased can recover from the airline as compensation for death and how much the injured can recover from the airline. It is also about where an action for damages could be brought as well as what defences are available to the airline.
Applicable Legal Regime
First off, this was an international flight and therefore would prima facie be considered under applicable treaty law. Both Bangladesh and Nepal (the origin and destination) have ratified the Warsaw Convention of 1929 which makes its provisions applicable to this accident. The Warsaw Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. The expression “international carriage” means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States ratifying the Convention or within the territory of a single ratifying State other than the origin and destination, if there is an agreed stopping place within a territory of that another ratifying State.
According to the Warsaw Convention the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. In this case all passengers were on board at the time of the crash and therefore the question of embarkation and disembarkation does not arise.
In the carriage of passengers, the liability of the carrier for each passenger is limited to the sum of 125,000 French francs (about US $ 23,588). Where, in accordance with the law of the Court seized of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments must not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
Jurisdiction
Where institution of action is concerned, the claimant can bring an action under any of the following jurisdictions: in the territory of one of the States (origin or destination); where the carrier is ordinarily resident; or its his principal place of business or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.
Liability of the Airline
Generally, in law an accusation must be proved by the person who alleges it. Therefore, a presumption of innocence applies to an accused person until he is proven guilty. However, in the instance of carriage by air of passengers the airline is presumed liable if a passenger alleges personal injury or if his dependants allege his death as having been caused by the airline. Of course, the airline can show in its defence that it had taken all necessary measures to avoid the damage or that there was contributory negligence and obviate or vitiate its liability.
In order to control the floodgates of litigation and discourage spurious claimants the Convention admits of certain defences the airline may invoke and above all limits the liability of the airline to passengers and dependents of deceased passengers in monetary terms. The Warsaw Convention therefore presents to the lawyer an interesting and different area of the law which is worthy of discussion.
There are two key factors which govern the civil liability of airlines. They are, the presumption of liability that is imposed upon the airline and the liability limits that apply to the protected the airline from unlimited liability and spurious claimants. There are two other factors which operate as adjuncts to the initial concepts. They are that the airline may show certain facts in its defence to rebut the presumption and that if the airline is found to be guilty of wilful misconduct it is precluded from invoking the liability limits under the Warsaw Convention. Viewed at a glance, the said four concepts seem to the grouped into two sets of balancing measures. The end result is that whilst on the one hand the airline is subject to stringent standards of liability, on the other, it is protected by two provisions which limit its liability in monetary terms and allows a complete or partial defence in rebuttal of the presumption.
The Warsaw Convention provides that the airline shall not be liable if it proves that the airline and its agents had taken all necessary measures to avoid the damage or that it was impossible for the airline and its agent to take such measures. The airline usually takes such precautions as making regular announcements to passengers on the status of a flight starting with instructions on security and safety measures that are available in the aircraft. These measures are taken by the airline to conform to the requirements of the Warsaw Convention that the airline has to take all necessary measures to prevent an accident in order that the presumption of liability is rebutted. Thus in a case decided in 1963 it was held that a passenger who leaves her seat when the aircraft goes through turbulent atmosphere is barred from claiming under the Warsaw Convention for personal injury. Here it was held that an admonition of the airline that the passengers were to remain seated with their seat belts fastened during the time in question was proof of the airline having taken the necessary measures as envisaged in the Warsaw Convention. A similar approach was taken in a subsequent case where the court held that the airline should show more than the fact that it was not negligent in order to invoke the defences prescribed by the Warsaw Convention. In a 1977 case it was emphasised that the airline must show that all reasonable measures had been taken from an objective standpoint in order that the benefit of the defence be accrued to the airline. Some French decisions have also approached this defence on similar lines and required a stringent test of generality in order that the criteria for allowing the defence by approved.
The airline which has the burden of proof cannot seek refuge in showing that normal precautions were taken. For example, normal precautions in attending to the safety of the passengers prior to a flight is not sufficient. If therefore the airline cannot adduce a reasonable explanation as to why the accident occurred despite the reasonably necessary precautions being taken it is unlikely to succeed in its defence. Insofar as the requirement of impossibility to take precautions is concerned, the courts have required clear evidence of the difficulties faced by the airline in avoiding the disaster. In one case of a crash landing the court required that it was insufficient for the airline to show that the aircraft was in perfect condition and that the pilot took all steps to affect a good landing. The airline had to show that the weather conditions were so bad that the aircraft could not land in another airport
If the airline proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability. Contributory negligence under the Warsaw Convention has been treated subjectively as and when cases are adjudicated. In a 1983 case it was held that a passenger is not guilty of contributory negligence if he keeps his seat belt unfastened through the flight and suffers injury when there is no sign given by the aircraft control panel to keep the seat belt on. However, if a passenger removes a bandage or brace that he is required to keep on for an existing injury and he suffers injury in flight due to the removal of the support he would be found to have contributed to the negligence resulting in his injuries.
The Warsaw Convention further states that the airline will not be entitled to avail itself of the provisions of the Warsaw Convention which excludes or limits its liability, if the damage is caused by the wilful misconduct or by such default on the part of the airline as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.
The limitation of liability of the carrier that the Warsaw Convention imposes could be circumvented by the plaintiff proving that the carrier was guilty of wilful misconduct in causing the injury. Wilful misconduct as an exception to the limitation of liability rule appears in all three air law conventions that admit of liability limitations.
The Author is an aviation law consultant practicing in Montreal. He is former Senior Legal Officer at the International Civil Aviation Organization and is currently Senior Associate, Air Law and Policy at Aviation Strategies International.
