LEGAL LIABILITIES OF AIRPLANE OWNERS FOR AIR ACCIDENTS IN NIGERIA

-M. I. Majidadi

Just like any other transport sector, the aviation sector has its hazards which includes accidents. Even Though Air travel fatalities have been recorded in each of the last 12 years, with a total of 287 deaths in 2019 due to air crashes, despite some pronounced year-to-year differences, the overall trend has been for a reduction in the number of fatalities and statistically it remains the safest mode of transportation.

In Nigeria we have not also been without our share, as we have experienced more than 10 airplane crashes with the first being on  November 20, 1969, when a government-owned DC-10 aircraft on a flight from London crash-landed in Lagos and killed all 87 passengers and crew on board and the Dana airplane crash 2012 was instrumental in the claim for compensation but till date no conclusive information has shown whether the prolong call for full payment of compensation from families ever reached Nigerian courts and as to whether Dana ever paid full compensation still remains something we will find out some day.

In  most instances where airplane accidents occur, likelihood of death is higher than the survival and the families of the victims are left traumatised.

To ameliorate those pains and losses, mechanisms have been put in place to avoid such occurrence of accidents and where it happens , liabilities are placed on the airplane carriers and it is the intention of this article to espouse those liabilities that arise after this tragic accident.

The Civil Aviation (Investigation of Accidents) Regulations in its interpretation section, 2 defined accident as “includes any fortuitous or unexpected event by which the safety of an aircraft or any person is threatened ”   this definition covers any time from when the first person starts boarding to when the final person disembarks the plane.  According to the Convention on International Civil Aviation, air traffic fatalities refer to an incident where a person is fatally injured due to an occurrence associated with the operation of the aircraft Corporate jet and military transport accidents are generally excluded.

In Air France v. Saks,12 the U.S. Supreme Court denied recovery to a passenger who suffered deafness as a result of a routine depressurization during landing. The Court found that injury to her inner ear was caused by sinus problems internal to her rather than by anything unusual about the flight. According to Justice O‟Connor, an “accident” under Article 17 “arises only if a passenger‟s injury is caused by an unexpected or unusual event or happening that is external to the passenger. 470 U.S. 392 (1985).

The definition of an accident as set out in the Air France v Saks According to this judgment, liability arises under Article 17 if the passenger’s death or injury is caused by an unexpected or unusual event or happening that is external to the passenger. An aeroplane crash, considering its rarity and magnitude, can be classified as one such event.  In the case of Wallace v Korean Air, it was held that an accident within the meaning of Article 17 referred to a risk characteristic of air travel or related to the operation of an aeroplane and where carriers are in a unique position to take all necessary measures to prevent such incidents. An aeroplane crash also falls under this definition.

The Civil Aviation (Investigation of Accidents ) Regulations relate to civil aviation only and applies to accidents arising out of or in the course of air navigation which occur to any civil aircraft in or over Nigeria, or elsewhere to civil aircraft registered in Nigeria. 

Aviation accidents can be devastating for the victims and their families and  when it comes to determining who is liable and pursuing compensation after the accident is complicated. Going up against an international airline can feel overwhelming for the victims’ families. Governments and the aviation industry have established a set of rules that determine a carrier’s responsibility in the event of an accident. These regulations set a procedure on how an accident victim can file a claim, what can they pursue compensation for and the time frame they have to submit a lawsuit.

CARRIER’S LIABILITY UNDER NIGERIAN LAW

The carrier’s liability is covered under Section 48 of the Civil Aviation Act 2006. The section provides that the rights and liabilities of carriers shall be governed by the relevant provisions of the Convention for the unification of certain rules relating to international carriage by air signed at Montreal on the 28^th May 1999 which is now the second schedule of the Civil Aviation Act. Based on this, the liabilities of carriers as regards airline accident in the Second Schedule of the Act are thus;

Article 17(1) makes the carrier liable for damage sustained in case of death or bodily injury of a passenger

Article 17 makes the carrier liable for damage sustained in case of destruction or loss of, or of damage to checked baggage

Article 18 imposes liability to carrier for damage sustained in the event of destruction or loss of, or damage to cargo, the only exception here is where there is inherent defect of cargo, defective packing, act of war or armed conflict or an act of public authority carried out in connection with entry and exit or transit of the cargo

The above liabilities are hinged on the condition that the accident took place on board the aircraft or while embarking or disembarking.

From the above it is clear that where cargo(s), person(s), and baggage(s) get involved in any accident (either causing destruction, injury death or damage) the carrier becomes liable for damages.

 Section 48 (3) part XIII of the Civil Aviation Act  provides that upon aircraft accident resulting in death or injury of passengers, the carrier shall make advance payments of at least US$30,000 within thirty days from the date of such accident to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payments shall not constitute recognition of liability and maybe set off set against any amounts subsequently paid as damages by the carrier.

 Section 74 makes it mandatory for Air carriers to maintain adequate insurance covering its liability under the act and also its liability towards compensation for damages that may be sustained by third parties for an amount to be specified in regulations made by the Nigerian civil aviation authority and it is an offence not to abide by the provision of this section with a fine of not less than 1 million or imprisonment of not less than 2 years.

Another question to be answered is whether a carrier can incur liability for mental or emotional injuries sustained by the plaintiff. In Eastern Airlines v Floyd (499 U.S. 530 (1991)), the United States Supreme Court said allowing for emotional and psychological injuries would result in indeterminate liability. It is clear from the Jack v Trans World Airlines (854 F. Supp. 654 (N.D. Cal. 1994)) case that psychiatric damages that are unrelated to physical injury cannot be recovered.

The English Court of Appeal in Rogers v Hoyle  has affirmed the High Court’s decision that accident reports prepared by the UK’s Air Accidents Investigation Branch (AAIB) are admissible as evidence in civil proceedings.

In Olympic Airways v. Husain 541 U.S. 1007, 157 L. Ed. 2d 1146, 124 S. Ct. 1221 (2003),the U.S. Supreme Court applied this “definition” to allow recovery of a passenger who died aboard a flight because he was allergic to second-hand smoke.   Olympic Airways v. Husain,.

In Air France v. Saks470 U.S. 392 (1985)., the U.S. Supreme Court denied recovery to a passenger who suffered deafness as a result of a routine depressurization during landing. The Court found that injury to her inner ear was caused by sinus problems internal to her rather than by anything unusual about the flight. According to Justice O‟Connor, an “accident” under Article 17 “arises only if a passenger‟s injury is caused by an unexpected or unusual event or happening that is external to the passenger.

However, in the U.K. House of Lords, Lord Steyn in Morris v. KLM [2001] 3 All ER 126, while agreeing that pain caused by physical injury is recoverable, also, “would hold that if a relevant accident causes mental injury or illness which in turn causes adverse physical symptoms, such as strokes, miscarriages or peptic ulcers, the threshold requirement of bodily injury is satisfied.

in the case of Kruger v. United Airlines No. C 06-04907 MHP (N.D. Cal. Oct. 31, 2007), the court concluded that damage flowing from a loss of consortium were recoverable for a husband whose wife was struck in the head by a backpack swung by a fellow passenger on the jetway, causing her to lay in the lavatory, falling into unconsciousness during the flight. The court observed that Article 29 of the Convention leaves to domestic law the determination of what claim is cognizable and by whom.

The U.S. Supreme Court in Zicherman v. Korean Airlines 516 US 217  (1996) concluded that article 17 leaves to domestic law the question of who may recover and what compensatory damages are available to them. Thus, apparently, Article 17 prohibits recovery where the passenger suffers only emotional damages; yet if local law allows recovery for a spouse‟s emotional injury for the passenger‟s death or bodily injury, the Convention has nothing to say about it.

Eastern Airlines v. Floyd, 499 U.S. 530, 552 (1991)., the U.S. Supreme Court held that “an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury. . . . We express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries.”

DETERMINATION OF COMPENSATION

By virtue of the provisions of the  Civil Aviation (Investigation Of Accidents) Regulations LN 14 1966 upon the occurrence of an accident, the Minister shall be notified  of the details of such, the minister shall appoint inspectors to carry out investigations on the circumstances of the accident and the report of that investigations shall be submitted to the minister ,who then may direct that a public inquiry be held into the causes and circumstances of the accident. This Inquiry shall have the powers of a court of summary jurisdiction and after the inquiry the court shall make a report to the minister stating fully the circumstances of the case and its opinion touching the causes of the accident and adding any observations and recommendations.

By the provision of Article 21 of the Convention for the unification of certain rules relating to international carriage by air (Montreal 1999):

1. damages arising from death or injury of passenger, such person(s) or those entitled to claim compensation shall be entitled to an amount not exceeding 100,000 Special Drawing rights each
2. In the case of damage caused by delay in the carriage of persons, the liability of the carrier for each passenger is limited to 4150 special drawing rights
3. In the carriage of baggage the liability of the carrier in case of destruction, loss, damage or delay is limited to 1000 Special Drawing Rights (SDR) for each passenger or sum not exceeding the declared sum where the passenger has made a special declaration of interest in delivery at destination and has paid a supplementary sum.
4. In the carriage of cargo , the liability of the carrier in case of destruction, loss, damage or delay is limited to a sum of 17 SDR per kilogram unless the consignor has made, at the time of when the package was handed over to the carrier, a special declaration on interest in delivery at destination and has paid a supplementary sum if the case so requires which in such case the carrier will be liable to pay a sum not exceeding the declared sum unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination
5. Article 17 of the modifications to the convention for the unification of certain rules relating to international carriage by air, the carrier is liable for ;
6. damage sustained in case of death or bodily injury of a passenger, so long as the accident occurred on board the aircraft or in the course of any of the operations of embarking or disembarking
7. damage sustained in case of destruction or loss of, or damage to checked baggage
8. Article 18 makes the carrier liable for damage sustained in the event of destruction or loss of, or damage to cargo
9. Article 19 makes the liable further liable for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo

6. Article 21 provides that in the case of damages arising under paragraph 1 of article 17, the carrier shall pay to each passenger $100,000 and such carrier shall not be able to exclude or limit its liability
7. articles 22 further pegs the liability of the carrier at:
8. $4150 to each passenger for delay
9. $1000 for each passenger in case of destruction, loss, damage, or delay
10. $20 per kilogram in case of destruction, loss, damage, or delay of cargo

8. Article 25 allows a carrier to fix a sum higher than the one provided for in this convention or to no limits of liability whatsoever
9. While on the other hand Article 26 makes it null and void any contractual provision which seeks to relieve the carrier of liability or fix a lower limit than that which is provided for in this convention
10. Article 28 mandates the carrier t0 make advance payments to natural person or persons entitled to claim compensation in the case of an aircraft accident resulting in death or injury of passengers

 OPTION FOR ARBITRATION

Article 33 Convention For The Unification Of Certain Rules Relating To International Carriage By Air (Montreal 1999) gives parties to a contract of carriage for cargo the option to settle dispute relating to liability by arbitration and

LIMITATION TO BRING ACTION

Article 35 of the Convention For The Unification Of Certain Rules Relating To International Carriage By Air (Montreal 1999) stipulates that the Right to Damages shall Cease if an Action is not Brought Within a Period of Two years, Reckoned from the Date of Arrival at the Destination, or From the Date on Which the Aircraft Ought to Have arrived or from the date on which the Carriage stopped.

An Airplane Accident, whether it’s on a Commercial Airline or a Private Plane, is complicated to represent and requires a skilled and knowledgeable injury Lawyer to Accurately Determine Liability and Recover Compensation for the Victims even though in Nigeria so far in all the Airplane accidents, the Airplane owners have complied with provisions of the Act and that explains why in this aspect we have minimal litigation. 

CONCLUSION

Victims of airline ‘passengers’ accident in Nigeria are covered under the Civil Aviation Act 2006 as it relates to carrier’s liability when such passengers, owners of cargos, baggages are involved in accident which result to death, injury or destruction, the Act is in tandem with the Convention for the unification of certain rules relating to international carriage by air (Montreal 1999) and modifications to the convention for the unification of certain rules relating to international carriage by air.

But one class of persons the Act and convention does not cater for are persons who the airplane crashes over on or on their properties causing loss of lives and properties. In most instances these kinds of people are the worst hit as they innocently do not sign up and so need compensation and as such it will be ideal for the Ministry of Aviation and the National Assembly to make provision of payment of compensation to victims of airplane accidents who are not passengers on board but rather the plane crashes on them or their properties as the accident is not from their negligence and also in the interest of social justice.

REFERENCE

1. Civil Aviation Act 2006 LFN 2004 Vol. 7
2. The Civil Aviation (Investigation of Accidents) LN 14 1966
3. Convention on International Civil Aviation( Chicago1947)
4. Convention For The Unification Of Certain Rules Relating To International Carriage By Air (Montreal 1999)
5. Modifications To The Convention For The Unification Of Certain Rules Relating To International Carriage By Air Third Schedule of the Civil Aviation Act 2006
6. • Worldwide air traffic – fatalities 2019 | Statista
7. Nigeria: History of Air Crashes in Nigeria – allAfrica.com
8. Overview: Airplane Crash Liability in International Law – STA Law Firm
9. HFW | Landmark English Court of Appeal decision upholds a…
10. ACCIDENTS & INJURIES IN INTERNATIONAL AVIATION: (mcgill.ca)