In discussing the liability of the international air carrier towards its passengers in earlier articles in this Quarterly, attention has been drawn to the essential compromise enshrined within the 1929 Warsaw Convention which governs that liability. Under the Convention the carrier accepts the onerous burden of a liability regime in which he is presumed at fault for an injury sustained by a passenger unless he can demonstrate that it was effectively impossible for him to have avoided the occurrence giving rise to the injury in question. However, in return, the carrier is entitled to limit the amount of that liability in most cases to a sum which judged by the yardstick of attorneys in some jurisdictions will be derisory when compared to the general level of compensatory damages for injury or death otherwise recoverable under local law.

In States where the disparity between normal expectations and damages attainable under the Convention is substantital there is a clear incentive for plaintiff passengers to seek to establish liability on the part of some third party who is not able to benefit from the protection of limited liability afforded to the air carrier. In this context the position of air traffic control authorities was considered in the May, 1977, issue of the Quarterly. In this article it is proposed to outline some of the principles underlying the liability exposure of the manufacturer of the aircraft and its equipment. This subject is of particular interest in the light of a developing emphasis on consumer protection prevalent in the United States and, increasingly, Europe, and the evolution of new legal remedies to reinforce this protection.

Traditionally, jurisdictions founded on common law principles have merely been able to offer plaintiffs the tort of negligence as an effective weapon against the third party manufacturer who is not bound to the claimant under a supply contract containing express or implied undertakings as to the suitability or safety of the product. If the aircraft or component supplier can be shown to have fallen short of his duty to exercise reasonable care to avoid causing injury to persons whom he ought reasonably to contemplate would be affected by his acts or omissions then liability may be established and unlimited damages secured.

However, the burden of proving fault—of establishing the breach of a duty owed— may be an unenviable task. This is well illustrated in the context of the jurisdiction of the U.S.—where the disparity between “ordinary” and Convention damages is greatest—by the 20-year-old case of Northwest Airlines Inc. v. Glenn L. Martin 1955 (224 F. 2d 120).

On Aug. 29, 1948, a Martin 202 aircraft operated by the plaintiff crashed when its left wing separated from the fuselage. The cause of the separation was metal fatigue in the front wing spar. On the very same day the wing spar of another of the airline’s fleet of Martin 202s failed, although in this case the pilot was able to land safely before