Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - AIR TRAFFIC CONTROL—THE OPERATOR’S LIABILITY
Neil R. McGilchrist
M.A. (Oxon); Legal Consultant with International Insurance Services.
Few interested in the development of aviation law will fail to have been aware of the litigation arising out of the accident to the Turkish Airlines DC10 near Paris in March, 1975. One inevitable consequence of the widespread publicity accorded this case will be that, henceforth, those seeking compensation on behalf of the victims of airliner accidents will tend increasingly to search out potential defendants other than the carrying airline.
Even without the prospect of California levels of damages, a claim successfully prosecuted against a negligent third party rather than against the carrier under the contract of carriage will lead to a significant increase in the amount of damages recoverable. It is, of course, only the carrier, and his servants and agents, who enjoy the protective shield of limited liability provided by the Warsaw Convention. While the Convention itself governs only international carriage, it is the case that a number of States have extended the principles enshrined in the Convention to include domestic carriage for reward. Thus, for example, in the United Kingdom, by virtue of the Carriage by Air Acts and the Orders in Council made under them, the maximum liability of a carrier for the death or injury of a passenger is £40,950. (For an international Warsaw flight involving the U.K., the limit may be as low as £5,850, depending upon whether the original or amended Convention applies to the contract of carriage of the individual passenger.)
These limits may only be exceeded in the event that the claimant can prove that
“the damage resulted from an act or omission of the carrier done with intent to cause damage or recklessly and with knowledge that damage would probably result” (Article 25 of the Convention as amended at The Hague, 1955).
It is necessarily rare that a plaintiff is able to prove the degree of intent essential to break the limits under this Article.
If, on the other hand, a claim can be brought against a defendant not able to rely on the statutory limitations then, for example, the widow of a young English business executive might expect to recover up to a sum of the order of £100,000, depending on the extent of the provable economic loss of her husband’s dependants.
In return for the protection of limited liability, the carrier is obliged to accept that he will be strictly liable to the passenger and thus will only be able to avoid responsibility for accidents in circumstances where he proves that it was “impossible” for him to avoid the loss or he had taken “all necessary measures” to avoid it. Carriers rarely attempt to meet the demanding burden of proof upon them in pleading these defences—defences which in practical terms require proof of a negative. In con-
* This is the first article by Mr. McGilchrist in what will be a regular feature on “Carriage by Air.”
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