CARRIER LIABILITY FOR DEATH OR INJURY TO PASSENGERS: A COMPARISON BETWEEN MARITIME LAW AND AIR LAW

Transcription

1 CARRIER LIABILITY FOR DEATH OR INJURY TO PASSENGERS: A COMPARISON BETWEEN MARITIME LAW AND AIR LAW Ruwantissa Abeyratne* Abstract: Many things happen on-board cruise liners and aircraft that can be traced to liability of the carrier. In maritime transport, there have been reports of outbreaks of food poisoning, Legionnaires disease, injuries, sexual assault and even murder on-board cruise ships. An accident which caught the attention of the world was when 32 people died after the Costa Concordia cruise ship ran aground with more than 4,000 passengers and crew on 13 January 2012, shortly after leaving the Italian port of Civitavecchia. Death or injury to passengers on-board ships could result in personal injury actions or wrongful death claims entitling them to substantial compensation for expenses and compensation. Cases of death and injury in air transport have been recorded in greater numbers, mainly because air transport carries more passengers across the globe. Some notable instances are the disappearance of Flight MH 370 and the shooting down of flight MH 17 in March and July 2014, respectively, both involving Boeing 777 aircraft carrying a large number of passengers. Furthermore, in air transport, there have been instances of injury caused by turbulence and other risks endemic to air travel, but there is a compensatory scheme applicable through multilateral treaties that give recourse to passengers and their dependents in the form of compensation, in a manner similar to compensation applicable to the liability regime in maritime transport. As this article discusses, the nuances of basic principles of liability and protection of the two types of carriers that exonerate them in certain circumstances are similar. But there are also glaring differences which will be highlighted in this article, which bring to bear the basic fact that for the most part, principles of liability in air law have upended the legal philosophy that applies on terra firma and to surface transport. From the fundamental principle of presumption of liability which shows a stark difference between the two modes of transport to cursus curiae which reflects that maritime law accords generally with principles of common law tort liability as against air transport law which approaches liability from a different angle, the principles of commonality and differences between these two types of transport can be attenuated. Keywords: negligence; wilful misconduct; liability of cruise lines; liability of air carriers; passenger rights; maritime law; air law; Athens Convention; Warsaw Convention; Montreal Convention * DCL (McGill), PhD (Colombo), LLM (Monash), LLB (Colombo), FRAeS. Senior Associate, Aviation Strategies International and Former Senior Legal Officer, International Civil Aviation Organization. [(2017) 4:2 JICL ] JICL-4(2).indb 189

2 190 Journal of International and Comparative Law I. Introduction In early 2017, the International Civil Aviation Organization (ICAO) published its figures for 2016, which indicated that the total number of passengers carried on scheduled air services reached 3.7 billion in 2016, a 6.0 per cent increase over This exponential growth pattern has been constant over the past decade. In addition, ICAO stated that over half of the world s tourists who travel across international borders each year were transported by air over the years, as was in 2016 as well. 1 The International Air Transport Association, a trade association of airlines, has forecast that airlines were going to make a net profit of $29.8 billion in In 2016, Cruise Lines International Association (CLIA), in its 2016 State of the Cruise Industry Outlook, demonstrated the continuous growth in global cruise travel which is continuing to grow and evolve at a record pace. CLIA estimated that in 2016, 26 million passengers were to be carried in the 60-member cruise line companies operating. 3 CLIA also states that demand for cruising has increased by 68 per cent in the last decade, and in the United States, cruising is 22 per cent more than other leisure travel. Despite the enormous difference in numbers between the two modes of transport, the legal regimes pertaining to the two have provided similar rules and laws that are calculated to protect and compensate the passenger. There are of course some fundamental differences which are largely due to the different nature of travel involved in the two modes of transport. Despite this, one sees consistency in principles of compensatory limits, fault on the part of the carrier and negligence, along with matters of jurisdiction which bring to bear the need to examine the legal principles applicable to each mode of transport with a view to determining the similarities and differences that emerge from such a discussion. II. Liability Principles of Maritime Law A. Treaty provisions General principles of liability for death or injury caused to passengers on-board shipping lines are given in the Athens Convention of The Convention applies 1 ICAO, Traffic Growth and Airline Profitability Were Highlights of Air Transport in 2016 (2 January 2017), available at 2 IATA, Another Strong Year for Airline Profits in 2017 (8 December 2016), available at org/pressroom/pr/pages/ aspx. 3 Cruise Lines International Association, State of the Cruise Industry Outlook (2016), available at Admiralty and Maritime Law Guide, Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974 (Athens, 13 December 1974), available at com/conven/passengers1974.html. JICL-4(2).indb 190

3 Carrier Liability for Death or Injury to Passengers 213 destination given in his ticket with reasonable care and within a reasonable time. 93 Courts have accordingly followed the principle that the airline is contractually bound to carry a passenger who has been issued with a passenger ticket 94 and that the airline is bound by the following legal parameters: to carry any person, without the imposition of any unreasonable conditions, if he is not in an unfit condition, and has paid his fare; to carry the passenger safely; to treat the passenger with due care throughout his/her flight; and to ensure that the passenger is given the benefit of the speed inherent in air transport. Of course, the parties to a contract of carriage of passengers may generally incorporate in the contractual document (the airline passenger ticket) any terms and conditions upon which they agree, as long as such conditions are not contrary to the provisions of the Warsaw Convention. Admittedly, it would be extremely difficult for an airline to determine latent illnesses such as tuberculosis (TB) of its passengers. Therefore, instances of negligence pertaining to an airline accepting for travel a person infected with the TB bacterium may be rare. However, it would not be uncommon to critically evaluate the conduct of an airline after the fact, ie, by an assessment of the quality of air in the cabin and assistance offered to those infected in flight. Airlines have to carefully follow the guidelines issued by the World Health Organization as discussed earlier and take initiatives on their own, such as those discussed in the introduction of this discussion, so that they can convince a court that they acted like prudent, caring business enterprises in the face of a calamity. As for considering infection an accident particularly where it is established that the airline knew or ought to have known of the risk involved, it is highly arguable that, on the strength of the broad interpretation of El Al Israel Airlines Ltd v Tsui Yuan Tseng, 95 courts may be inclined to treat the contracting of TB or any disease as an accident. Also, relevant to this issue is the 1996 Supreme Court decision in Zicherman v Korean Air Lines Co Ltd, 96 which ruled that it was quite evident that the English word damage or harm, has a wide application and was, in fact, used by the Warsaw Convention drafters in its classical French law sense of legally cognisable harm. IV. Conclusion There are some differences between the two modes of transport as reflected in their constitutive instruments. To begin with, the Athens Convention defines a carrier as being a person by or on behalf of whom a contract of carriage has been 93 John M Corrigan, The Right of the Air Carrier to Refuse Carriage (1978) III Annals of Air and Space Law Clark v West Ham Corp (1909) 2 KB 858; Readhead v Midland Railway Co (1869) LR 4 QB 382; Overseas National Airways v CAB 307 F 2d 634; US v Stephen Bros Lines 384 F 2d 118; SMT Ltd v Ruch 50 CRTC 369; Roussel v Aumais 18 Que SC 474; Thibault v Garneau (1959) Que PR El Al Israel Airlines Ltd v Tsui Yuan Tseng (n.92) US 217 (1996). JICL-4(2).indb 213

4 214 Journal of International and Comparative Law concluded, whether the carriage is actually performed by him or by a performing carrier, and a performing carrier as being a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage. In general terms, the carrier and not the performing carrier is held liable under the maritime regime, although the performing carrier is subject and entitled to the provisions of this Convention for the part of the carriage performed by him. Neither the Warsaw Convention nor the Montreal Convention defines who a carrier is although the concept of a common carrier has been judicially recognised. 97 The maritime Convention defines a passenger as any person carried in a ship, under a contract of carriage, or who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not governed by this Convention. The air law Conventions do not define who is a passenger but imply that a passenger is a person who holds a contract of carriage with the carrier. It is noteworthy, though both Conventions in art1 state that they apply to all international carriage of persons, baggage and cargo performed by aircraft for reward. The two regimes are consistent in their definition of international carriage which has been defined conceptually as carriage where the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State. A fundamental difference lies in a further condition laid down by the Athens Convention on international carriage when it says that such carriage would be deemed to take place if the ship is flying the flag of or is registered in a State Party to the Convention; the contract of carriage has been made in a State Party to this Convention; or the place of departure or destination, according to the contract of carriage, is in a State Party to the Convention. There is no such condition in the air law regime. Arguably, the biggest difference between the two modes of transport lies in the liability provision where the Athens Convention states, quite simplistically, that liability of the carrier would ensue if death or injury to the passenger occurs in the course of carriage. The words in the course of carriage are left to judicial interpretation. Both the Warsaw Convention (for States which have not yet ratified the Convention) and the Montreal Convention are more detailed and speak of damage sustained in the case of injury or death, through an accident if the accident which caused the death or injury occurs in the course of embarkation or disembarkation. The foregoing discussion has explained how this is interpreted by the courts. 97 Burnett v Riter 276 SW 347, 349 (Tex 1925). This case defined a common carrier as: one who engages in the transportation of persons or things from place to place for hire, and who holds himself out to the public as ready and willing to serve the public, indifferently, in the particular line in which he is engaged. JICL-4(2).indb 214

5 Carrier Liability for Death or Injury to Passengers 215 The compensatory limits are different where, in the maritime context the cap set by the Protocol to the Athens Convention is 250,000 units of account, unless the carrier proves that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character or was wholly caused by an act or omission done with the intent to cause the incident by a third party. In the air law regime, the cap is 100,000 SDRs 98 based on strict liability, which can be obviated on certain grounds as discussed. In both regimes the cap can be overcome. In both regimes, there is a prescriptive limit that a plaintiff can bring an action, which has been placed at two years in the maritime context, from disembarkation or at the point of death as the case may be, and in the air transport context, from the time the injury or death occurs. Jurisdictional issues relating to the place where a plaintiff can bring an action are similar in both regimes. It is a foregone conclusion that, with the exponential growth in both industries and the growing demand for both maritime and air transport, cases for compensation for damage would only increase in time. Both shipping lines and air carriers would have to practice diligent and prudent enterprise governance if they are to mitigate damage and avoid attendant compensation. In this context, the practice of predictive or anticipatory intelligence is extremely important. It is the ability to sense, anticipate, and warn of emerging conditions, trends, threats, and opportunities that may require a rapid shift in national security posture, priorities, or emphasis. 99 More generally, it has been characterized as the science of predicting unpredictable events. As such, anticipatory intelligence is a decisiontheoretic discipline in which decisions that may require the aforementioned shifts in policy or response are informed by rapid creation of indicators and warnings of emerging conditions and trends, and an assessment of their likelihood. This definition of anticipatory intelligence (which refers to emerging conditions and trends) implicitly assumes that patterns in current and historical data can be identified that may anticipate important and rapidly evolving events of national security interest. 100 Corporate management often fails because of a lack of proper corporate strategy and structure brought about by checks and balances and proper contingency planning. 98 The Special Drawing Right (SDR) is a form of international money, created by the International Monetary Fund (IMF), and defined as a weighted average of various convertible currencies. The SDR was created by the IMF in 1969 as a supplementary international reserve asset, in the context of the Bretton Woods fixed exchange rate system. The SDR is neither a currency nor a claim on the IMF. Rather, it is a potential claim on the freely usable currencies of IMF members. 99 Martin J Alperen, Foundations of Homeland Security: Law and Policy (New York: John Wiley, 2017) p Omnis, Anticipatory Intelligence, available at JICL-4(2).indb 215