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Compensation for Aircrafts accidents

 

Compensation for Aircrafts accidents

The liability of the Airlines

 

Report liability for damage caused by aircraft to others on the surface of the Earth:

Egyptian civil aviation law no 28 of the year 1981 and amended by the law no 136 of the year 2010 was issued to organize the contractual liability of the air carrier and it is subject to Warsaw convention 1929 and other amended  conventions complementary agreements on domestic and international air transport.

Article (123) of the Egyptian civil aviation from law No. (28) of the year 1981 and its amendments as follows:

(Convention for the unification of certain rules relating to international air transport signed in Warsaw on 12 October 1929 acceded by the State and other amended and complementing agreements shall be applied on international air transport provisions of subsection 4 of Section 7 of Chapter 2, (2.7.4) of the Trade Act issued by law no. 17 of 1999 shall apply to domestic air transport).

Whereas the air craft “Plane” is being asked in accordance with the provisions of its liability for any damage to the passenger, the most important thing arranged by the contract of air transport on the carrier is the obligation to ensure the safety of the passenger.

Now therefore we will clarify the liability of the air carrier towards the passengers in terms of physical damage and liability in cases of loss, damage or loss of goods or luggage. Also its liability in case of delay of the implementation of the air craft contract, In light of the provisions of the Egyptian Civil Aviation Law and the Warsaw Convention of 1929 and other amended and complementary agreements signed by Egypt.

First: The Air Carrier’s liability for the physical damage that occurs to the passengers:

Article 127 from Egyptian Civil Aviation law states that:

(Anyone suffered damage on ground has the right of compensation once proven that the damage has arisen directly from an aircraft in flight or of someone or something fell thereof, the aircraft is deemed in flight from the moment the driving force is initiated to do the actual takeoff till the moment the driving force is stopped after landing).

As for the Lighter-than-Air (LTA) aircraft, its in-flight status is initiated from the moment being separated from the ground till the moment it is settled thereon.

Except for the cases mentioned in this Article, general rules applicable in the State shall be applied).

And also article 128 states that:

(Air Carrier shall be liable for compensation referred to in the preceding Article, as for private aircrafts, the aircraft’s owner shall be liable for such compensation).

In the light of the provisions of the Warsaw Convention 1929 article 17 states:

(The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking).

This shows that the air carrier has an obligation to ensure the safety of the passenger, an obligation to care rather than to achieve a result However, the air carrier's fault is presumed to be the liability of the carrier as soon as the death or injury occurs, but the air carrier can pay this liability by proving that it Precautions to prevent damage.

Three conditions must therefore be met for the liability of the air carrier:

1-The breach/negligence of the safety guarantee resulted from an accident:

The Warsaw Convention did not specify the intent of the accident. However, the Egyptian Civil Aviation defined the meaning of the incident in (Article 98 repeatable) and it states that:

(An aircraft’s accident is every incident related to the aircraft’s operating at any time starting from the first person gets on the aircraft for flying purpose till the last person on board gets off, if one of the following happens as a result to such incident:

An aircraft’s incident is every incident to which the definition of an aircraft’s accident illustrated in the present Article doesn’t apply, and that is related to the aircraft’s operating and would affect the safety of operating or would endanger the aircraft).

However, if the damage is caused by an attack by one passenger on the other, for example, this attack is not an accident that places responsibility on the air carrier.

2-The accident occurs in a certain period of time:

Article (17) of the convention states that:

(The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking).

It is clear from this provision that the liability of the carrier starts from the time the air carrier begins to perform the obligations set forth in the contract of carriage, in its territory from the moment the passenger is subject to the orders of the air carrier upon leaving the passenger terminal at the airport to fly to the aircraft. This obligation shall continue throughout the flight and after landing until the moment when the air carrier stops the passenger from reaching the airport premises the air carrier shall not be liable for any injury to the passenger caused by an accident outside this time period.

Such as hitting him while roaming in the corridors of the airport or arrival as long as he is not under the command of the carrier. As well as the registration or withdrawal of baggage or customs procedures where the liability is held in accordance with the general rules in the Civil and Commercial Law.

3-The accident may cause damage to the passenger:

The liability shall not be met unless the passenger is injured such as death, injury or other bodily harm, However, the concept of physical injury whereas it can be expanded to include, in addition to death, injury or physical injury, mental disorders and severe panic attacks that may affect the traveler, However, article 17 of the Convention did not refer to such psychological or moral harm, the concept of harm was determined in the light of the provisions of national legislation, whereas the Egyptian Civil Code stipulated that compensation also included moral damage such as damage caused by injury to the person and pain caused by injury, as well as what affects the person in his honor and considered as a result of slander and defamation, what a person feels from sadness and grief over what he misses as a result of the death of a loved one. However, the Egyptian Civil Code limited compensation for the moral damage resulting from death in the case of spouses and relatives to the second degree only, for whom there was real pain due to the death of the injured person.

Second: The liability of the air carrier for the carriage of goods and baggage:

Article (124) from the aviation law states that:

(Carrier shall be liable to shippers and consignees regarding dumping of shipped goods during the flight, even if such should have been dumped to rescue the aircraft).

As for the Warsaw Convention, it collected between the liability for the transport of goods and those relating to the transfer of storage in one of the provisions whereas the first paragraph from Article 18 states that:

(The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air).

The Warsaw Convention was keen to define the time scale of air transport of goods and luggage with the aforementioned in article 18 states that:

(The carriage by air within the meaning of the preceding paragraph comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever).

The air carrier's liability of the goods or baggage remains in place until its guardianship is completed and delivered to the consignee or placed at his disposal, although the goods or baggage remain inside the airport terminal building, whereas the mere discharge of the goods from the plane does not end the responsibility of air carrier, as well as if the goods are in the customs area under the escort of the air carrier, in case of baggage, the air carrier will be liable for it if it is taken by the passenger at the arrival airport, The assistance of one of the passengers of the air carrier to the passenger does not affect the carrying of baggage outside the airport building upon the end of the carrier's custody.

Third: Responsibility of the air carrier for delays in the execution of the contract of air transport:

If delays occur during the air transport period, the air carrier shall be requested in accordance with the provisions of the Warsaw Convention in article 19 states that:

(The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods).

If the delay occurred outside the period of air transportation, the air carrier shall be asked in accordance with the rules of attribution in the law of the competent court to adjudicate the dispute

It is clear that the text of the article generally includes passenger transport and the carriage of goods and luggage, the liability of the air carrier is not merely a delay in the performance of the contract of carriage of air but of damage that may result from such delay. This means that it cannot be said that the delay in itself is detrimental to the passenger or shipper, but may be a source of such damage, an example: If the delay leads to the missed opportunity of an artist to submit a technical work because of the delay of the date of lifting the curtain, the damage was realized by the delay and the air carrier became liable for that damage, as well as depriving the traveler from participating in the opening of a scientific conference or delay in the arrival of a patient for an urgent surgery, which led to his death or aggravation of his illness.

Compensation for damage to passengers, goods and baggage

First: For the transfer of persons (passengers):

Article (22/1) from Warsaw convention after its amendments by virtue of Hague protocol states that:

(In the carriage of passengers, the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the Court seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability).

Despite the increasing of compensation under the Hague Convention, the United States refused to ratify this Protocol on the grounds that the amount of compensation is contrary to the human dignity and dignity and announced its desire to withdraw from the Warsaw Convention, which called on the International Air Transport Association to sign an agreement with the Civil Aviation Authority This agreement was amended and the basis of liability was amended. A maximum limit of compensation was set for each passenger of $ 75,000, but it was not exposed to the transportation of goods and baggage.

This amount represents the maximum amount that the air carrier is obliged to fulfill whether the damage to the passenger is caused by his death, injury or other bodily injury or delay or for the damage caused by light baggage taken by the passenger on board article (22/3) from Hague Protocol states that:

(As regards objects of which the passenger takes charge himself, the liability of the carrier is limited to five thousand francs per passenger).

Second: For the transport of registered goods and baggage:

Article (22) the second paragraph (A) from Hague convention states that:

(In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogram, unless the passenger or 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 he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination).

In order for the judge to determine the amount of the due compensation, it was necessary to determine the weight of the goods or the registered baggage. For example, the weight of one hundred kilograms was the compensation payable (250 x 100), two hundred and fifty thousand francs

Exemption from or reduction of compensation

Article (21) from Hague convention states that:

(If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability).

Article (130) from the Egyptian Civil code states that:

 (The person who is deemed responsible in accordance with the provisions of this Chapter shall not abide by the compensation, if the damage is directly resulted from an armed conflict or internal disturbances, or if such person is prevented from using the aircraft by the general authorities, or if the damage is proved to be due to the injured party or his/her subordinates or agents’ fault, negligence or abstention.

If the responsible person proved that the injured party, his/her subordinates or agents had contributed to occurrence of the damage, the compensation shall be reduced proportional to their contribution.

Exemption from compensation or reduction thereof shall not take place if a fault has been made by the victim’s subordinates or agents thereof, if it is proved that they were working behind their authorities).

The competent court of the compensation cases of the damages of the aircrafts

Article (28/1) from Hague Convention states that:

(An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination).

It is clear from this that the claim of liability for the air carrier must be filed in the territory of a Contracting State, in order to ensure that the court before which the dispute is brought complies with its provisions.

The agreement gave the defendant a choice between one of three courts:

In light of the provisions of the Egyptian Civil Aviation Law, Article (136) stipulates that:

(Actions for compensation on damages caused by aircrafts to others on ground in the State shall be brought before the court located in the place of the incident, however one or more plaintiffs together with one or more defendants may mutually agree to bring the action before the courts of any other State).

Expiration of claims for damage to aircraft

A claim of liability of the air carrier shall be waived, in accordance with article 29/1 of the Warsaw Convention, which states that:

(The right to damages shall be extinguished if an action is not brought within 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).

In light of the provisions of the Egyptian Civil Aviation Law, Article (137) stipulates that:

(Actions for Compensation on damages caused by aircrafts to others on ground shall be expired upon the elapse of two years from the date the incident took place).