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Tuesday, December 4, 2018

WHEN SHOULD YOU SUE THAT AIRLINE



In 2010, aviation contributed NGN 119 billion (0.4%) to Nigerian GDP. With this huge (and rising) number of airline users in Nigeria, it is not unusual to have instances of friction. As with all human relationships, there are times when either passenger or airline missteps and causes the other injury. To ensure that you do not get the wrong end of the relationship, it is important to educate yourself on the nature of your relationship and your rights, as well as, duties.
The relationship between an airline (carrier) and a passenger is contractual in nature. Traditionally, the airline contracts to provide you safe, secure and timely transportation to your destination provided you perform your obligation and you contract to pay your fare, arrive on time at the airport and comply with other terms (including undergoing security and safety checks, and behaving in an orderly manner). However, in modern times, the obligation of the transporter (airline) has improved from merely taking you to your destination to also providing a level of comfort, relaxation and pleasure during the period of the flight and when alighting (and boarding).

Every passenger, including any person who may not have entered into a contract personally with the carrier but was on board with the knowledge of the carrier, has this contractual relationship with the carrier.
The Warsaw and Montreal Conventions of 1929 and 1999 are the key instruments that govern the rights and liabilities of airline/carriers, passengers, consignors and consignees. They relate to events associated with the operation of an aircraft which takes place between the time when passengers embark until such time as passengers disembark from the aircraft. These international conventions were domesticated by our local legislation in the Civil Aviation Act 2006 (in the Case of the Montreal Convention) and Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 (in the case of the Warsaw Convention), and are therefore enforceable in Nigerian courts. Section 48 of Civil Aviation Act provides that the provisions of the Montreal Convention 1999 set out in the Second Schedule of the Act, shall have the force of law and apply to international and domestic carriage by air, irrespective of the nationality of the aircraft performing the carriage and shall govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
The Montreal Convention provides that the carrier is liable for damages to the passenger if an accident causing damage took place on board the aircraft or in the course of disembarking or embarking. The carrier is also liable for damage occasioned by delay unless it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. This liability however, is deemed to have been waived if the passenger fails to claim within a prescribed time and in writing.
This means that should you suffer some loss during the flight or should your valuable luggage be lost in transit, you should immediately contact your lawyer/legal representative who should, as soon as possible, make a written claim to the airline. Otherwise you may lose your right to make any such claim. You may also make such a claim by yourself.
Should you feel that an action ought to be brought against the airline, you have a right to institute an action in your territory or that of the carrier, before a court having jurisdiction where the carrier is ordinarily present, or where he has a principal place of business or establishment (where the act occurred) or at the place of destination of the aircraft.
Where you have decided to bring an action against the carrier, it is important to know the nature of the claim you can make. Primarily, the law of contract (which is what governs the relationship between carrier and passenger) is predicated on the desire to safe guard against financial loss. Hence, unless it is shown that some miscarriage of justice will be done, you are unlikely to recover any sum claimed as general damages. You may however, successfully make claims for special damages for breach of contract including any money expended on hotel accommodation, transport, etc caused as a result of the delay. The claims for damages are however subject to the limits provided in Articles 21 and 22 of the Montreal Convention.
The Montreal Convention 1999 has set the limits of liability of carriers. Article 22 limits the amount of liability of a carrier in respect of loss or damage to baggage to a sum of 1,000 Special Drawing Rights (SDR) per passenger unless the passenger made, at the time when the checked baggage 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 the case of cargo to the sum of 17 SDR per kilogram unless the consignor 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. Article 21 limits the amount of liability of a carrier in respect death or injury of passengers to 100,000 SDR provided such death was not due to the negligence or other wrongful act or omission of the carrier, its servants or agents. One SDR is equivalent to USD 1.34. These limits however, do not affect court costs and of the other expenses of the litigation incurred by the plaintiff, including interest.
Additionally, where there is any provision in the agreement between you and the carrier which tends to lower the limit or relieve a carrier liability as laid down by the Montreal Convention, such a provision is incompetent and void.
Finally, there may be an instance where you feel the action of your carrier is outrageous, cruel, malicious, insolent and/or fraudulent. In such an instance, you may be tempted to claim, in addition to compensatory damages, exemplary, retributory or punitive damages which serve to punish the carrier for his conduct. Such claims are barred under Article 25 of the Montreal Convention. Please note that the actions of the carrier referred to above include the actions of any and all its employees or agents as the carrier is vicariously liable for their actions provided they acted within their scope of employment, otherwise, they are personally liable.

Fernandez Marcus-Obiene is a partner and head of tax and dispute resolution departments, respectively, at Threshold Attorneys & Solicitors, a full service law firm in Lagos, Nigeria. He is also a member of the Welfare Committee of the Lagos Branch of the Nigerian Bar Associate and a co-founder of Young Legal Professionals, a network of young lawyers around Nigeria that promote good governance, ethical practice and the development of law. Fernandez may be reached at fernandez.obiene@gmail.com.
For further reading on the topic, you may consider the case of British Airways vs Atoyebi (2014) 13 NWLR (PT. 1424) 253, (2014) LPELR-23120 (S.C.); British Airways vs Atoyebi (2013) All FWLR part. 658 pg. 866 (C.A.); South African Airways vs Ubani(CA/L/670/2016), Cameroon Airlines v. Otutuizu (2011) 4 NWLR part 1238 pg. 512; Harkar Air Services (Nig.) Ltd. vs Emeka Keazor, Esq. (2011) 13 NWLR part 1264 pg. 320; The Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 commonly known as the Warsaw Convention as amended by the Hague Protocol 1955; Agreement Relating to Liability Limitation of the Warsaw Convention and Hague Protocol commonly known as the Montreal Convention 1999
  • ·  The content of this article represent the personal opinion of the author and is not intended to be used as a substitute for specific legal advice or opinions. No recipients of the content should act or refrain from acting on the basis of the content of this article without seeking appropriate legal advice or other professional counseling.

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