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Compensation for plane crash victims under two conventions

MS Siddiqui | April 30, 2018 00:00:00

Rescue workers recovered

badly burnt bodies from the wreckage of the US-Bangla plane which crashed in Kathmandhu on
March 12, 2018

The recent US-Bangla plane crash in Nepal caused immeasurable loss to the
families of the victims. The airlines authority had insurance coverage up to
$0.2 million or about Tk 16 million for each passenger and $50,000 for each
crew member. According to the insurance company, the families of the plane
crash victims were expected to get Tk 16 million in compensation from the
airline and its insurers under the internation al aviation conventions and laws.
But unfortunately, the families are likely to get less than one third of the
declared total. The country's existing law, the Carriage by Air (International
Convention) Act, 1966, Section 22 (1), specifically confirms that the
compensation should be in line with the W arsaw Convention. The amount is
mentioned in French franc, not in Bangladeshi taka. This may complicate the
matter prompting dissatisfaction among family members of the victims.

In case of such accidents, international carriers follow two conventions - the

W arsaw Convention and the Montreal Convention. Among the South Asian
countries, India, Pakistan and the Maldives are signatories to the Montreal
Convention while Bangladesh and Nepal are signatories to the W ars aw
Convention. The monetary limit could be overcome by showing that the
carrier engaged in 'wilful misconduct,' or where the carrier failed to deliver
the ticket. The monetary limit was 125,000 francs (approximately $8,300).
Although the Convention barred carriers from undermining the Convention
rules by exculpatory contract language, carriers could agree to a higher limit
of liability for passengers 'by special contract.' In 1955, the W arsaw
Convention was amended to limit airlines' liability and the compe nsation for
each passenger was set at $46,955 (250,000 francs) or about Tk 3.8 million
by the Hague Protocol 1955.

The W arsaw Convention 1929 is the Convention for the Unification of Certain
Rules Relating to International Carriage by Air, established and elaborated,
as one of its major tenets, the principle of air carriers' liability for damage
caused to passengers, baggage and goods, and also for damage caused by
delay. The Convention: (1) standardises particulars to be included in the
documents of carriage; (2) creates a penalty for non-compliance with the
particulars to be included in the documents of carriage, (3) sets out rules
whereby the claimant does not need to prove the fault of the carrier, or his
agents, in respect of loss; (4) specifies a limit ed number of defences to
liability for the benefit of the air carrier; (5) fixes a monetary cap limiting the
liability of the air carrier; (6) defines the circumstances in which the carrier
may lose the benefit of the monetary cap limiting its liability; ( 7) sets out
rules as to time limitation and jurisdiction; (8) provides for the exclusive
application and mandatory effect of the rules laid down.

The convention limits the liability of the carrier for catastrophic aircraft
disasters. In case, where the carrier or any of its agents acting within the
scope of their employment are guilty of 'wilful misconduct' could lead to
disastrous financial consequences. The carrier will, however, not be liable
beyond any actual loss proven by the claimant. The convention felt necessity
to protect air carriers, which at the time were mainly state -owned from open-
ended liability in case of damage to or loss of cargo or baggage and injury to
or death of passengers. Therefore, many countries enacted legislation
prescribing the equivalent, in their national currency, of the W arsaw
Convention 1929 limits.

The Convention does not apply to carriage performed in extraordinary

circumstances outside the normal scope of an air carrier's business. It will
not cover the carriage of cargo to a territory affected by hostilities or war. But
all the other international air conventions, namely the W arsaw-Hague
Convention 1955, the W arsaw-Hague-MAP Convention 1975 and the
Montreal Convention 1999 provide differently under certain conditions. The
liability regime for the carriage of cargo was introduced by a further
amendment to the W arsaw-Hague Convention 1955, which was also drawn
up in Montreal and known as the Montreal Additional Protocol Number 4 of
1975.

There was also the concern that insurance would otherwise become too
expensive for carriers and tickets too costly for most of the passengers. At
the time, the air carrier industry was financially weak and faced possible, if
not inevitable, bankruptcy from a single disaster. On the other hand, shippers
and passengers needed to be reassured that if something went wrong, they
would have an effective remedy against the carrier and be compensated. At
the same time, it creates a presumption of fault on the part of the carrier.

By this time, in order to unify the fragmented liability regimes of the W arsaw -
system conventions, the "Convention for the Unification of Certain Rules
Relating to International Carriage by Air" was convened. The "Montreal
Convention 1999" was adopted in Montreal on 28 May 1999. The Montreal
Convention is an entirely new treaty and not another amendment to the 1929
W arsaw Convention. Article 55 specifically states that this Convention
supersedes the W arsaw Convention and its protocols and special inter -
carrier agreements.

It has consolidated various W arsaw-system conventions in one single text. It

therefore provides certainty as to the applicable international air convention
and the contracting parties' corresponding rights and obligations. It brought
uniformity to global legislation resulting in reduction of costly litigation as to
the applicable legal regime.

States can overcome the complexities of the W arsaw -system conventions by

adopting the Montreal Convention 1999. Moreover, it is important to note that
national implementation of any of the international conventions will not
achieve the intended result unless the respective convention has been
ratified or acceded to. Bangladesh has ratified the W arsaw convention, but
yet to ratify the Montreal Convention.

Almost every country across the globe follows the Montreal Convention 1999,
although the W arsaw-system conventions and the Montreal Convention
continue to co-exist. As a result, a country's trade with different trading
partners may be governed by different international air conventions. In cases
where more than one of the international conventions has been adopted by a
state, particular care is required to ensure effective implementation of each
of the international air conventions at the national level. Some of the
countries have their own aviation law concerning the carriage of goods and
passengers. However, in the interests of certainty and to avoid any conflict of
law issues between different contracting states, it is important to aim at
enacting legislation, which needs to ensure the application of each
international agreement in relation to trade involving the contracting states to
that particular convention. This is vital in order to avoid unnecessary
confusion among traders and to ensure the application of the relevant
international air convention in respect of carriage between different trading
partners.
The law ensures that the passengers and carriers with the contract of
carriage cannot agree to relieve the carrier of liability, or agree to lower
limits of liability than those laid down by the international air conventions.
Thus, a national enactment of law without ratification of international
convention would not ensure application of the substantive convention
provisions in a case where carriage involves that state. Even if the text of the
national statute were to make it clear that carriage to or from that state
should be covered by the convention in question, courts in other
jurisdictions, which may be charged with deciding on a claim, would, most
likely, not give effect to the relevant convention provisions, as the carriage
would not involve a contracting state. The law will consider cases of
insolvency of carriers, passengers and place of occurrences in different legal
jurisdictions, hence, requires ratification relating to conventions as well.
Thus, adoption of an international air carriag e convention at the international
level, through ratification or accession, is vital, to ensure that any relevant
national enactment will be fully effective.

Bangladesh should ratify the Montreal Convention and update the Carriage
by Air (International Convention) Act, 1966 in line with the conventions. The
compensation can also be fixed in Bangladeshi taka instead of franc. The
updated law following the Montreal Convention is needed for resolving
aviation-related dispute and ensuring better compensation fo r plane crash
victims.

MS Siddiqui is a Legal Economist.

mssiddiqui2035@gmail.com