Ikeja Eagles Forum recently hosted a virtual conference on Air Law. In this Keynote Address by MR. SYLVESTER ELEMA SAN, he highlights the key issues that underpin compensation in air travel.

AIR LAW: COMPENSATIONS FOR LOSS OF LUGGAGE OR CARGO, DELAY OF LUGGAGE OR CARGO, DAMAGE TO LUGGAGE OR CARGO, DELAYED FLIGHTS, INJURY OR DEATH IN CONTRACTS OF CARRIAGE BY AIR

1. Introduction:

The subject matter of our discussion today relates to an area of law which is variously described as Civil Aviation Law, Aeronautical law, Air transport law or Air Law.

The International Civil Aviation Organisation (ICAO) describes Air Law as “a body of principles and rules of public, private, national or international law which govern the legal relationship arising from the civilian uses of Air Transport activities”.

This definition covers so many branches of this law. However, what is common to any branch of this law is that the following elements feature in all of them;
(i) Air Law is a body of rules and regulations.
(ii) It has municipal law components.
(iii) It has International Conventions, Rules, Regulations, Protocols etc.
(iv) It seeks to set conditions, guidelines and framework on which both local and international flight operations could be undertaken.

An example of one of the various branches of Air Law is the one that regulates leasing of aircrafts. Another is aviation safety.

But the one we shall be discussing here is the one that regulates compensations for loss of luggage or cargo, delay of luggage or cargo, damage to luggage or cargo, delayed flights, injury or death in the course of a flight.

Over 90% of the court cases on Aviation Law are based on these.

2. Preliminary Issues to consider before litigation:

It is important to find out if the facts of any particular case can fit into the definition of an aviation contract.

This is because, apart from being a determining factor in the choice of court (whether State High Court or Federal High Court) the nature of the relief to be claimed and the period of time within which such a relief is to be claimed depend on that too.

By the provisions of Section 7 (k) of the Federal High Court Act and Section 251(k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), all cases involving contracts of carriage by air fall within the exclusive jurisdiction of the Federal High Court.

There is a lot of lack of clarity amongst learned colleagues on what really constitutes a contract of Carriage by Air as a result of which cases that fall within the jurisdiction of State High Courts are wrongly commenced in the Federal High Court and vice versa.

3. Domestic and International Conventions.

The main Municipal law that governs Contracts of Carriage by air in Nigeria is the Civil Aviation Act 2006.

The International Convention that governs this aspect of Air Law is the Montreal Convention 1999. This Convention was domesticated in Nigeria under the provisions of Section 48 of the Civil Aviation Act, 2006.

Prior to the enactment of the Civil Aviation Act in 2006, the applicable International Convention was the Warsaw Convention 1929.

Whilst Section 48 (1) of the Civil Aviation Act 2006 makes the provisions of the Montreal Convention 1999 applicable to International flights, Section 48 (2) thereof makes the said provisions applicable to local flights as well

4. How to determine whether a particular claim arises from a contract of carriage by air or not.
For any subject matter to come within the definition of a contract of carriage by air the incident must have occurred either in the course of the flight or in the course of embarkation into or disembarkation from the aircraft.
There is a lot of confusion in the ranks of legal practitioners in Nigeria about this definition stated above.
Examples of incidents that do not qualify as contracts of carriage by air, based on this definition are cases of denied boarding, cancelled flight, refusal or failure to refund the cost of a ticket etc.

In the case of KLM Royal Dutch Airlines vs. Taher (2012) 3 NWLR part 1393, page 137, the court of Appeal, Kaduna gave a legal stamp of approval to this definition. Taking the case of denied boarding as an example, a passenger can be denied boarding for several reasons, but in all cases, such a denial would have taken place without embarkation into the aircraft. The same thing happens where a flight is cancelled or where a demand is made for refund of cost of tickets.

All these fall under the category of simple contracts in respect of which the Federal High Court has no jurisdiction.
Such cases ought to be filed in the State High Courts and not in the Federal High Court.
However, our court has tended to make exceptions where one leg of the flight has already taken place and any of these issues arose in respect of the return journey. In such cases, the term “aviation contract” appears to have been tolerated by our courts.

5. Basis of International Civilian flights.
Civilian flights between one country and another are based on Bilateral Air Services Agreement (BASA) (also called Open Skies Agreement) between one country and another that is why Airlines usually take their passengers to their home countries before taking the passenger to another destination. As an example, Delta Airlines being an American registered Airline can fly passengers directly from Nigeria to USA but British Airways or Air France will first fly to the United Kingdom or France respectively “on transit” before they can invoke the Open Skies Agreement between their countries and USA.

6. Basis of compensation for loss or damage to Luggage/Cargo, delay of Luggage/Cargo, Delayed Flights, Injury or Death in Contracts of Carriage by Air.
As stated earlier, the guidelines or parameters for these are provided for in the Montreal Convention 1999 which was domesticated and because part of Nigerian law under Section 48 of the Civil Aviation Act 2006.

Article 19 of the Montreal Convention 1999 provides as follows;
“The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”

Article 22 provides as follows;
“(1) In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.
(2) In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.
(3) In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.”

The provisions above are self-explanatory. The domesticated version of the Montreal Convention in the Civil Aviation Act 2006 however replaces SDR with US dollars.

Most Nigerian passengers, when travelling, check in their luggage on the basis of weight, but when there is a loss or damage to such luggage, they file claims in court for payment of huge compensations. Such claims are almost always refused by the Airlines ___ based on the limit of liability provisions of Article 22 of the Montreal Convention.
An alternative way to check in luggage is to do so on the basis of the value of the luggage. This attracts payment of extra charges but the advantage of this is that in the event of loss or damage, the Airline will be willing to pay the amount of money which was declared as the value of the luggage.

Article 17 of the Montreal Convention provides as follows;
“1. 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.
2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.”

Article 21 of the Montreal Convention provides as follows;
“1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
2 The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:
(a) Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) Such damage was solely due to the negligence or other wrongful act or omission of a third party”.
Again these provisions are self-explanatory: And again, the domesticated version of the Montreal Convention in the Civil Aviation Act 2006 replaces the monetary unit “Special Drawing Rights” with United States dollars.
It therefore follows that compensation for death or bodily injury as a result of accidents in air travel is USD100, 000 (both international and domestic travels). The Carrier cannot by way of contract, limit this minimum liability. Thus 100,000 SDR was modified to USD100, 000 under the Civil Aviation Act.
Section 48(3) of the Civil Aviation Act 2006 provides that out of this minimum liability of USD100,000 the sum of USD30,000 is to be paid as advance payment within a period of 30 days from the date of the accident. But this advance payment does not amount to admission of liability.

Limitation of Action as to time:
Limitation of action as to time for filing an action in court is 2 (two) years from the date of the incident

Article 35 of the Montreal Convention provides as follows;
“The right to damages shall be extinguished if an action is not brought within a period of two 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.

The method of calculating that period shall be determined by the law of the court seised of the case.”

7. Conditions for exceeding limit of liability of compensation:
The Convention provides as follows under Article 22 (5);
“The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.”
The operative words here are “done with intent to cause damage, or recklessly and with knowledge that damage would probably result”

This requirement is a level of Negligence higher than what common law of negligence requires: it involves a reckless conduct and the knowledge that damage would result therefrom almost like the requirement of “mens rea” and “acteus reus” in criminal law:
This provision is similar to the provisions of Article 25 of the Warsaw Convention. The action must have been taken with knowledge that damage would result therefrom;

In other words, there must be the physical element consisting of the recklessness of the action that led to the loss or damage and the mental element which consists of knowledge that damage would result from the reckless action.
The decision which has been regarded as the international locus classicus on this point appears to be the case of Goldman vs. Thai Airways International Limited (1983) ALL. E.R. 693 where the court held as follows;
“For damages awarded against the Carrier to be at large in accordance with the provisions of Article 25 of the Convention, as amended at the Hague, it is not sufficient for the act or omission that is relied on to have been done recklessly, it must also be shown to have been done “with knowledge” that damages would probably result.
Thus where a pilot did not know that damage would probably result from his omission, the court is not entitled to attribute to him knowledge which another pilot might have possessed or which himself should have possessed.”

The Supreme Court of Nigeria upheld this authority and interpretation of Article 25 of the Warsaw Convention contained therein in several decisions including Cameroun Airlines vs Otutuizu (2011) 4 NWLR Part 1238 p. 152
The Nigerian courts have also adopted the same interpretation in the following cases; Harka Air Services vs Keazor (2006) 1 NWLR part 960, p. 160, Cameroun Airlines vs Abdulkareem (2003) 11 NWLR part 830 P.1, Oshevire Limited vs. British Caledonian Airways limited (1990) 7 NWLR part 163 P. 507.

8. On the basis of this interpretation, the Nigerian courts have applied Article 25 of the Warsaw Convention 1929 in the following circumstances and cases;
(a) In the Supreme Court case of Harka Air Services (Nig.) Ltd vs. Emeka Keazor supra evidence was led by the Plaintiff at the trial that in the face of very bad weather in Kaduna which led to the cancellation of many flights, the Defendant’s pilot decided to fly the aircraft to Lagos with the Plaintiff as one of the passengers. When the aircraft arrived Lagos, the Air Traffic Control refused to grant the pilot permission to land because the aircraft was above normal height.

Notwithstanding the above, the pilot proceeded to crash land the aircraft, as a result of which the Plaintiff sustained injuries.
(b) In the Supreme Court case of British Airways vs. Atoyebi (2014) 13 NWLR Pt. 1424 P. 253 evidence was led by the Plaintiff at the trial that he travelled with the Defendant Airline as a first class passenger from London to Lagos. Upon arrival in Lagos, his checked in luggage did not arrive with him. He immediately brought this to the attention of the Defendant who made inquiries and found that the piece of luggage was inadvertently left behind in London. He was assured that the luggage would arrive Lagos with the next available flight from London.
For the next two days, the plaintiff kept going to the defendant’s airport office and yet his luggage did not arrive.

The plaintiff gave a letter of authority to his associate in London to collect the Luggage on his behalf and he informed the defendant Airline accordingly but when his associate in London went to collect the luggage, the Airline refused to release the luggage to him.

The plaintiff had no choice but to personally travel to London once again as a business class passenger to retrieve his Luggage.

(c) In the Court of Appeal case of Emirate Airlines vs. Ngonadi (No.2) (2014) 9 NWLR (Pt. 1413) 506, evidence was led by the Plaintiff at the trial to show that when she approached the Defendant’s counter in Dallas U.S.A with her return ticket to board the flight that would eventually bring her back to Lagos to spend Christmas with her parents, she was initially checked in but at the point of embarkation she was stopped from entering the plane.

When the Plaintiff protested that it was the same ticket that she used in coming to USA and that she was only using the “return leg” part of the ticket, the Defendant’s officials invited the airport security men to physically throw out the Plaintiff, who was 18 (eighteen) years old and had nobody to turn to for assistance in a foreign Country.

(d) In the Supreme Court case of Cameroun Airlines vs. Otutuizu (2011) 4 NWLR (Pt. 1238) 152 Plaintiff led evidence at the trial to show that he boarded the Defendant’s aircraft on a flight to Swaziland, but the Defendant took him to South Africa instead, where he was abandoned despite his protest that he did not have any Transit Visa to enter South Africa.

Consequently, the Plaintiff was arrested, deported to Zimbabwe, where he was once again arrested, robbed, and then deported to Nigeria.

In all the cases cited above, cogent, probative and compelling evidence was placed at the disposal of the Court by the plaintiffs which showed not only acts of recklessness by the Airline, but they also showed that the Defendant Airline acted with obvious knowledge that what they were doing was wrong and that damages would result therefrom.

9. CONCLUSION:
In conclusion, counsel should ask himself/herself the following questions before rushing to court to file a claim for damages/compensation in contracts involving a passenger and an Airline.
(i) Is it a contract of Carriage by air or just a simple contract?
This determines the venue…. Whether the action should be filed in the Federal High Court or the State High Court.
(ii) It involves loss or damage to luggage on what basis was the luggage checked in?
Was the luggage checked in on the basis of weight or value of the contents of the luggage which involves payment of extra charges?
(iii) Is the claim for damages or compensation within the limit of liability provisions of Article 22 of the Montreal Convention?
(iv) Is the date of the incident less than 2 (two) years old?
(v) If the claim is in excess of the limit of liability, are there sufficient facts to prove Negligence in Air law? (Not common law negligence).

Counsel should bear in mind, the provisions of Article 29 of the Montreal Convention which provides as follows;
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

Thank you for listening.

S. E. Elema SAN, FCArb
Principal Partner,
Usman & Elema (Barristers & Solicitors)

November 17, 2021.

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