air carrier laibility

8/20/2019 Air Carrier Laibility

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Note on Air Carrier Liability Law

in India

for

Ministry of Civil AviationCarriage by Air Act, 1972

15/07/2011


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Carrier Liability law in India

Backro!nd

"#e Carriae by Air Act$ 1%72&

The rights and liabilities of air carriers are governed by

the Carriage by Air Act, 1972 [ as amended in 2009]

(the Act!"# The Act e$tends to the %hole of &ndia#

Conse'ently, the Act is a))licable to &ndian citi*ens

involved in domestic carriage by air and in international

carriage by air, irres)ective of the nationality of the

aircraft )erforming the carriage#

&n brief, therefore, the Act1 sets ot a limit ) to %hich a

carrier is absoltely liable2 for damage+death+ bodily

inry sstained in corse of air travel on board a

carrier and in the corse of any o)erations of

embar-ing+disembar-ing in conte$t to a )assenger#

The Act also established a )er -ilogram! limit of liability

for )ersonal baggage (chec-ed.in and hand" and air

freight cargo to %hich a carrier is absoltely liable#

1 The Carriage by Air Act, 1972/ The Act contains 9 sbstantive sections threechedles and one Anne$re#

2 Absolte iability/ a conce)t in la% %hich means that a carrier is liable, irres)ective of

%hether or not it %as at falt in the damage sstained by a )assenger on board# Also-no%n as no falt! liability, it a legal conce)t in civil la% ris)rdence!

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ection 3 of the Act establishes the liability of a carrier

in res)ect of the death of a )assenger in the corse of

the carriage by air sbect to the 4les contained in

5irst chedle6 econd chedle and Third

chedle3, as the case may be# ection 3 does not ost

the risdiction of any other la%+rle in force in &ndia,

inclding the 5atal Accidents Act, 1833# As sch the Act

is not in derogation of any other la% in force in &ndia#

To )t it dierently, from the )oint of vie% of a

claimant, the Act establishes the liability of a carrier,

e$)ressed in li'idated damages %hich are )aid ot as

com)ensation, if a )assenger engaged in international

and domestic carriage by air is involved in an air

crash+accident#

:antm of ;amages

6 The Carriage by Air Act, 1972/ 5irst chedle harmoni*es )rovisions of the rotocol, 1933 %hich amended certain )rovisions of the


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The 'antm of carrier liability is established in a t%o

tier system#

(1" The rst tier establishes a limit ) to %hich a

carrier is liable to a )assenger %ho sers

damage+bodily inry+death %hen aboard the carrier or

in the corse of embar-ing+nderta-ing+disembar-ing

from sch air carrier# This means that each carrier is

re'ired to by insrance cover to the e$tent of the

rst tier limit )er )assenger, to enable it to discharge

its liability to each )assenger %ho sstains

damage+bodily inry+death, by ma-ing a com)ensation

)ayot ) to the rst tier limit#

=aving said that, it is stated that a carrier is entitled to

ma-e a higher com)ensation )ay ot in terms of a

s)ecial contract bet%een the )assenger+claimant and

the carrier#

There is no )eriod of limitation )rescribed for settling

damages+com)ensation %ith the insrer# Bst becasea claimant cannot ma-e ) his mind or ta-es a co)le

of years to nally reach settlement or even a))roach

the insrer for a settlement, does not e$tingish carrier

liability# The carrier remains liable as long as there

remain nsettled claims#


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(2" The second tier of liability is related to %hen a

claimant reects the oer to settle com)ensation %ith

the insrer and chooses to see- legal intervention by

ling a case see-ing far higher damages cased on

accont of negligence of the carrier, manfactrer!s

defect, )ilot error, failre of ATC, among others

gronds# ch a case cold have ) to 11.12

res)ondents# &n sch an event, the claimant!s o)tion to

settle %ith the insrer is e$tingished and he looses the

entitlement even if he retracts the case# The )eriod of

limitation to bring sch an action to cort is t%o years

from the date of occrrence of the accident#

Calclation of 'antm of damage

ecase a carrier is vested %ith absoltely liability in

conte$t to the rst tier, it becomes incmbent )on the

carrier and its insrers to immediately contact the

)assengers+their estate for the )r)ose of determiningthe 'antm of com)ensation to be )aid to each

claimant#

@rdinarily, once an accident has occrred, it is the

insrers directly or throgh their la%yers %hich contact

the families of the decedents+)assengers#

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&t is stated that in an international carriage by air

accident, it is incmbent )on the carrier+insrer to

ma-e immediate )ayment to the )assenger+family of a

sm of DE 000+ as a contingency amont and also

)ay E000 to%ards trans)ortation of remains+fneral

e$)enses# These sms are then dedcted from the

nal com)ensation )ayot#

&t is em)hasised that the carrier liability limit does not

mean that each )assenger involved in an air crash is

)aid the e$act same amont as indicated to be the limit

of the carrier!s liability# &t shold be noted that the limit

of liability of a carrier is e$)ressed as being ) to, for

e$am)le, 100,000 ;4, as in the case of the ?ontreal

Convention 1999 limit# This means that the

carrier+insrers are liable to )ay ) to a limit of 100,000

4; to a claimant de)ending on the assessment of the

'antm of damage he has sered# Fven in the event

of the death of all )assengers, as in the case of the

recent Air &ndia crash at ?angalore, each claimant on

behalf of the decedent %ill not be )aid 100,000 ;4

each#

The international )ractice follo%ed for settlement of a

claim involving an aviation accident, is for the

insrance com)any to ma-e an oer on behalf of the

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carrier, to the )assenger+family of decedent, %ho may

choose to deal %ith the insrers in )erson or throgh

their consel# &nevitably, the oer is follo%ed by

negotiations that may lead to a sbstantial increase in

the nal com)ensation )ayot#

Fssentially, %hen a claimant ma-es a claim for higher

com)ensation than that oered by the insrers, the

claimant is re'ired to sbstantiated %ith docmentary

evidence and )ro)er calclation to s))ort the claim

being )t forth#

There are no set rles for condcting negotiations or

set formla in terms of %hich damages are calclated#


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stats inclding e$act amonts de)loyed for

s))orting (i$" social stats ($" testimonials from

family, friends and )rofessional colleages ($i" loss of

amenities of life ($ii" loss of ftre income ($iii" loss of

enoyment of married life, among other indicators of

the decedent!s net %orth! )ecniary damages!

general damages! and ftre )ros)ects!#

&n retrn for the com)ensation )ayot, the insrers

re'ire the claimant to e$ecte an agreement in the

natre of deed of relin'ishment in terms of %hich each

claimant individally %aives in )er)etity any claim

against the airline, carrier, manfactrers, sb.

manfactrers etc# in res)ect to the said air accident#

Ths once the claimant has acce)ted the settlement,

he mst e$ecte a deed of relin'ishment of all his

claims in conte$t to the said accident and %rongfl

death of the decedent in )er)etity#

&ndia

5rom 1972 to 2009, &ndia fnctioned nder very lo%

carrier liability regime as set forth in the )rovisions of

the 1929


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to the Act and the =age >rotocol, 1933 carrier liability

regime as reIected in econd chedle to the Act#

imit of Carrier iability H :antm of Com)ensation/

1972.2009

&n an accident of an aircraft on international Iight,

involving an &ndian national, the 'antm of

com)ensation to be )aid ot %as based on the carrier

liability either as )er the 5irst chedle (


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considerations %ere )lace %here the tic-et %as

)rchased, )ort of embar-ation and )ort of

disembar-ation#

5rthermore, a claimant is entitled to claim higher

com)ensation by ling a case in a cort of la% on

gronds of negligence etc by the carrier# &n sch event,

the carrier is entitled to se the defence of contribtory

negligence# The )eriod of limitation for sch legal

action by a claimant+his estate is 2 years from date of

occrrence of the accident#

Conversion of Com)ensation

=o%ever, it is stated that the 1972 Act vide )rovisions

of section G lin-ed crrency conversion of the amont

of com)ensation )ayable to the crrency e$change rate

for 5rench francs as on the date of )ayment of

damages+com)ensation# ection G of the Act de.lin-ed

the com)ensation )ayot from the gold standard

5rench franc )rovided in the


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Fven other%ise, the )rohibitive )rovisions of the

rotocol, 1933

re'iring ling of a legal claim against a carrier in the

risdiction %here the carrier had its )rinci)le )lace of

bsiness, meant that &ndians shied a%ay from sch a

corse of action# They ths too- %hat they got from

the insrer, %ithot the benet of the gold standard by

o)eration of section G of the Act#

Conse'ently, %e do not have any case la% in &ndia

nder the Carriage by Air Act, 1972 )ertaining to

international civil aviation claims# &nstead, the trend

the recent ten years has been for claimants to le

nder the Consmer >rotection Act, 199G on grond of

deciency of service!# Ths the defect! or deciency

of service! grond has been sed by claimants for cases

ranging from delayed Iights, lost baggage to death#

The Geetha Jethani v. Airport Authority of India and OrsG

is a landmar- for t%o reasons# 5irst that the )reme

Cort )held the order of the Kational Consmer

;is)tes 4edressal Commission stri-ing do%n

)rovisions of section 66 AA& Act in terms of %hich the

AA& %as claiming )rotection from )rosection# The

)reme Cort held that becase AA& %as collecting

G Geetha Jethani v. Airport Authority of India and Ors 200 (6" C>B 10G (KationalConsmer ;is)tes 4edressal Commission"#

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ser fees from )assengers, it came %ithin the ambit of

the C>A, ths ma-ing it liable to )ay com)ensation to

the com)lainants for the deciency in service %hich

had reslted in the death of Leetha Bethani# econd, in

conte$t to a%ard of 'antm of damages, the Cort

)held the Consmer Commission that directed an

amont as )er 5irst chedle of 123,000 french francs

consisting of G3#3 miligrams of gold of millesimal

neness of nine hndred converted into &K4 vale to be

)aid to the decedent!s family# Ths, section G of the

Carriage by Air Act, 1972 that delin-s the com)ensation

)ayot from the gold standard and )egs it to the

crrency e$change rate a))licable as on the date of

)ayment %as strc- do%n by the Cort# 5inally, the

signicance of the decision also lies in the fact that the

Cort established the vicarios liability of AA& even

thogh it %as only one of the defendants to the sit

the com)lainants had led the sit )rimarily against Air

&ndia#

&ndia/ 2009

&ndia ratied the ?ontreal Convention 1999 and in

2008+09 broght a))ro)riate amendments to the

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carriage by Air Act, 1972# Third chedle to the Act

harmoni*es the )rovisions of the ?C99#

Ths nally, &ndian carrier liability in conte$t to

international civil aviation has been broght ) to

s)eed %ith international norms# 5rthermore, section

GA entitles the conversion of com)ensation

denominated in ;4 into &K4 at the )revailing rate of

e$change#

&t may be noticed that the ?ontreal Convention 1999,

does not allo% for claims for damages for mental

angish and inconvenience cased to+sered by a

claimant#

The Third chedle also reIects for claims for

damage+delay+loss to cargo and baggage at enhanced

rates 7 in terms of the )rovisions of the ?ontreal

Convention 1999#

Calclation of :antm of ;amages7 Article 18/ 1# The carrier is liable for damage sstained in the event of the destrctionor loss of, or damage to cargo )on condition only that the event %hich cased thedamage so sstained too- )lace dring the carriage by air#2# =o%ever, the carrier is not liable if and to the e$tent it )roves that the destrction, orloss of, or damage to, the cargo reslted from one or more of the follo%ing/(a" inherent defect, 'ality or vice of that cargo(b" defective )ac-ing of that cargo )erformed by a )erson other than the carrier or itsservants or agents(c" an act of %ar or an armed conIict(d" an act of )blic athority carried ot in connection %ith the entry, e$it or transit of

the cargo#6# The carriage by air %ithin the meaning of )aragra)h 1 of this Article com)rises the)eriod dring %hich the cargo is in the charge of the carrier#

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Mindly refer to the )receding )aragra)h %hich is not

being re)eated for the sa-e of brevity# &t is sggested

that no ne% rles are re'ired for the )r)ose of

calclation of 'antm of damages as bet%een

carrier+insrer and the claimants# The international

)ractice described hereinabove is %ell settled and

%or-s %ell#

&t is stated, once again, in conte$t to the ?angalore

crash, that this %as the rst time that &ndian nationals

%ere liable to receive com)ensation at international

levels of ) to 100,000 ;4, if the claimants on behalf

of decedents, choose to settle %ith the insrer+carrier#

&n vie% of, )erha)s a lac- of nderstanding and the

absence of e$)erience in &ndia of settlement of

international aviation claims, there %ere erroneos

statements attribted to the government re)orted in

the )ress to the eect that that each claimant %old

receive the &K4 e'ivalent of 100,000 ;4 as

com)ensation for the life of the decedent# This has

inevitably led to )sets and angish as mch for the

families as for the indstry# As e$)lained, sch a

)osition is very far from the trth#

The claims, if settled by insres, %ill follo% the %ell

established methodology and )rocedres follo%ed

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internationally# ometimes, sch negotiations cold

ta-e 18 to 2 months or more# &t is a very detailed and

)ainsta-ing eort#

&t is sggested that in this vie% of the matter, Central

Lovernment shold not interfere by )tting in )lace

rles to govern negotiations that may restrict both the

insrers+carriers on the one hand and the claimants on

the other to arrive at reasonable mtally acce)table

settlements#

Carrier liability in conte't to do(estic civil

aviation

ection 8 (1" and (2" of the Act entitles the Central

Lovernment, by notication in the oNcial ga*ette to

a))ly the rles contained in the 5irst chedle read

%ith section 6, 3 or G and econd chedle read %ith

section , 3 and G, res)ectively to carriage by air %hich

is not international#

>resently, the Act articlate a liability regime for air

carrier )erforming domestic carriage by air in terms of

the 'antm of damages )ayable to a claimant in the

event of deat# of a )assener$ or bodily in*!ry or

wo!nd s!+ered by a )assener res!ltin in

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)er(anent disable(ent inca)acitating him from

engaging in or being occ)ied %ith his sal bsiness

or occ)ation vide Kotication issed by the ?inistry of

Torism and Civil Aviation, Lovernment of &ndia, #@#

18G(F", 20th Banary 1998 8

Ths com)ensation as on date is 4s# 7, 30,000 in the

event of death or any bodily or %ond sered by a

)assenger %hich reslts in a )ermanent disablement

inca)acitating him from engaging in or being occ)ied

%ith his sal dties or bsiness or occ)ation for a

)erson above the age of 12 years and 4s# 6, 73,000 if

the )assenger is belo% the age of 12 years on the date

of accident#

&n the event of %onding of a )assenger or any bodily

inry sered by the )assenger %hich reslts in a

tem)orary disablement entirely )reventing an inred

)assenger from attending to his sal dties or

bsiness or occ)ation, the liability of the carrier for

each )assenger shall be limited to a sm calclated at

the rate of 4s#730 for every day dring %hich the

contines to be so disabled or a sm of 4s#1, 30,000,

%hichever is less#

8 These amonts %ere revised from 4s# 2,00,000 and 4s# 1,00,000 res)ectively byKotication dated 3th Bly 1980

1G


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&n connection to the 'antm of com)ensation )ayable

to )assengers on domestic Iights, it is stated that

section 8 (6" introdced in the 2009 amendment,

entitles the Central Lovernment to ma-e a))licable

rles contained in the Third chedle read %ith section

A, 3 and GA to domestic carriage by air by issing

a))ro)riate notication in the @Ncial La*ette#

&t is sggested that the Central Lovernment may

consider a))ro)riately enhancing levels of

com)ensation )ayable for )assengers involved in

domestic carriage by air# >resently this )o%er has not

been e$crcised by the Lovernment to notify a revision

in the carrier liabilities# As sch there is no diNclty in

s)erseeding the crrent limits of liability and bringing

them )to the international standard#

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LI," -. ANN,

Anne'!re 1/ Kotication 4egarding A))lication of The Carriage y Air Act,1972, To Carriage y Air


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Anne'!re 4/ iability of Carrier for Kon &nternational Carraige by Air/ The

Act and allied )rovisions#

air carrier laibility

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