Air Passenger Rights and Liabilities

Chapter 1 - Introduction

1.1. Background

Passengers are conferred protection of their rights while embarking on an air travel. Air travel comprises various service providers, including air carriers, aircraft manufacturers, agencies and other bodies that have contractual relationship with the authorities. The contractual relationships between the service providers on one hand and the passengers on the other are relevant to determination of the rights of passengers and liabilities of other parties. In order to understand the nature of liability of different service providers, different domestic and international laws are applicable. The general perception may be that it is only the airline carrier, which is liable to the passengers. However, this is not so as other parties may also become liable. For instance, passengers can seek contribution from another party by adding them as a party to existing claim. Laws such as the Civil Liability (Contribution) Act 1978 may be applicable to such cases. This law has extra-territorial effect. Cases, such as Roberts v Soldiers, Sailors, Airmen and Families Association, make Section 1 of the 1978 Act applicable to claims for contributions from different tortfeasors brought in England and Wales where such claims would otherwise be governed by foreign law. The services of air travel comprises many actors, which have different levels of contractual relationships with passengers. Because of these different levels, it might not be an easy task for determining the liability of the actors towards the passengers. In this context, this dissertation will explore the complexity involved in determining liability of service providers that are involved in providing air travel. It will explore the applicability of different domestic and international laws and their extra-territorial effect on a claim by passengers. Liability of the actors involved in the air travel may be of multi-jurisdictional too. For example, other parties like employers of the passengers may also get the right to claim compensation against the carrier under certain circumstances where they have suffered damage due to delay of flight or cancellation of the same. The dissertation aims to analyse the extent of protection afforded to air passengers by international conventions applicable to determine liabilities of service providers. For example, the Montreal Convention has been held to allow employers to ask for compensation from the air carrier under Article 19 as interpreted by the CJEU in the Air Baltic Corporation AS case. It provides for liability of air carriers to the passengers. Its Article 1(1) provides that the convention is applicable to all “international carriage of persons, baggage or goods performed by aircraft for reward.” Europe Union has its own regulatory regime for air carriers’ liability. In the case of the UK, there are a number of international conventions that the UK is a party to. There are six major air law treaties related to carrier liability for passenger injury or death. These include the Warsaw Convention 1929; the Hague Protocol 1955; Montreal Protocols Nos. 1, 2 and 4 1975; and the Montreal Convention 1999. Regulation 261/2004/EC is the principal law in the EU. Important in the light of the impending exit of the UK from the EU is the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2018 (draft), which proposes to put Regulation 2027/97 into the UK law. There are similar protection provided in domestic legislations such as the Carriage by Air Act 1961 or the Consumer Protection Act 1987. In the UK, the Carriage by Air Act 1961 is the principal legislation in the UK that has given effect to these international laws in the UK. The Montreal Convention has been implemented in the UK through the Regulation 2027/97/EC as amended by Regulation 889/2002/EC and the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 amending the Carriage by Air Act 1961. Thus, the regime of the protection of passengers’ rights is wide and multi-dimensional. It will explore the dynamics of the multi-dimensional protection provided under the UK law and the international and EU law in determining whether air passengers have sufficient rights and whether they are effectively protected.

1.2. Research questions

The research aims to explore the following research question:

To what extent does the current legal framework under international conventions, EU law and English law highlights the liability of service providers, including air carriers, aircraft manufacturers and airport authorities?

1.3. Significance of the research

The major stakeholder in air travel is the passengers, who are the consumers of the air travel services. Consumer protection forms a fundamental principle in field of law. The research will, therefore, explore the provisions of the existing laws in place, whether it is the Montreal Convention, the EU laws such as The Regulation 261/2004/EC or the UK laws such the Consumer Protection Act 1987 or the Carriage by Air Act 1961. By doing so, it will explore whether there is a uniform liability framework that could effectively protect passengers’ rights. The research question relates to the different kinds of liabilities of service providers towards the passengers. This research will contribute to identifying the provisions of law that protect passengers’ rights and enforce liability of the actors involved in air travel. It will contribute to identifying areas of improvement or areas that are in need of reforms while studying the interaction of the international, EU and UK law that could be used in the general amendment of the existing liability framework in the UK. Consumer protection across different jurisdictions follows a similar notion. They ensure consumers enjoy safe, secure and fair treatment. In air travel, passengers expect secure and fair treatment when they undertake air travel. This dissertation will address whether there is a need to structure a legal model to resolve individual passengers’ more specifically in the context of the United Kingdom. The area of this research will also relate to understanding whether or not the contractual terms that passengers have with service providers are fair to the passengers. It will help highlight any significant gaps in the liability framework that may contribute to breach of passengers’ rights.

1.4. Research methodology

This research started first with the identification of the general theory, and analysing information related to the subject of the research based on the hypothesis formed or research questions. This research employed a doctrinal research to study the protection extended to passengers under different national and international laws. The researcher, thus, analysed the legislation, precedent and other sources of law for a given area. The researcher focused on identifying and explaining the nature of liability of different parties towards passengers. Doctrinal legal research methods are also termed as ‘black-letter’ law research. It emphasised on the study of the legal provisions or rules and their analyse. Therefore, this research has identified the applicable legal protection to passengers provided by the legal provisions and court judgments and analyse the content in a critical and interpretative manner. Major part of the primary data for this research is statutes, treaties, EU law and court judgments. This research involves using information secondary sources, which are the books, articles from journals, and reports and commentaries. This was chosen for exploration of literature for more in-depth knowledge on the subject.

1.5. Chapter outline

Apart from this first chapter, which is introductory in nature, the other chapters in this research are as follows. Chapter 2 will explore liability of carriers towards passengers under the international law. This chapter will address international conventions, particularly the Montreal Convention 1999 to explore and understand the liability framework under the convention. The Montreal Convention was adopted with the purpose of bringing uniformity between various liability regimes with respect to protection of passengers’ rights. For instance, its Article 17 addresses liability limits by providing that the passenger or the passenger's estate get the complete compensation from the carrier, which can seek contribution or indemnity from third parties at fault. The Montreal Convention deals with the extent of liability of carriers. This chapter will discuss liability principles, such as the principle of joint and several liability and tortious liability of carriers that accrues due to air carriers’ negligence. It will conclude by discussing the applicability of the Montreal Convention and other international conventions in the UK. Chapter 3 will further the research regarding air carrier liability by exploring the liability framework under the European Law. It will particularly deal with the interaction between the EU law and the Montreal Convention in order to understand whether there is any multiplicity issue while they attempt to protect passengers’ rights. This chapter will particularly deal with EU Regulation 261/2004/EC, which is the principal law in the EU. It will explore the overlapping or differentiating provisions under the Regulation and the Montreal Convention in order to understand whether their interaction confers sufficient protection to passengers. This chapter will examine whether the existence of the duality of applicable law will give rise to issues in enforcement passengers’ rights. Chapter 3 will further attempt to identify principles that govern judicial enforcement of EU and international laws. It will particularly deal with understanding issues in locating jurisdiction that governs issues regarding passengers’ right. It will explore differences in how the Regulation and the Montreal Convention are applied in order to understand the question of jurisdiction, which is relevant protection of consumer rights. It is not only air carriers that are involved in air travel. There are other parties, such as the air carriers, aircraft manufacturers, agencies and other bodies that have contractual relationship with the air operators and authorities. Chapter 4 will explore the extent of liability of corporations that manufacture aircraft in regard to protection of passenger’s rights. This chapter will deal with the current law and explore whether they are sufficient or appropriate in recognising passengers’ rights and protection by appropriately locating liability on the manufacturers. This chapter will explore issues concerning liability of aircraft manufacture in case of loss, injury or damage to passengers due to defective aircraft or part of the aircraft. It will discuss relevance of the Consumer Protection Act 1987 to justify passengers’ right to claim against the manufacturers of defective aircraft or parts of aircrafts. This chapter will highlight the importance of knowing the kinds of defects that could be associated with the aircraft while attempting to explore the extent of liability of the manufacturers. Manufacturers of aircraft are provided various defences against liability arising from loss, injury or damage to passengers due to defective products. This chapter will explore whether passenger protection offered seems to weigh less compared with the defence provided by attempting to locate liability in case of defective product. It will try to locate the parties involved in the manufacturing of an aircraft and attempt to locate the parties liable in case of loss, injury or damage to passengers In addition to exploring the liability associated with aircraft manufacturer, this dissertation through its Chapter 5 will discuss liability of airport authorities and other agencies. An airport is operated by numerous parties, including airport authorities and other services providers are responsible for providing a safe premise and fair treatment of passengers. Chapter 5 will explore the various aspects of passengers’ rights while they are in the premises of the airport. This chapter will explore how the governance mechanisms and processes of aviation corporations are deployed in order to protect multiple interests, including that of the public. It will address the extent of liability of the airport authority and agencies in case they breach the duty to care towards the public and causes harm, damage or loss to passengers. It will also discuss the accountability of the airport towards passengers’ human rights. Chapter 6 will conclude this dissertation by providing a summary and findings of the research.

Chapter 2 – Extent of liability of air carriers and passengers rights under international laws

Contracts between carrier and consumers come into effect at the time when passengers book a flight with the carrier. The contract between the passengers and carriers are standard form contracts that do not allow negotiation rights to the passengers, leaving the passenger in a weaker position as compared to the airline carrier. Such being the case, there have been some efforts made to strengthen the position of the passenger under the contract with the carrier. Such efforts are taken under international law, and the EU law in the European context apart from the relevant responses within domestic law. In the case of the UK, there are a number of international conventions that the UK is a party to. There are six major air law treaties related to carrier liability for passenger injury or death that the UK is a party to. They are the Warsaw Convention 1929; the Hague Protocol 1955; Montreal Protocols Nos. 1, 2 and 4 1975; and the Montreal Convention 1999. The Carriage by Air Act 1961 is the principal legislation in the UK. As could be understood from the Schedules of the Act 1961, it has given effect to these international laws in the UK. The Montreal Convention has been implemented in the UK through the Regulation 2027/97/EC as amended by Regulation 889/2002/EC and the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 amending the Carriage by Air Act 1961. Important in the light of the impending exit of the UK from the EU is the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2018 (draft). This Regulation is important as it proposes to implement into UK Regulation 2027/97, which was a means to implement the Montreal Convention in the UK amending the Carriage by Air Act 1961. The British courts in general interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way to ensure certainty of the law. The Montreal Convention is the principal treaty in this area and this is discussed in detail first. The Montreal Convention is also an important part of the international law related to airline liability. It introduced new provisions to the airline liability international law, relating to cargo regulation, documentation, additional jurisdictional forum, elimination of damages limitations for injury and death, and strict liability. The courts in the UK have also upheld the exclusivity of the Montreal and Warsaw Conventions as providing the sole basis for air carrier liability for passenger injury or death prior to the passage of the EU regulations on the same issues. Since Montreal Convention is the main international in the context of passengers’ rights, the following sections will discuss the impact of particularly the Montreal Convention in regard to rights of passengers and liabilities of air carriers.

Impact of international conventions on carriers and consumer rights

The ‘Warsaw System’ was the principal international law that governs international air travel and it was constituted by the Warsaw Convention of 1929, and other protocols and agreements that had been adopted overtime to amend the Warsaw Convention. 135 countries were party to the Warsaw Convention and its protocols. The Warsaw Convention was adopted with the purpose of attaining uniformity in the rules related to international air travel and carriage. By the time the Montreal Convention was adopted, it was realised that the Warsaw Convention had been largely unsuccessful in meeting this objective. The problem with the Warsaw system (and one of the reasons for adopting the Montreal Convention) is that the Warsaw system consisted of a patchy regime on carrier liability and a complex system of rules made up by different agreements and protocols making up the Warsaw system. As there were more than ten different agreements and protocols under the Warsaw system, the international law on airline liability as reflected in the Warsaw system had become fragmented thereby requiring change and improvement. The Montreal Convention was adopted decades after the Warsaw Convention came into effect because a need was felt to improve and refine the international law on carrier liability to passengers. The Montreal Convention was adopted for the purpose of removing the inconsistencies between the different constituents in the Warsaw System for achieving more uniformity in the application of the rules. This change was also essential for the purpose of addressing the problem of how the fragmented provisions were in conflict with each other. Article 55 provides overriding effect to the Montreal Convention over the Warsaw Convention and the protocols and amending agreements within the Warsaw system. This chapter will particularly discuss the provisions of the Montreal. The British courts in general interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way to ensure certainty of the law. The Montreal Convention is the principal treaty in this area and this is discussed in detail first. The Montreal Convention is also an important part of the international law related to airline liability. It introduced new provisions to the airline liability international law, relating to cargo regulation, documentation, additional jurisdictional forum, elimination of damages limitations for injury and death, and strict liability. The courts in the UK have also upheld the exclusivity of the Montreal and Warsaw Conventions as providing the sole basis for air carrier liability for passenger injury or death prior to the passage of the EU regulations on the same issues.

Liability of air carrier under Montreal Convention

An important question is related to who is a carrier under the law. The term carrier was historically related to the corporate legal entity that was contracting the carriage and it did not extend to agents and other service providers. For the purpose of defining carriers, even successive carriers are taken into account by courts as there are at times more than one carrier involved in the journey. With respect to this, the High Court held in one case that there is a contract for successive carriage where a carrier’s timetables formed part of the contract for carriage and indicated that part of the journey was to be performed by another carrier. More recently, the Court of Appeal held that a contract for carriage for the route Manchester-London-Los Angeles-New York-Manchester, where all flights were to be performed by British Airways apart from the Los Angeles-New York flight, which was to be performed by American Airlines, was an example of successive carriage. With respect to the liability of the carrier for injury and death and important provision is contained in Article 17 of the Montreal Convention which provides that the carrier is liable for damage sustained in case of death or bodily injury if it takes place on board the aircraft or in the course of any of the operations of embarking or disembarking. As per this provision, the accident is a prerequisite for the liability of the airline although the term accident is not defined in the Convention. In the context of this dissertation it is also important to mention that there is a principle of joint and several liability in the Montreal Convention. Article 17 provides that the passenger or the passenger's estate get the complete compensation from the carrier while the carrier can seek contribution or indemnity from third parties at fault. This can be related to the liability of the other parties like aircraft manufacturers. The principle of strict liability is provided in Article 21 of the Montreal Convention. The Warsaw Convention of 1929 had a defence for the aircraft carriers in the form of "all necessary measures"; however, the Montreal Convention did away with this defence. The Warsaw Convention provided in Article 20 (1) that carrier was not liable if they had taken all necessary measures to avoid the damage caused to the passenger or if they could not have possibly taken such measures. Article 21 (2)(a) of the Montreal Convention provides the non-negligence defence for the exoneration of liability of the aircraft carrier. However, some of the caselaw under the Warsaw Convention suggests that the “all necessary measures” defence also amounted to the same non-negligence defence as can be seen in as can be seen in Preyvolo c. Air France, in which the court held that the carrier had to show that the accident was wholly beyond its control in order to take the defence of ‘all necessary measures’. The Montreal Convention also includes a provision for the mandatory advance payments by the carrier under the national law as per Article 28; carriers can be asked to make advance payments without delay to passengers or their representatives in death cases where such payment will be considered to be an advance paid by the carrier while the actual damages to be paid are yet to be decided and the advance amount can be offset against the subsequent damages paid by the carrier to the passenger. This is an extension of the strict liability structure of the Montreal Convention as per which advance payments constitute tier one of the compensation scheme. At the same time, it should be noted that Montreal Convention excludes the absolute liability of the carrier through Article 20 which provides that the carrier may be able to establish that the damage was caused or contributed to by the negligence of the person claiming compensation, in which case contributory fault principle is applicable. In such situations, where the carrier can establish the fault of the person claiming compensation, the carrier can be wholly or partly exonerated from liability to the claimant and the latter can be made to contribute to the liability to the extent of their fault. This can be relevant to situations in which the passenger has failed to heed safety instructions and the damage caused to them is partly the result of such failure. However, in one case, the court refused to apply the contributory negligence principle even when the passenger failed to fasten his seat belt during a flight. This indicates that the carrier may still be held liable for the damages to the passenger even though the passenger may have contributed to their injury. This will be discussed more in the section on tortious liability. It is also important to note that the Montreal Convention bars the recovery of punitive, exemplary or any other non-compensatory damages under Article 29. Therefore, the convention allows the recovery of compensatory damages but not punitive or exemplary damages.

One of the passenger friendly provisions of the Montreal Convention is contained in Article 22(6) which makes it possible for the court to award court costs and legal expenses in circumstances in which the amount recovered is higher than the carrier's written settlement offer made within six months of the accident or prior to commencement of suit. Another provision that seeks to provide some relief to the passenger/claimant is contained in Article 33(1), which goes to make changes to the jurisdiction that was provided in Article 28 of the Warsaw Convention. The Warsaw Convention allowed the passengers to sue the carriers in the country of incorporation of the carrier, the principal place of business of the carrier, the country in which the ticket was purchased, and the country of the final destination. This meant that the passenger could not file a suit against the carrier in the place of their domicile unless it coincided with any of the four locations mentioned in Article 28.Article 33(1) of the Montreal Convention corrects this situation by allowing the passenger to bring a suit against the carrier in the principal and permanent residence at the time of the accident of the carrier provides service to that location on their own or through a code share agreement with another carrier. This means that passengers can also file suits against the carrier from a more convenient location of their domicile. The Montreal Convention provides for liability of third parties by allowing the carrier to take recourse to indemnity if that is applicable under the law. This is similar to the provision of the 1996 IATA Intercarrier Agreements, which allows the carrier a right of recourse against third parties. Article 37 preserves the right of carrier to recourse under law against the third parties. The Montreal Convention also makes the carrier liable for the acts of its servants or agents under the principle of vicarious liability under Article 17.The principle of vicarious liability is one of the aspects of tort law and will be discussed at some length in the section on tortious liability. An important point that may be noted here is that the provisions of the Montreal Convention show that some of them are closely aligned to the tort law; this can be seen with reference to the provisions on strict liability, contributory negligence, compensatory damages and vicarious liability. The Montreal Convention also allows employers to ask for compensation under Article 19 as interpreted by the CJEU in a case.In this case, the dispute arose between a travel agency employer and the carrier when two employees of the former reached the final destination of their business travel one day after the scheduled arrival time. The agency claimed compensation by the carrier, but the latter questioned standing under Article 19 of the Convention. The CJEU held that Article 19 of the Montreal Convention includes the term consumer as per the third recital to the article, which would cover not only passengers and may be applied not only to damage caused to but also loss suffered by an employer. The court justified this on the basis of the word “person” in Article 1(1) of the Convention instead of “passenger”. Therefore, the Montreal Convention has been interpreted in the way that it allows the relationship to be formed between carriers and other parties like employers of passengers who may suffer damage due to delay or cancellation.

Tortious liability under Montreal Convention

Tortious liability is relevant to air travel where air carrier liability may arise for ‘accident’ or ‘bodily injury’ to the passengers in the course of the travel including when the passengers are in the process of embarking or disembarking. At the same time, the defences of contributory negligence of a passenger, ‘all reasonable measures’ and ‘wilful misconduct’ terms under the Montreal Convention are applicable to allow the airlines avoid liability under specific circumstances. The defence of contributory negligence also becomes relevant to the purpose of apportioning fault. Article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention are relevant to these points. The meaning of accident for the purpose of Article 17 was defined by the United States Supreme Court decision in Air France v Saksas an unexpected or unusual event or happening that is external to that passenger. The same definition of accident is taken by the court in Deep Vein Thrombosis and Air Travel Group Litigation, Re [2003] 1 All ER 935 wherein the court also held that an omission does not constitute an ‘accident’. Bodily injury has been defined as a change in some part or parts of the body of a passenger which is sufficiently serious to be described as an injury.Also relevant to this definition is the inclusion of psychiatric illness, such as fear, distress, grief or mental anguish that may be evidence of bodily injury or the description of a condition that includes bodily injury. However, such psychiatric illness by itself is not defined as bodily injury. As an important aspect of the carrier’s liability in such cases would be related to the liability arising in the course of any of the operations of embarking or disembarking as per the Montreal Convention, it is important to determine whether the injury has taken place during such processes or not. With respect to this, the Court of Appeal has held that a passenger’s movement through the various airport procedures indicates whether at the time of the injury, the passenger was engaged in the embarkation or not. Tortious liability will arise in case of the proven negligence of the carrier as this is an important principle of tort law. This is related to the ‘no negligence’ defence in Article 21 of the Montreal Convention and ‘all reasonable measures’ defence in Article 20 and the ‘wilful misconduct’ standard of Article 25 of the Warsaw Convention of 1929. The courts in the UK have interpreted these terms. The ‘all reasonable measures’ term has been interpreted as ‘all reasonably necessary measures’ so that the airline can be held liable only when it failed to take measures that were reasonable under the circumstances. The ‘wilful misconduct’ term has been interpreted as requiring either intention or subjective recklessness on the part of the airline carrier. The principle of contributory negligence is also relevant to this discussion as this forms a defence for the airline carrier. In one case, the court held that contributory negligence will not be relevant as a defence in the case where injury was caused by turbulence and the passenger failed to fasten his seat belt during a flight. Also relevant to the discussion is the liability for the injury or death caused by another passenger or a terrorist event on board. The Court of Appeal has held that indecent assaulted by another passenger on board a flight would amount to an accident. After the passage of the EU regulations, the courts in the UK (as elsewhere in Europe) have given effect to the EU law on the issues that were earlier governed by the international law. For instance, the passage of the Regulation 261/2004/EC on denied boarding and cancellation or long delay of flights led to the courts giving effect to the EU law and jurisprudence developed by the CJEU. The Carriage by Air Act 1961 is the principle legislation that has implement the international treaties discussed earlier, including the Warsaw Convention 1929; and the Montreal Convention 1999. Chapter 3 will explore EU laws regarding protection of passengers’ rights. It will explore the provision of Regulation 261/2004/EC while it dealing with the interaction between EU law and international law with respect to passengers’ protection.

Chapter 3 Interaction between European law and international law

3.1. Protection to passengers under the Regulation 261/2004/EC and the Montreal Convention

Air passenger rights are protected in the EC law through a number of directives and regulations. Some of them are laid out in this paragraph. One of the first measures taken by the EU related to regulation of carrier-consumer relations is Regulation 295/91/EC of 1991. This regulation provided for the common rules on denied board compensation system. Under this regulation, the passengers have the right to be reimbursed in the event of denied boarding or re-routing at their convenience. Regulation 2027/97 provides about liability of the carrier in the event of death of the passenger or injury to the passenger. Regulation 2027/97 was amended by Regulation 889/2002, which aligned the EU law with the Montreal Convention 1999 concerning damages for caused by death or injury or for delays. For passengers on package tours, specific rights are contained in Directive 90/314/EEC of 1990. Directive 93/13/EEC of 1993 relates to the unfair terms in consumer contracts. Terms in contracts that are not negotiated can be considered to be unfair if they lead to detriment of consumer contrary to the principles of good faith. The Directive applies to both cross border cases as well as domestic cases and has also led to what is called as a “cross-border co-ordinated procedure” or “co-ordinated action” of consumers organisations as seen in the case of La société VGC distribution, in which cross border action was initiated in Portugal, France and Belgium. Regulation 261/2004/EC is the principal law in the EU. Article 3(2) of the Regulation defines the conditions under which Article 3 is applicable, which includes the condition that passengers should have a confirmed reservation or have been transferred to another flight for flights within the EU. The flight could be from the EU to a third country in which case also the carrier’s licence is not relevant. Article 1(1) of the Regulation must be interpreted together with Articles 4, 5, 6 of the Regulation according to a decision. These rights are engaged when the passengers are denied boarding against their will (Article 4); or flights are cancelled (Article 5); or flights are delayed (Article 6). Under the Regulation there is a package of air passenger rights, which do not always contain all of rights that are otherwise found in the national law and the international law. For instance, the Montreal Convention contains remedies for delay of the carriage by air (Article 19), so that it also covers damage made to baggage and cargo. Furthermore, the Montreal Convention covers death or bodily injury of passengers, which is outside the domain of the Regulation. For the most part, there is little overlapping between the Montreal Convention and the Regulation as the application rationemateriae of the Convention is different from the Regulation except for delay of the flight, which is covered by both. However, there are contrasts between the Regulation and the Montreal Convention even with respect to the delay compensation, which according the case law of the CJEU creates “two separate compensation systems pursuing different objects”.Articles 19, 22 and 29 of the Montreal Convention relate to flight delay and the right of the air passengers to bring actions for damages against the carriers liable for damage. The Regulation contains more instruments for air carrier liability for denied boarding, cancellation or delay. The CJEU has explained that the Regulation does not relate to damage that arose as a result of delay but relates to immediate assistance, care and compensatory measures related to the inconveniences caused due to denied boarding, flight cancellation and long delay. On the other hand, the Montreal Convention allows the passenger the right to bring an action before the court in order to claim damages caused by the delay of the flight. This is made clear from the wording of Article 19 that provides that the damage to the passenger should arise as a result of a delay in the flight, and the passenger should establish a causal link between the delay and the damage sustained by passenger. Therefore, there is a broader implication of the right of the passenger in case of delay. Whereas the Regulation standardises rules related to immediate assistance, it does not provide the passenger the right to claim damages arising from the loss suffered by the delay. On the other hand, the Montreal Convention allows this right to the passenger in Article 19.

With regard to the delay, the scope of the Regulation was explained in a case by the CJEU as follows:

“it [Regulation] contains specific rules dealing with the strict duty of the carrier to assist delayed passengers by offering meal and refreshments, hotel accommodation, and free phone, telex or fax messages, or e- mails and even reimbursement of the cost of the ticket or rerouting.”

The carrier cannot deny granting these services if the passenger has been denied boarding, or there has been a cancellation of the flight or delay even under exceptional circumstances; although Article 5 (3) preserves the air carrier from the obligation to pay compensation under Article 7 if there were exceptional or extraordinary circumstances. Extraordinary circumstances are defined in the Recital 14 in the preamble of the Regulation as those circumstances that could not have been avoided by the carrier even after taking all reasonable measures. The recital itself lists these circumstances as political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes. In one case before the CJEU, the court allowed that extraordinary circumstances were involved where there was a collision between an aircraft and a bird. However, simply establishing extraordinary circumstances is not adequate because the carrier also has to establish that they took all reasonable measures to address such extraordinary circumstances. In the same case discussed above, the CJEU held that the airline could have used devices for executing anti-bird control measures.Another case can be used here to explain the way in which extraordinary circumstances are constituted. In this case, the flight delay was caused by the collision between the airport’s set of mobile boarding stairs and the aircraft; the carrier claimed “extraordinary circumstances” defence under Article5(3) of the Regulation for not paying the compensation. The CJEU held that because the use of mobile boarding stairs is a typical everyday activity it cannot be covered by the defence of “extraordinary circumstances” under the Regulation. Some difference is drawn between cancellation and delay for the purpose of application of the Regulation. Article 7 of the Regulation governs compensations in cases of denied boarding and cancellation of flights; but disputes also involve passengers’ claims for compensation for delay. CJEU has interpreted flight delay as an event that happens when there is a difference between the actual time of operation and the scheduled departure time. Thus, flight delay happens when the scheduled departure time was earlier than the actual departure time. Flight delay can also happen with reference to the arrival time as in where the flight arrives at the destination later than scheduled. As long as the flight is operated however, even with delay, it cannot be considered to be cancelled. However, because the CJEU was mindful of the fact that although passengers of cancelled flights and delayed flights suffer similar loss, in cases where the flights are delayed and passengers reach the final destination three hours or more after the arrival time originally scheduled, they have right to compensation under Article 7 of the Regulation. The Regulation also applies to cases of ‘denied boarding’ according to Articles 2(j) and 4. Under Article 2(j), health, safety or security, or inadequate travel documentation can be grounds for denying boarding. Boarding can also be denied due to operational reasons. Therefore, denied boarding may occur when the passenger is denied not only for overbooking but also due to other causes. The existence of two sets of legal regime is a good sign for the protection of passengers’ rights. The Convention and the Regulation provide for a justifiable set of rights for the passengers. They have broadened the scope of passengers’ rights. The only issue could be that of interpretation of the provisions when they overlap or conflict. This situation will take a political turn and an issue of determining the appropriate jurisdiction of law. The issue of supremacy of international law or the EU law will surely come into effect. In the light of the circumstances, the role of the judiciary or the judicial system will play the important role in interpreting and enforcing the applicable legal provisions.

After Brexit, the UK has retained the Regulation 261/2004. It passed the EU (Withdrawal) Act 2018, which has implemented the Regulation. Certain amendments were made. For example, by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019, the Regulations applies to passengers departing from an UK airport or from an airport in another country if it is a UK carrier. The original Regulation will still apply to flights from a EU state airports and from third countries if they are operated by an EU carrier. The Regulation 2019 extends the application of the retained Regulation to departing passengers from an airport in another country to a UK airport when the flight is operated by an EU carrier. The retained Regulation is applicable to passengers who are departing from an airport in a country to a EU member state airport when the flight is operated by a UK carrier.

3.2 The question of jurisdiction in regard to enforcement of EU laws and the Montreal Convention

There are some differences in how the Regulation and the Montreal Convention are applied; however, there are some criticisms that the EU law as reflected in the Regulation conflicts with the international convention and even interferes with the exclusive jurisdiction of the Convention. The question of jurisdiction is relevant to the way in which the consumer rights are protected as against the carriers related to issues on contractual relationships. The interpretation of jurisdiction is governed by Article 33 of the Montreal Convention 1999 and Article 28 of the Warsaw Convention 1929 prior to the passage of the EU regulations on the same issue. In one case, the court held that the seat of the board of directors is the most appropriate test for the ordinary residence of a corporation. There is no case law on the concept of branch offices or agencies of carriers under the Montreal Convention. Practice Direction 6B is relevant to the question of jurisdiction. It supplements Section IV of CPR Part 6. In 3.1 of the Practice Direction 6B, the claimant may serve a claim form out of the jurisdiction if it is allowed to do so by the court. When the dispute is contractual in nature, this provision is applicable where contract is made within the jurisdiction; made by an agent trading or residing within the jurisdiction; contract governed by English law; and contract contains a term providing UK courts to have jurisdiction to determine any claim arising out of the contract. Under the common law, the principle of forum non conveniens is applicable where an appropriate forum is in some other country. This would mean that the jurisdiction of the English courts would be precluded in such cases. The purpose of forum non conveniens is to ensure the principle of legal certainty by defining the situations in which jurisdiction of other courts could be applicable. The doctrine of forum non conveniens is based on the Spiliada principle. This doctrine of forum non conveniens allowed courts in the UK to refuse jurisdiction if it was established that another forum in another country was available. Thus, in Re Harrods (Buenos Aires) Ltd,the Court of Appeal applied the doctrine of forum non conveniens to hold that Argentinian courts would have jurisdiction because Argentine has an appropriate forum and was a non-contracting state to the Convention. However, it is to be noted that the extent to which forum non conveniens is not applicable in the UK is moot because it is incompatible with the Brussels I Regulation (discussed below). One of the important introductions in the area of contractual liability of carriers is the Brussels I Regulations (Recast), which contains jurisdictional rules applying to all European Union member states. In general, the domicile of the defendant is the place of jurisdiction as per the rule contained in Article 4. Article 7(1) relates to special jurisdiction where a conflict of law is prevalent. In the event of there being a question on the liability of carriers, in case the dispute falls within the matters defined in Article 7(1) of the Brussels I Regulations, the rules of the Regulations become applicable. This is important because contractual liability also arises under domestic law, which means that there is a possibility of conflict of law in matters relating to contract; for this purpose, Article 7(1) of the Regulation provides that the place of performance will be the place of jurisdiction. Regarding the application of forum non conveniens, in Owusu v Jackson, the CJEU has held that respect for the principle of legal certainty will be compromised if the court with jurisdiction under the Regulation applies the principle of forum non conveniens. Furthermore, there is some conflict between the EU rules and international conventions; particularly the Montreal Convention which also establishes liability of the air carrier for death or injury to the air passenger as well as remedies for the consumers for delay, damage or loss of baggage and cargo. These areas are also brought under the Regulation 261/2004/EC. In a case before the CJEU, two business organisations challenged the competence of the EU to adopt conflicting European rules when Montreal Convention already provided for the same rules and was signed by most EU states. However, the CJEU held that the Regulation was valid and binding on EU states. With reference to air carrier liability for death of passengers, the relevant EU law is in Regulation 2027/97/EC as amended 889/2002. The general principle as mentioned earlier is that defendants should be sued in the courts of their domicile; this principle is also noted in Article 4 of the Brussels I Regulations. Thus, in ‘matters relating to a contract’ the general principle that would be applied to carrier-consumer contracts would be that the state in which the defendant was domiciled would have jurisdiction. However, Article 7(1) provides that the place of performance of the obligation in question is the state with relevant jurisdiction. Furthermore, the Union law is applicable to determination of when a case involves a matter related to contract as decided by the CJEU in Arcado v Haviland.In this case, the CJEU decided that in such cases the national laws would not be relevant, what would be relevant is the Union law. In the matters that are related to tort and contract, the CJEU has held that all forms of civil liability not coming within the domain of Article 7(1), would come within the domain of Article 7(2), which specifically relates to tortious liability in Kalfelis v Shroeder.Indeed, the phrase ‘matters related to contract’ may be wide enough to include torts also if they are based or arise out of contract between the two parties.

A number of cases where liabilities have arisen out of contractual relations have demonstrated the development of jurisprudence of the CJEU. In Rehder v Air Baltic Corporation, which involved a question of compensation under Regulation 261/2004/EC, the CJEU held that the applicant could sue in the courts of the place of departure as well as the place of arrival of the aircraft because both the places can be said to have sufficiently close link of proximity to the material elements of the dispute. In an English case, the court held that the place of departure will also be the place of destination for the cases concerning return travel or round trip as these will be regarded as a single operation of the airline carrier. Regulation 261/2004/EC is relevant to the question of rights of consumers and liability of carriers. The Regulation 261/2004/EC secures consumer rights in case of delays, cancellation and denied boarding by the carrier. The carrier will have the liability to compensate consumers in such situations and it applies to all air passengers flying out of an EU destination with any airline. The rights that are protected by the Regulation are related to right to care and assistance in case of delayed or cancelled flights. Right to reimbursement or rerouting is also provided to the consumers, wherein the consumer has the right to be reimbursed. Right to compensation is also applicable which provides that carrier is liable to pay compensation to the consumer in certain circumstances. Prassl has, however, highlighted a few legal questions in relation to the Regulation provision on enforcement of its rules. Its Article 16 provides for member states to designate a body that will be responsible to enforce the Regulation. The Recital 22 also provides that the supervision exercised by the body should not affect passengers’ rights to seek legal redress from the national courts. However, this Regulation does not mainly provide for the rights of passengers to use. Prassl states that Article 16 of the Regulation has created this confusion. On one hand it provides for the member states to designate a body responsible for enforcement of the Regulation and take appropriate measures to ensure passengers’ rights are respected. This indicates that the state has the full power to design the framework and rules to ensure passenger’s protection, which also means the power is discretionary. On the other hand, it provides that passengers may complain to such body for alleged infringement of the Regulation. In the case of McDonagh v Ryanair, ECJ held that natural disasters, including eruption of the Icelandic volcano Eyjafjallajökull and subsequent cloud of volcanic ash in 2010, do constitute "extraordinary circumstances". Air carriers are released from liability to pay compensation. The court, however, held that there is no such "super-extraordinary circumstances" that would release the carriers from their obligation to provide care. Referring to this case, it could be stated that the necessity of ECJ to confirm the existence of this right also means that it cannot be left to the national states and the court to bring uniformity of the enforcement of the rules. Article 267 of TFEU thus provides for referral of cases by the national courts to CJEU. However, is there any guarantee that the national legal system will refer to CJEU when it may not implement EU laws? In the case of Nelson v Deutsche Lufthansa AG 29, the governments of the UK and Germany intervened to present their arguments against a wide pro-passenger interpretation of the Regulation. The UK judges showed reluctance in referring cases to CJEU in respect to conformity of the Regulation with the Montreal Convention. Thus, there are aspects that may not always guarantee referral of cases related with infringement of the Regulation.

Chapter 4 - Liability of manufactures of aircrafts

4.1. The Consumer Protection Act 1987 in regard liability of aircraft manufacturer

The 1983 case re Korean Air Lines Disaster highlights the issue concerning liability of aircraft manufacture in case of loss, injury, or damage to passengers. In this case, Russian fighter planes shot down the Korean Airlines passenger, flight 007 as the flight flew off the course into a sensitive military zone in Russian jurisdiction. The legal successors of the passenger who died during the incident sued Boeing, which manufactured the passenger plane alleging a product defect in the navigation systems that cause the plane to fly off its course. Even though the court did not held Boeing liable, the sensitivity attached to the issue in hand cannot be ignored. In this regard, the European Product Liability Directive (85/374/EEC) provides that in case a person gets killed or injured due to the defect of a product, the manufacturer or the importer is liable to reimburse for damages. This Directive has been implemented in the UK by the Consumer Protection Act 1987 (CPA 1987). The CPA 1987 provides that a producer, a person holding themselves as the producer, imported and the supplier if they fail to state whom they brought the product from of a product will be liable for any damage caused wholly or in part by a defect in the concerned product. The product here includes aircraft. Defect will mean when the safety of the product is not such as persons generally expect. Thus, any defect in an aircraft that causes damages to the passenger will make the manufacturer liable. Damage will mean death, personal injury, or loss of or damage to property. The award for damage is limited to amount that equals loss suffered. Exemplary or punitive damages cannot be recovered. General damages can be recovered for the pain, loss of amenity and suffering caused. The CPA 1987 entitles the passenger of a carrier to claim compensation against the manufacturer or producer of a defective product if such defect causes damage, death or personal injury. This is a strict liability that makes the producer automatically liable for any damage caused. However, corporations that manufacture aircraft can escape liability under Sections 4 and 6 if they could show that they did not sell or supply the product. It means that manufacturer cannot be liable in case the defective part of the aircraft is not sold or supplied by the manufacturer. They can claim that the defective product was not defective at the time of supply. If the defect was necessary to comply with legal requirement, the manufacturer cannot be held liable. Further, the product in itself was the operative cause of the damage or personal injury. They can further claim that they did not have that advance technical and scientific knowledge at the time of production that was enough to have known about the defect in the product. The defence available to the producers has been argued to be broader than what was allowed in the Directive. The defence allows the manufacturer to rely on the state of scientific and technical knowledge. It also further allows them to rely on the basis that such knowledge was not such that the producer of like products might be expected to have known when the product was under their control. Such defence as translated by the UK and incorporated in its national laws was supported by the Court of Justice28. Such principles of defence could be seen in the re September 11 cases. The representatives of passengers who expired during the 9/11 terrorist attack in 2001 sued Boeing for its failure to design the doors of the cockpit in a manner that could prevent the terrorists from entering the cockpit. The court held that the acts of the terrorist did not constitute a superseding cause that would defeat the proximate cause needed in tort litigation. The court noted that the Boeing should have reasonably foreseen the risk that the plane could crash if there was an invasion buy unauthorised individuals and if they took over the cockpit. The court further noted that privacy meant very little if the very door that intended to provide security was not designed to keep out any potential intruder. Definition of product under the CPA 1987 also includes aircraft. However, considering that an aircraft is made up of many components, it also means that the manufacturer or producer as used here can mean the entities that produce the components. In such case, the question is how to impose strict liability on such producer. The Pearson Commission Report demonstrated that there is a close relationship between the operator or the user. In such scenario, aircraft manufacturers must be entitled to indemnify by the operator or the user, who wilfully or negligently ignored their instructions maybe to rectify any defects or modify servicing timings. There is a list of numerous products manufactured by different producer and are being used in an aircraft. Such products can be adhesives, bearings, carriages, tyres and many more. Given this characteristics of an aircraft, in relevance, Lord Beswick debated in 1980 that strict liability was not appropriate to aerospace industry. However, the CPA 1987 and the Directive adopted the principle of strict liability in a manner that enforce producer to comply to norms the breach of which will expose them to legal risks and also that will provide protection to consumers. Part I of the CPA 1987 provides for liability of producers for defects in product that cause harm to the consumers. Such liability would cover manufacturers, and other entities involved in processing, entities that apply own brand label to the products and also importers of the products. So, in case of a product that is made of numerous components, which indicates multiple producers, they will be jointly and severally liable.

4.2. Necessity to categorise defects

Part I of the CPA 1987 could be read to include responsibility of aircraft makers or aircraft part manufacturers to ensure that the aircrafts or airplanes that they make follow adequate designs and are free of defects, which may compromise aviation safety. For any defective products or cases of inadequate designs when they cause harm to others, the liability falls on the manufacturers. It is important to note here that defects could be manufacture defect and design defect. In manufacturing defects, only a product or few products are affected and there might be difficulty in proving the existence of such defect at the time the product(s) left the control of the producer. The case of Donoghue v Stevenson is about a claim that the product was not supplied as intended due to a manufacturing defect. Thus, the actual fact that there is a defect is less likely a problem. In this case, the product was in a sealed container and the only way to explain the defect was by referring to an incident(s) that might have had happened in the factory. This scenario could be seen in Evan v Triplex Safety Glass Co Ltd. where after a year of purchase of a car fitted with Triplex toughened windscreen, the windscreen broke and the occupants got injured. The court held that consumer did not establish negligence on the part of the component manufacturer. The incident might have been caused during fitting. Such case scenarios also occur in other countries as well. The case of re Korean Air Lines Disaster (1985) could be cited here. The case involved a defect in the navigation systems. The defect was difficult to prove. The only way to prove the allegation of defect could be to establish some incidents in a factory that caused the defect. Difficulty in proving defect could also be found in a product with numerous other products. In UK context, the CPA 1987 has removed such difficulty of proving fault. It has enabled the consumer to enforce joint and several liabilities on each producer. In case of design defect, the characteristics of the products have features as intended by the producer but with few basic flaws in its design or there are inadequate instructions or warnings in regard to associated risks. The design defect has the potential to create wider liability as all users might get affected. The difficulty, thus, may lie with proving the defect in the design instead of proving the condition of the product. This may find relevance with the case of re September 11 cases where it was alleged the doors of the cockpit had defective design that could not provide security to keep out any potential intruder.

4.3. Identifying the accountable party

The protection being offered to the consumers seems to weigh less compared with the defence provided to manufacturers of aircraft. This possibility stems from the fact that an aircraft needs many products and consequently many producers. Even though the CPA 1987 provides for making producers jointly and severally liable, there is still a gap open to identify which manufacturer is liable. The CPA 1987 provides for strict liability where a producer is automatically held liability in case of damage or loss caused by a defect. However, unless the chain of supply is proved to be broken, there is a need to identify the party liable for the damage or loss caused. Thus, the question is how the liability could be located or distributed as such when the time the defect was caused could not be determined; when the defect was necessary to comply with legal requirement; or when the manufacturer could rely on the state of scientific and technical knowledge. In Hadley v Baxendale, it was ruled that for a claim to be successful, the claimant must establish that the product is defective and they have suffered damage due to the use of this defective product, and further that that such damage has a causal link with the defective product. For determining a defect vis-à-vis the Consumer Protection Act, s3, the defect must firstly be identified. The court must consider the reasonable expectation of the product safety that the consumer is entitled. It must be weight against the risk and benefit in features of the product. Applying these principles to the responsibilities of the companies that maintain the aircrafts, it is their duty to identify and tackle any defects of the aircrafts. Passengers would not travel in an aircraft that is not properly maintained and thus, they expect a standard level of safety maintenance of the aircrafts. It is not questionable to find maintenance companies at fault for incomplete, faulty maintenance. Cases of international aeroplane crashes, such as Lion Air crash and the Ethiopian Air crash, have resulted to questions about passengers’ safety aboard international flights and the parties that should be held accountable. The international air law, including international aviation treaties such as the Warsaw Convention of 1929 and the Montreal Convention, govern aeroplane crash liability. One question is whether these international laws impose liability on maintenance service providers. The Warsaw Convention imposes liability on airline and its agents for harm or damage caused on board the aircraft or during embarking or disembarking the aircraft. This could be reflected in its Articles 17 and 18. The Montreal Convention 1999 also provides provision for passengers to claim for damages in case of death or injury to passengers, and delay, damage or loss to baggage and cargo. How far will the conventions impose liability of maintenance companies? For example, in case of the Ethiopian air crash, it was found that a sensor malfunctioned that allegedly led to the accident. The airlines may escape liability by showing a causal link between malfunctioning software and the accident. In such case, there must be law to locate liability with the manufacturers and maintenance companies. If the crash could have been avoided through a routine and proper maintenance procedure, the maintenance companies responsible for such procedure must be held liable for failure to proper maintenance. If the defect could have been detected and cured during the manufacturing and testing period, the manufacturer must be held liable for failure of proper detection or cure. In the case of Ethiopian air crash, many lawsuits were filed against the manufacturers on behalf of the dead passengers’ families alleging that Boeing had a defectively designed flight control system, which failed to warn the airlines and pilots and the public about faulty sensors. That allegedly caused automatic and uncontrolled dive of the concerned aircraft. In another case of aircraft crash, the 2003 crash of Air Midwest Airlines in Charlotte, North Carolina, it was both the airline and the maintenance provider, Vertex which was responsible for the crash. They acknowledged deficiencies in the area of aircraft maintenance that contributed to the accident. Maintenance involves human effort in ensuring aviation safety. It involves minimising error in the entire system. It involves numerous individuals with varied tasks and responsibilities constituting a complex organisation of maintenance and inspection system. There would always be a tendency for human error Once such error occurs, it will lead to accidents such as crash of Air Midwest Airline. This was also seen in in-flight leading-edge separation caused by the failure to replace horizontal stabilizer screws on one of the Continental Express aircrafts. This accident resulted to 14 fatalities. Improper maintenance and inspection cal lead to air turn-backs, delays, gate returns, etc. causing inconvenience to passengers.

Chapter 5 - Liability of airport authorities and other agencies

An airport is responsible for providing a safe premise, fair treatment of passenger, facilities for the special category of passengers, and ensuring the service providers in the airport follow compliance procedures and regulation. It is not just the airport authority, there are many actors involved in the operation as well as providing services inside the airport. The general law principles govern liabilities for injuries suffered by persons at the airports.

5.1. Liability due to lack of corporate governance

Aviation corporations deploy certain governance mechanisms and processes that aim to balance multiple interests of their stakeholders. One important stakeholder is the public. The event of September 11 attack on the twin towers has led to corporations taking account of the physical welfare of the stakeholders. Steve Wood explored the possibility of imposing the criminal liability of corporate manslaughter on the airport operators, which are responsible for ensuring public safety in airports. Mr. Wood observed that attacks at Brussels and Istanbul airports are testimony to lack of significant measures to secure safety in public areas of UK airports. To elaborate, he used the example of the deployment of the security management systems (SeMS) by an airport. This model requires security vetting of employees of the airport. Such vetting must be done by the individual senior manager responsible. They devolve such responsibility to a junior manager. The junior manager unfortunately fails to take extra additional precautions in security vetting, despite intelligence reports about a potential imminence of a Brussels Airport-style attack in the UK. An airport employee carries out the attack. Such employee has not been properly vetted. In such case, who shall be responsible? The police and airport corporation have the assumption that all employees are security vetted. In such case, the liability will fall on the airport operator as it is clear that the attack could have been prevented if the vetting was conducted properly. The corporate governance policy and practice of the airport authority comply with requirements of law, including those set out by the Aviation Security Act 1982. It must balance the interest of the passengers and those present in the public areas of the airport. The breach or lack of such principles has led to incidents such as the Brussels Airport attack. It is not only the physical security that could be at risk due to lack of governance over security measures. The governance also includes security of global mobility regimes including security measures against infectious diseases. This is in light to the outbreaks of SARS and H1N1 influenza through air travels. They led to disruption of patterns and practices of human mobility. The advent of new health screening technologies deployed at the airports will restrict spread of infection. This will create a sanitary border. Relevant questions are whether these technologies are qualified enough to intercept disease threats and whether public can claim damages in case they fail in their purpose. The answer could be found in the regulatory and structural changes that the aviation industry undertakes keeping in regard challenges of safeguarding public health. Such changes must also take into account the practices regarding sanitary border. There has been a high rise in aviation travels. There has been a progressive liberalisation of commercial aviation sector. Lucy Budd, Morag Bell and Adam Warren observed by reviewing the airport passenger statistics from the UK that such liberalisation has led to unintended consequences regarding governance of infectious disease mobility. One of them being numerous points to track entry or exit of infectious disease intended to create sanitary territories. In such scenario, in case the governance fails, and passengers get infected and harm in any form, the question is that of identify authority that could be held responsible. This question is relevant in the current scenario of COVID 19 as well. What is the extent of security measures that could be held sufficient to protect passengers? Could a standard procedure be enough for airport authorities to escape liabilities in case somebody gets infected? This area seems to be unexplored. Lucy Budd, Morag Bell and Adam Warren also have similar observation when they state that there has been no exploration of such extent.

5.2. Breach of duty to care by airport authority and agencies

The overall issue is if in case there is a way to hold a body liable in case harm, damage or loss to passengers, which body should be held accountable. The law of tort can held a person or an entity liable in case of breach of duty to care. There can be a claim in negligence if the defendant owes a duty of care to the claimant. Such duty is breached causing the claimant loss or damage, which is caused by defendant’s negligence. Referring to the case of Donoghue v Stevenson, there is a general duty to take reasonable care so as not to cause injury to a person. There must not be any act or omission that one could reasonably foresee, would cause the injury. The case Caparo v Dickman shows that the claimant must proof damage suffered was foreseeable and the act of the defendant was negligent. In regard to airport cost recovery, airlines and the airport constitute comprise two main bodies. Airport also comprises multiple agencies. The aviation governance structures, and regulation requires a balance of power between airlines and airports. Either of them can choose the airline or the airport that meets their needs and business models. In such case, if there is any breach of duty to care in regard to providing protection to passengers, which body must be held liable. The claim of negligence requires proximity between the defendant and the claimant. Will this principle apply in case of identify the accountable party? In regard to the airport operation, it involves multiple service provides, agencies and authorities. The government has its agencies or private agencies that provide services to air carriers. As for instance, NATS provides en route air traffic services in the United Kingdom. It is a private company that has been licensed by the UK government in order to provide the services according to the Transport Act 2000. So, liability arising out of the act or omission of NATS that causes loss or damages would be in the law of tort. This means the UK government does not have any legal obligation to compensate damages that is beyond the financial capacity of NATS. The Airports Act 1986 UK has led to privatisation of the British Airports Authority. So, the airport authorities are now private companies. Activities in the airport, such as air traffic control, are provided by a mixture of such private companies. Therefore, the question of the government’s liability is of no relevance. It is these private companies who are responsible to take care of the passengers and the liability arising out of harm, loss or damages falls on these companies. While accounting liability, the court will determine factors that led a defendant cause damage due to their negligent. It will also see whether passengers, as claimants, contribute to the damage. The proximity principle will help determine whether claimant is at fault too and whether he had proximate cause to damages suffered. Courts must measure parties’ causative contributions to damage. The damage must be apportioned damage, which is just and equitable. It is understandable that the liability to provide protection to public using the public areas of the airport falls on those that provide services to the public. Apart from the airport, there are agencies and services providers operating in the airport. Depending on the cause of an accident and the relationship between the service providers and agencies, it would not present a problem in fixing the liable entity. For example, in the accident on 25th July 2000, an Air France Concorde jet that was bound for New York crashed after taking off from Paris. The crash killed 109 people in the jet and 4 people on the ground. The legal inquiry found that a titanium strip fell from a Continental Airlines DC-10. It sliced through the jet’s tyres, which sent rubber chunks through a fuel tank and caused the jet to fall from the sky. Peter Coles, while exploring the liability issues arising from foreign object debris incidents, states that mostly, airport authorities or operators are ultimately responsible to ensure taxiways, aprons and runways are free from debris. They should follow procedures to that effect in order that there are no objects that could cause damage to aircraft structures or engines, and more important the operation of the aircraft systems. Even the airlines are permitted to carry out their operations according to strict compliance with specific terms of use of the space in the airport. In case of losses, the airlines have to indemnify the airport. So, the contractual relationship between the entities related with the operation of the airport and the entire airline services shape the liability arising out of damage to passengers or the public. For instance, the airlines, airport, ramp handling entities, refuelling and catering companies, and airport service providers all share joint responsibility to maintain the airport free from foreign objects or any objects that would disrupt the airport system. There are permissible limits of liability as per the law. For instance, airport will pay for direct losses and not indirect, special and consequential losses. In case related with service providers, Coles states that there are two levels of enquiry. Firstly, the contractual terms between the airport operator and the service provider must be reviewed and consider. Second enquiry is to whether the airline can claim directly against the service provider. Even in the absence of an agreement, law of negligence will come into play. For example, if there is a ground handling agreement that states that the service provider must indemnity the airline, the agreement prevails and the service provider will be held liable.

The important point is in order to locate liability, it is essential to locate the party that has the duty to care. Services in an airport require multiple service provides, agencies and authorities. As per the respective tasks and duties, the liability will be attached to the entity that holds the duty and that breaches the duty. As is seen here, NATS will be liable for its acts or omissions if they cause loss or damages. A service provider or the airport will be liable in case of accidents due to FODs.

5.3. Breach of passengers’ human rights

The Heathrow airport recently this year tendered an apology for having mistreated passengers with disabilities. It is not only the Heathrow airport, but the Manchester and Luton airports also reported passengers with disabilities were unhappy with the treatment and facilities provided to them. This instance shows that airports in general have responsibilities and owe a duty of care towards a person in the premises of the airport. In case of personal injury or death, where a passenger suffers either of them at an airport and they were not in the process of embarking or disembarking, they may be liable in tort. In particular class of passengers comprising those requiring special assistance, it is observed that they comprise the fastest growing passenger segments globally. Despite this data, there are still barriers to accessible air travel, which means that passengers with disability show lower inclination to air travel than other travellers. This does not mean that countries have not provided for air passenger rights as well as consumer protection legislation to address the specific needs of disabled travellers. They lay out the minimum service standards to be complied by operators, which would enable travellers with disabilities have access to air travel on terms equal to other travellers. However, it has been observed in a global survey conducted on rights legislation governing disabled air passenger in 47 countries the lack of a set of global standards governing such rights. Countries have developed their own standards, which show the absence of an international regulatory alignment. The apparent gap in the regulatory framework would make it difficult to enforce rights of passengers with disabilities. In travels between countries, in the absence of a global framework governing principles of passengers’ rights, the process of holding concerned authorities and agencies accountable in case of breach of such rights does not seem to present a suitable enforcement environment. There is Regulation 1107/2006/EC applicable to airports. It governs airports and airlines’ assistance to disabled persons and those with reduced mobility. Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2014 sets out offences and penalties for non-compliance with Regulation 1107/2006. After the exit of the UK from the EU, Regulation 1107/2006/EC will apply through Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2018 (draft). This Regulation, however, does not create a private law action. This is supported by the case of Stott v Thomas Cook Tour Operators Ltd. In this case, Mr. Stott uses a wheelchair permanently as he is paralysed from the shoulders down. He depends on his wife to manage his incontinence, help him to eat, and change his sitting position. He and his wife booked return flights with Thomas Cook. On arrival at check-in for their return journey, Thomas Cook staff did not provide them sufficient assistance regarding his seating arrangements and personal needs. This resulted to a claim under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895). The Supreme Court held that the claim falls within substantive and temporal scope of the Montreal Convention. Damages cannot be awarded for injury to feelings. This judgment does not sound sensible towards a passenger who is disabled and must face additional difficulties due to lack of sufficient assistance. The measures in place in the airport premises are made considering the need of physical security of the public, the operators and all those persons and entities in the premises. There are various aspects being considered while ensuring proper measures are in place. However, question is whether these measures are justified citing security reasons. As is aware, dramatic events globally have led to increased security measures. Olga Mironenko, while exploring whether body scanners at the airport breaches privacy and data protection, observes that security measures may disrupt the balance between the security measures and human rights protection. National and international legislation are on the same footing when it comes to governing people’s rights and freedoms. They can limit the rights and freedom if necessary, for reasons of national security, protection of rights and freedoms of others and public safety. Mironenko found unlawfulness of current regimes regarding body scanners. In such case, can passengers enforce their human rights? Can the airport authority lay down measures that would not make them accountable for violation of human rights? For example, policing measures in airports after 9/11 have led to claims of racial profiling of Muslim passengers. How would one measure the justification of ‘reassurance policing’ and procedural justice in the form of high levels of security checks for passengers that have led to alleged racial profiling and the Terrorism Act 2000, Schedule 7 provisions that allow the police to stop and search suspects? The landmark case of Gillan, highlights issues of human rights and how party violating human rights could be held accountable. In this case, Gillan, a student, came to London on September 9, 2003 to protest against an ‘Arms fair’ held in East London. Police were given authority under Terrorism Act, s44 (4), which provides for stops and searches. Gillan and another, Quinton were stopped and searched. This case highlighted the issue of inadequate legal safeguards, which is relevant to use of Schedule against measures to professionally check and screening passengers at the airports. Schedule 7 emphasises on ports and boarder control. Section 44 emphasises on passengers, photographers, and demonstrators. The European Court of Human Rights held that section 44 powers were not compatible with Article 8 of ECHR, which provides for right to respect for private and family life. This case shows that there must be adequate legal security measures in place even when the authority carries out its enforcement duties. The exercise of authorised power should also subject to respect for human rights and freedom and there cannot be disproportionate and unnecessary use of force.

Chapter 6 - Conclusion

This dissertation has dealt with the liability regime governing service providers, including air carriers, aircraft manufacturers, airport authorities and other agencies regarding protection of passengers. While exploring the provision under the Montreal Convention, this dissertation found that the Montreal Convention has brought certain uniformity in the liability limitation applicable to the service providers, especially the air carriers. This Convention has ensured that passengers’ rights are protected when they can claim joint and several liabilities on the air carriers and other third-party service providers. However, the Convention has also introduced provisions, such as Article 20 that provides for contributory negligence on the part of the passengers, which provide defence to air carrier. The fact that there are cases such as Goldman where the court did away with this defence and held the air carrier still liable is a sign that the Convention by itself needs the role of the court to bring uniformity. The Montreal Convention surely provided for broader protection afforded to the passenger in the form of its provisions, such as Article 22(6) where the court can award court costs and legal expenses or Article 33(1) where passengers can sue the carrier in the principal and permanent residence at the time of the accident. The pro-passenger provisions also do not mean that the Convention do not protect the air carriers. They are also provided rights of indemnification against third parties. For example, Article 37 governs them right to take recourse to indemnity if that is applicable under the law. Article 19, which broadened the scope of people who can claim damages, includes employer of the passengers who can sue for damages in case of delay of air travel. Delay could be caused by many reasons, which may not be under the carrier’s control. Giving the right to claim has stretched the protection of consumers to an impractical level, which is unfair to the air carriers. It is practical when air carriers could be held liable for tortious act or omission. Such act or omission involves some level of negligence on the part of the air carrier. The UK courts also upheld the exclusivity of the Montreal as the sole basis for air carrier liability for passenger injury or death. The alleged impracticality of Article 19 could be said to have been tackled with the passage of Regulation 261/2004/EC, which addresses denied boarding and cancellation or long delay of flights. The UK courts recognise the effect of this regulation, which protects trans-border mobility of passengers and their economic interests. Thus, in terms of passengers’ rights against loss, damage or injury caused by air carriers, the protection afforded to the passengers look sufficient with the applicability of joint and strict liability recognised by the existing law. In terms of specifically looking at EU law, EU law will not be sufficient to protect passengers’ interest without international law, such as the Montreal Convention. The reason being that the principle EU law, Regulation 261/2004/EC in its package of rights does not cover other rights covered by the Montreal Convention. Rights against tortious act or omission and rights under Article 19 as provided by the Convention are not covered by the Regulation. However, a combination of the two systems of protection passengers serves beneficial for the passengers. For example, the Montreal Convention allows passengers to claim damages for flight delay and the Regulation provides for immediate assistance, care and compensatory measures related to inconveniences arising out of denied boarding, flight cancellation and long delays. In such circumstances involving two sets of law, where there could be overlapping or conflicting provisions, the concerned courts come into play to bring uniformity of application. It will be another topic of discussion covering supremacy principles regarding international law and EU law. However, for now, the courts play an important role for harmonisation. For example, for an air carrier to escape liability against damages caused to passengers, the courts’ principle is that it should have taken all necessary measures under their control to ensure safety of passengers during air travel. For example the case of Marcela Pešková, Jiří Peška dealt with the liability of carriers in case of exceptional or extraordinary circumstances. It is for the courts to apply the appropriate regulation to determine the issue and the applicable legal jurisdiction in place. For example, Article 4 of the Brussels I Regulations provides the general principle that defendants should be sued in the courts of their domicile. However, there will be issues to determine regarding the court where cases are to be heard. The legal provisions are to be interpreted in the best interest of parties involved in the case. It will be, however, another topic of research for exploring the political and judicial aspects in regard to conflict of domestic and non-domestic laws. This can held find the factors and reasoning behind decisions about jurisdiction of a case that crosses a national boundary. As seen in this dissertation, the air carriers are entitled to take recourse to indemnification in case of claim action by passengers or consumers. The Montreal Convention provides this recourse. The 1996 IATA Inter carrier Agreements also provides for this recourse. This right to take recourse is against third parties, which may be responsible for the loss, damage or injury to the passengers or consumers. As aware, air travel and the various activities associated with it are mainly operated in the Airport. Within its scope, the dissertation has included research on the liability of manufactures of aircrafts towards passengers. It has found that the CPA 1987 and the European Product Liability Directive adopted strict liability principle ensuring producer, which is manufacturer in this case, to comply with norms and if otherwise will be liable for the risks the consumers are exposed because of such breach. So, manufacturer or the importer is liable for damages in case a person gets killed or injured due to the defect. The CPA 1987 implemented the Directive and makes the producers liable for its defective product. In this case, the manufacturer of an aircraft will be liable for any damages, loss or injury caused by a defective aircraft or a defective part of the aircraft.

These two sets of law, CPA 1987 and the Directive, present a complex liability framework. The complexity comes from the fact that an aircraft is built with multiple components or parts. It is not just one party that builds the entire aircraft and its components. There are different manufacturer for those multiple parts. Complexity stems from the strict liability made automatically applicable for any damage caused. However, there is defence to strict liability provided by the law. The CPA 1987 has been particularly discussed in this area. It lays down four defences available to the manufacturer, which basically indicates that it does not have to do anything with the defective part and another party is responsible for it. This drives the necessity to define defect, whether it is a design defect or manufacture defect. This dissertation has however highlighted the problem of proving the defect, especially the manufacturer defect as seen in the re Korean Air Lines Disaster case. This also means that design defect is used to create wider liability. This also means the manufacturer gets away with lesser liability that is legally validated by the principle under CPA 1987. The concern though is to locate the entity which is entirely liable for any kind of defect in the aircraft. There should be accountability of the decision being made, of hiring a designing company that designed a defective product. The liability framework made here regarding manufacturer seems to have been designed to reduce or dilute the liability of the manufacturer. Even the defences available to it are wide enough to that effect. For example, they can claim absence of defect at the time of supply; mandatory legal requirement; or absence of advance technical and scientific knowledge during production. The protection being offered to the consumers seems to weigh less compared with the defence provided to manufacturers of aircraft. The framework whether manufacture could put up any of the four defences drives a need to ensure protection of consumers. CPA 1987 provides for making producers jointly and severally liable. However, the concern is about passengers’ capability to locate liability when there is a complex set of probable defendants and the wide defences available to the manufacturer. Airport operation and air travel activities are all run through contracts, which identify the roles, functions and liabilities of the parties involved. The contractual terms, on the face of it, would make it easier to locate liability of the parties. However, dispute around this kind of contract may not prove easy to address in the courts of law. The complex set up of the air travel activities, including the airport authority, carriers, agencies and other service providers all the more may make it challenging and expensive for a passenger or a group of passenger to pursue claims. Even though rights are provided to the passengers, the enforcement framework does not seem strong enough to bring justice to passengers in case of disputes. The airport authority is the major authority that is responsible for operation of air travel activities including the services within the premises of the airport. This dissertation discussed the governance principle and the principle of duty to care towards the passengers applicable to actors, such as the airport authority and agencies. The public is the main stakeholders relevant with the governance policies of the airport authority and agencies. As discussed earlier, September 11 attack or the Brussels Airport attack occurred due to failure of the governance system. Answer to these problems could be found in the regulatory and structural changes that address challenges of safeguarding public health. On a less severe level of liability, the actors have a duty to care towards the public for protection them from harm, damage, or loss. Any breach of this duty will make them accountable. In case of the UK, the government’s does not have to do anything with this duty, and it incurs no liability in case of breach of this duty. This is completely strange as the airport is a public place and a private authority, which is the British Airports Authority is designated to regulate the activities in the airport. This could be another topic of discussion that could explore the liability of the government in respect to its delegating its functions to a private entity. The important point is to understand that it is the contractual relationship between the actors that holds more relevance while locating the liability. It is relevant to locate the party that has the duty to care. This liability framework is also more or less the same as that related with the manufacturer of the aircraft, where the liability framework allows the manufacturer, in this case the airport authority, dilutes its liabilities.

The general law of negligence or torts governs the liability framework in determining the protection of passengers’ rights. However, revisiting the purpose of harmonisation of law, the concern is about how far the domestic and international laws have progressed in collectively and effectively protecting passengers of air travel. When dealing with rights of passengers with disability, it has been observed that there is a lack of a set of global standards governing such rights. In such absence, the issue will remain about how the enforcement of passengers’ right would be effectively possible. The concerns are understandable. It, however, does not mean that there is no effective result. The case of Gillan has shown that. However, this dissertation clearly shows that the available framework significantly favours the bigger actors in air travel industry. They are the manufacturer of aircraft and the airport authority. As far as enforcing rights against the air carrier, the existing legal framework could be stated to be sufficient for protecting rights of consumers or passengers.

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