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Published : August 11, 2016 | Author : Karan Guleria
Category : Aviation Law | Total Views : 301 | Rating :

Karan Guleria
LL.B from Delhi University, and presently persuing Ph.D at Himachal Pradesh University (Shimla)

Liability in cases of death/ injury under Montreal Convention, 1999: With special reference to Indian Perspective.

Aviation Law has ever since been evolving and is the process of undergoing changes and amendment. It seems that aviation laws are constantly in a state of flux. The reason being the fast growing technology in aviation, which not are not only the cause of more comfort but also poses a greater risks. The growing inclination towards protection of the rights of passengers as consumers has compelled laws to change over a period of time to keep abreast with the fast changing and evolving world. A lot of people prefer to travel by air so as to save time. It is for saving of this time, that aviation charges huge sums of money for the tickets. Looking at jurisprudential aspect we know that rights never come alone. Hence, aviation companies cannot only claim right to charge and gain money without the corresponding duty attached to it. Aviation companies hence have a duty to take all reasonable care to avoid any harm, damage, accidents, delays, loss of baggage and cargos. This paper focuses on liability of aviation companies in cases of death/injury in cases of accidents which has evolved from ‘Warsaw Convention, 1929’ to ‘Montreal Convention, 1999’. Part I of the paper addresses the historical background of the Convention. Part II scans through liability provisions under Montreal Convention. Part III examines the Air Carrier Act, 1972 of India along with the amendments made in 2009 and 2016 in order to understand the same under Indian context. PART IV is the concluding part which slightly touches upon the fact that whether the Air Carrier Act, 1972 is in conformity with the International Law and whether it is sufficiently dealing with the current challenges in cases of liability for death in accidental cases.


Historical Background: Journey from Warsaw to Montreal

Montreal Convention came into place for the Unification of Certain Rules for International Carriage by Air and was opened for Signature at Montreal on 28 May 1999. Prior to this Convention, the liability regimes were based on Warsaw Convention, 1929. With the passage of time and the growth in aviation sector there was imminent need to bring about changes in the age old Convention to keep the law abreast with the challenging situation.

The purposes behind the Montreal Convention as enshrined in the preamble are as follows:

Ø Need to modernize and consolidate the Warsaw Convention
Ø To ensure protection of the interests of consumers in international
Ø Need for equitable compensation based on the principle of restitution;
Ø For orderly development of international air law in accordance with the principles and objectives of the ICAO
Ø Collective State action for harmonization and codification of certain rules.
Ø governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests;

Article 1 of the Montreal Convention explains the applicability of the Convention. The Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. Hence, the scope is very wide which leads to wider liability of the carriers. This creates a need to have a clear regime of the liability in the interest of justice and adequate compensation.

A very sharp shift can be traced from Warsaw Convention to Montreal convention. On one hand in the Warsaw Convention the focus was more on limited liability and protection of the air carriers as the liability could be unlimited and were not reasonably foreseeable, on the other hand Montreal Convention focused sharply on the ‘consumers’. Also, emphasis needs to be placed on the fact that the term ‘consumers’ is wider than the term ‘passengers’. Hence, this leads to wider risk coverage.


Liability under Montreal Convention, 1999

Chapter III, Article 17(1) of the Montreal Convention deals with liability of the air carrier in case of death of the passenger. It reads as follows:

‘‘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.’’

Hence, liability of the air carrier is conditional on the fact that the death took place on board or during the operations of embarking and disembarking.

Montreal Convention also specifies the amount of compensation in case of death/ injury i.e. damages arising under Article 17(1), under Article 21. It reads as follows:
1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100, 000 Special Drawing Rights if the carrier proves that:
a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

Hence, it creates a two tier liability regime for damages in cases of injury/ death.

This can be understood in the following way:
Tier I: liability of the air carrier up to 100000 SDR, irrespective of the carrier’s fault.

Tier II: liability of the air carrier in excess of 100000 SDR on the basis of negligence.

This is quiet appreciable as this creates strict liability upon the air carrier up to 100000 SDR under tier I. The liability cannot be excluded by the air carrier and is absolute in nature. Also, Article 26 prohibits any contract to limit this liability as null and void.

Article 17(2) deals with liability exceeding 100000 SDR which can be claimed by the claimant. Although, this liability can be escaped by the air carrier if it proves that:

a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

Here, the burden of proof is placed upon the carriers to prove negligence or wrongful act or omission by the claimant or the third party. Tier II hence, creates a way out in case of liability over and above 100,000 SDR.

The appreciable feature is that the passengers are free from burden of proof. The very fact that an accident has taken place in itself is sufficient to claim 100000 SDR and for any claim beyond 1000000 SDR, the burden of proof has been casted upon the air carrier to show negligence or wrongful act or omission either by the claimant or by the third party.

Another plausible feature is Article 20 of the Convention which exonerates the carrier in cases of negligence or wrongful act or omission by the claimant but either ‘wholly or partly’. This means that just because the air carrier have been able to prove negligence or wrongful act or omission, it does not mean that the claimant cannot claim beyond 100000 SDR rather it still attributes the compensation to the extent of damage which has been caused by such negligence or wrongful act or omission. Hence, negligence or wrongful act or omission by the claimant is not a blanket ban on the compensation beyond 100000 SDRs.

In a way Montreal Convention puts unlimited liability as in cases of an accident whose causes may never become known and in such situations carriers will not be able to supply necessary proof and hence will be liable without any limit.

The liability of the carrier also extends to the agents or servants of the air carrier if they are acting within the scope of their employment. Any damage done by the agents or the servants of the carrier with the ‘intent to cause damage or recklessly and with knowledge that damage would probably result’ would not create liability of air carrier.

In order to deal with cases of accidents, Article 28 requires the carrier to make advance payments to the victims in case of death or injury in order to meet the immediate economic needs of accident victims. Apart from this Article 50 of the Convention requires the air carriers to have adequate insurance for risk coverage to meet these contingencies.


Indian Regime: Liability under Indian Law

The Carriage by Air Act, 1972 (69 of 1972) was enacted by the Parliament on December 19, 1972 and came into force on 15 May 1973. The Act fundamentally aims to implement the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air which was signed on October 12, 1929. The application of the Convention extends to all carriage like carriage of passengers, baggage or cargos performed for remuneration. The Act also complies with the amendments made to the Warsaw Convention through the Protocol of amendments of the Warsaw Convention, 1959 dealing with the liability of the Air Carrier to passengers and Cargo ended at Hague in the year 1955. The Act extends to the entire Indian Territory including the State of Jammu and Kashmir.

India signed the Warsaw Convention on the date of 29 January 1970 though its effective date is 15 August, 1947 i.e. on the date of independence. It seems there is some discrepancy as to how can date of force is prior to the date of signature. In this regard one needs to know that by a Note dated 29/1/70, the Government of India declared that it considered itself bound by the Warsaw Convention (before India became independent, acceptance of the Convention was effected by the United Kingdom on 20/11/34). It is by virtue of Article 2(5) of the Air Carriage Act, 1972:

“Every notification issued under subsection (2) of section 2 of the Indian Carriage by Air Act, 1934 (20 of 1934) and in force immediately before the commencement of this Act shall be deemed to have been issued under sub-section (2) of this section and shall continue to be in force until such notification is superseded.”

Therefore, the 1972 Act repealed the 1934 Act and came into force on 15 May, 1972 wherein amendments were made in 2009 and 2016.

The provisions of the Convention are made applicable in India by including the rights and responsibilities of travelers, carriers, consignors and other individuals in the First Schedule to the Act. These provisions shall be enforced in India for all carriages in an aircraft, whether the aircraft belongs to India or any other nation. The High Contracting Parties as provided under the Convention are certified by the Central Government through notification. The Central government shall also determine the authority of the Parties and the extent to which they are obliged to comply with the provisions of the First Schedule. The agent of an aircraft means the servants of such aircraft and they are equally bound by the provisions of the Act to the point provided under the Act. The notifications issued by the Central government according to the Indian Carriage by Air Act, 1934 and before the enforcement of the present Act shall continue in operation as if it were issued according to the provisions of the 1972 Carriage Act.

The Second Schedule to the Act contains provisions of the Protocol that amended the Warsaw Convention which contains the rights and obligations of the aircraft, travelers, consignors etc. The Act also prescribes the obligations of aircraft during the death of any passenger without considering the provisions of the Fatal Accidents Act of 1855 and any other laws or rules enforced in India.

On 1st May 2009 India became the 91st country to have ratified the Montreal Convention 1999 which is a vast improvement in its predecessors and enable realistic compensation. The Carriage by Air Act, 1972 was hence amended by the Carriage by Air (Amendment) Act 2009. The amending Act included the provisions of the Montreal Convention for the Unification of Certain Rules for international Carriage by Air Signed on May 28, 1999. According to the 2009 Act, the High Contracting Parties are those parties included in the Annexure I of the Amending Act and the provisions of the Montreal Convention shall be included in schedule III by virtue of section 4A of the amending Act. Many important modifications were made to the 1972 Act by inserting new provisions to comply with international standards. The Montreal Convention standards are adopted in the new amending Act, 2009 via rules which are same as enumerated in the Convention.

The Carrier by Air (Amendment) Bill, 2015 was tabled in the two houses of the Parliament to revise the compensation rates of the 2009 Amending Act and has also been passed by the two Houses. The liability has been raised up to 113100 SDRfrom 100000 SDR. The Bill seeks to empower the central government to revise the limits of liability for airlines and compensation as per the Montreal Convention. It also provides for the central government to make rules to carry out provisions of the Act. The bill has received the accent of the President on 21 March 2016 and hence new amendments have been made in The Carrier by Air (Amendment) Act, 1972 and the rates at which compensations are made are revised. It is named as The Carriage by Air (Amendment) Act, 2016. It therefore amends Section 4A of the old Act and inserts a new Section 8A.

Mangalore Air Accident Case: Compensation to the victims can be further understood by referring to Mangalore Air Accident Case. In this case An Air India Express flight from Dubai to Mangalore crashed while landing on 22nd of May 2010, killing 158 of 166 people on board including crew. Investigation reports revealed that it was due to the Captain's failure to discontinue an unstabilized approach despite three calls from the First Officer and a number of warnings from the Enhanced Ground Proximity Warning System (EGPWS). The only controversy is whether the Air Carrier is liable to pay minimum compensation of 1 lakh SDRs to the claimants in the case of death of a passenger irrespective of actual damage suffered. The case went to Kerela High Court and the learned Single Judge P.R. Ramachandra Menon, J. interpreting Rule 21(1) held that no fault liability or strict liability of the Air Carrier by way of minimum compensation payable for death of a passenger is 1 lakh SDRs irrespective of age, income, loss of dependency or other factors of the deceased otherwise applicable for determining liability in tort. The judgment was passed on 20 July, 2011. However, the contention raised by the appellant-Air Carrier is that there is no minimum or maximum compensation payable under any of the provisions of the Third Schedule and the peculiar feature of Montreal Convention incorporated in the Third Schedule to the Act is that there is no upper limit for liability of the Air Carrier for compensation payable to the victims and on proof of damage, the compensation payable for death or injury is without limit. We have already noticed that the deviation made in the Montreal International Convention from the two previous International Conventions held at Warsaw and at Hague is the removal of upper ceiling limit in regard to compensation payable to victims of air crashes.

However the above judgment was overturned in the Appeal filed by the Air Indiaon the date of 25 August, 2011 saying that the third schedule to the Carriage by Air Act, 1972; do not provide any minimum compensation for the death or injury of a passenger. The carrier is liable to pay any actual damages proved by the claimants in the case of death or injury. The carrier can negotiate this sum through settlement or in a civil court of competent jurisdiction. The court further held that the actual damages payable had to be claimed and proved by the injured or the legal heirs of a person died in the air crash in a civil court if no settlement was possible. The above judgment has again been challenged before the honorable Supreme Court regarding the plea of compensation of Rs 75 lakhs. Recently a city-based organization, ‘812 Foundation’, also has filed criminal petitions in the Supreme Court (the matter is pending) as well as the second Judicial Magistrate First Class Court in the city, seeking punishment for those who were responsible for the 2010 air crash tragedy. The organization has enclosed to its petition an investigation report prepared by it, to prove that the death of 158 people is a homicide arising out of the negligence of Airports Authority of India. In the petition, the organization has also held Air India responsible for not subjecting the ill-fated aircraft to mandatory annual checkup as required for its flight capability. In fact, the organization has said, this aircraft was not put through the annual tests for the last four to five years. The petitioners have argued that the tragedy, which had occurred at Kenjar near the airport on May 22, 2010, was not an accident, but murders resulting out of the negligence of the entities concerned. The petition seeks stringent punishment to those responsible for the tragedy. The main aim of these petitions is to ensure that those who were responsible for this catastrophe are punished, rather than ensuring payment of compensation to the affected persons. The organization has filed private complaints under section 200 of Criminal Procedure Code. A total of ten organizations and individuals including Air India, Airports Authority of India, and Director General of Civil Aviation, have been mentioned as respondents in the case. This has indeed given a new dimension of criminal liability in such cases.

The Montreal Convention has played a major role in setting up a minimum standard of compensation to be payable in cases of death/ injury to the passengers. In view of that, India also made amendments in the domestic regime so as to bring the concerned Act in conformity with the International Law and also to fulfill its International obligations. But the narrow judgment by the division bench of Kerala High Court failed to pass progressive judgment and took a very narrow approach in this regard. The fact that a death is a death, no matter whether the person died lived high standards of lives or not. To distinguish between these doesn’t seem to be in the spirit of Indian Constitution. Also, if such had been the intention behind the proposal of the Montreal Convention, 1999, that would have been clearly laid down in the Articles itself. The fact the Convention talked of compensation in SDRs means the inclination was towards the compensation to be equitable and not to be worthless because of the fluctuations in the currencies. The hope is on Supreme Court will look into the matter more progressively and in light of the literal interpretation of the provisions of the Montreal Convention.

# Essential documents of International Air Carriers Liability.
(Please See: https://www.iata.org/policy/Documents/MC99_en.pdf)
# Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12TH October, 1929 (The Warsaw Convention , 1929) Available at: http://www.dgca.nic.in/int_conv/Chap_VI.pdf)

# Supra Note 1, (See preamble of the Montreal Convention, 1999)
# Article 1 of the Montreal Convention:

1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

3. Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

4. This Convention applies also to carriage as set out in Chapter V, subject to the terms contained therein.

# Any provision which relieves the carrier of liability or sets lower limits than those of the convention is null and void.

# If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21.

# In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier

# States Parties shall require their carriers to maintain adequate insurance covering their liability under this Convention. A carrier may be required by the State Party into which it operates to furnish evidence that it maintains adequate insurance covering its liability under this Convention.

# See: http://dgca.nic.in/nat_conv/NatConv_Chap7.pdf

The principal Act came into force w.e.f.15th May, 1973 vide Gazette of India, Part II, Section 3 (ii) (Ext) dated 26th March, 1973 and the Carriage by Air (Amendment) Act, 2009 came into force w.e.f.1st July,2009 vide Gazette of India, Part II, Section 3 (ii) (Ext) dated 20th March, 2009.

# Please See: http://dgca.nic.in/nat_conv/The Carriage by Air Act and Amendment 2009.pdf
# Supra Note 9
# Please See http://www.icao.int/secretariat/legal/Status of individual States/india_en.pdf
# This Act has been repealed by the Carriage by Air Act, 1972 (69 of 1972), s. 9 (w.e.f.15th May, 1973).
# Please refer http://www.commonlii.org/in/legis/cen/num_act/icbaa1934170/.
# See: http://www.commonlii.org/in/legis/cen/num_act/icbaa1934170/
# See: http://dgca.nic.in/nat_conv/NatConv_Chap7.pdf
# ibid
# Section 4A Application of Montreal Convention to India – (1) The rules contained in the Third Schedule, being the provisions of the Montreal Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall, subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage.

(2) For the purpose of this Act, the State Parties to the Montreal Convention and the date of enforcement of the said Montreal Convention shall be such as are included in Part III of the Annexure.

(3) Any reference in the Third Schedule to the territory of any State Party to the Montreal Convention shall be construed as a reference to all the territories in respect of which he is a party.

(4) Any reference in the Third Schedule to agents of the carrier shall be construed as including a reference to servants of the carrier.

(5) The Central Government may, having regard to the objects of this Act, and if it considers necessary or expedient so to do, by notification in the Official Gazette, add to, or, as the case may be, omit from, Part III of the Annexure, any State Party and on such addition or, as the case may be, omission, such Party shall be or shall cease to be, a State Party.

# Please refer: http://www.prsindia.org/uploads/media/CarriagebyAir/CarriagebyAir2015.pdf

# As per tacit approval mechanism spelt out in Article 24, paragraph 2 of the Montreal Convention, the revisions shall become effective for all State Parties within six months following the notification, unless within three months after the notification, majority of State Parties have registered their disapproval with the International Civil Aviation Organisation (Depository) to the said revision. The Depository conducted first such review of the limits of liability under Article 24 of the Montreal Convention and issued a notification dated 30th June, 2009. In absence of notification of disapproval from the majority State Parties to the Montreal Convention within prescribed notice period, the revised limits of liability have become effective from the 30th December, 2009 for all State Parties to the Montreal Convention.

# The Economic Times on 4 April 2016
# Pls see: http://articles.economictimes.indiatimes.com/20160325/news/71808524_1_sdrmontrealconventionliabilitylimits1/4
# Refer to: http://www.prsindia.org/uploads/media///Carriage by Air Act, 2016.pdf
# ibid
# Section 8A. (1) The Central Government may, by notification in the Official Gazette make rules for carrying out the provisions of this Act.
(2) Every rule made and every notification issued under this Act shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately

# following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or the notification or both Houses agree that the rule or notification should not be made or issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

# Refer to investigation report on accident to air india express boeing 737-800 aircraft vt-axv on 22nd may 2010 at Mangalore (Available at: http://dgca.nic.in/accident/reports/VT-AXV.pdf)
# S. Abdul Salam v. Union of India (2011) 4 KLT 662
# See https://indiankanoon.org/doc/65803078/
# Refer: https://indiankanoon.org/doc/36894419/
# National Aviation Company of India Limited v. S. Abdul Salam (2011) 4 KLT 72
# Refer http://indianexpress.com/tag/812-foundation/


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