Applicable laws in respect of aviation accidents caused by international airlines – Ghana’s perspective

Introduction

Aviation provides the main worldwide transportation network, which makes it essentially possible for global connectivity, business and tourism. This thus plays a vital role in facilitating economic growth, particularly in developing countries like Ghana.

The burgeoning demand for air transport has increased steadily over the years. Statistically1, the number of airline passengers have grown by 45% over the last decade and have more than doubled since the mid-1980s. Additionally, freight or cargo traffic has increased even more rapidly, by over 80% on a tonne-kilometre basis over the last decade and almost three-fold since the mid-1980s. In the year 2004, the air transport industry carried about 1,890 million scheduled passengers and 38 million tonnes of freight or cargo.

The rapid growth of the air transport industry globally has been driven by a number of factors, including but not limited to the following: rising Gross Domestic Product (GDP), disposable income and living standards resulting in an increase in the demand for mainly travel for both business and leisure purposes.

Evidently, it is based on the overwhelming benefits of the aviation space that previous and current Governments have pursued an aggressive agenda to reposition Ghana as both an aviation hub and the most preferred destination of choice for travelers within the West African sub region.

The President of Ghana, His Excellency Nana Addo Dankwa Akufo-Addo2, disclosed that airfreight movement has increased by 5.9 percent with 38 airlines currently operating in Ghana, connecting directly to about 30 different destinations around the globe which translates into 6.7 percent growth as at September 2019 compared to 2018. The sector generated about 2.7 billion dollars to Ghana’s GDP in 2017 alone. The President stated that the Kotoka International Airport (KIA) was ranked by the Airport Council International (ACI) as the first in West Africa and the fourth-best in Africa.

Impressively, Ghana was awarded two (2) International Civil Aviation Organization Council (ICAO) President’s certificates for maintaining one of the highest global aviation safety and security standards at the ICAO’s just ended 40th Assembly in Montreal, Canada. The country received the safety award in recognition of obtaining Africa’s highest score in Aviation Safety Oversight with a provisional Effective Implementation (EI) rate of 89.89 percent.

Notwithstanding the effective safety and security mechanisms implemented by countries, the occurrence of cross border accidents in the aviation industry is inevitable vis-à-vis the increasing air traffic. Therefore, this exposition is expected to provide insight into the applicability of aviation accident laws in respect of personal bodily harm or death in Ghana. The aviation accident laws cover largely the laws on accidents which occur during embarkation and disembarkation of aircrafts, be it commercial passenger or small privately owned planes. Obviously, passengers may sustain personal injuries while travelling on an airline. There is the risks of passengers being injured in-flight due to turbulence, they may trip or fall moving about the cabin, or they may be injured by luggage falling from overhead bin or compartment.

Law governing airline liability

Globally, the applicable law governing airline liability in respect of personal bodily harm or death is the Montreal Convention 1999 (MC 99)3. It is an international treaty which provides the right to an airline passenger who is injured or killed on an international flight through embarkation or disembarkation to claim for compensation. The MC 99 establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo. Essentially, the MC 99 unifies all the scattered international treaty regimes covering airline liability that had existed since 1929 previously known as the Warsaw Convention. Therefore, the MC 99 is designed to be the solitary and universal treaty to govern airline liability around the world for all countries which have ratified the Convention.

The scope4 of MC 99 applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. For the purposes of construction or interpretation, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Conversely, carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of MC 99.

Ghana, a dualist State, in accordance with Article 75 of the 1992 Constitution, modified and ratified the MC 99 on the 18th day of February, 2016 under Section 28 of the Ghana Civil Aviation (GCA) (Amendment) Act, 2016, Act 906. The full MC 99 is set out in the Second and Third Schedule of Act 906. The scope under Act 906 appears to be wider than the universal MC 99 because, the former applies to international carriage of air to and from Ghana in relation to a carriage by air to which those rules apply and non-international carriage by air within Ghana, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of Act 906, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.

Jurisdiction

It is often nightmarish to determine the right jurisdiction to initiate an action for the claim of damages in the occurrence of accidents resulting in personal bodily harm or death, particularly, involving international or cross-country flights.

Generally5, an action for damages must be brought, at the option of the Plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. Particularly, damages in respect of death or injury of a passenger may be brought before one of the courts mentioned above, or in the territory of a State Party in which at the time of the accident the passenger had the principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

Compensation for damages

On a passenger’s death or personal injury arising from an international or cross border accident claim during embarkation and/or disembarkation, the recovery of compensation has a two-tiered system which are as follows5:

a) Strict or automatic liability of 113,110 Special Drawing Rights (SDR)6– in this case the airline is automatically liable for proven damages up to 113,100 SDR. This amount was increased in 2009 from the original Convention limits of 100,000 SDR. The only way the airline can be relieved from liability up to damages of 113,100 SDR is by proving contributory negligence which means that the injured person was negligent in causing his or her own injuries;

b) To claim damages exceeding the 113,100 SDR – there are situations where an injured passenger’s damages can exceed the113,100 SDR. The airline can avoid paying an injured passenger more than 113,100 SDR by discharging the burden of proving that either the accident was not caused by the airline’s own negligence; or the accident was caused solely by the negligence of a third party.

Ghana adopted and ratified the MC 99 under GCA (Amendment) Act 906 sometime in February 2016, Section 17 of Schedule Two (2) of Act 906 provides the compensation in the case of death or injury of passengers as follows:

a) For damages sustained in the case of death or bodily injury not exceeding 100, 000 SDR for each passenger, the carrier shall not be able to exclude or limit its liability;

b) The carrier shall not be liable for damages sustained in the case of death or bodily injury to the extent that they exceed for each passenger 100, 000 SDR if the carrier proves that:

i. Such damages was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

ii. Such damage was solely due to the negligence or other wrongful act or omission of a third party.

Needless to say, Act 906 which was enacted sometime in February 2016 pegs the compensation sum far lower than the MC 99 which was revised upward sometime in the year 2009.

The law7 provides guidance for the determination of monetary units in respect of SDR. SDR shall be deemed to refer to the definition by the International Monetary Fund (IMF) whose conversion sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the SDR at the date of the judgment.

Burden of proof

Generally, the law requires that the person who alleges must prove, otherwise known in latin as “semper neccesitas probandi incumbit ei qui agit”, the obligation to produce evidence to convince the Judge or Court. Conversely, in airline accidents involving international flights, the cap or threshold for damages is based on strict liability which means that a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the tortfeasor or Defendant or a person who commits an action or tort. Simply put, this means the burden of proof in a personal injury claim under the MC 99 for the capped compensation generally falls on the airline which principle is different from typical personal injury, such as medical malpractice claims, a car accident or even a claim for injuries sustained on a domestic flight, where the Plaintiff has the burden of proving the Defendant’s negligence in order to recover damages.

It is the same principle of evidential burden which is required under Act 906 in Ghana.

Advance payment

Based on the strict liability in the case of aircraft accidents resulting in death or injury of passengers8, the Carrier or Airline shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the Carrier or Airline.

Ghana’s national law9 prescribes that in any case of aircraft accident resulting in death or injury of passengers, the Carrier or Airline shall make advance payments of at least US $30,000 within 30 days from the date of such accident, to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such payment shall not constitute recognition of liability and may be off set against any amounts subsequently paid as damages by the carrier.

This means that any person involved in an international airline accident which results in personal bodily harm or death in accordance with MC 99 and Act 906 may make a successful claim for at least US $30,000 within 30 days from the date of such accident pending legal proceedings.

Limitation of actions

There is a limitation period for commencing actions against airlines for damages under the MC 99. The convention10 stipulates that: “the right to damages shall be extinguished if an action is not brought within a period of 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”. Essentially, the method of calculating the period shall be determined by the law of the court which is seised with jurisdiction of the case.

Applicability of the montreal convention in Ghana

The Supreme Court of Ghana in the case of Dr. R.S. D Tei & Evelyn Jumbo v. CEIBA Intercontinental11 had the opportunity to determine whether or not the Court of Appeal erred in the interpretation of the relevant provisions of MC 99. In the said case, the Appellant, an international engineering consultant boarded an aircraft of the Respondent, an operator, at the Kotoka International Airport, Accra as a fare paying passenger sometime in 2014 to fly to Malabo in Equatorial Guinea. As the Appellant took his seat on the aircraft a co-passenger opened the overhead carry-on baggage bin and a piece of luggage fell on the left eye of the Appellant resulting in a cut from which blood exuded. The Respondent Airline only provided the Appellant with cotton wool and gentian violet by a staff until the airline landed in Malabo. Unfortunately, the injury the Appellant sustained eventually caused him to lose that eye, leaving him now with one eye. The Appellant consequently filed a suit at the High Court against the Respondent claiming damages based on the Montreal Convention and the tort of negligence on the part of the Respondent. Although the Respondent was served with the processes and hearing notices, it did not appear to contest the claims and

hence the Appellant filed witness statement which he relied on at the hearing. The High Court dismissed the Appellant’s claim because the injury was caused by the act of a co-passenger and not the staff of the Respondent, hence the Plaintiff did not have any cause of action against the Airline. The Appellant consequently filed an appeal at the Court of Appeal against the decision of the High Court claiming damages to the sum of Seventeen Million United States Dollars (US$ 17,000,000.00) excluding loss of earnings. The Court of Appeal allowed the appeal but held that the Appellant was entitled to 100,000 Special Drawing Rights (SDR) limit as damages under the provisions of MC 99 for the accident which transpired on the flight. The Appellant further disgruntled by the judgment of the Court of Appeal, mounted an appeal with the Supreme Court for proper interpretation of MC 99. The five (5) member panel of the Apex Court unanimously dismissed the appeal subject to payment of the ordered damages. The Court held that the SDR was reviewed in 2009 from 100,000 to 113,100.

His Lordship Pwamang JSC delivering the lead judgment held that: “…there are three elements the presence of which would result in strict liability on the part of the carrier to pay damages for bodily injury or death suffered by a passenger which are; (i) an accident (ii) bodily injury (iii) the first two must have occurred on board the flight or in the course of embarkation or disembarkation”. The Court further held that: “consequently, in our opinion, the Court of Appeal did not err when they applied Article 21 (2) (a) & (b) to limit the damages payable, except that they ought to have awarded the Appellant 113,100 SDR since at the time of the accident that was the cap”. The reasoning of the Court was that the injury to the Appellant was due to the negligence of a co-passenger, a third party for that matter, and not an agent of the carrier hence the refusal of the Court to grant the Appellant damages exceeding the 113, 100 SDR.

Conclusions

The Supreme Court was right in awarding the 113,100 SDR since it was the right compensation at the time of the accident sometime in 2014. However, it is noteworthy to mention that Ghana through the adoption of MC 99 into Ghana’s laws sometime in 2016, enacted Act 906 which maintained the compensation at 100,000 SDR. This is therefore, the compensation for airline accidents which transpired from the 2016 onwards instead of the 113,100 SDR mandated by MC 99.

Refreshingly, Ghana’s law incorporates the advance payment of at least US $30,000 within 30 days from the date of an accident by an international airline which results in bodily harm or death in accordance with the laws pending the determination of the proceedings.

It is my humble opinion that the airline was culpable for the injury that occurred despite the fact that it was directly caused by a third party on board the flight. This is because each airline must have an approved carry-on baggage policy which outlines the allowable size and weight of the bags to be allowed into that carrier. This is typically because, the items that are stored in the overhead bins or compartments nowadays are no longer just “coats and hats” with light weight. In recent times, passengers board and deposit rolling suitcases and briefcases, strollers, sports equipment and other unusually shaped objects into the overhead space without the airlines scrutinizing same in accordance with standards. It is imperative and the duty of any airline to ensure that such items which may cause bodily harm or death in a flight are not allowed to be carried into a flight’s cabin or compartment. Assuming that the airline had rigorously observed this duty by checking to ensure that such luggage (s) with either potentially hazardous items or above the allowable size were not allowed into the flight, let alone to be placed into the cabin or compartment, the accident which caused the grave injury to the Appellant could have been preventable or the injury could have been abated. There is no gainsaying that the airline breached its bounden duty to prevent, stop and/or halt the said luggage (s) into the airline thereby causing the grave disfigurement.

I humbly recommend that as Ghana resolves to position herself as an aviation hub and the most preferred destination for travelers in the sub region, the 100,000 SDR compensation cap which was incorporated in Act 906 sometime in 2016 should be amended to reflect the 113,100 SDR under the MC 99 to make Ghana a favorite forum for such aviation proceedings.

The author, Limann A. Mohammed, is a Lawyer with profound interest in corporate and commercial practice as well as general litigation.

Email: [email protected]