Liabilities & Protection Concerning Civil Aviation
Air travel is one of the prime inventions of the previous century. It has not only widened the concept of travel but has also opened various new possibilities. Air travel is not only the fasted mode of travel for people or goods but also the safest mode of transportation too. While fatal airplane crashes are statistically quite rare these days, numerous types of other accidents and injuries are still common in air travel.
In order to establish uniformity and clarity on various aspects relating to international carriage of passengers, goods, and baggage through air transport (including liabilities and limitations), the members of International Civil Aviation Organization formulated and adopted an international treaty on known as the Montreal Convention 1999 (“ MC99”). Pursuant to adoption of MC99 if an airline passenger is injured or killed on an international flight, that passenger’s right to compensation and carrier’s liability will be settled in accordance with the terms of MC99. MC99, being a repository on this matter, is a global standard.
MC99 provides for the circumstances when a carrier shall be liable to pay compensation to a passenger for any claim of death, wounding or bodily injury. It also specifies the ceiling of a monetary liability on the carrier in case of any incident.
Below are some other important features of MC99:
- The possibility of bringing a lawsuit before the courts in the passenger’s principal place of residence;
- Increased liability limits in the event of delay;
- The obligation for air carriers to maintain adequate insurance.
Indian government has also ratified MC99 and has made relevant amendments in its domestic legislation to incorporate the provisions of MC99.
The Legislative Uprising: The Indian Perspective
Air transport is regulated by the provisions of Carriage by Air Act, 1972 (“Act”) and the policies, rules and regulations formulated by Director General of Civil Aviation from time to time. The Act consists of the provisions of the Warsaw Convention 1929 (as amended by the Hague Protocol 1955). India became the 91st country to ratify the MC99. The MC99 has majorly influenced liabilities concerning Civil Aviation. It points out the circumstances in which entities will be held liable for death or injury caused to any passenger. The Indian Legislature has accordingly aligned the objectives to fill in the gaps between the convention and the Act. The Act has been amended from time to time to be in line with the present scenario, the most recent amendment being in the year 2016.
The application of the Act extends to all carriage like carriage of passengers, baggage or cargos performed for remuneration. The Act also complies with the amendments made to the Warsaw Convention through the Protocol of amendments of the Warsaw Convention, 1959 dealing with the liability of the air carrier to passengers and cargo. The Act however does not put any quantification on the liability of the carrier for death, wounding or bodily injury has.
The legislative development provides greater protection to passengers and carriers in terms of their respective rights and liabilities in the event of an accident involving a domestic flight within India. Further, the Act provides for the liability of the carrier for damage sustained in the event of the death of a passenger or any other bodily injury suffered, 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. Hence, liability of the air carrier is conditional on the fact that the death took place on board or during the operations of boarding or getting off.
The Act, consists of certain provisions which immune the carrier from any liability being imposed upon it, the carrier is not liable if it proves that it and the agents of the carrier have taken all necessary measures to avoid the damage or there was no possibility to take such measures, or due to negligent pilotage or negligence in the handing of the aircraft and that, in all other respects, he and his agents have taken all necessary measures to avoid the damage.
In cases where, the carrier proves that the damage was caused by or contributed by the negligence of the injured, the Court may exempt the carrier wholly or partly from his liability.
Mangalore Air Accident Case:
An Air India Express flight from Dubai to Mangalore crashed while landing on 22nd of May 2010, killing 158 of 166 people on board including crew. The Investigation reports revealed that it was due to the Captain’s failure to discontinue an unstable approach despite multiple calls from the First Officer and several warnings from the Enhanced Ground Proximity Warning System.
The controversy was whether the Air Carrier is liable to pay minimum compensation of 100,000 Special Drawing Rights to the claimants in the case of death of a passenger irrespective of actual damage suffered.
The contention raised by the appellant-Air Carrier was that there was no minimum or maximum compensation payable under any of the provisions of the Third Schedule of the act and the peculiar feature of MC99 incorporated in the Act was that there is no upper limit for liability of the air carrier for compensation payable to the victims and on proof of damage, the compensation payable for death or injury is without limit.
However, the above judgment was overturned saying that the third schedule to the Act do not provide any minimum compensation for the death or injury of a passenger. The carrier is liable to pay any actual damages proved by the claimants in the case of death or injury.
It can thus be concluded that noting the deviations from the conventions, India has established a self-sustaining code for the same. The code is in line with the International Protocols and treaties along with the codes which were active before the current legislations and those which lead to the formation of it. Therefore, the information and contingencies linked with possible circumstances stand corrected, and the present regime is active in protecting the air passengers which provides a sense of comfort in the realm of civil aviation, along with the ever rising and dynamic chain of events that may take place.