Compensating Ground Victims of Aircraft Accidents: A Legal Blind Spot

Introduction

The 9/11 attacks on World Trade Center in 2001 took the world by storm. The incident was exceptional for the reason that it caused more damage, in terms of life and property, on the ground than that on board the aircrafts that crashed into the two iconic towers of the Center. As per an estimate, 2214 people on the ground perished in comparison to 157 fatalities on board the aircrafts.¹ Although a terrorist attack, nevertheless, the incident brought to light the possibility of widespread damage to life and property on the ground as a result of aircraft accidents, and the adequacy of existing laws in providing effective remedies to the victims of such accidents.

Increasing rate of urbanisation, widespread adoption, and deeper penetration of air travel as a means of public transport and rising income levels across the world have not only increased the frequency of aircraft accidents but also their propensity to inflict damage on the ground. For instance, on 8-5-2023, a MiG-21 fighter jet crashed in Rajasthan, killing 3 civilians on the ground while the pilot safely ejected mid-air.² Again, a Turkish Airlines cargo aircraft crashed near Bishkek Airport in 2017, killing all 4 crew members and causing 35 deaths on the ground.³ These are only a few examples of an increasing trend of on-ground fatalities, besides the untold loss of property caused on the site of impact as a result of aviation accidents.

International laws

The prevailing international treaty that deals with the issue of compensation to the victims of aircraft accidents was adopted in 1999 and is formally known as the Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter “the Convention”).⁴ The Convention aims to ensure protection of the interest of consumers in international carriage by air and emphasises the need for equitable compensation based on the principles of restitution. The Convention limits the eligibility to claim compensation for damage sustained in an aircraft accident to passengers on board the aircraft and does not extend it to victims on ground who could be equally, if not more, exposed to the risks emanating from such accidents.⁵

The Convention quantifies the liability of a civil aviation company (hereinafter “Carrier”) for damages sustained by passengers in aircraft accidents.⁶ The Convention incorporates the principle of absolute liability to the extent of the capped limit of SDR 1,00,000, while adopting a comparatively relaxed standard of strict liability beyond that limit.⁷ Hence, under the Convention, the liability of a Carrier could be unlimited, as there is no cap on strict liability.

The principle of strict liability was enunciated in Rylands v. Fletcher.⁸ The principle holds a defendant liable regardless of the nature of his intention, observance of reasonable care by him, or absence of negligence on his part. Strict liability does however admit some exceptions, such as, act of God, consent of plaintiff, act of third party, act done under statutory authority, and plaintiff’s own default. Absolute liability, on the other hand, was propounded by the Supreme Court of India in M.C. Mehta v. Union of India.⁹ It admits no exceptions to liability of defendants under any circumstances, owing to the inherently dangerous or hazardous nature of the activity. The Convention thus adopts “no fault” standards of liability in aircraft accidents, holding a Carrier absolutely liable to compensate victims, to a certain extent, while keeping the liability strict and avoidable on certain grounds, beyond that extent.

Domestic laws

India enacted the Aircraft Act, 1934 for control of the manufacture, possession, use, operation, sale, import and export of aircrafts.¹⁰ The Central Government promulgated the Aircraft (Investigation of Accidents and Incidents) Rules, 2017 (hereinafter “the Rules”) under Section 7 of the Act.¹¹ These Rules are applicable to aircrafts registered in India wherever they may be as well as those registered outside India but for the time being in or over India.¹² Under the Rules, the definition of “accident” includes occurrences during the operation of an aircraft, from boarding until disembarking of passengers, in which a person is fatally or seriously injured, as a result of direct contact with any part of the aircraft, including parts which have become detached from the aircraft, or of direct exposure to jet blast.¹³

Hence, it is clear from the above provisions that the meaning of accident in the Rules is wide enough to cover incidents on ground caused by aircraft accidents that result in serious injuries or fatality to any person. However, the Rules deal only with the issues of reporting and investigation of aircraft accidents and do not provide for any method or manner of determination of compensation to victims, passengers or ground, of aircraft accidents. This is because India is a signatory to the Convention, and she adheres to international laws and standards on the issue of compensation to victims of aircraft accidents.

Indian laws, therefore, rely on the Convention to determine compensation to be paid to victims of aircraft accidents once investigation is concluded under the Rules. The provisions of the Convention have been incorporated as the Third Schedule to the Carriage by Air Act, 1972.¹⁴ As far as codified laws applicable to India are concerned, neither of the two, the Convention or the Aircraft Act, 1934 along with Rules made thereunder, provide for any method or manner of determination of compensation to ground victims for damages caused by aircraft accidents. The Convention is limited in its application to passengers on board an aircraft and do not take cognizance of damage caused to ground victims. The Rules, on the other hand, include ground victims in the definition of accident, but since its provisions are limited to reporting and investigation of accidents, such inclusion is inconsequential.

The ground victims of aircraft accidents can also seek recourse to the Fatal Accidents Act, 1855, which aims to provide compensation to family members of the deceased for losses occasioned by the death of a person caused by actionable wrong.¹⁵ The Act entitles the family members of a deceased whose death is attributed to wrongful act, neglect or default of any party, to maintain an action and recover damages from such party, proportionate to the loss resulting from such death to the family of the deceased.¹⁶

However, the provisions of the Fatal Accidents Act, 1855 are inadequate to do justice with ground victims of aircraft accidents for two reasons. First, the mandatory condition to prove wrongful act, neglect, or default on part of the Carrier goes against the principles of absolute or strict liability as provided in the Convention. There is no way a ground victim can discharge such a heavy burden of proof against a giant and resourceful airline company. The inherently dangerous nature of aviation demands exemption from such onerous burden of proof on plaintiff. Second, the Act only considers compensation for death of victims of actionable wrong, thus excluding cases of serious injury to the person and damage to the property of ground victims.

Finally, ground victims of aircraft accidents can seek justice under the Disaster Management Act, 2005, which provides for the effective management of disasters.¹⁷ The definition of “disaster” under the Act is wide enough to cover man-made disasters such as aircraft accidents, whether caused by the negligence of the Carrier or its staff, or by accidents, even if it results in the destruction of the property or serious injuries to the person of ground victims, without any loss of lives.¹⁸ The Act envisages a “National Disaster Response Fund” constituted by the Central Government for meeting any threatening disaster situation.¹⁹ The National Disaster Management Authority (hereinafter “NDMA”) shall recommend guidelines regarding the minimum standard of relief in case of disasters, including ex gratia assistance on account of loss of life or damage to house and for restoration of means of livelihood.²⁰

Thus, the Disaster Management Act, 2005 appears to be the best available recourse to ground victims to seek relief in cases of aircraft accidents but not the best possible one. Considering the potential nature and magnitude of damage caused by aircraft accidents on ground, the ex gratia “assistance” seems to appear inadequate, as the intent behind the provision was to provide gratuitous “assistance” to victims of disasters for their rehabilitation and not to compensate them for their losses as a matter of right. In any case, the standards of absolute or even strict liability cannot be applied to such ex gratia assistance, in absence of any specific provisions to that effect, either in the Act or the Guidelines of NDMA.²¹

The only other plausible recourse to ground victims of aircraft accidents in India to seek compensation for their damage could be an action under tort through the intervention of courts. Once again, judicial precedents on the subject are deficient, as they entirely deal with the issue of compensation to victims of aircraft accident on board. Nevertheless, the fundamental rule of law underlying these cases could be worth taking note of, so far as the standard of liability is concerned.

Indian courts have adopted a liberal approach in compensating victims of aircraft accidents by applying the principle of strict liability. Thus, a Carrier is liable to pay fair compensation to on-board passengers who suffer serious injuries or fatalities as a result of an aircraft accident. Thus, reasonable care or lack of negligence would not allow airline companies to escape their liability to compensate the accident victims. However, with regard to determination of the quantum of compensation amount, courts adhere to the provisions of Convention on capped amount of compensation subject to absolute liability, while taking negligence as an aggravating factor (likely to increase the total amount of compensation) and act of God as a mitigating factor (likely to decrease the total amount of compensation) in fixing the amount of compensation beyond that cap.²²

Conclusion

To conclude, the extant laws on compensation of victims of aircraft accidents are not adequate to do justice with ground victims of such accidents. The nature and magnitude of damage suffered by ground victims as a consequence of aircraft accidents could be as serious and fatal as those suffered by victims on board an aircraft, if not more. Laws must take cognizance of advancement in society and technology and evolve to provide for effective remedies against all kinds of emerging mischiefs.

Absence of substantive provisions on compensation to ground victims in line with those provided for victims on board an aircraft compels them to seek judicial intervention as the last resort. The ruinous cost, delays and hardship associated with such resort may further aggravate the sufferings of ground victims instead of compensating them for their losses. Therefore, it would be advisable in the interest of justice to codify provisions related to compensation to ground victims of aircraft accidents to bring certainty, uniformity, and fairness to the existing laws on the issue.

Suggestions

There are two possible routes to provide legal remedy to ground victims of aircraft accidents. Under the international route, India can propose amendments to the Convention to include ground victims beside passengers as eligible applicants to claim compensation under it. The quantum and standard of liability of an aircraft carrier towards ground victims could be the same as those towards passengers, as provided in the Convention. The Third Schedule to the Carriage by Air Act, 1972 then needs to be amended to incorporate these changes.

The second route is by amending the domestic laws suitably to provide for absolute liability of aircraft carriers to compensate ground victims up to a certain limit and a relaxed standard of strict liability beyond that, in line with the Convention. This could be done by adding relevant provisions on the standard and quantum of liability of a Carrier to compensate ground victims of aircraft accidents in the Aircraft Act, 1934 or suitably amending the Fatal Accidents Act, 1855 by incorporating such provisions.

In either case, the standard and quantum of liability of a Carrier to compensate ground victims should incorporate the principles of capped absolute liability. Within this limit, the victim shall be compensated in full for actual damages suffered as a result of aircraft accidents. Beyond that limit, the liability shall be strict with an act of God as a mitigating factor and negligence as an aggravating factor in fixing the quantum of compensation beyond the cap.

Further, airline companies should be mandated to take third-party insurance to cover the risk of loss caused to ground victims as a result of accidents involving their aircrafts. This shall expedite the process of disbursal of compensation to such ground victims while alleviating the financial burden on airline companies to meet any unforeseen liability arising out of their legal obligation to compensate victims of aircraft accidents.