Aviation Law and Regulatory Framework

USN No. & Name :- 21MBAR0738 - Shruti Sharma

21MBAR0385 - Ritika R.
21MBAR0390 - Rehan Shaikh
21MBAR0263 - Abinay Rana

Module Leader :- CAPT. Vaibhav Suresh

Assignment Type :- Group

Topic :- Accident Investigation

Question 1 :-

Discuss the various conventions on civil aviation held till date.

Ans :-
Warsaw Convention
The Convention for the Unification of certain rules relating to international
carriage by air, commonly known as the Warsaw Convention, is an
international convention which regulates liability for international carriage of
persons, luggage, or goods performed by aircraft for reward.
It was Originally signed in 1929 in Warsaw (hence the name), it was amended
in 1955 at The Hague, Netherlands, and in 1971 in Guatemala
City, Guatemala. United States courts have held that, at least for some purposes,
the Warsaw Convention is a different instrument from the Warsaw Convention
as amended by the Hague Protocol.
The Montreal Convention, signed in 1999, replaced the Warsaw Convention
system in countries ratifying it.
The principal purpose of the Warsaw Convention was to:

● define the liability of the carrier in case of loss, damage, injury, or death
due to accident on international flights;
 ● spell out procedures for claims and restitution; and
● lay down the requirements for format and content of air transport
documents, passenger tickets, luggage tickets, and air consignment notes.

The most important feature of the convention was the determination of liability
of air carriers in the case of an accident, both in regards to passengers and also
baggage and cargo.The convention created a comprehensive liability system to
serve as the exclusive mechanism for remedying injuries suffered in the course
of the international transportation of persons, baggage, or goods performed by
aircraft.  The remedial system is designed to protect air carriers against
catastrophic, crippling liability by establishing monetary caps on awards and
restricting the types of claims that may be brought against carriers.
Warsaw Convention Clauses 17 and 18 of the Warsaw Convention Airline
companies are liable for any damage that occurs to passengers or their
belongings during in-flight. Airline companies will not be held responsible if
the damage results from the passenger's own fault or one of their temporary
servants such as doctors assisting ill passengers on their own initiative. As of
2013, the Warsaw Convention had been ratified by 152 states. The Protocol to
the Convention had been ratified by 137 states.

Chicago convention

Convention on International Civil Aviation (also known as Chicago

Convention), was signed on 7 December 1944 by 52 States. Pending ratification
of the Convention by 26 States, the Provisional International Civil Aviation
Organization (PICAO) was established. It functioned from 6 June 1945 until 4
April 1947. By 5 March 1947 the 26th ratification was received. ICAO came
into being on 4 April 1947. In October of the same year, ICAO became a
specialized agency of the United Nations linked to Economic and Social
Council (ECOSOC).

The Convention on International Civil Aviation set forth the purpose of ICAO:
"WHEREAS the future development of international civil aviation can greatly
help to create and preserve friendship and understanding among the nations and
peoples of the world, yet its abuse can become a threat to the general security;
and WHEREAS it is desirable to avoid friction and to promote that cooperation
between nations and peoples upon which the peace of the world depends;
THEREFORE, the undersigned governments having agreed on certain
principles and arrangements in order that international civil aviation may be
developed in a safe and orderly manner and that international air transport
services may be established on the basis of equality of opportunity and operated
soundly and economically. The agreement established the core principles
permitting international transport by air, and led to the creation of the
specialized agency which has overseen it ever since – the International Civil
Aviation Organization (ICAO).

Tokyo convention

The Convention on Offences and Certain Other Acts Committed on Board

Aircraft, commonly called the Tokyo Convention, is an international treaty,
concluded at Tokyo on 14 September 1963. It entered into force on 4 December
1969, and as of 2015 has been ratified by 186 parties.

The convention is applicable to offences against penal law and to any acts
jeopardising the safety of persons or property on board civilian aircraft while
in-flight and engaged in international air navigation. Coverage includes the
commission of or the intention to commit offences and certain other acts on
board aircraft registered in a Contracting State in-flight over the high seas and
any other areas beyond the territory of any State in addition to the airspace
belonging to any Contracting State.

The convention, for the first time in the history of international aviation law,
recognises certain powers and immunities of the aircraft commander who on
international flights may restrain any person he has reasonable cause to believe
is committing or is about to commit an offence liable to interfere with the safety
of persons or property on board or who is jeopardising good order and
discipline.

The purpose of the Tokyo Convention is to protect the safety of the aircraft and
of the persons or property thereon and to maintain good order and discipline on
board.

The Hague Convention

The Hague Convention (formally the Convention for the Suppression of

Unlawful Seizure of Aircraft) is a multilateral treaty by which states agree to
prohibit and punish aircraft hijacking.

The convention does not apply to customs, law enforcement or military aircraft,
thus it applies exclusively to civilian aircraft. The convention only addresses
situations in which an aircraft takes off or lands in a place different from its
country of registration.

The Hague Convention for the Suppression of Unlawful Seizure of Aircraft was
concluded in an effort to prevent hijackers from finding immunity in any of the
contracting states.
Montreal convention

The Montreal Convention 1999 (MC99) establishes airline liability in the case
of death or injury to passengers, as well as in cases of delay, damage or loss of
baggage and cargo. It unifies all of the different international treaty regimes
covering airline liability that had developed haphazardly since 1929. MC99 is
designed to be a single, universal treaty to govern airline liability around the
world.

The convention aims to introduce uniform legal rules to govern air carrier
liability in the event of damage caused to passengers, baggage or goods during
international journeys. The decision concludes the convention on behalf of the
European Community and now the EU.

Under the Montreal Convention, air carriers are strictly liable for proven
damages up to 128,821.00 special drawing rights (SDR), a mix of currency
values established by the International Monetary Fund (IMF) equal to roughly
US$175,000. Where damages of more than 128,821.00 SDR are sought, the
airline may avoid liability by proving that the accident which caused the injury
or death was not due to their negligence or was attributable solely to the
negligence of a third party.

The Montreal Convention was brought about mainly to amend liabilities to be

paid to families for death or injury whilst on board an aircraft.

Rome Convention

Rome Convention Unlawful Interference applies to damage to third parties

which occurs in the territory of a State party caused by an aircraft in flight as a
result of an act of unlawful interference when the operator is based in another
State applies to damage to third parties in a non-State party where the operator
causing the damage was from a State party the operator is strictly liable for the
damage sustained by the third party caused by an aircraft in flight. the third
party does not need to prove the airline was at fault General Risks applies to
damage to third parties occurring in the territory of a State party caused by an
aircraft in flight, other than as a result of an act of unlawful interference, when
the operator is based in another State party operator is strictly liable up to a
threshold tentatively set at SDR 250,000 to SDR 500,000 per claimant operator
is liable for all damage in excess of this limit unless it can prove that such
damage was solely due to the negligence of another party. Any person who
suffers damage on the surface shall, upon proof only that the damage was
caused by an aircraft in flight or by any person or thing falling therefrom, be
entitled to compensation as provided by this Convention.
Geneva Convention

To facilitate the financing for the purchase of aircraft employed the main
characteristics of the Convention are the following:

● the protection of secured creditors who lend money on the security of

aircraft.
● the protection of third parties dealing in or with aircraft against hidden
charges.
● the definition and protection of privileged and priority claims against
aircraft.
● the facilitation of the transfer of aircraft from one nationality to another.

Guadalajara Convention

Guadalajara Convention means the Convention supplementary to the Warsaw

Convention, for the unification of certain rules relating to international carriage
by air performed by a person other than the contracting carrier signed at
Guadalajara on 18 September 1961.

It aims to cover such arrangements as leasing, chartering, code-sharing and

interlining the passenger is entitled to claim against either or both the actual or
contracting carrier for bodily injury, loss or damage to baggage and cargo or for
delay Entered into force.

Question 2 :-

What is the major difference between the Montreal convention

and Warsaw convention?
Ans :-

The first treaty to address the rights and liabilities of the passengers and
carriers was the Warsaw Convention of 1929, which had two primary
goals: to establish worldwide uniform laws for claims arising out of
international aviation accidents and to limit the liability of the air carrier
in order to protect the then fledgling airline industry from the devastating
effects of unlimited liability for air disasters. With 152 parties to the
Warsaw Convention, it is one of the most widely adhered to and litigated
treaties in the world.

The primary articles relating to carrier liability for passenger injury or

death under the Warsaw Convention are articles 1, 17, 20, 21, 22, 24, 25,
28 and 29: article 1 sets forth the applicability and scope of the Warsaw
Convention; article 17 creates a cause of action and the liability
conditions for passenger death or bodily injury; article 20 provides that
the carrier shall not be liable if it proves that it has taken ‘all necessary
measures’ to avoid the damage; article 21 contains a defence based on the
contributory or comparative negligence of the passenger; article 22(1)
limits the liability of a carrier for passenger injury or death to US$8,300
unless the injury or death was proximately caused by the ‘wilful
misconduct’ of the air carrier or its employees within the meaning of
article 25 of the Convention; article 24 renders the Warsaw Convention
exclusive and refers the determination of damages to local law; article 28
sets forth four places where an action for damages must be brought; and
article 29 sets forth a two-year period of limitations for the
commencement of actions.

The Warsaw Convention, however, has been subject to a patchwork of

amendments and supplemental ‘private’ agreements among air carriers
(this patchwork often is referred to as the Warsaw System of liability)
with varying degrees of acceptance by the states. The primary reason for
these amendments was the dissatisfaction with the low limits of liability
for passenger injury and death (US$8,300). This patchwork resulted in
disunity in the rules applicable to passengers even on the same flight.

Thus, in May 1999, the International Civil Aviation Organization (ICAO)

adopted the Montreal Convention, which was intended to modernise and
replace the Warsaw System of liability. The Montreal Convention
contains few ‘new’ principles and essentially consolidates the existing
Warsaw System into a single treaty revising various articles in accordance
with modern realities and concerns.

The most significant changes relate to the goals of the Convention and the
extent of the carrier’s liability. While uniformity was a goal of both
treaties, the purpose of the Warsaw Convention also was to protect the
fledgling aviation industry, whereas one of the goals of the Montreal
Convention is to provide passengers full recovery for their compensatory
damages. Thus, unlike the Warsaw Convention, the Montreal Convention:
removes all limits on recovery for passenger death or injury (article
21(1)); imposes almost strict liability on carriers for the first 113,100
special drawing rights (SDR) of proven damages in the event of
passenger death or injury and for damages. In excess of 113,100 SDR, the
carrier can exclude its liability only it if proves that the damages were not
caused by the carrier or caused solely by the fault of a third party (article
21(2)); and expands the bases for jurisdiction for claims relating to
passenger death or injury to permit suits in the passenger’s principal or
permanent residence if certain conditions are met (article 33(2)). To date,
there are 136 states party to the Montreal Convention.

Consistent with the goal of uniformity, many courts interpreting the

Montreal Convention often look to existing Warsaw Convention case law,
which the Montreal Convention drafters intended to preserve by adopting
similar language in the text of the treaty (eg, the article 17(1) conditions
for liability – ‘accident’ and ‘bodily injury’, embarking or disembarking).
Most states will also consider leading cases from other states when
interpreting the Conventions. However, notable differences remain, often
based on the nature of the legal system (eg, civil law v common law) or
the Convention’s relationship with existing local law principles. For
example, not all states: apply the doctrine of forum non conveniens;
consider the Convention to be exclusive of local law; or interpret the
Convention’s time limitation in the same manner.

Damages and liability limits

Neither the Warsaw Convention nor the Montreal Convention set forth a
uniform rule with respect to the types of recoverable compensatory
damages, who can sue or who can recover. In fact, the drafters of the
Warsaw Convention sought to address this issue but were unable to arrive
at a consensus as they are uniquely grounded in local law (Warsaw
Convention, article 24; Montreal Convention, article 29). These issues
were left to be resolved by the applicable local law (often after a choice
of law analysis).

On the issue of punitive damages, these are not allowed in many states.
The Warsaw Convention, by judicial interpretation, and the Montreal
Convention, expressly in article 29, prohibits the recovery of punitive,
exemplary or non-compensatory damages. Outside the Convention
context, many states do not recognise them.

Liability for ground damage

In 1933, shortly after the Warsaw Convention was adopted, states adopted
the Convention for the Unification of Certain Rules Relating to Damage
Caused by Foreign Aircraft to Third Parties on the Surface to address
damage caused to third parties on the surface during the flight of aircraft.
The purpose of this Convention was to ensure adequate compensation for
persons who suffer damage caused on the surface by foreign aircraft.

However, only 20 states signed this Convention. This Convention was

amended in 1952 by Convention on Damage Caused by Foreign Aircraft
to Third Parties on the Surface (commonly known as the Rome
Convention).

The Rome Convention never received widespread acceptance, with only

49 signatories (the United States not being among them). The Rome
Convention itself was subject to revision and, in 2009, ICAO adopted the
Convention on Compensation for Damage to Third Parties, Resulting
from Acts of Unlawful Interference Involving Aircraft and the
Convention on Compensation for Damage Caused by Aircraft to Third
Parties. Neither of these Conventions have received the required number
of signatures for ratification and entry into force.While there have been
various reasons for the reluctance of states to adopt these Conventions,
the view among some states is that the issue of ground damage is
adequately addressed by their existing national law, which often creates
unlimited strict liability.

Liability for unruly passengers and crimes

The liability of the carrier for injury or death caused to passengers as a

result of an unruly passenger or terrorist event can fall within the ambit of
the Warsaw or Montreal Conventions if it occurs during ‘international
carriage by air’. However, when the Warsaw or Montreal Conventions do
not apply, the liability of the air carrier will be governed by local law.
Many states have adopted specific domestic laws addressing the carrier’s
rights and liabilities, but some have not, leaving the claim to be addressed
by the general negligence law of the state.
Question 3 :-

How have the civil aviation convention impacted growth of air

travel?
Ans :-
As stated, the future development of international civil aviation can greatly
contribute to creating and preserving friendship and understanding between
nations and peoples of the world, but its misuse can become a threat to general
security; and Considering that it is desirable to avoid friction and to promote
that cooperation between nations and peoples on which the peace of the world
depends.
Second, as stated in the Chicago Convention, are to foster the planning and
development of international air transport in order to ensure the safe and orderly
growth of international civil aviation throughout the world; encourage the arts
of aircraft design and operation for peaceful purposes; encourage the
development of airways, airports and air navigation facilities for international
civil aviation; meet the needs of the peoples of the world for safe, regular,
efficient and economical air transport; prevent economic waste caused by
unreasonable competition; ensure that the rights of Contracting States are fully
respected and that each Contracting State has a fair opportunity to operate
international airlines; avoid discrimination between Contracting States; promote
flight safety in international air navigation; and generally promote the
development of all aspects of international civil aeronautics.

The conventions have had a positive impact on the airline industry as they have
mainly complied with safety and security. In addition, in the long term, aviation
is expected to grow strongly over the next two decades. The number of
passengers is expected to increase from 2.7 billion in 2010 to 5.9 billion in
2030. Aircraft movements are expected to double, from 26 million to 48.7
million.