Aircraft Law: Liability

The problems regarding aircraft liability in the international realm
primarily relate to resolving issues of legal status of international airline
passengers and cargo. The issues are defined as follows: sovereignty over
airspace, the impact of aerospace craft on the environment, the role of
aerospace technology in the international system, weather modification, air
safety and international aviation relations. Remarkable growth and development
in the range of air transport services and technology earned the sector a
distinctive international character. The latter is the most outstanding feature
of the industry which allowed "every part of the world [to be reached] within a
few hours of every other and, in doing so … brought about a revolution in world
trade, in business contacts, and in methods of diplomacy." (1)
The principles of air law have been evolving at a rapid pace since the
beginning of the Twenty-first Century, however, they also remain inadequate to
meet the needs of contemporary society. Concern for this immense growth and the
accompanying implications produced the impetus to devise a means to ensure
orderly and appropriate development. Thus, "The general policy of the world
community in regard to emerging issues of air law demands the maintenance and
promotion of a balance between technological advance in aviation and the
preservation of a wholesome environment by providing adequate policies and
prescriptions." (2)
The initial governing treaty passed in 1929 is known as the Warsaw
Convention. This is a multilateral treaty among nations that governs
international air transportation. It was based on the idea that because
aviation was in its infancy, there was a risk of destroying the carrier airline
if there was a major crash. Therefore, it limits the liability for carriers.
Unfortunately, this treaty also limited the liability for damages to injured
persons. Because of the latter clause, the U.S. renounced its participation and
proceeded to join the international aviation community in entering into the
Montreal Agreement of 1965.
The Montreal Agreement was a special contract authorized by the Warsaw
Convention which states that the parties can agree to engage in certain
activities only if there is a consensus. The agreement also raised the
limitation of liability, instituted absolute liability for any accident, and
developed a criteria for recovery for which the injured party has to prove that
the carrier was guilty of willful misconduct. This agreement only applies to
flights that start, stop or end or those which connect with an itinerary that
stops, starts or ends in the United States. (3)
A third and more comprehensive convention was the Convention on
International Civil Aviation of 1944 also known as the Chicago Convention. This
convention set out the general principles of international civil aviation and
established a framework of international coordination, cooperation and
regulation of services. It also addressed non-agenda items such as the
technical aspects of air transportation affecting the environment including
engine fuel emission and noise generated by aircraft engines.
The predominant external factor addressed in the aforementioned treaties
is the influence wielded by the existence of powerful aviation-centered
countries as opposed to the smaller, less self-sufficient aviation nation states.
One of the most important and controversial arenas concerning air law
liability is that of airlines privately owned by governments. Considering this
fact, there is a tremendous impact on the government and privately owned
airlines to compete with each other for air space. As such, there are many
controversies associated with which country has jurisdiction over liability in
airspace, common standards of safety, worldwide air traffic, and especially, who
is responsible for payment of damages resulting from airline litigation.
The internal factors politicizing the arenas of aircraft liability are
the economic competition issues resulting from anti-trust regulation of airlines.
The traditional air law has not kept pace with problems associated with mass
air transportation, the impact of global economy, the impact of aerospace
industry on property rights and privacy, and noise and pollution. However, the
industry has instituted important regulation governing monopolies within nations
solely based on sovereign control of airspace. This is particularly evidenced in
the doctrine arising out of the Chicago Convention.
The Warsaw Convention, the subsequent Chicago Convention and the
Montreal Agreement serve as a balancing act for limiting aircraft liability
within sovereign states. Therefore, the issues related to expansion of the role
of national law in adjudicating claims arising in the course of international
transportation are under the purview of these related conventions and treaties.
Furthermore, the convention realized that the international aviation policy of
the future has to encompass major problems of mass air transportation and the
increasing degree of interdependence within the aviation community. As such,
the existing conventions must rely on the responsibility of air traffic control
services and regulations. Liability would then be based on proof of fault,
however it would be limited in nature, and the convention would facilitate quick
settlement of disputes placing less of a burden on the developing states.