http://today.thefinancialexpress.com.bd/views-reviews/compensation-for-plane-crash-victims-under-twoconventions-1525007837
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 openended 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