AN APPRAISAL OF LIABILITY REGIME FOR REDRESS AND COMPENSATION FOR VICTIMS OF AIRCRAFT ACCIDENTS IN NIGERIA
1.1 Background to the Research
As the world’s fleet of commercial aircraft continues to grow and global airlines capacity steadily on the increase, Nigerian operators and the passengers are facing commercial conflicts emanating from injuries suffered by victims of air calamities as a result of loss of lives, properties or bodily and psychological injuries1. Aviation has become an integral part of the social economic life of nations. Nigeria by its size, population and position in the continent of Africa is naturally and strategically positioned as a natural hub in the West Africa sub region thereby constituting a market that would ensure and support sustained growth in air transportation2.
Although, aviation is a known and understood transport system, notwithstanding the usual occurrence of aircraft accident the extent of patronizing air transportation is on increase globally, due to the readiness of individuals and business class to attend to their business and personal needs with dispatch anywhere in the world. When such disaster occurs, relations of the passengers or the victims themselves are legally entitled to some quantum of compensation for the loss of their loved ones and loss of their Luggage respectively. It is therefore not certain whether all relations of such victims could be paid the same amount as compensation as a matter of course or on legal demand by way of civil litigation irrespective of their positions. It is also not settled and not clears whether a Nigerian victim entitles to the same amount of compensation like a victim whose plane crashed in the territory of the United State of America3. The question becomes doubly important in determining whether victims or their relations have a cause of action either in tort, contract or insurance to demand for higher compensation in addition to what is statutorily provided.
It therefore becomes pertinent to examine and analize the possibility of remedying the injuries suffered by the passengers to their persons, lives and property with a view to examining the compensation regimes and to see why some victims are not compensated at all and why those compensated get the compensation so late? The scope of who constitute victims in the legal parlance and in respect to carriage by aircraft is not conclusively settled within the popular words of embarking or disembarking an aircraft. This shall be examined in this research work for the purpose of ascertaining when a passenger and his relation can benefit from the compensation regimes. The cases of Sudan Airways Vs. Mohamed Abdullahi,4 Kabo Air vs. Oladipo5 and Cameroon Airlines vs. Jumai Abdulkareem6 among others explained variously how the superior courts in Nigeria viewed the liability regimes in aviation in favour of passengers against the carrier. In some of the decisions, it was resolved that a passenger can be entitled to huge damages on the condition that the passenger shall prove willful misconduct on the part of the carrier. This is in contradistinction with Article 22 (5 & 2) which makes carrier liable for higher damages where recklessness or negligence is proved.
The liability regime under the Montreal convention as contained under Article 17 and 21 is tied to the condition precedent inherent in Article 17 to the effect that carrier is liable only when the accident which caused the death or injury took place on
1. Agada, J.A. O, Amana A.R. & P. Yer, (2009) Legal Frame Work For International Air Service Agreement Critical Analysis,Journal of Contemporary Legal Issues, Learned publishing and consultant Ltd, Lagos, vol 1, PP140 – 146.
2. Calistus E.U, (2006) introduction to Civil Aviation Law in Nigeria. Aviation Publishing and Consultancy Co. Ltd. Lagos, P11 3.
3. Kalu, A.U. addressing the claim and compensation for damages in aviation environment, corporate and private matters,” delivered at the Nigerian Law Conference “Challenges of Legal Practice in 21st Century Nigeria under the auspices of the Nigerian law Reform Commission, (25th – 27th November,1997) Abuja, Nigeria.
board the aircraft or in the course of any operations of embarking or disembarking the aircraft.
The provision of Article 17 raises dust as to the literal and technical meaning of embarking or disembarking an aircraft. Thus, it is therefore not clear as at when a passenger can be said to have commenced embarking or disembarking an aircraft. This will require judicial interpretations of the superior courts of Record. Accordingly, decisions of superior on this principle of law are examined to assert the pertinent interpretation of the word embarking or disembarking. It is equally pertinent that the contentious areas of the Montreal Convention 1999 as reflected in the civil Aviation Act 2006 are examined particularly those related to the liability and compensation regimes i.e. Article 17, 18, 19, 20, 21 and 22 of the Montreal Convention. Section 48(1) of the Civil Aviation Act 2006 on compensation in relation to air transport carriage and S48(2) thereof are examined on both international and domestic carriage. The section in a whole makes the compensation regimes provided in the Montreal Convention applicable in both national and international carriages by air in Nigeria and same is applicable mutatis mutandis. Another cogent area to be analized in this work is the determination as to when a passenger sustained an injury in an aircraft to earn or entitle him/her to damages in his favour against the carrier i.e. what is the coverage of the doctrine of embarking or disembarking the aircraft?. Article 17 of the Montreal Convention states: 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
4. (1998) 1 NWLR, (pt 68), p 271
5. (1999) 10, NWLR, (pt 623) p 517
6. (2003) 11, NWLR, (pt 830), p1
The operative word in this provision is “embarking or disembarking”. The word embarking or disembarking ordinarily means when the passenger is in the processes of entering or disengaging from the aircraft which he/she boarded. However Article 17 (2) on the damage sustained in the case of destruction or loss of damage to checked baggage says: … upon condition only that the event which caused the destruction, loss, or damage took place on board the aircraft or during any period within which the checked baggage was in charge of the carrier. The operative word in this sub-section rather than embarking or disembarking is “the period when the checked baggage was in charge of the carrier”. Judicial interpretations, literal and ordinary meanings of the words embarking or disembarking as well as in charge of the carrier shall be examined to ascertain whether a passenger who breaks his leg or hand while queuing to enter an aircraft and other similar scenario can be compensated within the confine of embarking or disembarking or not. Similarly, the provisions of Article 17 would be analysed with a view to ascertaining whether a passenger in a state / government aircraft shall be compensated or not simply because he/she is not a paid passenger. The research work is therefore strategically designed to critically examine the extent of liability and modus of compensation payable to victims or their relations. This becomes expedient considering the fact that the relevant provisions of Warsaw Convention 1929 and subsequent International legislations, including the Montreal Convention 1999 only made provisions for compensation to victims of air craft accidents in event of death, injury or loss of goods without considering status of individuals, their education, responsibilities and earnings of individual victims which differ and drastically distinguished one victim from the other7.
1.2 Statement of the Problem Every passenger who suffers personal injuries to his person, or body or to his mind, or relations of those who lost their lives as a result of an accident that resulted from a plane crash should be allowed to enjoy the fruit of the legal principle that “No wrong goes without remedy” hence the question as to whether this remedy should be pursued in the light of claims against the insurer of the carrier in the Insurance law by way of third party claim, or should be pursued in the light of tort of negligence in the law of tort vis-à-vis the statutory duty of care owed to the passengers by the carrier, or in the light of the damages resulting from breach of contract of carriage by the carrier. It is equally not clear the scope of who can benefit from the compensation regimes and what make them eligible to the benefit hence the statement of the problems. Accordingly, the following Statement of problems called for attention in this research work: 1. The provision of Article 17 of the Montreal convention created series of vaccum which required judicial interpretations to strengthen the protection of the passengers victims and reduce the level of the statutory liability of the carriers for example, the statement, “embarking and disembarking the aircraft”, is vague in nature that both the carriers and the passengers have to compete for defences as to whose benefit the statement serves8.
It is a common practice in the aircraft operations that the ladder that connected to the aircraft on the ground belong to a company different from that of the aircraft owner. A passenger who slip off and got wounded in the course of climbing the ladder to enter an aircraft, cannot be said to have sustained the injury while embarking the aircraft simply because, the ladder is
7. Convention for the Unification of Certain Rules relating to International Carriage by Air (Montreal) (1999), which was domesticated under Section 48 of the Civil Aviation Act 2006.
8. Such as Nigerian Airspace Management Act, cap N90, Laws of Federation 2004 Federal Airport Authority Act 1999, cap C13, Laws of Federation 2004 , Nigerian Metrological Agency Act cap ….. Laws of the Federation 2004, and Sections 147 and 148 of the 1999 Constitutions
not part of the original component of the aircraft. If however, it is construed that such a passenger is already embarking the aircraft, a passenger who sustained injury inside the airport on his way to board an aircraft can also be constructed to have sustained same in the course of embarking the aircraft. 2. A number of aircraft accidents have been recorded in Nigeria of which victims were not compensated within a reasonable time or inadequately compensated due to one reason or the others. This research therefore will examine the extent of liability and quantum of compensation claimable by victims of aircraft accidents or their relations for the purpose of being compensated beyond what is statutorily provided in various legislations. It has not equally been settled whether on the basis of doctrine of strict liability or breach of duty of care, an airline operator or the manufacturer or the Regulatory Authorities could be made to face the wrath of law in tort, or whether on the strength of breach of contract, the carriers could be held responsible in damages in favor of their victims. 3. It is one factor to know ones right, it is another factor to be able to pursue the right using the best and most appropriate medium. Determining a cause of action is a task on an Aviation Solicitor who has the duty to advise his client on his legal rights and to file a civil suit accordingly where necessary. It is therefore not certain whether such Solicitor should advise his client to pursue the cause of action in tort for negligence, breach of contract of carriage or Insurance Claim as well as the quantum of damages which is claimable by its victim.
4. Investigative report especially in an adversarial system of justice is aimed at pointing out lapses or apportioning blames with recommendations for subsequent prosecution or remedies. This spirit is not in consonance with Section 29 (14) Civil Aviation Act 2006 which categorically rendered inadmissible
in evidence Air craft accident Investigation Report conducted by a Statutory Investigating Authority. It is equally considered part of the inherent problems (particularly in the absence of any Judicial Authority), the conflict between Sections 102, 105, 85, 86, 87, 88, 89 Evidence Act9 which considered the Report of the Investigation Bureau on Accident as a public document, Section 91 Evidence Act and Section 29(14) of the Civil Aviation Act 2006 which rendered the document inadmissible. This conflict is of importance considering the fact that the two conflicting Legislations are Acts of National Assembly. 5. It is also not certain whether passengers on board of state aircraft who are not paid passengers as well as ground victims who sustained injury as a result of an aircraft which fall on ground or on the property belonging to a non-passenger are subject of the same liability regime. 1.3 Research Questions However, within the confine of this research work, the following questions are pertinent and called for adequate answers as research questions. 1. What is the position of the Nigeria Superior Courts on the extent of compensation regimes to victims of aircraft accidents. 2. What are the compensation regimes in Montreal Convention, as well as the relevant provisions of the Civil Aviation Act 2006. 3. Whether or not these statutory compensation regimes are adequate, and whether a victim can pursue and secure higher compensation. 4. To what extent are the non-passengers victims on the ground are protected in event of death, injury or loss of their properties. 5. What are the parameters to justify claim for higher compensation and what are the causes of delay in paying compensation to victims of aircraft accident.
6. How can the probative value be injected in to the Accident Investigation Report conducted by the Accident Investigation Beureau, A I B, a statutory Agency established under the Civil Aviation Act 2006.
1.4 Aim and Objectives of the Research Consequently, this study aims at realizing the following objectives: 1. To examine the legal framework on the extent of liability and compensation regimes available in the aircraft accident to determine whether higher Compensation can be demanded by the victims or their relations. 2. To analyse the legal framework relating to Aircraft Accident victims who are desirous of higher compensation and the extent of the compensation that can be demanded. 3. To examine the challenges, prospects and ways for a viable options for Nigeria considering some area of deficiencies in the Civil Aviation Act 2006 in contra distinction with some decision of the superior courts10 4. To examine the legal status of Ground victims, gratuitous passengers and properties on ground which are destroyed and damaged as a result of the air craft accidents. 5. To examine the rationale of the non – probative value of the Accident Investigation Bureau’s reports 6. To examine the compensation status of victims of private Jet and gratuitous passengers.
1.5 Scope of the Research
9. Evidence Act, cap E14, Laws of the Federation 2004, Government Notice 103, Vol. 98, signed into Law on the 22nd July 2011 by the President and Commander in Chief of Armed Forces of Nigeria.
This research is limited in scope to issues on aircraft accidents. To this end, the research work is expected in its scope to cover conceptual discourse and principal terms in aviation law and air transport accident, analyse legal framework for liability regimes in aircraft accidents with a view to know who is a victim and the extent of the compensation entitled to within the present legal regimes and the judicial attitudes of Nigeria Courts towards aviation cases particularly with regards to accident and compensation or liability thereof.11
Notwithstanding the limitation of the research scope, it will cover issues relating to negligence, breach of contract in relation to Aircraft victims as well as damages and compensation payable to Aircraft Accident victims. It is noteworthy that likely procedures and methods of pursuing various causes of actions by victims of the crash are equally to be examined. 1.6 Research Methodology The Research method employed is doctrinal.12 i.e. reviewing existing literatures such as statutes, conventions, text books of learned authors, Articles published in the National and International Journals, e.t.c. Decisions of Courts of Records are to be analysed in the light of the liability and compensation regimes for victims of Aircraft Accident in Nigeria to enable the researcher to arrive at answers to the research questions so formulated. 1.7 Justification or significance of the Research
10. See the case of Cameroun Airlines vs. Mr. Mike E. Otutuizu (2011) All Federation Law Report P 1260 at 1267 where the Supreme Court was of the opinion that once a breach of contract of aviation is established damages follows as consequence.
11. Harka Air Services Ltd vs. Emeka Keazor Esq. (2006)1, NWLR, Part 960, Page 160 at 161-190, Cameroon Airlines vs. Miss Jumai Abdul Kareen (2003)II NWLR, Part – PP 1 – 22, Ibidapo Joseph Vs Luthansa Airline (1994)8 Part—- PP 355 at 373 – 378.
This research is justifiable as same is targeted at benefitting the real passenger victims, the ground victims, the air carriers and even the insurance company who ultimately come in to settle claims on behalf of their client carriers. If the liability regime is restructured in tune with this research work, the passengers would not more be tied down to the 100,000 SDRs contained in the Montreal Convention and the Civil Aviation Act 2006, and will be able to assert claim for prompt payment of the compensation within the time frame of the laws or within the reasonable time.
On the part of the ground victims whose claim for compensation is clearly uncertain within the present liability regime, they will either be able to use the report of the Accident Investigation Bureau to press home their claim for compensation or they demand and get a definite monetary applicable to the passenger victims in the present regime. The carriers are designed to benefit from the outcome of the research work as the likely amendment of Article 17 of the Montreal Convention will limit the scope of their liability to the victims as the owners of the ladders used in embarking the aircraft will have to share from the liability. The research is further justifiable in that there will be need to review the present legal regimes on the liability outcome of which will engender legislative and policy amendment of the current regime in time with the findings and recommendations of the research. 1.8 Literature Review It is trite that previous literatures on the subject matter of the research are trite, some of such literatures are examined with a view to press home the extent of their relevancy to the subject matter of the research.
A published Article, Salu, A.O13 examined various legal regimes on the extent of liability of carriers to their passengers and pointed out how Warsaw Convention can be said to be beneficial to both passengers and the carriers in the sense that the passengers were relieved of the burden of proving that the carrier was at fault and the carriers on their part knowing the enormity of the risk in the operation ensure that their operation is
12. Theorizing without considering the practical consequences as defined by Y. Aboki, (2001) introduction to research, methodology, Tamaza publishing Ltd, Zaria, p.3.
adequately insured against such risk. The Author after critical examination of the case of Canadian Pacific Airlines Ltd. vs. Montreal Trust Co. Robert Jack Stampleman,14 in contra distinction with the plight of Nigerians who lost their lives in the ADC Flight 0086 in 1996 was quick to conclude that if victims of aircraft accidents in Nigeria could go to court to claim damages either in contract or tort, Nigerian Court could be swayed to award higher damages than what the Air carriers in Nigeria usually offer to the passengers or their relatives. The learned author indeed made remarkable Submissions, but did not in any way appraised how such higher form of damages can be claimed in contract or tort?. Calitus E Uwakwe15 asserted, that between 20th November,1968 when the 1st Civil Aircraft Accident occurred in Nigeria and 10th December, 2005, when Sosoliso Airline Aircraft (flight No. 1145) crashed at Port Harcourt International Airport, Nigeria had witnessed a total of 74 aircraft accidents involving Civil Aircrafts with total of 1198 lives lost16. This writer S. Alu X – rayed the air transport operation business in totality criticized the apparent inadmissibility of the aircraft Accident Investigation Report as inherent in the Civil Aviation Act 200617. He opined that the Plaintiff who is desirous to using the report in claiming damages in Civil Litigation should plead the principle of “res – Ipsa loquito” 18 to be able to shift the burden of proof to the Defendant bearing in mind the inadmissibility of the documents.19 The author did not really consider Section 29 (14) of the Act in contradiction with Sections 102, 105, 85, 86, 87, 88 and 89 of the Evidence Act20 which set-down the grounds for the admissibility of documentary evidence in Civil cases of this nature. Further, the Author having examined Article 17 of the Warsaw Convention,21 itemized the essential requirements needed to establish liability of the carrier as follows: a. The passenger must have been wounded or suffered bodily injury. b. The injury must have arisen from an accident.
c. The accident must have arisen on board of the aircraft or during the course of embarking or disembarking. He also considered passengers ticket as an important document of carriage and stated that the absence, irregularity or loss of ticket will not affect the existence or validity of the contract of transportation, but if a carrier accepts a passenger’s ticket, such a carrier will not be able to avail himself of the right to exclude or limit the liability.22
The Civil Aviation Act 200623 is a major statute on aviation in Nigeria, the Act in its copious provisions put into contemplation current global trend in Aviation transportation particularly in relation to liabilities of the carriers, rights of the passengers and their safety and security. Thus, Sections 1, 2, 29, 32, 33, 34, 48, 55, 63, 71 & others are Germane and pertinent to this research work as they are to be variously and critically examined in relation to the reference topic of this research to ascertain the extent of their provisions for the purpose of satisfying the liability regimes for redress and compensation for victims of the aircraft accidents or their relations.
M.N. Shaw,24 examined the Montreal Convention 1999 and asserted that air carriers are strictly liable to their passengers in event of accidents for the first 100,000 Drawing Right of proven damages. The carrier according to him cannot avoid liability for this as a strict liability caused by its negligence. This opinion of the learned author is in consonance with section 48(3) of the Civil Aviation Act 2006 which required the air carriers to make an advance payment of 30,000 US Dollars which is thirty Million
17. However this is varied from a certified update of the total plane crashes so far recorded in Nigeria as complied by the Aviation library, college aviation Zaria attached which statistics from July 13th 1968 up to 22nd July,2008 shows 36 crashes.
18. See Section 19 (14) Nigeria Civil Aviation Act 2006.
19. Which was defined by the Supreme Court in Nigerian Port Authority vs. Becham Pharmaceutical Ltd (2012) Vol. 12 MJSC (Pt. II) 160.
20. Ibid at Note 6.
21. Which renders the carrier liable for damage sustainable in event of the death or injury of a passenger on board of the aircraft.
22. See Article 3(2) of the Warsaw Convention.
23. An Act of National Assembly Federal republic of Nigeria Official Gazette, Government Notice No. 45, Volume 96. which repealed the Carriage by Air (Colonies, Territories and other Trust Territories) Colonial Order 1953, Civil Aviation Act CAP 51 Laws of Federation 1990, Civil Aviation (Amendment Act 1999 and Nigerian Civil Aviation Authority) Established Act. 49 1999 Section 77 retained bye Laws, Orders and subsidiary Legislation made under the Civil Aviation Act 1964 CAP 51 Laws of Federation 1990 until the new Regulations, bye – laws and Subsidiary Legislations are enacted pursuant to the new 2006 Act.
Naira, within thirty (30) days of the Accident to the natural person or such other persons who are entitled to claim compensation on behalf of a deceased passenger. Accordingly, the liability of the carrier is considered strict liability to the extent of the amount so provided by the Act. There are Nigerian Judicial Authorities25 where the Nigerian Courts made various pronouncements on carriers liability. The Court of Appeal in a case,26 held that Article 17 of the Warsaw Convention imposes an absolute liability upon the carrier for all personal injuries regardless of the fault if the accident which caused the damage so sustained took place on board of the aircraft. The liability, according to the Court is however excused by Article 20(1) if the carrier can prove that it has taken all necessary measures to avoid the damage or that it was impossible for it to take them. It therefore follows that the burden of proof is placed upon the carrier to discharge. Accordingly, the Court stressed that Article 25 steps in to the disadvantage of the carrier and provides that the carrier shall not be entitled to avail itself of the provision of the Convention which exclude or limit its liability if the damage is caused by its willful conduct.
The Court further observed that the Legislation referred to Article 22(1) on limitation and Article 20(1) serves a significant purpose of protecting international air carriers from the burden of excessive claims connected with the loss of aircraft under circumstances which caused the disaster because of the death of all on board and destruction of the aircraft.
It worth mentioning therefore, that despite several aircraft accidents in Nigeria, judicial pronouncements on the liabilities of the carriers and the rights of passengers therein are not frequently tested in courts. Thus, attitudes of Nigerian Judges and Nigerian Courts in this area are scrutinized through some judicial pronouncements of Courts of high status in cases such as Cameroon Airlines vs. Abdulkareem27 (on when damages may be awarded at large for loss arising from carriage by air), Joseph Ibidapo
24. (2005) international Law Cambridge University Press P 472.
25. Such as the case of Cameroun airlines. Jummai Abdulkareem 2003 Volume 11 NWLR part 830 P 1, Sudan Airways Company Ltd vs. Abdullahi (1999)1, NWLR Part 532, P 156, Ali vs. CBN (1997)4, NWLR Part 498, P 192, Kabo Air Ltd vs. Oladipo (1999)10, NWLR Part 623, P 517 and Dr Oladipo Maja vs. Salawu Oke (2013)2-3, MJSC (Part)P 31at 41.
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