By K.M Aboki
Chapter One
Abstract: Nigerian aviation industry was of recent development compare to other part of the world where they have gone far in the sector before Nigeria later joined in 1930s through the help of foreign airlines. Hence, when Nigeria established its own independent aviation industry there had been an already existing international legal framework on the sector[1]. So, when the Nigerian commercial activities both from private and public sector start growing immensely the aviation sector became more congestive, issues arises and most time passengers are left without adequate compensation and many commercial airlines keep coming up. As a result, issues normally arises on cases of delay, damage of baggage or cargo and injury or death of passengers these among other issues were the main causes of disputes which called for legislative intervention. As it happened in the case of Harka Air Service (Nig.) Ltd V Keazo[2] where the carrier decided to take up even when other airlines declined as a result of bad weather or in the case of KLM Royal Dutch Airlines V. Taher[3]and Okoye V Kenya Airways where the court held that contract of carriage by air are peculiar and allow airline to decide whether to fly or not.
The liability of an air carrier is stressed in the Kenya
Airways Case that whenever an accident happens and the accident caused any of the above problems, the law presumed liability on the carrier unless it is able to rebut the presumption.
In Nigeria the major provisions that regulate and stipulated the carriers’ liability in any one of the above instances is the Warsaw Convention, Montreal Convention, Nigeria Civil Aviation Act 2022 and Nigeria Civil Aviation Regulations (NCAR)2023 and some cases that laid down a judicial precedent in the sector. This work is divided into chapters from chapter one to chapter six and each chapter discusses a particular item independently for the purpose of making it friendly to potential readers and for clarity.
Introduction: Aviation in any country cannot operate in isolation from the global trends, there maybe both domestic (non-international ) and international flights within a particular country as such this paper intersects into both areas in order to find convincing, relevant and comprehensive authorities that provide for the subject either in relation to international carriage or non-international carriage.
Primarily, the Nigerian Civil Aviation Act 2022 entrenches a clear cut explanation on liability of carriers in contract of carriage by air particularly in cases of death or injury of and damage or loss or destruction of baggage or cargo to and delay of passengers.
More importantly, the relationship between carriers and their passengers (customers) is purely civil, contractual and private which involves terms and conditions of agreement to contract at the stage of negotiation in so doing both parties have an inherent right to rights including right to stipulate terms of their agreement/ transaction in accordance with the standards principles principally apply in the sector. Now that the world is complex as population keep increasing rapidly and a lot businesses are coming up every day people do often travel than ever.
2.2 Meaning of Aviation: Aviation is defined as a designed building for flying of aircraft[4].
Ugo Ezeugwa Esq in his book Aviation law and practice I Nigeria, he stated that aviation is a wide field that covers both military and non-military aircrafts. Non- military aircrafts relate to civil aviation[5].
The above understanding of the word “aviation” by the learned author was shaped by and derived from Chicago Convention even though it has not defined the word “civil aviation” but it states clearly that the convention shall not apply to aircraft used in Military,Customs or Police services[6].
Thus, civil aviation can be aptly put as the use of aircraft for personal purposes or for carriage of passengers, baggage and cargo for reward[7] etc. Aviation entails the use of aircraft whether for private or commercial purposes and whether with the help of aerodrome facilities or not. It is a transport by air.
Chapter Two
3.1 Brief History of the Evolution of Commercial Aviation: Commercial aviation was slow to catch the fancy of the general public most of whom were afraid of flying in the sky in a new flying machines until after the First World War. By the mid 1920s commercial aviation took a huge leap as many commercial airlines began to operate, this continues until after the Second World War when the commercial aviation attracted much attention of different countries with the British De Havilland Comet as the first jetliner to fly[8]. Many countries like British, United States of America, France, Netherlands, and Germany went too far on commercial aviation before 1930s.
In Nigeria, the first flight was recorded in 1925 when squadron of Royal Air-force (RAF) , Bristol fighter Air took a long cross-country flight from Khartoum to the Northern part of Nigeria and landed in Kano[9]. In 1935 the imperial Airways started regular flights between United Kingdom (UK) and Nigeria. These flights thus, pioneered international commercial operations of air carriage services in Nigeria.
On the 15th day of May, 1946 the West African Airways Cooperation (WAAC) was launched under the joint ownership of Nigeria and Ghana and other west African countries, but Ghana later pulled out from the WAAC after gaining independence leaving behind Nigeria and other countries. WAAC was later renamed to Nigerian Airways Limited until when it became solely owned by Nigeria before its collapse.
4.0 Chapter Three
4.1 Highlights on the Rules Governing carriers’ Liability (s) under international carriage: The liability of air carriers may arises under various circumstances, for example where an injury or death to passengers occurred in carriage by air before disembarkation or where damage is caused to properly of passengers or the property is lost entirely and also where unnecessary delay occurred in the cause of the flight, the carrier in any of these circumstances may be liable to pay for compensation to the affected passengers.
Air carriers’ liability may also arises in relation to third parties or in relation to property connected with the carriage by air. For example, where a flying aircraft causes damage to buildings or persons on ground so also in relation to passengers whose tickets are denied as a result of cancellation of flight or refusal to convey such passengers deliberately. As we shall see later in this chapter, the Warsaw Convention and its brethren (Montreal Convention) only addressed issues arising in cases of delay, damage of baggage or cargo and death or injury of passengers[10]. At the elementary stages of the growth of air transport sector it became necessary to create a system of international flavor to regulate the fledging industries, given its international multidimensional nature and its economic, political, and environmental significance. Theses realities contributed on the effort of AITA in producing standard conditions of carriage by air. However those standards guidelines were not comprehensively adopted and and cannot be applied uniformly.
Bartsch reiterated the need for uniform international regulations on the liability of air carriers where he put it aptly, thus:
“…..there had been a proliferation of new airlines and the creation of far more extensive network of international scheduled services. With this expansion and the inevitable increase in aircraft incidents and accidents, many disputes arose in respect of associated damages and losses bordering on conflict of laws, particularly those relating to claims by passengers and owners of cargo, were dramatically increasing and in the absent of any international normative legal framework disputes were not able to be effectively considered or resolved”[11].
The greatest effort in this pursuit was first made by French government particularly on October, 1926 tagged CDPA 1926. The result of that particular event remains the genesis from which uniform rules on documentation of carriages, limit of carriers’ liability, etc. is formed.
The Warsaw Convention of 1922 followed after and it was made in order to provide for universal rules that will govern carriers’ liability in regard to passengers baggage, and cargo, and delay or injury or death of passengers in international carriage and to limit the liability of the carriers where claims are made. However, it should be stated that the Warsaw Convention was largely drafted from the committee Internationale, Technique d’experts Juridiques Adriens (CITJA). The convention came to remove the inconsistencies in applying different laws as explained in British case of Grein V. Imperial Airways Ltd[12] where the court stated that the desirability of such an international code for air carriage is apparent. Some years later the Convention was amended by The Hague Protocol of 1955. Another supplementary convention were made by the additional protocol signed at Guatemala in 1971. Additional Protocols Nos. 1 to 3 and Montreal Protocol No.4 were signed at Montreal in 1975. Much later in 1999 the Montreal Convention came into effect with the aim of making significant improvements on the previous conventions and protocols i.e Warsaw Convention. This, the Montreal Convention become the most relevant international instrument governing liability (s) of carriers in cases of injury or death of passengers, damage to cargo or baggage and delay in the cause of carriage[13]. This was made possible by the effort of ICAO. For those state that have signed and ratified Montreal convention it has created an exclusive and independent cause of action. In any case where the convention is applied together with any other rules the positions enshrined in the convention take precedence.
5.0 Chapter Four
5.1 Liability of Air carriers for injury or death of passenger, Destruction, Loss or Damage of Baggage And Cargo And For Delay under Nigerian statutes:
5.1.0 Liability of carrier for damage, loss or destruction of baggage or cargo:
Liability of Carriers For Death or Injury of Passengers sustained During the Carriage under international rules : the explanation on this subtopic centered on two variables one from the international point of view and the other one is from the non-international point of view. From the international perspective, article 17 of the Montreal Convention provides that he carrier is liable for damage sustained in cases of death or injury that took place on board the aircraft or in the embarkation or in the cause of any of the operations of embarking or disembarking. One conspicuous loophole from the Contract is that it has not defined what what is an accident in the entire provisions of the rule. Under the United Kingdom (UK) Civil Aviation Act 1982 the word “Accident “, “includes any fortuitous or unexpected event by which the safety of an aircraft or any person is threatened”. Also in the case of Air France V. Sark the US Supreme Court defined accident as an event that causes injury to the passengers from an act which is unexpected, unusual or external to the passenger.
The ICAO Annex 13 defined accident as an occurrence associated with the operation of an aircraft which take place between the time any person boards the aircraft with the intention of flight until such time as all persons have disembarked in which
A person is fatally injured as a result of being in or connected with the aircraft except where the injuries are from natural causes or self inflicted;
The aircraft sustains damage or structural failure which adversely affected the aircraft;
The wis missing or is completely inaccessible[14].
Furthermore, in the case of Air France V. Saks[15] the court could not award damages because of the daily of the plaintiff to bad her claim on abnormal operation of the aircraft as a cause of the accident. In another case of Povey V. Qantas Airways Ltd[16] an Australian court held that “accident is a concept which rises two questions; first, what happened on board (including during embarking and disembarking) that caused the injury of which a complaint is made and second, was what happened unusual or unexpected”. In some alike cases and as provided under the Warsaw Convention, aircraft hijacking and terrorists attack is regarded as an accident which can warrant liability of carriers.[17]
in Morris V. KLM Royal Dutch Airlines[18] a fifteen (15) years old passenger was seated between two men during the flight. After a meal she fell asleep and woke to discover the hand of one of the men caressing her between her hip and knee and his fingers dug into her thigh. The court held that this incident constituted an accident under article 17 of Warsaw Convention. In the tragic case of Olympic Airways V. Hussain[19] the US Supreme Court affirmed an award of damages by the Ninth Circuit for the death of an asthmatic passenger (who died two hours into the flight) after a light attendant refused on three occasions to allow the passenger to move to a seat further from the smoking section of the aircraft. The court in this case upheld the contents of article 17 of the convention and applied it strictly against the carrier.
On the other hand, a passenger is literally means any person who engaged the service of air carrier. In the Nigerian case of British Airways V. Atoyebi[20] the court of Appeal adopted the definition of passenger under IATA conditions. Thus:
“ a passenger is any person except members of the crew, carried or to be carried in an aircraft with the consent of the carrier”.
The convention brought a two-tier liability regime, where the claim does not exceed 128,82/ Special Drawing Right (SDR) the liability of the carrier to pay compensation is strict irrespective of fault from the part of the carrier or not. But where the claim exceeds 128,82/ Special Drawing Right (SDR) the carrier presumed to be liable under Montreal convention unless it is able to rebut the presumption. Here, the principle of negligence under tortuous liability is applied in favor of the plaintiff. The Montreal Convention creates a reverse burden of proof on the carrier i.e evidentiary burden of proof rests with the defendant[21].
5.2 Who May Sue For Damage When Any of the incidents cited Above Happened: In cases of damage of baggage or cargo and death of or injury to passengers which happened as a result of accident or the law provided for those can take legal action to secure the payment of compensation whether directly to the affected persons or any of their representatives.
It seems that from the wording of the Montreal Convention a person who can sue in cases of injury is the passenger himself if he has legal capacity while in the case of death of the passenger it is the domestic law of a country that usually provides for this, i.e in Nigeria, it is the legal representative of the person that can sue. Such as his administrator, executor, and my guardian of the the deceased.
5.3 Who May Be Liable: The carrier is essentially responsible for the payment of damages for bodily injury or death of passenger under article 17 (1) of the Montreal Convention. This also includes carriers’ privies such as his agents or servants who acted under his command. They can also be held liable in some cases as provided under attic 30 of the Montreal Convention.
In the case of successive carriers, it is the carrier who performed the carriage during which the accident happened that is liable to pay damages, except whereby express agreement the first carrier has assumed responsibility for the whole journey.[22] The carrier is expected to make an advance payment where the passenger is death to the people who should use the money to settle economic expenses of the passenger. This amount may be computed while calculating the actual amount accrued as a result of the accident.
Liability of Carriers for Death or Injury of Passengers Under Domestic Law: Even though the Nigerian civil Aviation Act 2022 provisions on this part is the same with what is provided under the Montreal Convention it is still important that the position of our domestic law is brought forward so that such position of the law will be appreciated accordingly.
Under the Nigerian laws the relevant provisions relating to liability of carrier on cases of injury and death of passenger is provided under the Act[23], thus:
“The provisions contained in the convention and the unification of certain rules relating to international carriage by air signed at Montreal on 28th May, 1999 which has been modified and set out in the second schedule to this Act and shall, from the commencement of this Act have the force of law and apply to non-international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage and shall subject to the provisions of this Act govern the rights and liability of carriers, passengers, consignors, consignees and other persons within the contemplation of the modified Convention.”
The section went further and provides how and for what purpose advance payment should be made where aircraft accident resulted in the death or injury of passengers. It is stated thus:
“In any case of aircraft accident resulting in death or injury of passengers, the airline operator or carrier shall make advance payment of Naira equivalent to at least 30, 000 U.S Dollars within 30 days from the date of such accident, to the natural person or such natural persons who are entitled to claim comps in order to meet the immediate economic needs of such persons and such advance payment shall not constitute recognition of liability and may be offset against any amount subsequently paid as damages by the carrier.”
In the case of Harka Vs Emeka Keazor[24] Per Adekeye J.S.C the Nigerian Supreme Court adopted the definition of aircraft accident contained in ICAO annex 13, when it stated its wise and considered decision, thus:
“Under the aviation law an aircraft accident is an occurrence associated with the operation of an aircraft which take place between the time any person boards the aircraft with intention of flight until such time.”
See also regulation 3 of the Nigerian Civil Aviation (Investigation of Air Accidents And Incidents) Regulation, 2016. To avoid verbosity and unnecessary repetitions, all what had been said under international carriers’ liability is the same on both meaning and content with the non-international air carriers’ liability provided by the Nigerian statutes.
Notwithstanding, there are some slight differences between the two sections of the law. For example, under the Nigerian Civil Aviation Regulations 2015, passenger is defined as “a person on whose name a ticket and a reservation is made who is eligible to travel pursuant to that ticket whether payment is made or not”[25]. So also in the liability extends, limit and burden of proof of carrier’s liability the law on non-international carriage is the same with international carriage.
The position was slightly modified by the Nigerian Supreme Court in the case of Harka Air Service Vs Emeka Ekeazor[26] per Vivour J.S.C the court held as follows:
“…An accident cause by a willful misconduct of the carrier will not be affected by carrier’s liability limits”
The above decision of the court contradicts what is provided under the Warsaw Convention on the limits of liability.
6.0 Liability of carrier for Destruction, loss, Or Damage To Baggage and Cargo: The provisions of the law dealing with liability of air carriers for destruction, loss or damage to baggage and cargo within the domestics domain are provided under the Nigerian Civil Aviation Act 2022 and Nigerian Civil Aviation Regulations 2015/2016.
In relation to cargo where the damage, loss or destruction is caused, the carrier is liable upon condition that such accidents that causes the damage, loss or destruction of the property took place during the carriage by air[27], the air carriage here includes the period during which the carrier is in charge of the cargo. Baggage is this a personal property of passengers or crew carried on an aircraft by agreement with the carrier. It could also be checked or unchecked baggage. Babbage whether checked or unchecked, the liability of air carrier is the same both situations once the damage is proved
In case of checked baggage, liability arises when the damage, loss or destruction took place during the period when the baggage was still with the carrier while in the case of unchecked baggage the plaintiff must prove that the event which caused the damage was as a result of fault from the carrier. Usually if the carrier admits the loss of the checked baggage of where the checked baggage has arrived after the expiration of twenty one days from date on which it ought to have arrived, the passenger is entitled to enforce against the rights that follows from the contract of carriage[28]. The laws governing carrier’s liability on non-international carriage in cases of damage, loss or destruction of baggage and cargo are the same with provisions under the international rules as envisaged under article 17 and 18 of the Modifications to the Montreal Convention.
6.1 Time Within which To Make complaints when damage occurred: In the passenger must complain in writing to the carrier forthwith after the discovery of the damage and at the earliest within
(a) two days from the date of receipt in case of checked baggage
(b) Seven days from the date of receipt in case of cargo and;
(c ) fourteen days from the date of date on which the baggage or cargo had been placed at his or her disposal in the case of delay.
6.2 Available Defenses To Air Carrier (s) : The modification to the Montreal convention recognized some defenses available to air carrier. From the contents of the convention where a damage is resulted from the defect or lack of quality standard of the baggage there will be no liability. So also in case of cargo liability will not arise if the loss, destruction or damage of the cargo occurred as a result of internal factor such as substandard quality of the cargo or defecting packing, etc.
In effect, where any of the above instances happened, the carrier will be exonerated from liability and the passenger or any person own his behalf will not be entitled to any compensation.
7.0 Carriers’ Liability for delay in Carriage by Air: The law provides that where action of air carrier causes delay to passengers the right to sue the carrier will eventually follow and the carrier is liable unless it can show that the delay was not deliberate or it was caused by a factor beyond its control.
Under the Nigerian Civil Aviation Act[29] it is succinctly provided thus as contained under 19 of the Montreal Convention to which the law stated as follow:
“The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nonetheless, the carrier shall not be liable for damage occasioned by delay if it proves that it, its servants or agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to to take such measures “.
Again if the damage caused by the delay was as a result of the negligence of the person who suffer the consequences, the carrier will be exonerated from liability[30]. Where the damage caused by delay as specified in article 19 is in the carriage of persons other than baggage or cargo, the liability of the carrier for each passenger is limited to 4150 US Dollars[31].
However, the law empowered the minister of aviation to renew the limits of the liability after every seven years[32].
In order to regulate the framework of bringing legal action in cases of delay and damage caused by delay in carriage by air, the law provided the time limit within which legal action must be initiated or else it will be defeated by lapse of time[33]. Therefore, any person who intends to file legal action against an air carrier must do so within the period of two years 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.
Chapter Five
Conclusion: From all that has been said in the above, it shows that there are a lot of outcries by passengers as well as air carriers in cases of delay, damage, death or injury of passengers. under the Nigerian statutes, the Montreal Convention was wholly adopted with slight fewer changes in respect to right of passengers and liability of air carrier in any of the instances highlighted in the above as can be seen under the Nigerian Civil Aviation Regulations 2016/2023. Primarily, an air carrier is liable under non-international flight/carriage only to the extent of physical injury sustained by his passengers under the current Nigerian law in cases of accident. Invariably, passengers are left without remedy in cases of psychological trauma just like in the Australian case of Karen Casey, and in more recent times cases of cancellation of flight and delay of passengers are becoming rampant and in most cases the victim of such nightmares are left without adequate remedy, this devastating situation is against principle of law on liability where it said, “Where there is wrong, there must be a remedy “. This shows that Montreal Convention; Civil Aviation Act 2022 and Nigerian Civil Aviation Regulations 2023 still left a loophole that need to be addressed in our aviation sector for the safety of passengers, their baggage (s) and cargoes.
Chapter Six
1.0 Recommendations: based on the findings I have in the above, the following recommendations are made:
The current Civil Aviation Act 2022, shall be reviewed by the Nigerian Civil Aviation Authority and necessary modifications and changes shall be made therein.
The current Nigerian Civil Aviation Regulations 2023 shall be reviewed and necessary changes shall be effected therein to include provision for liability of persons who suffered from psychological trauma and not only physical injury.
Passengers, air carriers and all other important stakeholders including Consumer protection agencies shall be organized under a centralized unit to bring out more befitting solutions on issues concerning liability of air carriers.
Written By :K.M Aboki
Final year Law student, From Faculty of Law, Ahmadu Bello University Zaria.
Abokimuhammadk@gmail.com/08108147365
[1] Ugo Ezeugwa Aviation Law and Practice in Nigeria,2019.
[2] (2011) N.W.L.R (pt.1264)320
[3] 2001, WL 483072 (CACCIV. Div) 2001
[4] Oxford dictionary 6th Ed. (P.85)
[5] Aviation Law and practice in Nigeria (p. 2)
[6] 1994, convention on international civil aviation
[7] Ugo Ezeugwa, aviation law and practice in Nigeria (p.3)
[8] P 7 aviation law and practice in Nigeria by Ogu Esq
[9] Agbeyegbe S, Aviation law and business in Nigeria-present and future- the Annual Aviation Law and Business Digest, (2002) vol.1. P 11
[10] Art. 16, 17 and 18 of the Convention.
[11] Ronald. I. C Bartsch, op. cit. note 9, p 22.
[12] (1937) 1 KB, 50 at 7477
[13] Article 16,17,18,19&20…., Montreal Convention of 1999
[14] Aircraft Accident and Incident Investigation, 9th ed. 2001 page 1-1
[15] Supra
[16] (2003) WL 23000692(VCA 2003); 2005 WL 1460709 (HCA2005)
[17] Article 17 Warsaw Convention.
[18] (2001) WL 483072 CA (Civ-Div) 2001
[19] 540 U.S 644 (2004)
[20] (2010) 14 NWLR (pt. 1214) 596
[21] Karin Paulson op. Cit, note 79, p. 13
[22] Article 36(2) , Montreal Convention
[23] Section 55 (2) and (3) Aviation Act, 2022.
[24] (2011) N.W.L.R (pt. 1264) 320
[25] Part 19, 19.121 (23) NCAR,2015.
[26] Supra.
[27] Article 18 para 1 of the modification to the Montreal Convention
[28] Art. 17 Modifications to the Convention
[29] Section 55; Second schedule
[30] Article 20, Montreal Convention
[31] Article 22, Montreal Convention
[32] Second Schedule, Civil Aviation Act, 2022.
[33] Article 34, Montreal Convention
In this article