Download - 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#