Risk and Liability in Air Law

George Leloudas

• Publisher: Informa Law from Routledge
• Year: 2013
• ISBN:
  9781135136376
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho marítimo

This book is the first attempt to analyse the relevant international conventions governing the liability of airlines to passengers and third parties on the ground from a risk perspective. The book analyses the transformation of the notion of risk over time and identifies the ways and the extent to which social perceptions have influenced the liability of airlines in the aftermath of safety accidents (Warsaw Convention System, Montreal Convention, Rome Convention, and New General Risks Convention) and terrorism related incidents (New Unlawful Interference Convention).

Chapter 1
Introduction

1.1 Non-aviation practitioners commonly argue that air carriers’ international liability is not one of the most exciting legal areas. This belief derives mainly from the impression of tidiness that the limited production of aviation-related case law creates. It also stems from the feeling of certainty that the system of international conventions regulating the liability of air carriers to passengers for death and injuries in international transportation gives to the non-specialised legal community.

1.2 This view is only justified if one stays on the surface of this international legal system, disregarding the practical realities of aviation post-accident management. What many non-aviation lawyers miss is that every aviation accident causing death and/or injuries to passengers or to persons on the ground is a highly visible risk event that as often as not triggers multi-faceted social reactions.

1.3 The magnitude of these reactions is not necessarily determined by the gravity of the accident and the number of people who died or were seriously injured. Instead, it is propelled by a media-driven quest for naming and shaming the aviation industry on the basis that it recklessly, if not intentionally, disregards safety standards in its pursuit of profit. As a result of the international characteristics of the industry, the implications of this quest are not confined to the place of the accident but rapidly surpass the narrow boundaries of the jurisdiction in question and have the potential to influence policy-makers, judges and litigants, as well as the travelling public and the operations of air carriers on a worldwide basis.

1.4 In this setting, aviation lawyers are frequently expected to exceed their traditional role of mechanically applying the provisions of international conventions and related domestic laws to resolve specific disputes. Instead, they are required to play an active role in the management of aviation accidents and advise the carrier from the immediate aftermath of an accident until the conclusion of the ensuing claims, and sometimes even beyond. This advice, though, is not limited to “black letter law” but lies at the crossroads of a number of areas which have the mitigation of the social effects of an accident and the protection of the public image of the air carrier as their starting point. As a result, the handling of the claims arising from an accident is not an isolated task which is guided by legal principles to the exclusion of any broader social considerations. Instead, it becomes part of the risk management plan of a carrier and its insurers, and on numerous occasions the decision whether to litigate or settle a claim is related to the prevailing social, political, and regulatory environment after an accident rather than the strength of the claim itself.

1.5 Admittedly, aviation accidents did not always have such a profound effect on the surrounding social and political environment. Although they were always risk events that triggered public attention, their social treatment at the beginning of the twentieth century bore elements of industrial protectionism even contrary to the paternalistic social attitudes that were gestating at the time. The imposing features of flying and the limited ability – compared to contemporary standards – to scientifically trace the causes of aviation accidents beyond doubt gave air carriers a free pass to develop their operations. At the same time the drafters of the Warsaw Convention 1929 endorsed this trend by creating a liability system that turned this de facto immunity to a legal standard, and the judiciary lent a sympathetic ear to the technical experimentations of the industry.

1.6 This way a strong social belief was formed that aviation deserves distinct legal treatment on the basis of its risk characteristics, glamorous image, and growth potential. Reaping the benefits of an environment that bore striking similarities to the Industrial Revolution of the nineteenth century, air carriers set the ground rules for their operations and future commercial expansion without being particularly constrained by or considerate of an already forgiving international legal framework.

1.7 However, the corporatisation of the industry, the technological advances that made aircraft accident investigation an exact science, and the increased expectations of the public as a result of the improved living conditions in the Western world following World War II meant that the criticism-free days of the industry were over. Aviation started to lose the operational and social characteristics that distinguished it from other industries at the time. Aviation accidents were not regarded anymore as unusual and unexpected risk events that were nobody’s fault, but were increasingly attributed to the erratic behaviour of the carriers.

1.8 Inevitably, it became harder for defence lawyers, drafters of private international air law, and the judiciary to justify the special legal treatment that the Warsaw Convention 1929 was offering to air carriers. Their reactions, though, were different, demonstrating a clear lack of consensus on the role of air carriers in a post-industrial world. Defence lawyers and the drafters of private international air law conventions rejected an overhaul of the international liability system that would reflect the new operational and social conditions. Instead they opted for incremental changes to this system in an attempt to retain the legal status quo while giving the impression to the travelling public that their recovery prospects increased.

1.9 The judiciary, especially in the USA, did not follow suit and started the readjustment of the Warsaw Convention 1929 and its amendments to the standards of the new social order which were expressed through increasingly influential consumer-protection organisations and the claimants’ bar. This readjustment took various forms, yet the common thread was the effort to inject into the interpretation of the various versions of the Warsaw Convention the social scepticism over the ability of technology to offer a risk-free environment and the dissatisfaction with the quality of services offered to the public.

1.10 From this moment onwards, the resolution of disputes arising in the international transportation of passengers by air took a twist that constitutes the foundation of modern aviation post-accident management: a personal injury claim is no longer an expression of discontent at the individual carrier but exceeds this private relationship revealing the disappointment of the public with the behavioural and safety standards of the industry, as well as with the legal regulation of the carriers’ international operations.

1.11 This transformation did not come alone, nor was it limited to aviation. Instead, it was part of a wider social movement that put the quest for safety and the protection of consumers at the top of the political agenda. A number of disasters caused by the risk management failures of high-risk industries in the 1980s and high-profile terrorist attacks from the 1960s onwards triggered discussions over the appropriate industrial risk management standards. At the same time, these events revealed clearly that the days of industrial legal immunity for the sake of social progress were long gone and had been replaced by a greater tendency to widen the liability exposures – both civil and criminal – of corporations for safety and behavioural mishaps. Air carriers could not but be part of this new environment that Ulrich Beck describes as risk society, and they currently face the operational and legal challenges of a politically dictated precautionary risk management approach.

1.12 This further means that aviation practitioners, academics and the judiciary acquire a distinct and clearly visible international policy-making role that is invoked every time a claim for injury or death is either settled or reaches the court. Their role is not limited to applying the text of international conventions to the dispute in question; they play an active role in the determination of how far the social demands for greater corporate accountability for technological failures, behavioural mishaps, and terrorist events will affect the operations and liability exposures of the industry on a worldwide basis. Inevitably, then, aviation practitioners and the judiciary play a greater role than their colleagues dealing with non-aviation cases in shaping the industry’s public image and determining its social role and acceptability.

1.13 It becomes apparent from the analysis so far that there is more to the law regulating the liability of air carriers in international transportation than meets the eye. This assertion becomes even stronger when one looks into the area of liability to third parties on the ground. This legal area was profoundly neglected until the 9/11 terrorist attacks demonstrated the catastrophic potential of intentional man-made risks and triggered exceptional social, political and legal reactions initially in the USA and then worldwide. So far, this area has been regulated on a domestic level due to the failure of the relevant international conventions to attract enough support. In the vast majority of states, the carriers were to bear the risks of any damage to persons and/or property on the ground on the basis that they were in a better position than their victims to manage the safety risks that could cause such an accident.

1.14 Yet, the intentional use of aircraft as weapons added a layer of complexity to this rather simplistic sharing of risks and revealed that the legal management of intentional man-made risks calls for different solutions from the management of unintentional safety risks. One of the questions posed after 9/11 was who should bear the risk of aviation terrorism? So far, a number of opposing replies have been provided, revealing a wide diversity of opinion on the risk management role of air carriers, passengers, third parties on the ground, and governments when it comes to intentional terrorism risks. This divergence is well reflected in the discussions leading up to the drafting of the Convention on compensation for damage to third parties, resulting from acts of unlawful interference involving aircraft. Although this divergence constitutes an impediment to reaching consensus, it certainly adds to the excitement of air law.

I Subject Matter

1.15 The present work focuses on the international liability of air carriers to passengers and third parties on the ground. Its main argument is that the legislative and judiciary-driven expansion of air carriers’ liability in the aftermath of safety-and terrorism-related accidents is the result of the transformation of social attitudes towards risk and technology in the twentieth century.

1.16 The overall purpose of this work is to demonstrate that the challenges that risk societies present cannot be addressed by: (i) stretching the current liability regime beyond recognition by using tort law principles on the basis that they represent the prevailing social perceptions of blame; and (ii) channelling liability to air carriers for terrorist risks that cannot be controlled and for which personal responsibility is difficult to affix.

1.17 In an era in which the relationship of trust between the public and the aviation industry in general – including governmental supervision authorities – has been undermined, schemes managing the liability of air carriers should be directed to cooperation, the reduction of litigation, and the socialisation of losses.

1.18 It comes naturally, then, to begin the work with an analysis of the notion of risk. Most readers with a technical background will identify risk by reference to quantitative analyses that measure risk in terms of probability and severity. Yet, in a work that tries to put the drafting and interpretation of legal texts in a social perspective we need to see past these objective approaches to risk and understand how the public collects risk-related information and interprets them to determine the social acceptability of the aviation industry.

1.19 Chapter 2 identifies the mass media as the most influential element in this risk construction process and describes the effect they have on public opinion. Drawing on the general sociological position of Ulrich Beck and Anthony Giddens, this chapter argues that the contemporary decline in confidence in corporate organisations coupled with a negative depiction of air carriers in the mass media deal a severe blow to the relation of trust between the public and corporations charged with managing risks, air carriers being one of them.

1.20 This failure is not without consequences in a legal context. To demonstrate this, Chapter 3 concentrates on the effect that media views of blameworthiness have upon social perceptions of air carriers’ liability and how these attitudes have been transformed from the early stages of aviation until the years of mass transportation of today. One would expect that the safety improvements of the industry as illustrated by low accident rates would have a mending effect on the trust relationship between carriers and the public. Chapter 3 suggests that this is not the case, since the behavioural transformation of air carriers as a result of the industry’s corporatisation created a whole new source of liability exposures.

1.21 The aim of this analysis is to provide a solid background for the core issues to be examined in Chapters 4, 5, 6 and 7: (i) whether and to what extent domestic tort law considerations and changing social attitudes towards the aviation industry in the UK and the US have influenced the drafting of the international conventions regulating the liability of air carriers to passengers, as well as to third parties on the ground; and (ii) the extent that judicial activism in the UK and the US has “distorted” the interpretation of the said conventions.

1.22 This book has thus a dual positive and normative objective: to describe and analyse the interaction between domestic concepts of corporate accountability and the liability systems of the aforementioned conventions, as well as to lay the groundwork for reform of these systems on the basis that the challenges of the risk society require innovative legal solutions.

1.23 Much of this book is devoted to analysing the history and the social background of the interaction between domestic laws and the system of international conventions regulating the liability of air carriers to passengers and third parties on the ground. As I do not profess to be either a historian or a sociologist, I will consider myself morally satisfied if this book becomes a springboard for further investigation in the issue of risk and liability in air law.

1.24 Given how little we know about the effect of aviation-related case law on media reporting and social perceptions, it is to be hoped that this work will stimulate further research which will include a deeper engagement with statistics, the economics of litigation, and media behaviour. At the same time, it is hoped that the scarcity of publicly available data on the economic impact of “no-fault” schemes in aviation environments will trigger further research in the economics of insurance and the available statistical data on the economic effects of civil liability rules.

II A Preliminary Explanation

1.25 This work analyses the effect that domestic tort laws and social perceptions in the UK and the US have upon the drafting and the interpretation of the liability provisions of instruments of private international air law. While doing so, I am conscious of the f...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Foreword
• Acknowledgements
• CONTENTS
• Table of Cases
• Table of Legislation
• Bibliography and Bibliographical Abbreviations
• 1 INTRODUCTION
• 2 RISK, TRUST AND MASS MEDIA
• 3 RISK, TRUST AND MASS MEDIA: LIABILITY IMPLICATIONS
• 4 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: PASSENGERS – THE DRAFTING OF THE CONVENTIONS
• 5 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: PASSENGERS � THE CONVENTIONS BEFORE THE COURTS AND RISK PERCEPTIONS
• 6 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: PASSENGERS – A NEW PROPOSAL FITTING THE RISK SOCIETY: BALANCING SOCIAL AND ASOCIAL RESPONSIBILITY
• 7 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: THIRD PARTIES ON THE GROUND
• 8 CONCLUSION
• Index