LAW ON CARRIAGE BY AIR

An endeavour to focus on Bangladesh position

by Sayeeda Anju | Published: 00:05, Mar 24,2018 | Updated: 22:59, Mar 23,2018

 
 

Nepali rescue workers gather around the debris of an aeroplane that crashed near the international airport in Kathmandu on March 12. — Agence France-Presse/Prakash Mathema

DESPITE having its perks, a journey by plane can soon become a nightmare if and when any accident takes place. However, in the aftermath of any such accident, the passengers acquire a right to recover compensation under the law of carriage by air. Air carriers are liable for any damage, death or any physical injury that occur to passengers or their belongings in-flight or in the course of any of the operations of embarking or disembarking unless the damage results from the passenger’s own fault.
The carrier is also liable for damage of any registered luggage or associated goods or even if for delay. This write-up focuses on duties and liabilities of the carrier and the rights of the passengers regarding remedies from the carrier. Remedies regarding insurance are not discussed in the article.
In Bangladesh, the law of carriage by air is governed by the Warsaw Convention 1929. According to it, damages for injury or death were compensated with $8,300 for a passenger. This amount of compensation was increased to $20,000 per passenger by the Hague Protocol in 1955. Later on, the limit of compensation was further raised in the Montreal Convention 1999 but this is not applicable to our country for non-ratifying of the treaty.
US-Bangla Airlines commenced operations in Bangladesh on July 17, 2014. Families of the victims of US-Bangla Airline Flight 211, which crashed while trying to land at Tribhuvan International Airport causing death of 50 people, are entitled to receive compensation according to the Warsaw Convention.
The Warsaw Convention is a customary international law for the unification of certain rules related to international carriage by air, which prescribes liability for international carriage of passengers, luggage, or goods. The Warsaw Convention and the Hague Protocol will be read and interpreted together as one single instrument and known as the Warsaw Convention, rectified by Bangladesh on March 26, 1973.
The domestic law for implementing the convention in Bangladesh is the Carriage by Air Act 1934 (Total sections 4 and schedules 2). The first schedule contains the documents of carriage, baggage check, airway bill along with liability of carrier. The second schedule contains provision as to liability of carriers in the event of the death of a passenger.
Basically, it prescribed rules to determine who are entitled to claim compensation or competent to bring an action, the jurisdiction of district judge to issue succession certificate, etc. Then the Carriage by Air (International Convention) Act 1966 (Total sections 5 and schedules 2) was passed as the Warsaw Convention amended by the Hague Protocol. Interestingly enough, both the laws prevail in Bangladesh simultaneously as the previous one not being repealed totally.
As per the amended convention, every high contracting party, for the purposes of any suit brought in a court in Bangladesh to enforce a claim in respect of carriage, is deemed to have submitted to the jurisdiction of that court. The apex court shall prepare the rules on procedure. Subject to modification, the Carriage by Air Act is also applicable to non-international carriages.
Nevertheless, the laws related to carriage by air are not updated accordingly in Bangladesh. While the Montreal Convention gives better protection and compensation, Bangladesh signed the pact on May 28, 1999 but has not ratified it yet.
Being a dualistic follower, therefore, international laws are not applicable to the country unless a domestic law is passed. A draft of domestic law, however, has been prepared but not passed in the parliament.
India, a signatory, ratified the convention in 2009 followed by amendment to the domestic law. Hence, the rules are applied to Indian passengers. On the contrary, Nepal has not signed the convention yet.
The Montreal Convention deals with the aftermaths of any aircraft accident. According to the convention, in case of death, the airline is liable to pay up to 1,13,100 special drawing rights for each passenger. The value of the SDRs is calculated as defined by the International Monetary Fund. If it can be proved that an airline did not take all required precautions for a flight, there will be no limit to what a victim can recover. However, in case of any claim within the limit, the carrier must refrain from contesting.
In case of any damage due to delay, the airlines are bound to pay 4,694 SDRs for each passenger and 1,131 SDRs for any damage or destruction of baggage. The carrier is liable for damage sustained in case of destruction, loss or damage of checked baggage upon condition only that the event took place on board or during any period within which the checked baggage was in the charge of the carrier upon presenting documents of carriage, ie passenger ticket, luggage ticket and air consignment note or way bill.
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 case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its staffs.
Confusion arises when the civil aviation claims that the aircraft is totally fit before takeoff, the question arises regarding responsibility that mere technical fitness is enough or safe landing is also prerequisite. For safe landing, overcoming the air traffic challenges is a must too. Whatever is the conclusion of the story, the victims are entitled to get compensation.
A question of fact still remains regarding the amount of compensation. Unfortunately, the contemporary laws in Bangladesh are not duly updated and, therefore, the allotted compensation in Bangladesh is very much in contrast with and discriminatory from that in the other countries of the world. Several airlines are given permission to operate in Bangladesh but there is hardly any attempt to update the laws.

Dr Sayeeda Anju is professor of law in the University of Rajshahi.

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