International Legal Framework For Compensation In Air Accidents

When the global Aviation ecosystem is impacted by aircraft accidents/crash over the last few years, it becomes unequivocally important to initiate a thorough investigation in order to ascertain the cogent reasons behind and to implement safety mechanisms in place as immediate remedy. Simultaneously, a fair compensation needs to be provided to the next of kin in case of death of a passenger or to compensate injured passenger with the objective to make good loss suffered owing to air accident. Hence, one may say that just compensation becomes the key facet to mitigate the loss occasioned by air accident.

Given the above, a need is felt to have a glimpse of international legal regime which have had expounded on compensation to be awarded to the affected victims. Basically, to have a better holistic understand of the available remedies under the legal framework, we need to look through international laws vocal for decent compensation, time and again, to the affected families or victims of air accident, as listed below.

1. Warsaw Convention, 1929 (i.e. Convention for the Unification of Certain Rules Relating to International Carriage by Air) may be understood as the first international law addressing air accidents victims claims for compensation. It was designed to regulate the consequences of such accidents. Clause (1) appended to Article 17 of the said Convention provides that the carrier will be held liable in case of death or injury sustained by the passenger onboard or while disembarking/embarking operations.

However, various issues cropped up over a period of time led to modifications in the Warsaw Convention. This development resulted in the demand for drafting more comprehensive legal framework. Hence, Montreal Convention, 1999 (MC99) was brought out which has succeeded the said Warsaw Convention. The major apparent difference between the two was with respect to quantum of compensation- under MC99 the liability in case of death/injury was proposed to be increased to 151,880 SDRs (Special Drawing Rights) from 128,821 SDRs^[1]. Whereas in case of Warsaw Convention, the limit of 1,25,000 Gold Francs (approx. $8,292) was kept as liability for the resultant death/injury owing to air accident.^[2]

2. The Hague Protocol, 1955 was adopted in order to undertake modifications in aforementioned Warsaw Convention in respect of liabilities of airline in case of injury or death. Here, the liabilities of air carriers were enhanced to $16,584^[3] as per Article 11 (i.e. almost doubled from existing amount mentioned in Warsaw Convention).

3. Rome Convention, 1952 (also known as Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface) was brought into existence with the aim to extend remedy of awarding compensation to those who are the victims on ground due to air crash/accident and not being onboard. However, as finds mention in Article 11^[4] of the said Convention, a limit was imposed upon the amount to be claimed as compensation which was to be calculated in gold francs. Moreover, as per clause (1) appended to Article 1 of the said Convention, right to compensation accrues only in case when it is definite that damage occurred was a direct consequence of an event. Further, Article 15 (1)^[5] of the aforesaid convention states that a Contracting State can require operator of a plane registered in another Contracting State, to have insurance cover, in order to reimburse the parties affected.

4. Guadalajara Convention, 1961 (also known as Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier) was majorly brought in to cover, contracting & actual carriers, in order to ensure that the passengers can press their rights against both of them.^[6] Basically, it governs the liabilities of operators/carriers “other than those of the contracting carriers”.^[7]

5. Montreal Convention, 1999 (MC99) can be described as cornerstone in international law. It categorically expounds on liability of airline and suggests the path to be followed for disbursing compensation in case of injury or death of the passengers from aircraft accident. However, it also covers within its sweep any loss occasioned due to baggage damage/loss, delay^[8] etc. Article 28 of the said Convention states that “In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, 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 advance payments shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.”^[9] It is believed that most of the Nations who are party to the said Convention have ratified this in the form of their domestic legislations given its flexibility and better compensation.

6. Chicago Convention, 1944 (also known as Convention on International Civil Aviation) talks about investigation to be performed in case of aircraft accident. Annex 13 of the said convention describe 'Accident' as “an occurrence associated with the operation of an aircraft: in which a person is fatally or seriously injured; in which an aircraft sustains damage or structural failure requiring repairs; after which the aircraft in question is classified as being missing.^[10] Even, the said annex pitches for investigation to be carried by the State where the accident took place.^[11] Further, Article 26 of the Chicago Convention states that “in the event of an accident to an aircraft of a Contracting State occurring in another Contracting State, and involving either death, serious injury, or serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident.”

Based on aforementioned information in this point, it can be opined that Chicago Convention may not be dealing in compensation directly though expressly talks about an investigation by the concerned State. Hence, it appears that it is the domain of the State, where accident took place, to adopt recourse as per its legislative scheme for giving compensation in line with international commitment (for example MC99).

7. Law of Torts also plays a significant role in determination of the factors to be considered in case of an aircraft accident affecting plaintiff and fixing defendant's liability. In Dillon case, the Supreme Court of California held that court will be guided by factors such as- “whether the plaintiff was located near the scene of the accident as contrasted with one who was a distance from it; whether the shock resulted from direct emotional impact upon plaintiff from the sensory”.^[12] Such factors will be taken into consideration for the purpose of compensation payable to the plaintiff.

Considering the foregoing legal scenario discussed in respect of compensation, it is expected that the States will proceed forward for providing relief to the air accidents victims expeditiously. For ensuring this, effective laws must be enacted which will subscribe and draws their validity from the international law like MC99 owing to its global acceptance, especially amongst the member States. The law making bodies should enact comprehensive rules bearing in mind larger public interest. Though, it is believed that most of the States must have rolled out effective legislations by now to deal with such situations in keeping with their obligations under International laws & to deal with such unforeseen air accidents, but such laws should be tested in the context of evolving safety challenges and amendment must be made in existing laws, whenever warranted.

That apart, in case of air accident, the govt. of any State is supposed to look into the matter with utmost precision and extend all possible instant support, to injured victims along with offering aid to perished passenger's dependents. This should be followed by detailed Report preparation and analysis, with the vision to contain such ill fated events in future. As an immediate relief, an ex-gratia sum may be provided to the air accidents victims by the concerned stakeholder. Also, it is needed to ensure proper medical attention on ground, to those, who may have been affected by the excessive heat emitting from the wreck of the plane, at the crash site inhabited by folks. Standard Operating Procedure should be prepared beforehand in order to deal with such exigencies. Regulatory oversight must be ensured and surprise inspections must be carried out on the regular intervals at airports etc., in order to check irregularities in compliance of the safety norms and to avert any future accidents. The States may also think of having separate Safety Boards for the purpose of dedicated investigation in case of air accidents and to suggest improvements, wherever required. A careful examination, of causes resulting in such disaster, by the concerned State authorities can prevent such instances henceforth and will ensure adherence to highest safety standards, revised from time to time, with the aim to eliminate the possibility of such mishaps ahead.

Author is a Aviation Lawyer. Views Are Personal.