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.
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