International Journal of Law and Legal Jurisprudence Studies

SAN FRANCISCO PLANE CRASH: A NEW CHALLENGE — Siddhi Pathak Gujarat National Law University, India LLM 1st year (2nd semester)

ABSTRACT

In a plane crash in July ’13 in San Francisco (Asiana Airlines flight 214), three people died and many were injured. The amount of compensation varied because of the application of two different laws – state laws and treaty laws.   The liability of air carrier in case of any accident or damage or any bodily injury caused to the passengers is determined by the Warsaw Convention of 1929 which has been repealed and is known as Montreal Convention of 1999. The liability of the air carrier is mostly determined by the state laws but in case of the air carrier having stoppage in a foreign land or a domestic flight as long as foreign destination is mentioned in the itinerary of the passenger, the liability is determined by Montreal Convention. The air carrier, under Montreal Convention has a two tier liability towards the passengers. This paper thus focuses on the issue of difference in compensation that exists and also the circumstances under which passengers can claim for compensation under Montreal Convention.

 Keywords: Compensation varied, Foreign land, Two tier liability

Chapter 1:

The first aircraft crash was reported in the year 1908, Virginia. It was a Wright Model A air carrier. Many passengers got injured in the accident including the pilot and many died.

Another devastating incident was the Tenerife disaster. The collision of Pan am 747 with KLM Boeing 747 in Spain left hundreds injured and dead.

These are a few examples of aviation accidents which causes great disasters.

The term “aviation accident” has been explained in the Convention on International Civil Aviation.[1]

In a recent plane crash in July ’13 in San Francisco (Asiana Airlines flight 214), three people died and a dozen of people were injured. In this case the amount of compensation varied from person to person because of the application of two different laws – state laws and treaty laws. Since 1920’s the major aim of Private International Law was to stimulate consistency of law amongst the states. Aviation being a link between state- there culture, language and legal system, it was felt to establish a uniform system of law that would govern and regulate them. In short the main purpose of Private International Law was to create a stable liability regime wherein all the cases related to aviation can be solved irrespective of where they took place. PIAL was thus pioneered for two primary reasons:

1)     To limit the liabilities of carrier when any accident takes place.

2)     To keep a track on the amount of capital received so that the entire amount is not scared away in ruinous mishaps.

The Warsaw Convention of 1929 thus came into force because of these two concerns. The convention was set up when air transport was in its infancy. Majority of the cases related to aviation liability were governed by Warsaw Convention, adopted on 12th December 1929. The convention was in force in 146 states.[2] But The Warsaw Convention had some lacunae about which law to be applied to which flight and also about the jurisdictions within which the claims are to be settled and damages awarded. The Warsaw Convention was thus ratified and a Convention for the Unification of Certain Rules for International Carriage By Air was signed at Montreal on 28th May 1999, which came to be known as Montreal Convention.  Montreal Convention supersedes Warsaw Convention. It meets the changing needs of international community as well as air transport and trade. The convention was signed by 52 countries.

The liability of passengers in case of death or injury to passengers is commonly controlled by the State law. But there are certain exceptions to this ideology. The airlines liability is modulated entirely by International Treaty if the passenger’s flight includes stoppage on foreign land. Under such circumstances the liability is determined under Montreal Convention. The treaty also regularises the amount of claim the passengers can claim in case of any injury or damage caused to them, as far as a stop in a foreign country was included in the passenger’s itinerary.

In the case of Asiana Airline crash at Sans Francisco the compensation was largely different for American and passengers from other countries. The Montreal Convention governs this issue. The American courts closed the doors for international citizens and forced them to claim compensation in other Asian countries.  According to Montreal Convention the passengers under this case where liable to seek compensation under five conditions:

1)     Where they live

2)     Their destination

3)     The place of issue of ticket

4)     Where the air carrier is based

5)     The place of business of the airline

Moreover, the other additional instruments that were provided to the signatory states were Hague Protocol (1955), Guadalajara Convention (1961), Guatemala City Protocol (1971), and the 1975 Additional (Montreal) Protocol numbers 1-3 and Montreal Protocol no 4.

Chapter 2:

A new challenge for the Aviation Industry

On 6th July 2013, Asiana airlines Boeing 777 flying from Tokyo crashed at San Francisco airport. The Boeing carried 307 passengers out of which 3 died, around 160 passengers were injured and several others were treated for minor injuries.

There was a huge difference in the amount of compensation that was given to the victims. The compensation was widely different for the American passengers and passengers from other country, even though they sat next to each other when the aircraft crashed.

The doors of US courts are closed for the passengers from any other country except America. There is an international treaty that governs the issue of compensation when it is an international flight.

The Boeing carried both American and non-American passengers out of which 141 were Chinese, 64 Americans, 77 South Koreans and 3 Canadian, 3 Indians, 1 Vietnamese, 1 Japanese and 1 from France.

The airlines initially declared a compensation of 10,000 USD but according to legal experts the amount of compensation intended to vary from person to person depending on certain factors.

The legal experts said that those were paralyzed were expected to earn a million dollar. The passengers who were left quadriplegic were expected to get a settlement of $10 million, if the case was filed in US. In case of death the compensation could vary between $5 million to $10 million, depending upon the domestic laws of USA.

Whereas the International Treaty – Montreal Convention which applied, offers the passengers to claim compensation based on five grounds:

1)     Final destination

2)     Where the ticket was issued

3)     Principal place of business of the aircraft.

4)     Where the air carrier is based

5)     Where they live

Based on this it was concluded by the legal advisors that, the passengers who filed for claim in the USA are expected to get more then the passengers who filed a suit in South Korea.

The director of DePaul University’s International Institute of Aviation stated that the Montreal Convention is required to make prompt payment to the victims in order to make up for their travel, medical expenses and to meet other expenses incurred by them.

The Montreal Convention  states that the aircrafts are liable to pay damages up to 113,100 SDR’s that is USD 138,000 per passengers(December 2009). Any damage caused above this limit can be claimed by the passengers if it’s proved that the injury or death was caused because of the accident.

The subject is still a matter of  investigation that whether Boeing Co. shoulders any responsibility for the crash, including potential design flaws in the plane’s automated instruments or differences between first-class passengers’ seatbelts, which come with a shoulder strap, and the seatbelts in the economy section, which are lap restraints only.

A team of Ministry of Land, Infrastructure and Transport officials dispatched to San Francisco are now inclined to believe that pilot error was the cause of the crash, rather than defects in the aircraft.

 Chapter 3:

Warsaw convention and Montreal Convention: Its Scope, Applicability and Evolution

The case discussed above is based on Montreal Convention. In order to discuss this it is necessary to understand the scope, applicability and evolution of the same.

I] Warsaw Convention, 1929:

The Warsaw Compensation was the first to lay down the principle of liability of air carrier, for any damage or injury caused to the passengers, goods and any damage suffered by delay. The purpose of this convention was to promote the development of a financially weak industry. The convention came into being on 12th October, 1929. It was scripted in French only[3]. This convention was first adopted my Denmark in 1937and was in Danish.[4]

Warsaw Convention states that the convention shall apply to all the international carriage of persons or goods.[5] There was no uniformity in law in this convention. Under this convention two tickets were given to the passengers:

1)     For the goods carried by them , and

2)     For the passengers’ travel.

Article 3(2) of the convention states the provisions regarding the various issues related to ticket. Moreover, the convention also deals with bodily injury[6], damage caused to luggage[7] and any damage caused by delay.[8]

Warsaw Convention possessed limited liability towards passengers. The liability limit was set to 125000 Franc. The limit on liability was set to protect the new emerged airlines, in the Aviation industry, from incurring losses. With the passage of, this factor became major lacuna of the convention.

Though the convention was considered to be one of the best conventions, it went through many amendments and changes.[9]

1)     The Hague Protocol:

This convention came into force on 1st, August 1963. 131 countries ratified this protocol. This amendment was done in 1955. In this protocol the liability limit was increased from 125000 francs to 250000 francs.

2)     The Guadalajara Protocol,1961:

This protocol came into force on 1st May, 1964 and it was ratified by 82 countries.

This protocol established that the passenger can not only hold the airlines liable for the injury but it can also hold the manufacturer responsible for the accident.

3)     Montreal Agreement,1966:

The limit of liability was increased to 75000 US dollars and strict liability was imposed, as USA agreed ratifies the convention. The agreement applied only to passengers of international flight, whereby USA was a stoppage, place of destination or place of departure.

4)     Guatemala City Protocol ,1971:

This protocol was entered into in Guatemala City on 8th March, 1971. It was ratified by 12 countries. This protocol introduced the strict liability and the limit of liability was increased to 100,000 USD. Moreover a 5th jurisdiction was introduced in the system and electronic tickets were also brought in.

5)     Additional Montreal Protocol no 1, 2 and 3,1975:

SDR’s i.e., special drawing rights were introduced as the prices of gold were no more a hindrance.

6)     Montreal Protocol no 4 , 1975 :

It was entered into in 1998.The Guatemala protocol brought in strict liability only for goods but the Montreal Protocol introduced strict liability also for passengers.

Under article 29 of Warsaw Convention the time frame within which one has to claim for compensation is 2 years. The period of 2 years starts from the date of arrival at the place of destination, or the from the date when the aircraft ought to have arrived or either from the date when there was stoppage of carriage. The period of limitation under this section is determined by the Court in which the case is.

II] Montreal Convention, 1999:

As the Warsaw Convention had certain shortcomings, a new convention was introduced by ICAO[10]. In the Diplomatic Conference held at Montreal on 28th May, 1999, for the Unification of Certain Rules for International Carriage by Air, a ratified convention was adopted. 122 states and 11 organisations attended the conference.[11] The Montreal Convention was brought into force on 4th November 2003.

The main aim of Montreal Convention was to bring about uniformity in private international law which Warsaw Convention couldn’t establish. Montreal convention concentrated on the interest of consumers and not on protection of the air carrier. Its objective was equal distribution of compensation amongst consumers, in case of any exigencies.

Not more amendments were made in Montreal Convention; Guadalajara Convention was added to it. Article 49 of the Montreal Convention is similar to Article 32 of Warsaw Convention.

The Montreal Convention brought new aspects of wound and bodily injuries. It incorporated the IATA Intercarrier Agreement in such a way that now we have a two tier liability system.   There exists a strict liability up to the sum of 100000 SDR. Any sum above this amount can be given only in cases where a contributory negligence is proved but with a reversed burden of proof.

Another change was that a 5th jurisdiction was added in the Convention on request of US delegates. The only major amendment that was done in the Convention was the introduction of article 50, which wasn’t a part of Warsaw Convention.[12]

The text of Warsaw Convention was in French, whereas the Montreal Convention is available in six languages.[13]

The Montreal Convention has thus incorporated the features of IATA intercarrier Agreement and Guadalajara Agreement into one single document, bringing around uniformity in private international law. Montreal Convention adopted the principle of restitution.

Under Montreal Convention Article 35 states the time period within which the compensation is to be claim. The Article 35 is similar to Article 29 of Warsaw Convention.

Montreal Convention thus supersedes Warsaw Convention.

 

Chapter 4:

Limited liability and Exoneration

3.1 Exoneration (Article 20) Under Montreal Convention:

The passengers can claim for any bodily injury in case of accident only if the injury has been caused on board the aircraft.[14] On the other hand article 20 states that the air carrier will not be liable towards passengers if it proves that the accident has occurred in spite of taking necessary precautions. Article 21 is another exception to article 17.[15]

The air carrier can be thus exonerated from the liability under two circumstances:

1)     The carrier proves that it had taken all necessary steps to prevent the accident or that it wasn’t possible for the air carrier to take any measure.

2)     The accident has been caused because of the negligence of the person who has suffered the injury.

As seen above article 20 leaves the burden of proof on the air carrier.

This has been explained with the help of following cases:[16]

1)     Grein v. Imperial Airways ltd[17] : in this case it was held by the court that the burden lies on the airlines to prove that it had taken significant measures to prevent the accident, still the damages have been incurred.

2)     Christholm v. British European airways: In this case the passengers were asked to fasten their seat belts due to air turbulence. In spite of this one of the passengers left his seat and injured himself. The claim of the passenger was not entertained saying that the airlines had taken all possible measures to prevent the accident.

3)     Chutter v. KLM Royal Dutch Airlines and Allied Aviation Services International Co-operation[18]: in this case a passenger, bidding farewell to his family didn’t notice that the staircase leading to the aircraft had been removed . He fell down and injured his case. This is a case of contributory negligence. It was because of the negligence on part of the passenger, that he suffered the injury.

3.2 Limited Liability:

According to article 22[19] of Warsaw Convention, the Convention imposes a limit on the liability on the air carrier towards the passengers. For the countries that had ratified the Warsaw Convention the limit of liability was set to 250000 USD. And the countries which didn’t ratify the Convention, the limit of liability were 125000 USD. For the air carriers which had USA as destination, departure of issuance of ticket the liability was fixed to 75000 USD.

The Warsaw Convention gives to possibilities on liability in case of death or injury caused to passengers,

1)     Wilful Misconduct:

Article 25 of the Warsaw Convention deals with any damage or injury caused due to the wilful misconduct of the airlines. It also includes such defaults which are seized to be wilful misconduct. Article 25 defines many terms which is interpreted differently in different jurisprudence and has have caused lot of confusion.

Horabian v. British Overseas Airways Corporation defined wilful conduct.[20]

Piamba Cortes v American Airlines discusses three alternatives under which willful misconduct can be defined. [21]

After analyzing all the definitions given by the various interpreters it has been established that Article 25 in the Hague Protocol says that article 22 shall not apply in cases where the act has resulted from willful misconduct.

The Montreal Convention solves the problem with regard to article 25 by giving a provision of unlimited liability.

2)     Default in ticketing :

Article 3(2) states the provisions about tickets.[22] Warsaw doesn’t give any precise definition of ticket.

Merten v. Flying Tiger Line, Inc[23] [24], in this case the passenger ticket was delivered to military personnel when the passenger was already seating in the aircraft and on this the limitation of liability was unnoticeable, was not delivered as per the provisions of article 3(2).

As a result of this the limitation of liability could not be availed of by the airlines. The Court argued that the provisions of article 3(2) could have made sense if the ticket was delivered to the passenger after flying in air for few thousand feet.

 In the case of Lisi v. Alitalia- Linee Aeree Italiane[25] the passenger has purchased the ticket days before the day of travel. The notice on this ticket was printed in microscopic letters and hence the airline couldn’t escape from its liability.

 

 

 

 

 

 

Chapter 5:

Comparison between Article 17 of Warsaw and Montreal Convention: What constitutes an accident?

There is a minute difference in the language of Article 17 of the Warsaw convention and the Montreal Convention. Article 17 of Warsaw Convention consists only “actions” i.e action is considered to be accident. Moreover, it also states that a mere refusal which leads to death or injury is not an accident.

The paragraph 1 of Montreal Convention consists provisions on the air carrier’s liability in case of any accident or damage.[26] Once it is established that it was an international flight between the member states, the Montreal Convention shall apply. The passengers in such circumstances are required to seek compensation under Montreal Convention and not under domestic laws. The most vital question that arises is “For what is the air carrier liable?” In order to claim for compensation it is necessary for the claimant to prove two things:

1)     The damage has been caused because of an “accident”

2)     It was a “bodily injury” or “death”

The two terms “accident” and “bodily injury” have a lot of ambiguity in their meanings and hence interpreted differently by different courts.

4.1 What Constitutes an Accident?

Article 17 doesn’t give any concrete definition of the term “accident”. In the case of DeMarines v. KLM[27] [28]the court explains the meaning of “accident”.[29]

In the famous Saks[30] [31]the passenger went complete deaf when the aircraft was descending on the runway. The passenger filed a suit in the state court of California claiming for damages. But the court rejecting the suit saying that any injury or damage caused “externally” to the passengers is not to be considered for compensation. Hence the aircraft is not liable to pay the damages. Under Warsaw Convention in order to claim compensation it is necessary for the passenger to prove that the “accident” has been caused on board the aircraft.

Explaining Article 17 under Warsaw Convention, In the case of Fenton v. J.Thorley & Co[32] an attempt was made to create a difference between “cause and effect”. It was stated that the airlines will be held liable only if an injury has been caused to the passengers because of the accident. It was concluded that under Warsaw Convention, it is the cause of the injury that consists of accident and not the injury alone.

Taking the example of San Francisco Plane crash, the court had to compensate the victims as there was an “accident” and the “injury” and “death” was caused because of the plane crash for which the airline was solely liable. Hence claim for damages were sanctioned.

In another such case of Herman v. Trans world Airlines[33], the plane was hijacked and was directed to Middle East and was landed somewhere near desert of Amman, Jordan. The aircraft was captured for six days. The passengers claimed compensation for the accident. The airlines declined saying that the aircraft was used as a detention camp by the hijackers. In turn the court stated that the event is considered to be an accident, as it happened in continuality.

In Air Inter v. Sage, a passenger fell in the airport entrance hall, as whisky was split on the floor of the entrance hall. The court denied saying that the incident cannot be considered to be embarkment, as the entrance hall is a public place.

4.2 Types of injuries under Warsaw and Montreal Convention for which the aircraft is liable: “bodily injury”:

I] Mental Anguish which is unaccompanied by physical injury:

The main issue that has been a matter of grave concern and which led to the evolution of conspiracy was whether the aircraft will be held liable for the mental agony caused because of the accident.

In the case of Eastern Airlines v. Floyd[34] [35]an aircraft was on its trip from Miami to the Bahamas, when suddenly all the three engines of the aircraft failed. The passengers were informed that there is no option but to ditch the aircraft in a nearby ocean. But somehow the pilots managed to restart all the engines and the aircraft flew safely. A suit was filed by the passengers, claiming for mental injury that they underwent.

After interpreting the concept of Warsaw Convention, the US Supreme Court came to the conclusion that article 17 of the Montreal Convention doesn’t cover only mental injury unaccompanied by physical injury. The Court didn’t express any opinion on whether compensation should be given to the passengers or not. The Court in this case did not consider the judgement given in the famous Israeli case[36] in which the passengers were given compensation within the jurisdiction of article 17 of the Montreal Convention.

It was thus concluded that mental injury [37]if without bodily injury is not recoverable.

II] Mental injury which is accompanied by physical injury:

In the case of Jack v. Trans World Airlines[38] [39], the aircraft suffered from an aborted takeoff, and then it crashed, which led to fire. The passengers survived the accident but some minor injuries were caused to some. However it was concluded by the Court compensation can be given to the passengers not for mental injury but for the physical injury that they have suffered.[40]

III] Physical injury caused by mental injury:

There have been some cases where physical injury was caused to the traveller because of the mental injury that he had undergone.

In the case of King v. Bristow[41] [42], one Mr. King was flying in a helicopter when suddenly the engines of the helicopter failed. The helicopter had to land on a helipad amidst smoke. Mr. King survived the accident but he developed Post Traumatic Stress Disorder and suffered from an ulcer disease.

The House of Lords stated that in order to claim for compensation it is a precondition to prove that the injury has been caused by the mental condition of the diseased. In this case it was necessary for Mr. King to prove that the accident, which affected his mental condition led to the disease (ulcer disease) which he was suffering from.

The Court lay down that these types of injuries were not compensable under the Convention.

 

Suggestions and Recommendations:

Having gone through the San Francisco plane crash and analysing the grounds for compensation, the lengthy procedure for compensation I strongly recommend the following:

After examining the merits and demerits of Warsaw and Montreal Convention and their jurisdictions, the question that arises – should it be made mandatory for all the states to ratify to Montreal Convention? The answer to this question is in affirmative “yes”. As per the analysis carried out till august 2013, there are 104 states which are party to this convention. Amongst these are 103 countries out of 191 ICAO member states and members of the European Union. Having got answer to this question, it has become necessary to ratify the Convention in order to bring uniformity in private international air law. If some countries adhere to Warsaw Convention and some to Montreal Convention, this uniformity cannot be achieved. Moreover, if the states do not ratify this Convention, there shall again be a disunification as the non members will give compensation according to their respective domestic laws and to the member states the Montreal Convention shall apply.

The second issue with this convention is that it doesn’t consider mental injury. The mental injury needs to be accompanied by physical injury. There are instances where the passengers suffer severe mental trauma because of the accident. As seen in recent plane crash in San Francisco, there were many passengers who witnessed the accident and suffered mental injury but there are no provisions available to provide relief to such passengers. A thin line of demarcation should be drawn between mental injury and physical injury with regards to the amount of compensation.

Thirdly, Montreal Convention doesn’t provide any substantive definition of the term “accident”. The term “accident” should be interpreted more precisely. The jurisdiction of the airlines and the cases where the incident will be considered to be an “accident” must be stated.

The passengers should be made aware of the rights of compensation available to them under Montreal Convention.

Another aspect that draws our attention is; the Convention states that the passenger has to prove that the injury has been caused due to negligence of the aircraft in order to avail of the benefits. The compensation can be claimed by the passenger only after proving that the accident has been caused under the jurisdiction of the airlines and hence compensation should be given. The lengthy process of giving compensation should be cut short and the victims should be compensated early.

This inequality in compensation is a major problem that the aviation industry is facing today.

Conclusion:

In conclusion, just as the technology has changed in the field of international aviation

from internal combustion propeller driven engines to jet and possibly to the law which

governs international aviation has changed. In the same way like technology, Montreal convention may not make everyone’s life easier and may not prove to be beneficial for all however like technology, Montreal convention is here to stay.

 With the passage of time the term “accident”, “bodily injury” and “death” have been broadly interpreted by the courts.

It is indeed a question of debate that that should be held responsible for such treacherous plane crashes, that we come across in the newspaper every now and then. San Francisco is one amongst them. Apart from this “n” number of planes have crashed in the past.

I, being a law student wonder how the complicated the system is, to which the people fall prey. The reason for the crash and the compensation which was given and the lengthy procedure that is followed.

This has been observed in the San Francisco plane crash. The investigation of the plane crash is still on. The reason of the crash has still not been found out and hence even compensation process has derailed. The difference in the amount of compensation is too huge. There is a fairly wide difference between the compensation given to US citizen and non American citizens.

This difference is because of the application of state laws and treaty laws.

There is a need to equalize the compensation scheme for all so that the amount of compensation doesn’t differ.

Bibliography:

  • Books referred:

1) Dempsey, Stephen,Public international Air Law. Institute and centre for Research in Air and Space Law, Mc Gill University. Canada: 2008.

2)Tompkins N.George,Jr. Kluwer,Wolters, Liability rules applicability to International Air Transportation as developed by Court in  the US , From Warsaw 1929 to Montreal 1999. Kluwer law and International.Netherland: 2010.

3)     Dempsey, Paul & Milde, Michael, International Air Carrier Liability: The Montreal Convention 1999. Montreal, McGill University, Centre for Research in Air & Space Law. Canada: 2005, 1.

 

4)     Henrietta, Isabella and Philepina Diederiks-Verschoor, Kopal Vladimir, An Introduction to Air Law. Kluwer Law International. Netherlands : 2008.

  • Legislations:

1)     The Warsaw Convention 1929

2)     The Montreal Convention, 1999

  • Articles:

 

5)     Larsen, Irene,Regime of Liability in Private International Air Law – with Focus on the Warsaw and Montreal Convention. May 1999

 

6)     Laukamp Louis Castellvi , Liability in case of Death or Injury of passengers. Department of Law Carrier,2009

 

 

  • Journals:

1)     Franks M.R, Fordham Journal of Corporate and Financial Law, Airline Liability For Loss, Damage or delay. Vol 12, issue 4 : 2007 article 4

  • Websites:

1)     www.icao.int

2)     www.iata.org

  • Case Laws:

1)     Grein v. Imperial Airways, Ltd ,King’s Bench Division 23 October 1935; Court of

Appeals 13 July 1936 see Law Reports (1937) 50-92.

2)     Chutter v. KLM Royal Dutch Airlines & Allied Aviation Services International

Corporation, US District Court, Southern District of New York, June 27, 1955

3)     Merten v. Flying Tiger Line,Inc (1965) A.Ct.., 341 F. 2d 851 (2d Cir. 1965)

4)     Warren v. Flying tiger line, Inc (1965) A.Ct., 352 F. 2d 494.

5)     DeMarines v. KLM (1978) A.Ct., 580 F.2d 1193.

6)     Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338 (1985).

7)     Eastern Airlines v. Floyd, 499 U.S. 530 (1991).

[1]Annex 13 “an occurrence associated with the operation of an aircraft, which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, where a person is fatally or seriously injured, the aircraft sustains damage or structural failure or the aircraft is missing or is completely inaccessible

[2]Michael Milde, “Liability in International Carriage by Air – the new Montreal

Convention of 28 May 1999”, (1999) Unif. L. Rev. 1999-4, p. 835.

[3]Authenticated only in French

[4] Larsen, Irene.”Regime of Liability in Private International Air Law- with Focus on the Warsaw System and the Montreal Convention of 28 May 1999”.

[5]Article 1”- this article is applicable to all the international carriers for reward. It applies equally to all the carriages.

[6]Article 17- the air carrier shall be liable for any damage or injury caused to the passengers on board the aircraft , or in any course of embarking or disembarking.

[7] Article 18- the air carrier is liable for any damage caused to the baggage during the period when the baggage is in possession of the air carrier.

[8] Article 19- the air carrier is liable for any delay caused to the passenger’s flight or in the arrival of the goods.

[9]Stephen Dempsey,Public international Air Law. Institute and centre for Research in Air and Space Law, Mc Gill University: 2008

[10]Tompkins N.George, Jr. Kluwer Walters, Liability rules applicability to International Air Transportation as developed by Court in the US, From Warsaw 1929 to Montreal 1999. Kluwer law and International: 2010.

[11]ICAO Doc.9740

[12]Article 50- it states that it shall be mandatory for all states to maintain adequate provisions for insurance, and that all the states shall have a right to ask for evidences of insurance at any time, from the air carriers.

[13]English, Spanish, Chinese, French ,Arabic and Russian (all authenticated)

[14]Article 17- it states that in case of any wound, or any other bodily injury or death of any passenger , a claim for compensation can be done but the only precondition is that the accident should have occurred on board the aircraft or in the case of any embarkment or disembarkment.

[15]Article 21- the airline is not liable to give compensation to the passengers, if it proves that the accident has been caused due to the negligence of the person who has suffered the damage.

[16]. Supra note 3

[17],King’s Bench Division 23 October 1935; Court of

Appeals 13 July 1936 see Law Reports (1937) 50-92.

[18], US District Court, Southern District of New York, June 27, 1955

[19]Article 22 states that there exist various different limits on liability that is given.

[20]To be guilty of willful misconduct the person concerned must appreciate that he is acting wrongfully … and yet persist in so acting …regardless of the consequences, and acts … with reckless indifference as to what the result may be”.

[21]1) Intentional performance of an act knowing that the act is likely to result in injury or

damage; 2) An action taken with “reckless disregard” of the consequences; or 3) A deliberate failure to discharge a duty necessary to safety.

[22]Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Convention which exclude or limit his liability”.

[23](1965) A.Ct.., 341 F. 2d 851 (2d Cir. 1965).

[24]Supra note 15

[25]S.p.A.(1966) A.Ct., 370 F. 2d 508

[26]Article 17: 1. The carrier 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.

[27]580 F.2d 1193.

[28] Supra note 3

[29]an event,a physical circumstance, which unexpectedly takes place not according to

the usual course of things.

[30], 470 U.S. 392, 105 S.Ct. 1338 (1985).

[31]ibid

[32][1903] A.C.443,453

[33]ibid

[34], 499 U.S. 530 (1991).

[35]Supra note 3

[36]Air France v. Teichner

[37] Anxiety, fear, distress, shock etc.

[38]854 F. Supp. 654 (N.D.Cal.1994)

[39]ibid

[40]For ex- a passenger can claim compensation for his broken leg but not for the mental distress that he has suffered.

[41]LTD, [2002] UKHL7

[42]Supra note 3

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