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:

1. 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
2. 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:

1. a) Injury sustained on board an aircraft or,
2. b) Death arising from the course of a journey or; 
3. c) Damage or loss of goods, 
4. d) Delayed or denied boarding, or 
5. 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:

Article 17:

1. 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,
2. 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,
3. 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:

1. 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,
2. 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.

3. 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.
4. 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.

Conclusion

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.

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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: kingsley.izimah@gmail.com to learn more about corporate, commercial, property and immigration law practice and expert legal consultancy.

I am a Failure. I don’t know to how to code. That is how a loquacious 8-year old me would describe me today. My first memories of childhood were looking at the first issue of the comic “2000AD”. The first issue came out in 1979. It featured aliens, spaceships, damsels-in-distress and, of course, the most beautiful thing I could think of; Computers. Not just any computers, Super Computers. The kind of computers that knew everything. That controlled the ships lasers and weapons systems. The ones that ran protocols that protected the crew on the starship (except the computer on “Alien”. Evidently, there were a few accidents.) I spent many days drawing and imaging computers and what they could do. Finally, in 1983, I had my first experience with a computer. It was shopping center in London.

The guy there was very friendly and let me have to computer. I was stunned I finally had access to a real-life and computer. I wondered what I could do with it. So, I thought I would ask it a question. So I typed in “What is inside a car?” Of course, I did not press enter. I didn’t know how to use a computer but nothing happened. The words were just displayed on the screen. I didn’t know how computers worked. I just thought it would flash the answer and show the schematics the way K.I.T.T. would. I kept visiting the computer but there was a new manager and he did not appreciate my relationship with the computer and shooed me away.  Imagine my disappointment. Luckily, years later, I got toys such as Texas Instruments “Speak and Spell” and Grandstand’s “My First Talking Computer”. A Tandy Computer as well but that one was as dumb as a brick (Actually all the computers were for my sisters but that’s community property.) This was always fun I love the games and trivia questions (Except for the dumb Tandy).

As I got into secondary school, I was a fan of computer games. But, the introduction of computers in secondary school was a big disappointment. It entailed a day when we were all allowed to look and touch a computer like we were cave-men seeing fire for the first time. Next, we had to take a class and deliver an assignment after some lessons in BASIC. Being a bad and disappointed student, I failed the class.  I still feel salty about the cheap approach to computer education but that’s just me. University and beyond was when it really went downhill.

In University, I used to come to computer village to sell computers I would get from people and make a commission for doing the deal. This was fine and I also did phone business. But, there was still a big thing I had not achieved. I had not learnt to talk to computers. Programming is essentially talking to a computer and telling it what you want to it today. I tried to learn it but I had very bad habit to stopping and starting. Something would come up. I would lose money in a bad deal. I would get attacked by armed robbers. Lots of wanderlust and wasted time and opportunities. My senior sister bought me a computer. I used to it a lot but I was never that proficient. I was better than most people I knew using computers. But, then again, I didn’t know that many people. I had some books but I would easily get stuck at a particular point and stop. This was the story of my life. I have always been regarded as someone who understood computers but inside I did not believe that was true. I had not assembled a computer from scratch. I had not programmed in any language. I had dabbled in HTML but, even I knew that was mediocre. I did not make the sacrifice to become good.

Even, at work, I knew more about computers than some people but people that knew what they were doing were far better than me. I wondered if I could ever catch up. I knew Microsoft Office but sometimes even using Excel and Word made me feel insecure and very uncomfortable. I rarely had time to delve into studying and looking for many ways to learn. I researched on-line and came across a lot of ideas on YouTube. The main channels I watched were Alex Becker, John Sonmez, and Eli the Computer Guyy. Then, I knew I had to make a choice. I decided no matter how old I was I would begin to learn to code. Years of dilly-dallying gave me some ideas of where to start. I wanted to have Full-Stack ability. That is to program a whole web application from what people saw to the background such as the database. But, first I would start with a programming language that would be used for both the front and the backend, Python. Then, I came across Alex Becker advice: Become an Addict.

Alex Becker had an idea that the brain is made in a way that could make one addict of anything. Similar to ideas from evolutionary psychology and biology, he thinks that the brain is very much controlled by the animal part. The part that wants instant gratification and pleasure and runs away from pain and discomfort. That is, if there is cake or ice-cream the brain says yes. If there is pain such as exercise or studying, the brain says no. But, what about goals? His theory is that brain does not care about goals. There is little to motivate the brain in the actual accomplishment of the goal just in the achievement and striving towards the goal and if they striving is painful or uncomfortable, the brain would abandon those in a hot second. Maybe that could explain my constant failure in achieving my goal of learning to program. But, if we understand that is how the brain works, can’t we do something about it? Alex says “Yes!” Become an addict. 

The brain produces a pleasure chemical called dopamine to reward any pleasure inducing behavior food, video-games, even drugs. Dopamine is much stronger than most narcotics and is produced in the brain. So the trick is how to get the dopamine to be produced by activities that are beneficial such as studying or learning something hard. First of all, his advice is to get remove or greatly reduce other dopamine sources such as food, drink, social media, bad habits, and other pleasurable activities and start introducing the new ones. Mind you, these activities are new and would not feel pleasurable at first at all. But, the fact the ready supply of dopamine is being stopped is a very important start. It would help you get the new habit to have a space and take root. 

The next part is to socialize the new habit. Have an accountability partner and become a progressing member in the group. Having an accountability partner is having someone who would hold you accountable to what you set out to do. They would ask “have done it?” “What have you achieved?” The mere declaration of your goal is a start but the partner checks in to see what progress has been made. This sounds simple but you would be surprised how well it works. It’s literally how I went from having third class degree to getting an MBA. This could also turn into having a mentor or expert feedback. This is also a vital part of Deliberate Practice: a process for achieving mastery in a difficult but valuable ability.

The last social part of addiction is the progressing member of the group. Addicts identify as addicts and usually form groups either while in or quitting the addiction. The social component accelerates the learning process and makes it much easier because our social interactions also produces dopamine. The fact that, in the community, we are contributing in some way, makes the activities more enjoyable. You study so you can answer a question or get accolades of being within that group. It becomes almost like the hormones that give us pleasure when we going higher in a hierarchy. Yes, social status is a drug. 

The last part is getting some sleep. Learning a new skill, no matter what time in life, requires rest and recovery. I will have to make out time to study effectively but also sleep sufficiently. The research is out. You need sleep to learn. It’s been decades overdue and it’s about time I can program. I am a Failure. But, being a Failure is not permanent. I will just succeed anyway.