Open Access Research Article
AVIATION ACCIDENT: DISPUTE & LIABILITIES
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Article Details
AVIATION
ACCIDENT: DISPUTE & LIABILITIES
AUTHORED BY
- KISHORI GOSWAMI
Abstract:-
India aviation industry is its one of the fastest growing industry which
is controlled and maintained by Ministry of civil aviation. The MoCA is further
classified into four parts, that is, Director General of Civil Aviation[1],
Airport authority of India[2],
Airport Economic Regulatory Authority of India[3],
and Bureau of Civil Aviation Security. Because of the existence of this
industry at massive level some commercial and non-commercial dispute arises.
Some of the common causes of aeronautical dispute are restriction or dominance
in an airline market or in ticket selling or in currency remittance. Dispute
also arises because of dumping in airline transport services, restricted
access, anti-competitive charges and reservation system, discriminatory charges
for Air traffic Control and Air traffic Navigation. Liability in case of any
air accident is determined through various conventions and agreement which
prima facie country is signatory. Majority of act in any country are governed
on the basis of Warsaw convention, Guadalajara Protocol of 1961. The act which
governed the liability in case any aviation accident happened is the carriage of good act, 1937. the
principles on the basis of which liability is decided are principle of absolute
liability[4],
strict liability[5],
vicarious liability[6],
negligence[7],
battery[8], assault[9], breach of contract[10], fiduciary
relationship[11] between passenger and owner of
aircraft. For the settlement of any dispute
countries are provided
both legal and non-legal mechanism.
Objectives:-
·
To understand about the present
state of Indian Aviation market.
·
To know about
the law making nodal authority of Indian Aviation
sector.
·
To know about
some major causes
of dispute in aeronautical sector.
·
To decide
the liability in case of any
aviation accident occurs.
·
To learn’t about any
grievances redressal mechanism
of aviation dispute
Key words:-
Aviation, ICAO, liability, Airline, Dispute, Accident
Introduction:-
India
as developing country is growing in each and every sector whether it is
information technology, railways, communication, navigation, railway,
agriculture, manufacturing and processing etc. Aviation industry is one of the
fastest growing sectors during last three year. It is further distinguished
into schedule transport service through air[12]
and non- schedule transport service through air[13].
India has become third largest country in
domestic aviation market. India’s domestic traffic contributes around 69% of
total airline traffic in South Asia. Around
137 airports are presented in country. As per the data released by Department
of Promotion of Internal Industry, Foreign Direct Investment in India’s air
transport sector reached to US$3.61 billion in September 2022. India has
allocated Rs. 3224.67 crore to Ministry of civil aviation in its budget
2023-24. Given that air travel is still prohibitively expensive for the bulk of
the country's population, including roughly 40% of the upwardly mobile middle
class, India's aviation business is mostly unexplored with enormous growth
potential[14]. The government has been
instrumental in adopting policies to help the aviation industry. The government
has created the UDAN-RCS scheme, which aims to expand air connectivity by
offering inexpensive, economically feasible, and lucrative travel on regional
routes.
Ministry of
civil aviation is the nodal body in India to implement policy and programmes
and handles governance and administration of aviation industry. The work of
MoCA was scheduled into 4 principle regulatory authority Director General of
Civil Aviation[15],
Airport authority of India[16],
Airport Economic Regulatory Authority of India[17],
and Bureau of Civil Aviation Security[18].
The aviation industry based on the need is regulated by multiple acts. The
major act which determines the parameter of air worthiness, standard of flying
in air, safety protocols and registration and maintenance of aircraft is The
Aircraft Act 1934. This act also regulates manufacturing, use, export,
procession and sale and purchase of aircraft. This act also stated about code
of conduct[19]
for passenger. But the problem is it is silent about punishment on violation of
this code of conduct. Because of this reason court refers to Indian Penal code
to grant punishment. According to rule 134 of Aircraft rule, no person is
allowed to hold scheduled commercial flight except establishing permission from
central government. According to section 22 of this act no person who is on
board of aircraft is allowed to involved in physical or verbal, intentional or
unintentional, assault or criminal intimidation or threatening with any crew
member whereas section 23 strictly prohibits any person to jeopardies or
damages the property of any person or crew or to use any narcotics substance or
alcoholic beverages in flight.
Major Causes of aviation accident:
Broadly,
causes regarding aeronautical disputes are classified into two parameters
commercial and non-commercial. Chicago convention only handles
commercial disputes whereas
non-commercial dispute was left on the decisions of bilateral agreement. Some common causes of dispute
are as follows:-
a)
Restrictions in airline marketing, ticket selling and
currency remittance- this type of restriction generates when country
impose restriction on airline marketing and selling. Transparency and fair
competition can help in creating effective air market. Government should be
prohibited from determining market flow
b)
Dumping of air transport services- Dumping
refers to selling a product internationally lower than nominal rate, sometime
even lower than home country. Some common example
of dumping is Singapore airline that provide fare at lower
rate than US airline in America.
c)
Restricted access to travel agents and computer
reservation systems- computer is the primary source of registration space
availability, scheduling carrier, listing of flights. Incorrect information or
misuse of data result in unfair and unreasonable restriction in market
d)
discrimination concerning frequency and capacity and
other operating restrictions- state
often do violates the International Air Transport Agreement and the
International Air Transit Agreement to have unrestricted acess to sky.
According to the universal principles of reciprocity and equal opportunity
everyone has freedom of the air.
e)
discriminatory charges for air traffic control (ATC) and Air Traffic Navigation (ATN)- as per the ICAO’s Future Air
Navigations Systems (FANS) Committee
established in 1983 there are several like Advanced Automation System (AM)
which encompasses the Automated en-route Air Traffic Control (AERA) as well as
the Terminal ATC Automation (TATCA)
to control air traffic with regional implementation.
f) Discriminatory
taxes- different countries have different jurisdiction result in
variance in taxes imposed on aviation industry.
Liability in case of air accident:-
The
liability in case of international air accident is determined through various
agreements signed among countries. The, prima facie, agreement that governed
the liability is Warsaw convention signed
among 152 countries in 1929. According to article 17 of this convention aircraft
carrier is liable for any damage, injury or death suffered
to passenger in course of its operation of embarking and disembarking. As per
article 18 of this convention if any harm, destruction, damage or loss has been
done to passenger registered carriage, carrier is liable. However there is
certain exception is available to the carrier
that can save the carrier
from liability like damage is done by negligence of passenger
himself or by any act of third party. Carrier can save itself as per article
20 if it is able to prove
that he has taken all
reasonable care or measures to avoid accident. The airline
is not responsible if it is able to prove that damage was occurring due to
negligent handling or negligent pilotage.[20]
The carrier is liable to each passenger. a sum of 125,000 Francs or USD
12,000. For damaged good liability is limited to 250 Francs or USD 25 per kg. as per article 28 the suit will be brought
by plaintiff where it have jurisdiction[21].
As per article 29 a suit can be brought
after 2 year of arrival to destination of aircraft. Furthermore Guadalajara
Protocol of 1961 make subcontractor of aircraft liable
in case of air accident. Later on in 2003 Monetral convention was enacted and signed by 132 states which increase
the liability for injury or death of passenger to USD 170,000 according
to article IV of Montreal convention, carrier is not liable if death or injury
resulted solely because of health of passenger. This convention allows the
passenger to file complaint at the place of his domicile.
This convention also makes provision for insurance
of carriage. Similarly, the carriage of good act, 1937 determines
the liability under air accident in
India. In the carriage of passenger liability is limited to 1, 25,000francs per
passenger, whereas in carriage of luggage and good it is limited to 25o francs
per kilograms, 5000 per passenger. Any contract putting a lower limit than
mentioned under act on a liability of carrier is null and void for that part.
The person must complain for luggage within three day of receipt and for good within 7 day of receipt. In case of delay the complaint must be done within
14 day of its disposal. In case of death his legal
representative of estate can lodge complain in court having
jurisdiction where carrier is resident or where carrier’s place of
business or where contract is signed. The right to damage is extinguished in
case within 2 year the complaint is not filed
from the date of arrival of destination, from the date carriage ought to arrive, or date when carrier is stopped. In case
contract of such nature that carrier can be sued, and then the first carrier is
liable. Any clause contained in the contract and all special agreements entered
into before the damage occurred by which the parties purport to infringe the
rules laid down by this Schedule, whether by deciding the law to be applied, or
by altering the rules as to jurisdiction, shall be null and void. The parties
who can be liable for accident are aircraft manufacture, contractor, air
traffic control, air, owner of plane, government, companies etc. these
liabilities are decided on the principle of absolute liability[22],
strict liability[23],
vicarious liability[24],
negligence[25],
battery[26],
assault[27],
breach of contract[28],
fiduciary relationship[29]
between passenger and owner of aircraft.
Dispute settlement mechanism
ICAO
has its 7 principal organ[30]
to implement policy and adjudicate dispute. From the origin of Chicago
convention as per article 84, there have been only 5 disputes. The very first
dispute occurred was occurred between India and Pakistan in 1952 regarding
interpretation of Chicago Convention. The
dispute settlement solution adopted by Chicago convention covered under Article
84 to 88 (chapter XVIII) of Chicago Convention. There is various
method of dispute
settlement adopted by countries, but most
common is political and legal solution:-
1. Political
solution: - political solution basically includes negotiations, good
offices, mediation, inquiry and conciliation. The Chicago convention, in its charter
first and foremost step
suggest to resolve dispute is negotiation. Under the negotiation the mediator
is appoints by ICAO which raised issue and then parties are free to discuss. As
per the rule 14 of Settlement of dispute resolution, it appoints ICAO council
to establish good offices for its parties to dispute. According to article 26
of Chicago convention, on the basis of ICAO recommendation the state in which
accident occurs will institute inquiry[31].in
advance to inquiry, assistance from Conciliation commission was provided to resolve international dispute as per
the Hague Convention of 1809 and 1907[32].
Example:- a) US and Cuba (1988)
In this case, U.S. refuses to allow Cuban aircraft to flies in its
territory heading toward Canada. In
this case President of council act as conciliator to resolve dispute.
b) US and European states
In this case, again President of ICAO council act as conciliator and
repealed the hush kit regulation. The issue was how the EU directives can be applied
on noise of aircraft
regulation (hush Kit)
2. Legal solution:-
When the dispute arises between countries in regard to death,
injury or other non- commercial matter legal solution is most commonly opted.
As per the article 16 of Hague convention 1899 suggest arbitration as most
peaceful and efficacious means to resolve dispute. In regards article 38 of
Hague convention 1907 the Permanent council
of arbitration is established. The united states vs. France(1963), united
states vs. Italy(1965), Belgium vs. Ireland(1981), united states vs.
France(1978), are some common example of dispute solved through arbitration.
The only court established internationally to resolve dispute is International
Court of Justice
Example-a) Pakistan v India 1971
(I.C.J. Reports 1972, p. 46)--India suspended all Pakistan’s over flight in
Indian Territory and denied the council’s decision. Later apply, to the
International Court of Justice which confirms the council decision.
Air France v Saks 470 U.S. 392. 405 (1985)-- In this
case U.S. Supreme Court held that Article 17 holds the passenger liable if the
passenger's death or injury is caused by an unexpected or unusual incident or
happening that occurs outside of the passenger's control. Given the rarity and
magnitude of such events, an airplane accident is one example.
b)
Eastern
Airlines v Floyd (499 U.S.
530 (1991))-Allowing for emotional and psychological injuries, according to the
United States Supreme Court, would result in undetermined culpability. The case of Jack v. Trans World Airlines (854 F.
Supp. 654 (N.D. Cal. 1994))
makes it apparent that psychological damages unrelated to physical injuries
cannot be obtained. Relatives of the
deceased in an airline crash may only sue for emotional distress if they
witness the crash and know their relative was on board.
Conclusion:-
With the growth of technology and modernization, the roots of aviation
industry are also increasing. Aviation industry with the aspect of war, economy
and politics is very crucial. Countries are also spending hefty amount on their
aviation business. With growing roots, the disputes are also increasing. It can
be between parties in a nation or outside the nation. With this purpose Chicago and Monetral convention tries its best to frame the rule and regulate
the policies in its signatory
countries. ICAO and ICJ is principal organ to solve the dispute. Some methods
are legal and some are bilateral. These solutions are handling and resolving
the disputes till now effectively to create a harmonious industry.
References:-
1)
Online references:-
·
(Vanshika Sharma) (International civil aviation
dispute settlement) (legal service India e- journal) (https://www.legalserviceindia.com/legal/article-334-international-civil-aviation- dispute-settlement.html) (18/7/23)
·
(STA law firm) (Worldwide: Airplane Crash Liability In
International Law) (mondaq: connecting knowledge and people) (https://www.mondaq.com/aviation/903784/airplane- crash-liability-in-international-law) (18/7/23)
2)
Statue:-
·
The carriage of good act, 1937
·
Chicago convention, 1944
·
Monetral convention, 1999
·
Guadalajara Protocol of 1961
[2] Responsible for building and upgrading infrastructure related to aviation
both on ground
and air
[3] Responsible for determination of tariff of aeronautical services
and Passenger service fees and assess the standard
based on performance relating to quality and continuity of that service.
[4] The
Principle of Absolute liability makes the individual absolutely liable for
damage caused by the escape of a hazardous substance
without any exceptions irrespective of the individual's intent in causing
such damage or harm
[5] When a defendant is liable for committing an action, regardless of what his/her
intent or mental
state was when committing the
action.
[6] Vicarious liability, or imputed liability, is a legal rule that holds a person or company responsible for actions
committed by others or by their employees
[7] According to Winfield
and Jolowicz, Negligence is the breach
of a legal duty of care by the plaintiff which
results in undesired damage to the plaintiff.
[8] Purposely touching or applying force on other persons or things related
to the person without his consent with the
intention to harm the person is known as a
battery
[9] an act of the defendant that gives the plaintiff reasonable fear of the defendant inflicting a battery on him.
[10] A breach of contract is a failure,
without legal excuse, to perform
any promise that forms all or part of the contract.
[11] :a relationship in which one party places
special trust, confidence, and reliance in and is influenced by another
who has a fiduciary duty to act for the benefit of the party
[12] Domestic and international airlines
[14] Ministry of Civil Aviation, Government of India,
civilaviation.gov.in
[16] Responsible for building and upgrading infrastructure related to aviation
both on ground and air
[17] Responsible for determination of tariff of aeronautical services
and Passenger service fees and assess the standard
based on performance relating to quality and continuity of that service.
[18] Responsible for ensuring that country is following international standards and
international policies to which
it is signatories.
[19] Here code of conduct
refers to those disruptive act
[21] A court
will have jurisdiction provided that the carrier is an ordinary
resident, carries on business, or has an establishment in that area
[22] The Principle of Absolute
liability makes the individual absolutely liable
for damage caused by the escape of a
hazardous substance without
any exceptions irrespective of the individual's intent in causing
such damage or harm
[23] When a defendant is liable for committing an action, regardless of what his/her
intent or mental
state was when committing the
action.
[24] Vicarious liability, or imputed liability, is a legal rule that holds a person or company responsible for actions
committed by others or by their employees
[25] According to Winfield
and Jolowicz, Negligence is the breach
of a legal duty of care by the plaintiff which
results in undesired damage to the plaintiff.
[26] Purposely touching or applying force on other persons or things related
to the person without his consent with the
intention to harm the person is known as a
battery
[27] an act of the defendant
that gives the plaintiff reasonable fear of the defendant inflicting a battery on him.
[28] A breach of contract is a failure,
without legal excuse, to perform
any promise that forms all or part of the contract.
[29] :a relationship in which one party places
special trust, confidence, and reliance in and is influenced by another
who has a fiduciary duty to act for the benefit of the party
[30] General assembly, Council, Air Navigation commission, Air transport committee, Legal Committee, joint support committee, air navigation service and secteriat.
[31] For example
inquiry has been conducted by Korea when the accident
occurs to its Air Line flight KE007.
[32] The
Pact of Bogota provides Commissions of Investigation and Conciliation which
must be convened by the Council of Organization of American States
at the request of either
Party involved in the dispute.
Thus conciliation may be
defined as a ‘method for the settlement of international disputes of any nature
according to which a commission set
up by the parties, either
on a permanent basis or on an ad hoc basis to deal with a dispute,
proceeds to the impartial examination of the dispute and attempts to
define the terms of a settlement susceptible of being accepted by them, or of
affording the parties, with a view to its settlement, such aid as they may have
requested
Article Information
AVIATION ACCIDENT: DISPUTE & LIABILITIES
Authors: KISHORI GOSWAMI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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