Claim Compensation for Aircraft Crash

The recent US-Bangla passenger aircraft crash incident near the Tribhuvan International Airport in Kathmandu, Nepal is regarded as largest ever passenger aircraft tragedy in the history of Bangladesh after the pathetic 1984’s incident in Dhaka. At least fifty people were killed and very few are alive with injury after the happening of the accident. However, an exhaustive investigation is essential to find out the exact reason(s) behind this plane crash. Nevertheless, one or many parties including the pilots, the aircraft authority, the airport authority, the original producer of the aircraft may be responsible for the occurrence of this disaster. Nonetheless, there are some strict liability mechanisms to ensure compensation for the victim or victim’s family as there are multi-party involvement to operate airline business.

Aeroplane accident has many dimensions like on board accident, off board accident, luggage missing, damage of property due to aircraft crash, whether it was domestic or international flight etc. Nevertheless, if any passenger is being injured or died due to an airplane crash, the victim or where the victim is died the victim’s family can claim compensation from the air carrier. Nevertheless, one can claim compensation regardless of the terms and conditions put by the airline or travel agent while purchasing the ticket.

Civil aviation was governed by the Warsaw Convention formulated in 1929 in earlier days. However, Warsaw convention is no longer in operation while the Unification of Certain Rules for International Carriage by Air which is popularly known as the Montreal Convention has replaced it on 1999 as the later brings better protection and compensation for the passengers. Montreal Convention outlines detail about the responsibility of aircraft authority and rights of the passenger in case of death, injury, damage to baggage, delay to cargo etc. However, Bangladesh is a state party to the Montreal Convention and signed this convention in 2003 but has yet to ratify it.

According to the Article 17 of the convention "The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." The meaning of accident under this Convention is an unexpected or unusual event or happening that is external to the passenger (Air France v Sakes, 1985, 470 US 392). It can undoubtedly be said that the US-Bangla incident is an accident which happened without any intervention from the passenger and deaths and injuries are also occurred on board and the sufferers are entitled to claim compensation under the convention.

Article 21 of the mentioned Convention says the liability of the airline is to pay up to 1,13,100 Special Drawing Rights (SDR) in case of death or injury of each passenger. The value of the SDRs is calculated as defined by the International Monetary Fund (IMF). However, it revises after every five years and the review will be carried out on the weighted average of the annual rates of increase or decrease in the consumer price indices of the various countries. For this reason, different passengers from different countries of a same aircraft crash may receive different amount of compensation. Nevertheless, the Convention also has prescribed limit for the non-party countries of IMF.

However, the family of every Bangladeshi died passenger can get about maximum 1,74,000 USD (which is more than 1 crore in our currency) under the Montreal Convention. Additionally, the victim’s family may claim higher than this amount if they think the amount is not sufficient for their loss. In that case, the air carrier can contest that claim before the court and they can avoid the higher amount if they can prove that the died took place due to the negligence or other wrongful act or omission of a third party other than the airline or its staff or agent.

The survivor from a plane crash is suffering from two types of losses, namely monetary and mentally. Monetary sufferings of an injured person including medical treatment cost, loss of income, loss of an organ (if any) whereas the mental loss denotes the pain and sufferings arising out of that accident to that person. However, the died person’s family members are also eligible to claim the loss for their pain and suffering for the cause of loosing their near one as well.

In accordance with the Article 33 of the said Convention, every injured person is entitled to get compensation in his/her country of origin regardless of the place of accident. Furthermore, the responsibility of the air carrier is strict liability in that case and there is no need to prove any negligence from the part of the aircraft or any third-party intervention. Nevertheless, we should keep in mind that the time limit under the Montreal Convention to claim the compensation for personal injury is two years after the happening of the accident.

However, the process of determining whether a passenger is suffering from a recognized mental condition is entitled to be compensated is heavily complex. In addition, it is very tough to get any compensation for purely phycological injury without having any physical wound (Morris v KML, 2002, UKHL 7).

However, in the present US-Bangla aircraft crash case we come to know from the media that all the passengers were insured and the aeroplane authority will give compensation to all the victims and their family whichever is applicable. Nevertheless, Bangladesh needs to enact a comprehensive aviation transportation safety law urgently giving the effect of the Montreal Convention and to ensure safety and security of the air passenger, baggage and cargo as well. Albeit the Civil Aviation Authority of Bangladesh has already recommended to the Ministry of Civil Aviation and Tourism to enact the law, but it has yet to enact. Now the government must ensure that the victims and their families are getting proper compensation according to the international law although we cannot measure the value of a life in money. There is no way to avoid the obligation set by international law and it is the government’s duty to monitor and even interfere if necessary to comply with that obligation. 

Published on the My Republica of Nepal on 17 March 2018 at page 7.

Published on the Dhaka Tribune on 16 March 2018.

Published as Lead Sub-Editorial on the Daily Observer on 18 March 2018 at page 6.

Published on the Daily Sun on 18 March 2018 at page 7.

A Bangla Version has been published on the daily Jugantor on 15 March 2018 at page 5

Combating Hatred Attack on Social Media

Posting hatred comments and victim blaming after any incident specially in case of sexual crime against women have emerged vastly on social media particularly on facebook in Bangladesh nowadays. Often many people not only put their irresponsible comments publicly rather they spread hates among the community which may even instigate someone to do crime subsequently.

However, social media activities have been increasing enormously in recent couple of years in the country and a huge population from all classes of the society are being accustomed to operate it regularly. Not all are equally conscious to cross check the credibility of that detested comments or status posted by someone else. Sometimes, these insensible users also make it viral by sharing those kinds of posts without considering anything. Here lies the great danger of social media in a society like us. Hence, there is every possibility to bring disorder into the society; if the person who first put that sort of things on social media is not conscious about the consequences of his/her act.

However, as the spectrum of social media is increasing every day, hence it is not always practicable to monitor each comment and post every time. In addition, some incognizant people may post it without having any malice in mind and without knowing anything. Nevertheless, law enforcement agencies must be conscious in handling the trend to spread hate attacks and victim blaming after the happening of an incident. We only observe their vigilance when it came against the government and regrettably notice cases and other legal actions against free thinkers and bloggers instead of smear campaigners.

However, undoubtedly there are some people who intentionally not only spread hate on social media but also circulate their extremist views in various forms. Apart from instigating extremism, there are a lot of extremely offensive Youtube videos which contain speeches against equality of women in every sphere of life.

Nonetheless, one may argue that, we have constitutionally guaranteed freedom of expression and social media account is it holder’s private place to express opinion. Obviously, everybody has their personal view and s/he can operate his/her social media account according to his/her own wish unless it brings some harm to others. One in no way can spread hate or extremism for the sake of freedom and privacy.

Moreover, freedom of expression is neither unconditional nor unlimited both nationally and internationally. That very constitution which enshrined freedom of expression as a fundamental right itself inserts at least eight restrictions in exercising that right. Conversely, Article 19 of the International Covenant on Social and Political Rights (ICCPR) which ensures freedom of opinion and expression globally also has provision to constrain that right subject to certain restriction imposed by law.

Nevertheless, if anybody do any crime after getting inspiration from a hate campaign on social media then the person who first posted it or from whom that person came to know it would be liable as abettor. As according to section 107 of the Penal Code ‘a person is said to instigate another when he incites, urges, encourages, provokes, counsels, procures or command him to do something’. It is worthy to mention that the abettor will be responsible equally like the actual offender. Thus, it is evident that there is lawful way to combat these online campaigners.

Additionally, the much criticized section 57 of the Information Communication Technology Act, 2013 has provision against these kinds of propaganda and intentional hate campaigns to destabilize the society and to instigate crime as it says that a person commits a crime when he or she intentionally publishes or broadcasts something which is false and obscene by reading, watching or listening to the material in a particular condition such that a person may be inspired to do something which causes defamation, undermines law and order or creates a possibility of doing so, distorts the image of a person or the state, hurts people's religious sentiment or creates the possibility of doing so, or instigates people against a particular person or a group and maximum punishment of which is imprisoned for 10 years along with a fine of Tk 1 crore. In addition, the proposed Digital Security law also has similar provision to deal with the situation arising on online.

Therefore, this is high time to combat intentional online smear attackers legally and designated stakeholders must not be ignorant to stop hate crime on online immediately.

Published on the Law & Our Rights page of The Daily Star at page 12.