The International Civil Aviation Organization Reports stated that in 2018, airlines set another record by flying about 4.5 billion passengers on nearly 45 million flights worldwide and on the average, everyday more than 8 million people fly to various destinations and according to the Air Travel Consumer report issued by the US Department of Transport, an average of 1 in 150 people have their checked baggage misdirected or left behind each year and went further to report that 0.6 fatal accidents happened per one million flights globally.
The human activity that surrounds aircraft is called aviation which is domesticated by establishment of the Nigerian Civil Aviation Authority with the powers to regulate air navigation, registration of aircrafts, inspection and regulation of aerodromes as well as licensing of air transport undertakings amongst other functions and pursuant to section 78 of the Civil Aviation Act, CAP. C13, LFN, 2010, aircraft means any machine that can derive support in the atmosphere from reactions of the air other than reactions of the air against the earth’s surface, examples of which include airplanes, helicopters, airships (including blimps), gliders, paramotors and hot air balloons.
It is a well known fact that air travel is the safest and fastest means of transportation, but its accidents are the most fatal and usually fraught with loss of passenger luggage due to negligence of either the employees of the airline carrier or airport security personnel or perhaps the passengers themselves out of carelessness. In this article, we looked at when an airline’s liability to its passengers or customers will arise in aircraft accident or loss of baggage and the laws regulating same based on the case of Harka Air Services (Nigeria) Limited v. Keazor (2011) 13 NWLR (Pt. 1264) 320 SC with a view to enlightening air travelers about their legal rights in similar situations or occurrences.
Definition of an aircraft accident
Under the Civil Aviation (Investigation of Accident) Regulations, an aircraft accident includes any fortuitous or unexpected event by which the safety of an aircraft or any person is threatened and by virtue of section 4 of the regulations, an aircraft accident is an occurrence which takes place between the time any person boards the aircraft with the intention of flight and such time as all such persons have disembarked therefom:
- A person suffers death or serious injury while in or upon the aircraft or by direct contact with the aircraft or anything attached thereto; or
- The aircraft receives substantial damage
What the above definition simply means is that once a passenger boards an aircraft and during the cause of being in that aircraft until dismemberment from the aircraft, any death, injury or loss of personal belonging, the circumstances of which occurs or surrounds the operations of the aircraft or its servants or agents will be under the liability of the airline carrier. The duty of care squarely rests on the airline that while each passenger is on board its aircraft, to ensure the safety of its passengers and their belongings until they arrive their destinations and disembark from the aircraft.
Liability of the Carrier and Extent of Compensation for Death of Passengers, Damage to Luggage and Cargo and Delay in the Carriage by of passengers
There are laws regulating the liability of the carrier to its passengers and an airline’s liability to its passengers or customers which could arise as a result of:
- a) Injury sustained on board an aircraft or,
- b) Death arising from the course of a journey or;
- c) Damage or loss of goods,
- d) Delayed or denied boarding, or
- e) Interactions in the course of preparing for or the actual conduct of flight operations.
Thus, by virtue and pursuant to section 48 (1) of the Civil Aviation Act, CAP.C13 Laws of the Federation of Nigeria, 2010 and Article 17, Chapter III of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12th October, 1929 domesticated as Nigerian Law provides 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,
- The carrier is liable for damage sustained in case of destruction or loss of, or damage to, checked baggage upon condition only that the event which caused the destruction, loss of damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including items, the carrier is liable if the damage resulted from its fault or that of its servants or agents,
- If the carrier admits the loss of the checked baggage, or if the checked baggage has not been arrived at the expiration of the twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.
Article 18 relates to Damage to Cargo and provides as follows:
- The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air,
- However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following –
(a) inherent defect, quality or vice of that cargo,
(b) defective packaging of that cargo performed by a person other than the carrier or its servants or agents;
(c) an act of war or an armed conflict,
(d) an act of public authority carried out in connection with the entry, exit or transit of the cargo.
- The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.
- The period of the carriage by air does not extend by land, by sea or by inland waterway performed outside an airport. If however, such carriage takes place in the performance of a contract for carriage by air, for the purposes of loading, delivery or transshipment, any damage is presumed, subject to proof in the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to the carriage by air, such carriage by another mode of transport is deemed to have been within the period of carriage by air.
Article 19 which relates to delay in the carriage by air of passengers provides as follows:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Subsequently, section 48 (3) of the Civil Aviation Act, 2010 which relates to payment of compensation upon death of a passenger in aircraft accident provides as follows:
48 (3) – In any case of aircraft accident resulting in death or injury of passengers, the carrier shall make advance payments of at least US$30,000 (Thirty Thousand United States Dollars) within thirty days from the date of such accident, to the natural person or such persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payments shall not constitute recognition of liability and may be off set against any amounts subsequently paid as damages by the carrier.
In the case of Ibidapo v. Lufthansa (1997) 4 NWLR (pt.498) pg.149 at paragraph H, the Supreme Court per Wali JSC (as he then was) said:
“An important International convention like the Warsaw Convention…, is so important to this country both domestically and internationally to be avoided. A vacuum of such magnitude cannot be tolerated in our legal system. It is a notorious fact that all air travelling tickets, whether domestic or international contain notices alluding to the provision of the Warsaw Convention…”
It is important to note that Article 29 of the Montreal Convention 1999 provides that:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”
Flowing from the above citation, any claim brought pursuant to and by virtue of the Montreal and Warsaw Convention must as a matter of fact, comply with the extant provisions of these Conventions.
What must a claimant prove to succeed in an action for death of passenger, loss of baggage and delay in passenger carriage by air?
For a claimant to succeed in an action for damages against an airline in aircraft accident, loss of luggage or delay in the carriage by air of passenger, he must prove negligence and show that the carrier had knowledge that damage or delay would probably result. See the case of Cameroon Airlines v. Jumai Abdul-Kareem (2003) 11 NWLR (Pt. 830)1 at pg. 20, where the Court held that:
“To be able to award damages at large, it is not enough to show that the damage was done intentionally or recklessly, it must also be shown that the carrier had knowledge that damage would probably result”.
Thus, the burden is squarely on the claimant to prove negligence and not on the carrier to rebut negligence. See also the cases of Cameroon Airlines v. Otutuizu (2011) 8 WRN 1 or (2011) 4 NWLR (Pt. 1238) 512 and Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR (Pt. 163) 507.
In a localized definition of the situation, the Supreme Court in the case of Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512 stated thus:
“It is well settled that Cameroon Airlines was in breach of contract as principal and agent in not flying Otutuizu to Manzini, Swaziland. It is reasonably foreseeable that a passenger arriving in South Africa without a transit visa would be arrested, with grave consequences for the passenger.
Consequently the act of Cameroon Airlines flying Otutuizu to South Africa with no justifiable reason for doing so and knowing fully well that Otutuizu did not have a transit visa, apart from being a clear breach of the agreed route, it amounts to a negligent breach of contract. A wilful misconduct in the extreme.
Once the claimant can provide proof of negligence on the part of the airline, the courts will as a matter of trite law and precedence award damages in favour of the claimant.
As was held in the case of Harka Air Services (Nig) Ltd v. Keazor (2011) 13 NWLR (Pt. 1264) 320, the airline carrier was unable to avail itself of the provisions of the Warsaw Convention limiting liability because it was found that they acted recklessly. Fabiyi, JSC in his contribution observed:
“….For damages awarded against a carrier to be at large, it is not sufficient for the act or omission that is relied upon to have been done recklessly, it must be shown to have been done with knowledge that damage would probably result…..”.
Thus, the threshold to claim damages against an airline in an action for death of a passenger, loss of baggage and delay in the carriage by air of passenger must be founded on the tort of negligence, willful misconduct and knowledge that damage would probably result in consonance with the relevant laws relating to aviation as well as cited cases as espoused above. See also the case of Emirate Airline v. Aforka & Anor (2014) 5 CLRN 1.
If you find this article interesting, please feel free to contact the author, Kingsley Izimah, Esq, on: 0806-809-5282 or send an email to: [email protected] to learn more about corporate, commercial, property and immigration law practice and expert legal consultancy.