Where damage is caused to persons or property by any person in or article falling from an aircraft in flight, taking off or landing, a special provision applies. Damages are recoverable from the owner of the aircraft in respect of such damage or loss without proof of negligence or intention, as if caused by his willful act, neglect, or default, except where the loss or damage is contributed to by the negligence of the person by whom the same is suffered.
Where the loss or damage is caused in circumstances where damages are recoverable from the owner in respect of loss, and some other person has a legal liability to pay damages, the owner is to be indemnified by that other person against a claim.
Where an aircraft has been let out or hired for a period exceeding 14 days, and no pilots or crew operator is in the employment of the owner, then the hirer or lessee is to be treated as the owner for the above purposes.
Limits on Liability
The above provisions may be changed by the terms of a contract and are subject to international Conventions imposing limitations on the amount of damages etc. A person is not liable for damages without gross negligence or willful misconduct either on his part or that of his employees in excess of certain caps on liability. The caps vary depending on the type of aircraft involved.
The limitation does not apply if the person who caused the damage is not the owner and was in possession or control of the aircraft without the permission of the owner. The limitation is not available unless an approved insurance policy is in force in relation to the aircraft, the aircraft owner is exempted or the claim is against a person where another was in possession or control of the aircraft without the authority of the owner.
It is unlawful to fly or permit an aircraft to be flown unless there is a liability insurance policy in force in respect of it, compliant with certain conditions. Breach of this obligation is an offence. The Minister may declare approved aircraft insurers. A certificate of insurance must be issued in respect of the policy, much like a car licence.
Certain persons may be exempted from the requirement of insurance. An exemption may be granted on the basis of making certain deposits with the court offices; the maximum amount to be lodged is to be determined by the Minister. It is dependent on the number of aircraft. Judgments and awards against aircraft owners may potentially be paid from the money deposited in court offices.
Conventions Limiting Liability
The Warsaw Convention deals with the limitation of liability for loss and damage incurred by passengers and cargo in air transport. The first Warsaw Convention made in 1929 was the Convention for the Unification of Certain Rules Relating to International Carriage by Air.
The Warsaw Convention has been amended and has been ultimately replaced by the Montréal Convention made in 1999. The latter Convention has been adopted by over 100 states, including the United States and the EU States, but it has not been adopted universally. Either the Warsaw or Montréal Convention may apply to air accidents or incidents.
The Warsaw and Montreal Conventions establish substantive provisions that are given effect in the domestic law of ratifying states. States agreed in the Conventions to incorporate the provisions of the Warsaw Convention and later the Montréal Convention into their national law.
The Conventions did not establish any judicial or enforcement mechanism. Its provisions are given effect domestically through the courts and legal systems of the participant signatory states.
The Conventions were driven by the perceived necessity to cap liability for damages in order to reduce the airline industry’s exposure to claims. This was seen as necessary in the earlier days of aviation to encourage investment and innovation.
The IATA, which is the representative body for airlines, incorporate the terms and conditions provided in the relevant Convention into their standard contracts for carriage. It has updated terms and conditions to reflect the amended and replaced conventions. It remains incorporated in electronic tickets, which have now become almost universal.
The Conventions place presumptive liability for damages, death and injury to passengers or loss to baggage and cargo on the airline. This reflects, in one sense, the common law common carrier principle of unconditional liability.
Development of Liability Caps
States agree under the Convention to limit the liability of carriers to passengers for personal injuries and loss to cargo. The initial caps have been revised at first to reflect changes in the value of currencies and inflation. Liability could be avoided, even within the original caps by proving that all necessary measures had been taken to avoid the alleged wrongdoing or showing that it was impossible to take these measures.
The Hague Protocol in 1955 doubled the liability caps. Wilful misconduct on the part of the carrier removed the liability cap. This was replaced by the 1955 Hague Protocol, which removed the liability cap if it was proved that the damage or injury resulted from an act or omission of the carrier, which was undertaken either with intent to cause damage or done recklessly with knowledge that such act or omission would probably result in damage or injury. The US did not ratify the Hague Protocol, because it was dissatisfied with the revised liability cap, which the American courts sought to avoid.
The Guadalajara Supplementary Convention confirmed that when carriers provide a single service under a contract of carriage, they are protected by the Warsaw Convention in respect of the part of the journey which they undertake. Although 84 States ratified this Convention, the United States did not do so.
The IACO promoted the Montréal Protocols in 1975. It replaced the monetary standard by the International Monetary Fund “Special Drawing Rights” as the notional currency. A liability cap of 100,000 SDR rights was provided. It contemplated electronic agreements and transactions. The liability for cargo was increased to 17 SDR per kilogram (c.$25). It was, once again, rejected by the United States.
Warsaw Convention in Ireland
The Warsaw Convention allows carriers, to agree by contract to higher limits of liability and to agree terms and conditions which did not conflict with the Convention.
The Air Navigation and Transport Act 1959 ratified the Warsaw Convention in Ireland. The relevant part applied in respect of states which are party to the Warsaw Convention. The State may, by Ministerial order, specify which states have become party to the Warsaw Convention and certain reservations and amendments to it. See our separate chapter in relation to the Warsaw Convention. It provides limitations on liabilities in respect of international carriage of certain baggage and cargo.
The Air Navigation and Transport Act 1965 gave effect to an amendment to the Warsaw Convention and to the Guadalajara Convention. The legislation provided that any liability with respect to the deaths of passengers to dependents or members of their families under the Conventions were to be in substitution for liabilities of common law and under the Civil Liability Act. Provisions were made in respect of the procedures and substantive rights in respect of such a claim.