“The sky is not the limit, but the law must define how far we can go.”
Abstract: The liability of air carriers for injuries and damages during air transportation has been a critical concern since the early development of civil aviation. With the growth of this sector, various international conventions, including the Warsaw and Montreal Conventions, have sought to establish uniform liability frameworks to address passenger safety, carrier accountability, and consumer protection. India’s legal framework, particularly the Carriage by Air Act, 1972, incorporates provisions from these conventions, reflecting a blend of international standards and domestic regulations. The legislation outlines carriers’ responsibilities in the event of passenger injuries, fatalities, or property damage and includes clauses that may exempt them from liability under specific conditions. However, significant challenges remain in achieving a globally unified approach to passenger rights, compensation, and consumer protection. The primary aim of this study is to critically evaluate the legal frameworks governing carrier liability in air transportation, with a focus on international conventions and India’s domestic legislation. It seeks to identify gaps in the implementation of these frameworks and explore potential reforms to enhance passenger safety and rights. This paper aims to provide a detailed analysis of the Warsaw and Montreal Conventions, their application in Indian legislation, and their impact on passenger protection. It investigates the evolution of liability provisions, the role of international agreements, and the effectiveness of current consumer protection measures. Furthermore, it examines the socio-economic implications of these legal standards and suggests ways to align them with global best practices. The study emphasizes the importance of harmonizing international and domestic regulations to ensure equitable treatment of passengers while supporting the aviation industry’s growth. By addressing existing disparities and exploring innovative solutions, this research contributes to advancing a fair and efficient legal framework for civil aviation.
Keywords: Air carrier liability, Montreal Convention, passenger protection, civil aviation law
Introduction
The liability for injury inflicted upon parties during air transportation became a significant concern with the expansion of civil aviation in the early twentieth century. Incidents resulting in fatalities or injuries and property damage were prevalent throughout the nascent phase of modern aviation development. Air travel is one of the most important technologies of the previous century. It has not only broadened individuals’ comprehension of travel but has also made many before unattainable experiences feasible. Flying is not only the safest and quickest mode of transportation for individuals or goods, but it is also the most convenient. Although fatal aeroplane crashes are statistically rare, several other types of accidents and injuries continue to occur during flights.[1]
The Indian Perspective on the Legislative Insurrection
The air transport sector is governed by the rules, policies, and procedures periodically created by the Director General of Civil Aviation, together with the provisions of the Carriage by Air Act, 1972 (“Act”).[2] The Hague Protocol of 1955 integrated the provisions of the 1929 Warsaw Convention into the Act.[3]
This legislation elucidates the rights and obligations of carriers and passengers in the event of an accident involving a domestic Indian aircraft. A passenger may suffer death or severe injury aboard the aircraft or during embarkation or disembarkation, and the carrier may be responsible for damages under the Act if an event transpires during either procedure. For an airline to incur liability, the deceased must have perished either during the flight or as a consequence of boarding or disembarking.[4]
The Act contains clauses that shield carriers from responsibility. If the carrier can demonstrate that it and its agents have undertaken all requisite measures to avert harm, or that such measures were unfeasible owing to faulty piloting or aircraft management, or that they have fulfilled all essential obligations in other respects, the carrier shall not be held accountable.[5]
The court may exonerate the carrier from partial or whole liability if it can be shown that the injured person was negligent in creating or contributing to the injury.
Liability related to death
Under all three schedules, air carriers are legally liable for any passenger’s death or injury that transpires while air transportation. The First and Second Schedules include death, wounding, and bodily harm, but the Third Schedule only references death and physical damage. The definition of “bodily injury” is subject to debate, with several individuals asserting that psychological pain is a kind of physical hurt.[6] Psychological injury alone is insufficient to provide compensation, as is widely recognised in most jurisdictions. To get compensation, psychological trauma must first present itself as a physical injury.[7]
The plaintiff must demonstrate that an accident—characterized as the “occurrence of an unforeseen event”—transpired, which is distinct from establishing that death or injury ensued.[8] Each occurrence must independently provide the pertinent facts, and the incident in question must have occurred either during the aircraft’s flight or during the embarkation or disembarkation procedure.[9]
Prominent Conventions: Warsaw and Montreal
The 1929 Warsaw Convention was the first international pact concerning the rights and obligations of passengers and carriers. The primary goals were to (1) establish standard regulations for claims arising from international aviation accidents and (2) safeguard the emerging airline sector from the dire repercussions of limitless responsibility for air catastrophes by capping the liability of air carriers. The Warsaw Convention, often implemented and disputed worldwide, has 152 signatories.[10]
The level of governmental support for the Warsaw Convention has fluctuated, and the convention has undergone a series of revisions and supplementary “private” agreements among air carriers; this collection is commonly referred to as the Warsaw System of responsibility. The adjustments were motivated by concerns over the insufficient liability limits of US$8,300 for passenger injury and fatality. The restrictions that apply to passengers, even on the same aircraft, are uneven due of this patchwork.
In May 1999, the International Civil Aviation Organisation (ICAO) ratified the Montreal Convention to supplant and update the Warsaw System of liability. The Montreal Convention consolidates the existing Warsaw System into a singular treaty, revising various provisions to address modern issues and circumstances; it does not introduce many ‘novel’ concepts.[11]
The fundamental aims of the Convention and the extent of the carrier’s liability have been amended. Although both conventions aimed to standardise procedures, the Warsaw Convention additionally sought to protect the nascent aviation industry, whereas the Montreal Convention incorporated passenger compensation as one of its objectives.[12]
The Guadalajara Protocol, established in 1961, regulates situations where a second carrier, referred to as the “actual carrier,” who is not a party to the carriage agreement between the initial carrier and the passenger or sender, executes all or part of the transport agreement. The parties in question were governed by the liability framework set forth by the Warsaw Convention of 1929 and the Hague Protocol of 1955.[13]
The extent to which terrorists may implicate air carriers under the Montreal and Warsaw Conventions has been demonstrated by numerous hijackings, particularly involving multinational flights. Carriers are accountable for any acts of air terrorism unless they can demonstrate, with reasonable certainty, that the incident was not a result of their negligence or misconduct. The Warsaw Convention transferred the burden of proof from passengers to airlines, necessitating that airlines demonstrate their aircraft were sufficiently safeguarded against terrorist attacks. The accountability framework of the Warsaw Convention is considered significantly deficient when the carrier is perceived as excessively innocent or intentionally negligent in instigating the pertinent terror incident. The airline’s liability is determined by the nature of the incident that occurs on board. In certain situations, the carrier must demonstrate that it was not wilfully negligent, such as in instances of a terrorist attack or aviation catastrophe. If the accident resulted from wilful negligence or deliberate action, the carrier is accountable for the passenger’s damages pursuant to the Warsaw and Montreal Conventions.[14]
Restrictions on liability and compensation
Concerning the sorts of compensatory damages that may be recovered, as well as who can sue and who can recover, neither the Warsaw Convention nor the Montreal Convention established a unified norm. Article 24 of the Warsaw Convention and article 29 of the Montreal Convention both attempt to resolve this issue, but the convention’s drafters could not agree on a solution because of their reliance on local law. The relevant municipal laws were supposed to settle these disputes (usually after a choice of law study).[15]
When it comes to punitive damages, you won’t find them in a lot of states. The recovery of punitive, exemplary, or non-compensatory damages is explicitly prohibited in article 29 of the Montreal Convention and by court interpretation in the Warsaw Convention. They are not recognised by many nations outside of the Convention framework.[16]
Responsibility for surface harm
States ratified the Convention for the Unification of Certain Rules Relating to Damage Caused by Foreign Aircraft to Third Parties on the Surface in 1933, to deal with damage done to third parties on the surface by aircraft during flight, not long after the Warsaw Convention was approved. When foreign aeroplanes hurt people on the ground, this Convention was made to make sure that people would get enough money to fix it.[17]
Having said that, the Convention was only ratified by 20 states. The Rome treaty, which updated this treaty in 1952, is generally known as the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. With just 49 signatories (the US not included), the Rome Convention was never truly taken seriously.[18]
A number of treaties were ratified by the International Civil Aviation Organisation (ICAO) in 2009, including the Rome Convention and the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft. Unfortunately, the requisite number of signatures for ratification and entry into effect has not been attained by any of these Conventions.[19]
There are a variety of reasons why countries have been sluggish to ratify these Conventions. One is that some think their own laws deal with ground damage problems enough; these laws often establish limitless strict responsibility.[20]
Responsibility for criminal acts and disruptive travellers
If an incident happens during “international carriage by air,” the Warsaw or Montreal Conventions may apply, establishing the carrier’s obligation for injuries or deaths caused to passengers as a consequence of a disruptive passenger or a terrorist event.[21]
In circumstances where the Montreal or Warsaw Conventions are inapplicable, the local law will determine the air carrier’s duties. While many states’ domestic laws expressly address carriers’ rights and obligations, others have not, hence the claim will be addressed under the state’s general negligence law.Click or tap here to enter text.
Another noteworthy treaty is the 186-party-ratified Tokyo Convention of 1963. The Tokyo Convention deals with the problem of the carrier’s liability for methods taken to contain or remove an upset passenger, but it does not deal with the subject of culpability for any harm experienced by other passengers as a result. In such a circumstance, the local law or the Warsaw or Montreal Convention would control the carrier’s duties. In 2014, ICAO sanctioned a Protocol to alter the Tokyo Convention. The Protocol stipulates that both the state of landing and the operator must possess jurisdiction over the passenger in question, grants in-flight security officers the same authority and protections as the aircraft commander, and allows for the recovery of damages from the passenger under national law. It also urges states to commence legal action against the guilty traveler. The Protocol requires 22 ratifications or accessions to become effective. A total of twenty-one nations have either approved or joined the Protocol so far.[22]
Responsibility to the government
A state may be shielded from civil litigation under the principle of sovereign immunity, which is broadly acknowledged and esteemed globally. However, many jurisdictions do not regard this as an unequivocal ban on civil actions against government employees for their negligence. While some jurisdictions’ laws explicitly waive this immunity for specific offences, others just let actions to continue in the same way as any other civil suit. Each state has its own unique set of rules and regulations that govern the specifics of this waiver of immunity.[23]
Transportation agreement
Provided they do not contravene any other national laws, a passenger’s awareness and consent to the terms and conditions included in the contract of carriage with an air carrier are often enforceable, akin to any other contract. However, it is evident that these terms and conditions cannot alter or modify the laws established in the Montreal or Warsaw Conventions.[24]
Investigations into incidents
The aviation industry’s safety is mostly dependent on the outcomes of accident investigations. The Chicago Convention has advanced the establishment of universal regulations for aircraft accident investigations and the determination of the state with principal investigative authority through Article 26 and Annex 13. The particulars of the investigation are governed by state legislation, which exhibits variances, especially regarding the discovery and utilisation of documents and reports from accident investigations in judicial processes.[25]
Assistance for families
The assistance provided to those bereaved by aircraft disasters has increased in importance during the last twenty-five years.
U.S. aviation carriers were afforded access to the Aviation Disaster Family Assistance Act in 1997, after to its establishment in 1996. The matter of familial assistance for victims and their families of aviation incidents has been tackled by various jurisdictions through the implementation of legislation or voluntary guidelines. The 2013 Policy on Assistance by ICAO focused on victims and their relatives of aviation accidents. It is evident that each state is distinct regarding the types, degrees, and modalities of assistance it provides. Governments and airlines agree that assistance in some form should be provided, regardless of the absence of legal obligation.[26]
Safeguarding consumers
Consumer protection and passenger rights are two other areas of law that have been rising increasing internationally as of late. Compensation for refused boarding, compensation for delayed or cancelled flights, tarmac delays, and support for persons with restricted mobility may all be handled by the legislation, although the details may differ by state. Numerous carriers have voluntarily pledged to explain or improve their rules or procedures for certain client services, even in the absence of law. This is typically a consequence of public pressure aimed at enhancing the consumer experience.
There has been no agreement or treaties in this area despite ICAO having accepted some concepts and policy guidelines. Accordingly, the carrier’s duties with respect to consumer protection and passenger rights varied across states.[27]
Conclusion
Despite its political, economic, and legal triumphs, the Montreal Convention is striving to develop a system that is applicable worldwide. Airline firms are sheltered from any legal implications that may develop under various national laws as the agreement intends to harmonise particular requirements. It is fair to award the Montreal Convention precedential force over national and supranational law if its major objective is to ease commerce and defend airlines from the capriciousness of national and supranational liability laws, even if this means that consumers suffer. But if the objective of the convention is to protect consumers rather than to ease business and protect airlines, then the treaty’s pre-emption scope should be construed more narrowly. Whatever form consumer protection should take relies greatly on the unique socioeconomic situation in which it originates, unless we manage to create a more fair representation of the interests concerned.
In view of these variances from the norm, it follows that India has formed a self-sustaining code related to the same. The code is compatible with prior codes that were in place previously to the existing legislation and with the treaties and agreements that led to its development. Consequently, the data and plans connected with prospective outcomes are up to date, and the present government is actively trying to secure airline passengers, comforting them in the area of civil aviation despite the ever-changing and unexpected chain of events that may unfold.
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[6] Ian Freckelton and Tina Popa, “‘Recognisable Psychiatric Injury’ and Tortious Compensability for Pure Mental Harm Claims in NegligenceSaadati v Moorhead [2017] 1 SCR 543(McLachlin CJ and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ),” 25 Psychiatry, Psychology, and Law 641 (2018).
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[23] Jasper Finke, “Sovereign Immunity: Rule, Comity or Something Else?,” 21 European Journal of International Law 853–81 (2010).
[24] “Air Carrier Liability Regimes: Compare and Contrast of Warsaw and Montreal Provisions | Benesch, Friedlander, Coplan & Aronoff LLP,”available at: https://www.beneschlaw.com/resources/air-carrier-liability-regimes-compare-and-contrast-of-warsaw-and-montreal-provisions.html (last visited January 6, 2025).
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