INTRODUCTION
Imagine that you are traveling in an airplane and suddenly there’s a loss of engine power during the flight, or worse, it crashes.
Have you ever wondered who is liable for all the flight accidents that happen in the country and the world?
Indians are increasingly choosing to travel by air. In the last decade, the growth of the Indian aviation industry has been staggering! India recently became the 3rd largest domestic aviation market, and the number of operational airports in the country, which was just 74 in 2014, has now doubled to 157 by 2024.[1] Domestic air passengers have more than doubled for Indian airlines, and this increase has led to airlines expanding their fleets. Between 2014 and 2024, India showed significant developments through an increase of 15% year on year with a total of 37.6 crore air passengers using Indian airports in FY24.[2]
Is there any international convention that ensures the protection of air passengers’ rights against compensation for injuries or loss?
Let’s find out!
THE CARRIAGE BY AIR ACT, 1972[3]
The Carriage by Air Act 1972[4] was enacted to ensure both the standardization and regulation of the laws pertinent to passengers, goods, and baggage carried by aircraft. The Act was established instead of determining air carriers’ liability if damages occur while traveling by air. The Act applies to the control and operation of all aircraft and air carriers within Indian territory and details the dos and don’ts of the procedures for the effective and safe provision of air transport services. The Act sets the liability of air carriers concerning accidents, their responsibility regarding the death or injury of passengers, and offers compensation in respect of the loss, destruction, or delay of the goods carried by air. It stipulates the rights and liabilities of the air carriers and passengers, as well as the jurisdiction of the courts over such matters.
INTERNATIONAL CONVENTIONS
The Warsaw Convention of 1929[5] Was the first comprehensive legal framework. It is an international agreement that regulates the liability of air carriers for damage to passengers, luggage, and cargo during international flights. It limits the amount a carrier can be held liable for, sets a time limit for filing a claim against a carrier, made it mandatory for airlines to issue passenger tickets. The convention was amended several times, in 1955 and 1971. In 1999, The Montreal Convention[6] replaced the Warsaw Convention[7] In the countries that ratified it. It helped in creating a more cohesive system of carrier liability.
The Convention for the Unification of Certain Rules for International Carriage by Air is commonly known as The Montreal Convention.[8], was adopted on 28 May 1999 and came into effect on November 4, 2003. The convention modernized the rules of the Warsaw Convention of 1929[9], provided consistent rules for international air carriage, and established limits for liability. It gave a provision for equitable compensation for damage, injury as well as death.
India became the 91st country.[10] To ratify the Montreal Convention in 2009.[11] The Carriage by Air Act, of 1972 was amended for the first time in 2009 to incorporate provisions from the Montreal Convention.[12]
LIABILITY PROVISIONS UNDER THE ACT
Before understanding the provisions, let us first understand the definitions of some important and relevant terms according to the Carriage by Air Act 1972[13].
- Carrier – The entity that is responsible for the transportation of goods and passengers by air.
- Passenger – An individual who is transported by the said carrier under a contract of carriage.
- Checked Baggage – Baggage that is placed under the care of the aircraft carrier by the passenger and for which a baggage check has been provided.
- Damage – The loss, injury, and destruction inflicted on the passengers and other baggage or cargo while in transit.
- Carrier’s Liability – The legal responsibility for the damage sustained by the passenger and his baggage, which will apply following conditions and limits stated in the rules.
- Limits of Liability – The highest possible level of damage for which the carrier may accept liability and is stated in the rules.
- Accident – An unforeseeable happening that leads to the death or injury of a passenger while onboard.
Now, that we have understood the meaning of these terms, let’s get to know the provisions available under the act.
The Act incorporates strict liability provisions that hold the carrier liable for certain damages without needing the claimant to prove fault or negligence. The damages include death or bodily injury to the passenger, provided that the injury was sustained on board or during the embarking or disembarking.[14]
It is also strictly liable for the destruction, loss, or damage to checked baggage provided the baggage was in the carrier’s custody when the event happened[15]. In both cases, the carrier is held liable whether or not it acted negligently. This simplifies the process for claimants as they do not need to establish negligence on the part of the carrier.
The burden of proof lies with the carrier to prove that it is not liable and the damage was caused due to external factors. If the carrier can demonstrate that the damage resulted due to the negligent behavior or wrongful act of the claimant, the carrier may be wholly or partially exonerated from the liability.
Similar to baggage, the carrier is strictly liable for damages to cargo too, unless it can prove that the damage was due to inherent defects in the cargo, acts of war, or public authority actions. While the carrier is strictly liable, the compensation can be claimed to a limit that is laid down by the act. For eg. there are specific monetary limits for passengers and cargo claims. The liability for damages related to the death or bodily injury of a passenger is capped at a specific amount which is set at 250,000 francs per passenger.[16], there is also a cap on the time within which the claims must be filed.[17]
TYPES OF INCIDENTS THAT ARE COVERED UNDER THE ACT[18]
- In-Flight Accidents: Incidents that occur while the aircraft is in flight, such as turbulence-related injuries, equipment failure, or collisions.
- Embarking and Disembarking Accidents: Injuries that happen during the process of takeoff and landing of an airplane, i.e., drops and/or aircraft collision events that fall into the above)
- Ground Handling Accidents: Occurrences during the flight on the ground in the form of baggage and cargo loading/unloading or while the passengers are being transported to or from the aircraft.
- Incidents Related to Aircraft Operations: This can include any operational mishaps leading to injury such as emergency landings or evacuations.
- Terrorism or Violent Acts: Incidents involving unlawful acts that result in injury or death to passengers, such as hijackings or bombings.
HOW TO CLAIM COMPENSATION?
STEP 1: Firstly, assemble any documentation you think supports your claim. This may include:
- Ticket for the flight and the boarding pass
- Claim tags for the baggage
- Receipts for any costs incurred because of the incident
- Reports and Bills of injury sustained
- Any communication related to the incident with the airline,
STEP 2: In case of Baggage claims, ensure that your complaint has been lodged with the carrier within the required timeframe. It is best if you do it as soon as you identify that your property has been damaged or misplaced. Such complaints should be submitted within 7 days of identifying loss or damage to checked baggage and 14 days for cargo.
STEP 3: Submit a written complaint to the airline, detailing the nature of your claim, the circumstances surrounding the incident, and the compensation you are seeking. Ensure that you do this within the specified time limits to avoid losing your right to claim.[19]
Some airlines may require you to fill out a specific claim form. Check the airline’s website or contact their customer service for guidance regarding the same.
STEP 4: Maintain copies of all correspondence with the airline, including emails, letters, and any forms submitted. The documentation will be crucial if it will be needed to escalate the claim later on.
STEP 5: If the airline doesn’t respond satisfactorily or denies your claim, you may consider escalating the matter. This would involve contacting a consumer protection agency or aviation authority. Filing a lawsuit in the appropriate court, as per the provisions of the Carriage by Air Act, 2016.[20]
If the claim becomes complex, you can consider seeking legal advice from a lawyer who specializes in Aviation law or Consumer rights.
Remember, the action to claim damages is to be brought within 2 years, reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.[21]
CONCLUSION
The Carriage by Air Act 1972[22] Ensures airline accountability for passenger injuries, detailing liability provisions and compensation processes. After reading this blog, I hope you have understood how this law empowers passengers, enhances safety, and fosters trust, essential for a safer and accountable aviation industry.
Author(s) Name: Trishla Sethi (Pravin Gandhi College of Law, Mumbai)
References:
[1] Ministry of Civil Aviation, ‘India’s Soaring Skies with Inclusive and Booming Aviation’ (PIB GOV, 15 Sept 2024) <https://pib.gov.in/PressNoteDetails.aspx?NoteId=152143&ModuleId=3®=3&lang=1> accessed on 17 January 2025
[2] Ibid
[3] The Carriage by Air Act 1972
[4] Ibid
[5] Convention for the Unification of certain rules relating to international carriage by air
[6] The Convention for the Unification of Certain Rules for International Carriage by Air
[7] Convention for the Unification of certain rules relating to international carriage by air
[8] The Convention for the Unification of Certain Rules for International Carriage by Air
[9] Convention for the Unification of certain rules relating to international carriage by air
[10]Ministry of Civil Aviation, ‘India 91st country to ratify Montreal Convention’(PIB GOV, 11 May 2009) <https://pib.gov.in/newsite/erelcontent.aspx?relid=48665#:~:text=India%20became%2091st%20country,on%2028th%20May%2C%201999> accessed on 17 January 2025
[11]The Convention for the Unification of Certain Rules for International Carriage by Air
[12] Ibid
[13] The Carriage by Air Act 1972
[14]The Carriage by Air Act 1972, Schedule 3, Ch II
[15] Ibid
[16] The Carriage by Air Act 1972, Schedule 2, Ch III, 22
[17] The Carriage by Air Act 1972, Schedule 3, Ch III, 31
[18] The Carriage by Air Act 1972, Schedule 1,Ch III
[19] The Carriage by Air Act 1972, Schedule 3 , Ch III , 31
[20] The Carriage by Air Act 1972
[21] The Carriage by Air Act 1972, Schedule 2, Ch III, 30 (1)
[22] The Carriage by Air Act 1972
