Aviation Law

Prof. Dr. Sandeepa Bhat B.

Professor of Law & Coordinator - PG Diploma
in Air & Space Law
The WB NUJS, Kolkata
Revisions: Dr S Gurpur, SLS Pune
 Historical Perspective
 1783 - First hot-air balloon
 1784 - Paris police decree
 1822 - First case of tort by aviation in US
 1899 - Hague Conference - Prohibition on
discharge of projectiles from balloons
 1902 - Draft code of international air law
 1903 - First engine driven flight
 1907 - Hague Peace Conference
 20 Century Developments
th

 First World War - Widespread military use of

aircrafts
 Huge increase in airplanes - Britain 12 (1914)
to 22,000 (1918)
 22 March 1919 - First regular service for
international transport by air (Paris & Brussels)
 Paris Peace Conference 1919 - Convention
rules on flight of aircrafts - US did not ratify
 20th Century Developments
(continued…)
 1926 - Ibero-American Convention
 1928 - Pan-American Aviation Convention
 1929 - Warsaw Convention
 1933 - Rome Convention on surface damage
 II World War - Flying was restricted
 1944 - Chicago Conference - 52 delegations
 Liability regime strengthened
 Norms to prevent crimes on board
Chicago Convention 1944
 Sovereignty Over Airspace
 Freedom v. Sovereignty
 Should it be the public international law or
conflict of laws?
 Four theories
 Absolute freedom - Fauchille
 Lower territorial airspace & higher free airspace
 Complete sovereignty over airspace
 Sovereignty subject to innocent passage
 Freedoms of Air
 Freedom of movement - Transit Agreement &
Transport Agreement
 Freedom to fly over
 Freedom to land for non-traffic purposes (technical)
 Freedom to carry the passengers & cargo from the
territory of nationality of aircraft to a foreign state
 Freedom to take on passengers & cargo destined to
the state of nationality
 Freedom to carry passengers & cargo between two
foreign states
 Other norms

 Art. 3 bis - No use of force

 Art. 17 - 21 - Nationality
 Documents of carriage
 International Civil Aviation
Organization
 The Assembly
 Meets not less than once in 3 yrs - Convened by
Council (Art. 48)
 The Council
 39 members chosen on 3 considerations [Art. 50
(b)] - 3 yrs term
 No veto - Majority decisions
 The Legal Committee
 Task of studying & preparing draft conventions
 Other Committees & Commissions
 ICAO Dispute Resolution

 Chapter XVIII mechanism - Reference to

Council (Art. 84)
 Appeal to ICJ / Arbitration (Art. 85)
 Pakistan v. India (1971)
 Not been very successful
Liability of the Air Carrier
 The Warsaw Convention

 International transportation - Carriage for

reward - Gratuitous carriage? (Art. 1)
 Person, baggage or goods
 Passenger ticket (Art. 3)
 Baggage check (Art. 4)
 Air Waybill (Art.s 5 - 16)
 Liability under Article 17

 Death or Injury to Passenger

 “Carrier” - Operating the aircraft at the time of
accident - Includes employees, agents and
independent contractors performing services in
place of carrier and in furtherance of contract
of carriage
 Liability under Article 17
(Continued…)
 Alleyn v. Port Authority of New York and New
Jersey 58 F. Supp. (D.C. N.Y. 1999)
 Passenger on the way to customs within the
terminal injured on the escalator
 Whether the escalator maintenance company is
entitled to the benefits of the Convention?
 What is the status of independent contractors
providing security / interline baggage transfers
/ maintaining aircraft / travel agent?
 Liability under Article 17
(Continued…)
 “Passenger” - Anyone on board?
 Transportation for reward / gratuitously by air
transport enterprise
 What if the person is forced on to the flight
against the will? [Galu v. Swiss Airways 20
Avi. 18550 (D.C. N.Y. 1987)]
 “Damage sustained” - Death, wounding or
other bodily injury
 Liability under Article 17
(Continued…)

 Does ‘bodily injury’ include mental anguish?

 Eastern Airlines v. Floyd 499 U.S. 530 (1991)
 Lost power in engines - About to be crashed into
the sea - Mental anxiety - Is it compensable?
 Need to be accompanied by death, physical injury
or physical manifestation of injury
 Liability under Article 17
(Continued…)
 What is a ‘physical manifestation’ of injury?
 Terrafranca v. Virgin Atlantic 151 F.3d 108
(3rd Cir. 1998)
 Bomb scare - Post-traumatic stress disorder &
weight loss - Physical manifestation?
 Alvarez v. American Airlines 1999 U.S. Dist.
Lexis 13656
 Smoke in the cabin - Emergency evacuation -
Injuries in the knees & buttocks
 Liability under Article 17
(Continued…)
 Treated by his sister - Concluded him to be
“emotionally disturbed”
 One month after nightmares & anxiety attacks -
Sexual dysfunction
 Psychiatrist concluded him to be suffering from
“post-traumatic stress disorder”
 Claims: * Breach of contractual duty to transport
 * Damages under Warsaw Convention for physical
injuries & emotional and psychological trauma
 * Wife’s claim for loss of consortium
 Liability under Article 17
(Continued…)
 “Accident” - Not every incident - BOP is on
the passenger - No burden to prove how it
happened?
 Happening of an unexpected event
 Air France v. Saks 470 US 392 (1985)
 Pressure and pain in the ear during landing - 5 days
later physician informed her to be permanently
deaf in her left ear
 Lower Court - Court of Appeal - Supreme Court
 Liability under Article 17
(Continued…)
 Gotz v. Delta Air Lines 12 F.Supp.2d (1998)
 Keeping a heavy bag in overhead compartment - Co-
passenger got up suddenly - Plaintiff injured
 Is this an accident?
 Tsevas v. Delta Air Lines Inc. 1997 US Dist.
Lexis 19539
 Alcohol was served to the passengers on board -
Plaintiff asked for change of seat on the ground of
sexual assault by a drunken passenger - Refused
 Can it constitute as an accident?
 Liability under Article 17
(Continued…)
 (Accident) “Caused the damage”
 Establishing the proximate link
 “On board … embarking or disembarking ”
 Day v. TWA 393 F. Supp. 217(D.C.N.Y. 1975)
 Three factors
 Location of accident
 Activity in which the passenger was engaging at the

time of accident
 Airline’s control over the passenger at the time of

accident
 Liability under Article 18
 Checked baggage/goods
 “Carrier” - Contract of carriage - All, if more
than one
 “Destruction, loss or damage”
 “Occurrence causing damage” - No need to
prove accident - Need only to establish the
damage, not before air transportation
 “During transportation by air” - Carrier being
‘in charge’ [Art. 18 (2) ]
 Damage by Delay

 Plaintiff to prove delay, damage & proximate

cause
 Covers passengers, baggage & goods
 Short / reasonable v. long / unreasonable delay
 Additional norms in the municipal levels
 Article 20 Exemption

 All necessary measures / impossible to take

such measures
 Goods/Cargo - Error in piloting / handling of
aircraft / navigation - Measures in all other
respects
 Complete defense - ‘All or nothing’
Contributory Negligence (Art. 21)

 Reduce the liability - Applicable to all cases

 Municipal laws to govern the determination
 Proportionate reduction on the basis of test of
negligence
 Art. 22 Limits

 Most debated provision

 Not available in certain cases
 ‘Special contract’ / ‘Special declaration’ -
Higher limit
 Carrier cannot relieve/limit liability (Art. 23)
 Willful Misconduct / Default

 Art. 22 not available to carrier + Bar on Art.

20 & 21 contentions
 French text - ‘Dol’ - Not in common law -
Willful misconduct + default equivalent to
willful misconduct
 Question of intention / knowledge that damage
would probably result
 Hague Protocol 1955

 Rapid expansion of aviation between 1929 &

1955 - Improvements required
 Limit of the liability towards passenger was
doubled
 Simplified the requirements of passenger
tickets & baggage checks
 Art. 20(2) deleted
 Hague Protocol 1955
(Continued…)
 Art 23(2) added - Limiting/excluding liability
of the carrier for damage/loss resulting from
inherent defect, quality or vice of the cargo
 Time period for claim under Art. 26 increased
 Baggage - 7 days, goods - 14 days, delay - 21
days
 Varying interpretations of Art. 25 - Substituted
 Four Montreal Protocols 1975
 Difficulties in following gold standards - Difference
in official price and market price
 Introduction of SDRs - Limit of 100,000 SDR:
Monetary compensation, now up 128 821th—$155k
 Application of risk liability for transportation of
goods - 4 grounds of exoneration
 Inherent defect, quality or vice of the cargo
 Defective packing performed by a person other than
carrier or his agent
 Act of war or armed conflict
 Act of public authority carried out in connection with the
entry, exist or transit of cargo
 Montreal Convention 1999

 Complications of multiple regime - Attempt to

consolidate
 Shift from the protection to carrier to
protection of consumer - Risks of unlimited
liability
 Montreal Convention 1999
(Continued…)
 Simplification of documentation requirements
- Recognition of e-ticketing
 Liability for damage to unchecked baggage -
Fault based
 Risk liability for checked baggage
 The norms of exoneration enunciated in
Montreal Protocol No. 4 are incorporated
 Montreal Convention 1999
(Continued…)
 Liability for passenger injury - Strict liability
up to 100,000 SDR - Above 100,000 SDR,
carrier is entitled to the defense only if he can
prove that the damage was not the result of his
negligent or wrongful act
 Increase in the limits of liability for damage to
goods / baggage
 Art. 24 - Simplified procedure for a periodical
& automatic revision of limits
 Montreal Convention 1999
(Continued…)
 Art. 28 - Advance payments in case of death
or injury to passengers
 Possibility of arbitration (Art. 34)
 Art. 50 - State parties’ duty to compel the
carriers to maintain adequate insurance
coverage
Norms to Regulate Civil
Aviation Crimes
 Introduction
 Reluctance of States to apply criminal law
 Jurisdiction & extradition problems
 5 major theories:
 Territorial theory
 National theory - Aircraft / individual
 Mixed theory
 Theory of law of the state of departure
 Theory of law of the state of landing
 Tokyo Convention 1963

 State of registration’s compulsory jurisdiction

 Powers & duties of aircraft commander
 Powers & duties of contracting States
 Hijacking - Confined to restoring control
 Extradition - Not mandated
 Hague Convention 1970

 Problem of unlawful seizure from 1930

 No comprehensive law
 Internationally punishable as serious offense
 Near universal jurisdiction
 Aut dedere aut judicare
 Notification of hijacking to ICAO
 Montreal Convention 1971

 Unlawful acts against the safety of civil aviation

 Jurisdiction - Investigation - Aut dedere aut
judicare: obligation to prosecute if no
extradition claimed: extradite or prosecute
 Assistance in criminal proceedings & duty to
furnish information
 1999: obligations and liability
 Beijing Convention & Protocol
2010; New trends
 Expanded the definition of offence
 Additional jurisdictions
 Fair treatment of person in custody
 Not to be treated as political offence
 Yet to enter into force
 New trends and India glimpses
 New trends: Drones: (delivery, spraying
chemicals etc) risk, conditions, competence,
RPAS, UA: India has 6 lac rogue/lethal drones:
UAV: drone gun, sky fence; ban since 2014;
https://www.icao.int/safety/UA/UASToolkit/Pag
es/default.aspx
:
https://iclg.com/practice-areas/aviation-laws-and-
regulations/india
Ashfords: booklet on laws, litigation, aviation
Please watch:
https://youtu.be/afmJYsiJcKw
https://youtu.be/S4ZDE-F18Hs
https://youtu.be/4y-VIcByzvg

THANK YOU