Aviation Law – Air Accidents

Liability of the operator – international flights

The two most important sources of international air law governing liability are the Warsaw Convention 1929 and the Montreal Convention 1999 which, it is important to note, govern the liability of the airline only. If a party other than the airline is at fault, different rules will apply.

The Conventions are not intended to deal with every aspect of international carriage by air, but they are exclusive on those matters they do cover.

The Warsaw Convention

The Warsaw Convention was the first international code of its kind to establish a framework for the liability of air carriers in respect of loss, injury and damage sustained in the course of, or arising out of, international carriage by air.

Although the Convention removed some of the uncertainty, an unfortunate aspect of this was that it set a maximum financial limit of around $25,000 on the losses that could be recovered for death or injury.

Over the years a number of amendments were made to the Warsaw Convention which, collectively with the original Convention, are known as the “Warsaw System”, and which subsequently culminated in the Montreal Convention of 1999.

The Montreal Convention

Key features of the Montreal Convention include:

  • Unlimited liability in the event of death or injury of passengers.
  • Strict liability up to 113,100 Special Drawing Rights (SDR) (approximately $150,000) – the airline cannot dispute proven damages up to this amount provided the passenger is not to blame for his or her injuries.
  • For proven damages that exceed 113,100 SDR, the airline is liable unless it can prove that the accident was not caused by their negligence or was caused by the negligence of a third party.
  • Advanced payments to meet immediate needs.

As an air accident normally involves a chain of contributing factors, it is very difficult for the airline to avoid paying all proven damages beyond 113,100 SDR.

An important point to note is that under the conventions, the airline is only liable for bodily injury. If the injury is only psychiatric, such as PTSD, the airline is not liable for this injury under the convention. In these circumstances, another cause of action would need to be pursued, such as a product liability case.

The liability limits are set in Special Drawing Rights, which are a mix of currency values established by the International Monetary Fund and which are reviewed by the International Civil Aviation Organisation at five-year intervals.

Over 120 countries have signed up to the Montreal Convention, including all members of the European Union, the USA, China and Japan.

Applicable Convention

As the Montreal Convention has not been signed by all countries, the applicable convention needs to be determined. If both countries are signatories to the Montreal Convention, that convention applies. If only one country is a signatory to the Montreal Convention but both countries are a signatory to the Warsaw Convention, then the Warsaw Convention applies.

If the journey is a round trip involving several flights, the convention that applies depends on the country of departure and the final destination country of the round trip.

Jurisdiction

For air accidents, the victims and families will often have several jurisdictions to choose from. Under the Montreal Convention, an action for damages can be brought against the airline in:

  • The country where the airline is domiciled.
  • The country where the airline has its principal place of business.
  • The country where the airline has a place of business through which the contract was made.
  • The destination country for the flight.
  • The country where the passenger has his or her principal and permanent residence and the airline operates passenger carriage services in that country.

Liability of the operator – domestic flights

The Warsaw / Montreal Conventions will not apply to domestic flights within one country unless such a flight is part of an international round trip involving successive flights. As such, for purely domestic flights different rules apply.

EU member States – Regulations 889/2002 and 2027/97

EU Member States introduced these Regulations to improve and unify the liability regime in the event of death or injury to passengers of EU airlines. The effect is that all flights by a community air carrier are subject to the provisions of the Montreal Convention, even if the flight is domestic within a single EU Member State.

In addition, Regulation 889/2002 provides that the Community Air Carrier will make an advance payment within 15 days of identifying the person entitled to compensation. In the event of death it provides that the advance payment shall not be less than 16,000 Special Drawing Rights. For an injured passenger, the advance payment should be as may be required to meet immediate economic needs on a basis proportional to the hardship suffered.

Non-EU Countries

For domestic flights within non-EU countries, a detailed understanding of the domestic law of the country of accident, the airline’s terms and conditions of carriage and other agreements that the airline has in relation to passenger liability / damages is required. How this affects the passengers’ rights can vary greatly from country to country. For instance, for a domestic flight in some countries there can be a low cap on damages that can be claimed for each passenger (e.g. $25,000), whereas in other countries there is no cap, or they incorporate the provisions of the Montreal Convention into their own domestic legislation.

Manufacturer’s liability

It is quite common for a problem with the aircraft, a system or a component to have contributed to the accident, either in part or to a considerable extent. In these circumstances there is another cause of action in addition to the case against the airline. This in turn can mean that there is an additional jurisdiction available which may be more favourable than those available under the Montreal Convention.

A large proportion of aircraft and aviation components are manufactured in the US. Even aircraft manufactured outside the US are likely to contain many components that are manufactured by US corporations. Where a US component has contributed to a crash, the victims and passengers may be able to bring a claim in the US, where the damages available are often significantly higher than those available in other countries.

For products manufactured in other countries, product liability laws will vary from country to country. For the UK and some other EU member States, there are similar rules for product liability law based on their implementation of the Product Liability Directive 85/374/EEC. In the UK, this Directive has been incorporated into national law by the Consumer Protection Act (CPA) 1987.

The CPA introduces strict liability, which means that a claimant does not have to prove that the producer of the defective product was negligent if it can be shown that the defect was a cause of the injuries suffered. For some foreign air accidents, bringing a case in England against an English manufacturer may be the best cause of action.

Other types of liability

Beyond the Warsaw / Montreal Convention and product liability causes of action, there are potentially a number of other causes of action / defendants available in an air accident, depending on the circumstances. Examples include package tour providers, employer liability for injury to pilots/ crew, maintenance providers, air traffic control, liability of a pilot for a private flight, direct action against the insurer.

Liability for ground victims

The laws relating to ground victims vary in different countries.

In the UK, where a person on the ground is injured or killed by an aircraft crash or debris from an aircraft, section 76 (2) of the Civil Aviation Act 1982 imposes strict liability on the owner of the aircraft. This means that damages for losses and injuries are recoverable from the owner without having to prove negligence.

An example of such a case is the Shoreham Air Show crash in England in 2015, where a flying display aircraft crashed onto a road, killing 11 on the ground and injuring a number of others.

Value of a claim – Quantum

How the claim is valued will depend on the country where the case is litigated and the applicable law. For instance, the US has by far the best laws in relation to the damages that can be awarded. Not only are victims / families compensated for past and future financial losses and expenses, they can also be awarded significant damages for the pain and suffering element of their claims. This non-economic element can amount to millions of dollars for each person who can claim for pain and suffering (this covers the victims injuries and the pain suffered by those who lose family members).

In other jurisdictions the losses that can be awarded are less favourable to varying degrees. For instance, in England victims / families can claim for past and future financial losses and expenses, but for injured victims the pain and suffering element is much lower. For families who lose loved ones, the pain and suffering element (bereavement payment) is capped at £12,980 for a limited group of close relatives (spouse, civil partner, parents of deceased minor) and there is no bereavement payment for other relatives.

In addition, the value of the damages are influenced by a number of factors including the seriousness of injuries, the extent of the past / future financial losses / expenses, the age and income of a deceased, and the extent to which others were dependant on the deceased.

Legal limitation periods

As a matter of law, there is a defined time within which legal proceedings should be formally commenced, which is normally at least one year from the date of the accident but is often two years. For instance, a case against an airline under the Montreal Convention must be brought within two years.

Apart from the Montreal Convention, the limitation periods vary depending on the cause of action and the jurisdiction in which the case is brought. There are certain limited circumstances where time may be much shorter than the norm. As such, an advisable action for victims and families would be to identify a lawyer that specialises in aviation litigation as soon as they are able to, and ask them to advise on applicable legal limitation periods or other deadlines.

Case procedure

Case procedure is country specific, but in very general terms involves:

  • Analysis of the air accident to ascertain the most favourable cause(s) of action, defendant(s) and jurisdiction.
  • Gathering information and evidence from victims and families to identify the full extent of injuries, pain and suffering, and financial losses.
  • Notifying the defendants of the claim.
  • Determination of defendant’s position on liability and whether settlement can be reached without formal proceedings.
  • In the absence of a settlement, issue proceedings / file the case with the court.
  • Interim legal arguments / hearings.
  • Disclosure / discovery of documents.
  • Exchange of witness statements / depositions.
  • Exchange of expert reports / deposition of experts.
  • Exploring the opportunities for pretrial settlement.
  • Trial.

Most cases settle before reaching trial. However, even for cases that settle, it can be a lengthy process. A time of one-three years to achieve a settlement in an aviation case is not unrealistic, but for a complex and heavily contested case the time to settlement or trial can be much longer.

A particular issue for air accident cases is where an air accident occurs outside the US but is filed in the US courts against US defendant(s) on behalf of foreign nationals. In the majority of these cases the US defendants will raise a legal motion to have the case removed from the US court (forum non conveniens motion) and sent to a more convenient foreign court, such as the court where the claimant is domiciled. This can be a complicated and hard fought legal motion that can take a significant time to resolve, possibly 12 months or more.

Nexa Law has extensive experience in complex international air accident litigation. With this experience and the unique professional expertise of the lead partner, Jim Morris, victims of air accidents can be assured that Nexa Law will provide a class leading level of service to clients to secure the best possible settlement and, where necessary, fight fearlessly to the conclusion of the trial.


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