AVIATION LAW: REMEDIES FOR DELAYED,DAMAGED OR LOST BAGGAGE /COMPENSATION FOR DEATH OR INJURY OF AIRLINE PASSENGERS IN NIGERIA

Introduction

In the course of carriage of persons, baggage and cargoes by airline carriers, the delay, damage or loss of baggage and cargoes and sometimes loss of lives or personal injuries do occur due to human omissions or commissions, natural factors and accidents. This edition of Akintunde Esan’s Legal Illuminations is focused on the on the international and domestic laws governing the rights and liabilities of airline carriers, passengers, consignors and consignees in Nigeria in the context of remedies for delayed, damaged or lost baggage and compensation for death or injury of airline passengers in Nigeria.

A. Legal Framework

Aviation Law is body of international and domestic laws governing various aspects of civil aviation.

1. International Conventions

The rights and liabilities of airline/carriers, passengers, consignors and consignees in Nigeria are regulated by International Conventions. These Conventions have as their objective the unification of certain rules relating to International Carriage by air in order to ensure uniform standard, the orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation. The ultimate purpose and intention of these Conventions is to remove those actions governed by them from the uncertainty of the domestic laws of the member States. Thus, all countries that are signatories apply them without recourse to their respective domestic Laws. See Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, per Rhodes-Vivour, JSC

a. Warsaw Convention 1929

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 is an international convention which regulated liability for international carriage of persons, luggage, or goods performed by aircraft for reward. It was signed in Warsaw on 12 October 1929, and became effective on 13 February 1933.

b. Montreal Convention 1999

The Montreal Convention (formally, the Convention for the Unification of certain rules relating to International Carriage by Air). It is also termed the Agreement Relating to Liability Limitation of the Warsaw Convention and Hague Protocol. The Convention is a multilateral treaty adopted by a diplomatic meeting of the International Civil Aviation Organisation (ICAO) member states at Montreal on 28th May, 1999. By September 5, 2003 , the Montreal Convention was ratified by 31 states including Nigeria. It became effective on November 4, 2003.

The Convention retained the core provisions of the Warsaw Convention , it however, reviewed upward the limitation on liability for death and personal injury cases, waived the airlines’ due care defences and made the carrier’s liability an absolute liability in the absence of passenger’s negligence.

2. Domestic Applications of International Aviation Laws

The International treaties particularly the Warsaw and Montreal Conventions which govern the rights and liabilities of airline/carriers, passengers, consignors and consignees have been domesticated in Nigeria and made applicable to both international and non-international air carriage contracts.

a. Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953

The Warsaw Convention was domesticated as a Nigerian Law by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, Vol. XI Laws of the Federation 1958. It came into operation on the 1st day of January 1954. This law is no longer part of the existing law in Nigeria contrary to as held in the case Ibidapo v. Lufthansa (1997) 4 NWLR (pt.498) 124 which was held before the commencement of the 2006 Civil Aviation Act, as it has been repealed by Section 77 (1) of the Civil Aviation Act, 2006 which provides that:

“1. Subject to the provisions of subsection (2) of this section, the following enactments are hereby repealed;

a) Carriage by air (Colonies, Territories and other Trust Territories) Colonial Order 1953;

b) Civil Aviation Act, Cap. 51 LFN 1990;

c) Civil Aviation (Amendment) Act, 1999; and

d) )Nigerian Civil Aviation Authority (Establishment) Act, No. 49 1999.

2. All regulations, by‐laws, orders and subsidiary legislation made under the Civil Aviation Act, 1964 Cap. 511. FN 1990) shall continue to be in force until new regulations, by‐laws, orders and subsidiary legislation are made pursuant to this Act.”

While Section 77 (1) Civil Aviation Act, 2006 repealed the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, Section 48 (1) of the Act made the Montreal Convention applicable to international carriage by air in Nigeria. Section 48 (1) provides as follows:

“The provisions contained in the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 set out in the Second Schedule of this Act and as Amended from time to tune, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”

b. Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953

The Warsaw Convention was made applicable to non-international carriage/flights in Nigeria by virtue of the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953.See Kabo v. Oladipo (2000) 4 KLR (Pt.102) 1413. However, by virtue of Section 48 (2) of the Civil Aviation Act, 2006 as from the date of commencement of the Act the Montreal Convention shall apply to non-international carriage by air within Nigeria. For ease of reference Section 48 (2) of the Act is reproduced below:

“The provisions contained in the Convention for the Unification of Certain Rules Relating to international Carriage by Air signed at Montreal on 28th May, 1999 has been modified and Set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have 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 In the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”

c. Civil Aviation Act, 2006

The Montreal Convention was incorporated into Nigerian law by virtue of Section 48 of the Civil Aviation Act, 2006 and from the date of commencement of the Act, the Montreal Convention became the basis for establishing of an airline’s liability for both international and non-international carriages or flights in Nigeria. See Section 48 (1) and (2) Civil Aviation Act, 2006; Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA).

It is instructive to note that, the Montreal Convention prevails over any rules, which apply to international carriage, by air including the Warsaw Convention. See Article 55 of the Montreal Convention. In Nigeria, Civil Aviation Act, 2006 domesticated the Montreal Convention by repealing the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 which domesticated the Warsaw Convention.

The Act also domesticated other international treaties to which Nigeria is a party, including (among others) the Chicago Convention 1944 and the Cape Town Convention 2001.

d. Conflict between International Laws and Domestic Aviation Laws

The Montreal Convention and other Conventions to which Nigeria is a signatory are international treaties, international agreements and compromise principles, which the high contracting States have submitted to be bound by the provisions. They are therefore an autonomous body of law whose terms and provisions are above domestic legislation. Thus, any domestic legislation in conflict with the Conventions is void.

The law is that, where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence, an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law. Cameroon Airlines v. Abdulkareem (2003) 11 NWLR (pt.830) 1; El Al Israel Airlines Ltd. v. Tseng 919 F. Supp 155 S.D.N.Y. 1996 ; Sidhu v. British Airways (1997) 1 All ER 193; Air France v. Saks 105 S.C. 1338 470 U.S., 392 84 L.Ed 2d 289 (1985).

B. Contract of Carriage by Air

1. Contract between Airline Carriers and Passengers

On the purchase of airline ticket, by a passenger, a contract is established between the passenger and the airline. See: Cameroon Airlines v. Mr. Mike Otutuizu (2011)2 KLR (Pt.291) 373. An airline or carrier of passenger by air is under a duty to deliver a passenger ticket to a passenger which shall contain the following terms or particulars:

a) The place and date of issue;

b) The place and date departure and destination;

c) The agreed stopping places, provided that the carrier or airliner may reserve the right to alter the stopping places, in case of necessity;

d) The name and address of the airline or carrier; and

e) A statement that the carriage is subject to the rules relating to liability established by the Convention.

An airline or carrier is also under a duty to deliver a luggage ticket for luggage other than “hand luggage”.

2. Contract between Consignors and Consignees

Under the Convention, the air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein. The air waybill or the cargo receipt shall include:

a) an indication of the places of departure and destination;

b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and

c) an indication of the weight of the consignment.

3. Breach of Contract of Carriage by Air

a. Alteration of Route

Where the agreed route is altered, it amounts to a breach of contract, unless there is justification for such alteration. In the case of Cameroon Airlines v. Mr. Mike Otutuizu (supra), Mr. Otutuizu desired to travel from Lagos to Manzini, Swaziland on a business trip, he bought two tickets endorsed with the agreed stopping places. The tickets were routed as follows: Exhibit A. The flight shall commence from Lagos, Nigeria, with stops in Doula, Cameroon, and then on to Harare. Zimbabwe. Exhibit B is from Harare to Manzini and back to Harare. Contrary to the agreed route, the airline carried Mr. Otutuizu though South Africa. As he had no visa for South Africa to the knowledge of the airline, he was arrested and detained. His $20,000 was taken by Immigration Officials. He was subsequently deported to Lagos. There was no evidence before court that there was any reason to deviate from the agreed stopping places. The court held that, in the absence of justification for flying to Johannesburg, South Africa, there is a clear breach of contract since Mr. Otutuizu was never flown to Manzini, Swaziland.

The trial court found that breach of contract was established by the respondent who was awarded the sum of N80, 000.00 being the value of the tickets and N500,000:00 general damages but declined to award the sum of $20,000.00 claimed by the respondent. The Court of Appeal confirmed the awards made by the trial court and in its wisdom, awarded the respondent the sum of $20,000:00 as claimed by the passenger. The Supreme Court affirmed the judgment of the High Court as affirmed by the Court of Appeal.

b. A Transit Visa

A transit visa is issued to a passenger by a country through which a plane would fly/land enroute the final destination. Transit visa is not issued by the country in which the passenger's journey terminates. It is true that it is the duty of the passenger to get a transit visa, and it is also the duty of the airline to refuse to take a passenger on board who has not got a transit visa.

Airlines insist on passengers having transit visas, but that only applies if the airline informs the passenger on the stops that would be made before the final destination of the aircraft, (and in effect the passenger). Cameroon Airlines v. Mr. Mike Otutuizu (supra)

C. Liability of Airline Carrier

1. An airline's liability to its passengers or customers could arise as a result of:

a) Injury sustained on board an aircraft or

b) Death arising from the course of a journey or

c) Damage or loss of goods

d) Delayed or denied boarding or

e) Interactions in the course of preparing for or the actual conduct of flight operations.

See Harka Air Services (Nig.) Limited v. Keazor Esq. (2011) 6 KLR (Pt.298) 1771 at 1786,para. A, per Adekeye, J.S.C

2. The Liabilities for the carrier are contained in Articles 17 to 30 of Montreal Convention which is the applicable Convention in Nigeria on the subject of illumination and the subject of the references in this Legal Illumination.

a. Liability for Death or Injury of the Passenger on Board an Aircraft (Articles 17 and 21):

Under the Aviation Law, an aircraft accident is an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked in which a person suffers a fatal or serious injury as a result of being in the aircraft. See:Annex 13 to the Chicago Convention, dealing with Aircraft Accident and Incident Investigation and Harka Air Services (Nig.) Limited v. Keazor Esq. (supra) at page 1786, paras. B-C.

Advance Payments: In any case of aircraft accident resulting in death or injury of passengers the carrier shall make advance payments of at least US $30,000.00 (thirty thousand United States Dollars) within 30 (thirty) 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 and such advance payments shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier. Section 48 (3) of the Civil Aviation Act, 2006 and Article 28.

The Montreal Convention eliminated the limits of liabilities set in the Warsaw Convention by introducing a two-tiered liability regime in cases of death or injury to the passenger on board an aircraft:

i. In Nigeria, where the claims of the victim does not exceed 100,000 USD, the carrier shall not be able to exclude or limit its liability.

ii. Where the claim exceeds 100,000 USD the liability of the air carrier is unlimited except there is evidence that the death or injury was not as a result of the negligence or wrongful act or omission of the carrier or its agent or was solely due to the negligence or other wrongful act or omission of a third party.

b. Liability for Delay in the Carriage of Persons:

The liability of the carrier to each passenger in respect of damage caused by delay is limited to 4150 USD. (Article 22, Paragraph 1)

c. Liability for Carriage of Baggage:

The liability of the carrier in the case of destruction, loss, damage or delay of baggage is limited to 1000 USD. (Article 22,Paragraph 2)

The liability of the carrier in respect of damage suffered by a passenger caused by delay or destruction, loss, damage or delay of baggage will be unlimited, if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that in the case of such act or omission of a servant or agent, it is also proved that such servants or agents was acting within the scope of its employment. Paragraph 5 of Article 22.

d. Liability for Carriage of Cargo:

i.Undeclared Interest:

The liability of the carrier in the case of destruction, loss, damage or delay in the carriage of cargo is limited to 20 USD per kilogram, if the value of the cargo is not declared at the time when the package was handed over to the carrier (Article 22, Paragraph 3)

It is instructive to note that, paragraph 5 of Article 22 of the Montreal Convention excludes paragraph 3, which deals with liability in the case of carriage of cargo. The clear intention to exclude carriage of cargo is confirmed by Article 30 which deals with actions brought against a servant or agent of the carrier, who are also entitled to the limits of liability under the Convention just as the carrier, thus in the case of Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA) per Iyizoba, J.C.A. held that “from the exclusion of negligence and willful misconduct in the case of carriage of cargo in article 22 (5) and Article 30 (3) I am of the firm view the Montreal Convention did not intend that those concepts should affect the limitation of liability with respect to carriage of cargo” and held further at pages 28-30, paras. E-C, that, the learned trial Judge was wrong in holding that there was no limitation of liability because the appellant was unable to rebut the presumption of negligence or the doctrine of res ipsa loquitor. Iyizoba, J.C.A. illuminated at pages. 33-34, paras. B-C that:

"The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why carriage of cargo was excluded in the provisions. It appears the position may have been different under the Warsaw Convention because there are decided authorities where negligence and willful misconduct were considered in cases of loss of cargo.”

ii. Special Declaration of Interest

The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the carrier made a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that situation, the carrier will be liable to pay a sum not exceeding the declared sum. Unless it proves that the sum is greater than the consignor's actual interest in delivery at destination.

In interpreting what constituted a special declaration in the case of Emirate Airline v. Tochukwu Aforka & Anor. (supra) his Lordship Iyizoba, J.C.A. held at page 35-36 that:

“It is my view that the special declaration envisaged in Article 22(3) means more than just presentation of the sales invoice and the packing list. The declaration of value ought to be in writing on the airway bill. DW1 in Re-examination had stated categorically that they rely on the Airway Bill and that no value was declared on it. In the case of Rembrandt Jewellery v. Air Canada (1985) O.J. No. 1382, it was held that a verbal statement of value made on the telephone is not a special declaration of value within the meaning of the convention. There is consequently no convincing evidence that the Respondent made a special declaration of the value of the goods. The limitation of liability as contained in the Montreal Convention and the Conditions of Carriage of Cargo of the Defendant is applicable in the circumstances of this case.”

e. Destruction, Damage or Loss that Occurs while a Baggage or Cargo is in the Charge of the Carrier.

Article 18 (3) provides that the carriage by air within the meaning of paragraph (1) of Article 18 comprise of the period during which the cargo is in the charge of the carrier. The fact that the cargo has not been air lifted is consequently of no moment. Once the carrier has taken control of the cargo and issued the airway bill, any loss from then on is covered by the Convention and the limitation of liability clause subject to the stated exceptions as provided in the Convention. Emirate Airline v. Tochukwu Aforka & Anor. (supra)

f. Conversion of Monetary Units

The liability sums mentioned in Articles 21 and 22 shall be converted to Naira at the existing official exchange rate. Article 23.

g. Review of Limits of Liability by the Minister of Aviation

The Minister of Aviation is statutorily empowered by Article 24 to review the limits of liability prescribed in Articles 21, 22 and 23 upon the advice by the Nigerian Civil Aviation Authority at seven year intervals, the first of such review is to take place at the end of the seventh year following the date of entry in force of the Civil Aviation Act, 2006.

h. Higher or No Limits Clause

A carrier may stipulate that, the contract of carriage shall be subject to higher limits of liability than those provided for in the Convention or to no limits of liability whatsoever. Article 25.

i. Lower or Exemption from Liability Clause

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of the Convention. Article 26.

j. Punitive, Exemplary or any other Non-Compensatory Damages

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive exemplary or any other non-compensatory damages shall not be recoverable. Article 29 - See Emirate Airline v. Tochukwu Aforka & Anor. (supra) pages 49-50, paras. A-A ,per Augie, J.C.A.

k. Receipt of Baggage or Cargo without Complaint

The receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage. Article 31.

l. Time within which to make Complaints

In the case of damage, the person entitled to delivery must complain in writing to the carrier forthwith after the discovery of the damage, and, at the latest, within:

a) two days from the date of receipt in the case of checked baggage;

b) seven days from the date of receipt in the case of cargo; and

c) fourteen days from the date on which the baggage or cargo have been placed at his or her disposal, in the case of delay.

If no complaint is made within the times prescribed, no action shall lie against the carrier, save in the case of fraud on its part.

3. Avoidance of Liability

An airline carrier can avoid or escape liability under or in the following circumstances:

a. Defence of Due Diligence: A carrier shall not be liable for damage occasioned by delay if 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. Article 19.

b. Contributory Negligence: Where the damage, death, or injury was caused or contributed to by the injured or dead person's negligence. The carrier shall be wholly or partly be exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage or death. Article 20.

c. Effluxion of Time: The right to damages shall be extinguished, if an action is not brought within a period of two years, calculated 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. See Article 35 ; Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498)124 at 161.

4. Unlimited Liability of Carrier

There are situations in which a passenger will be entitled to damages for breach of contract of carriage by an airline more than the limit set under the Convention , these situations include :

a. Willful Misconduct :

In the case of: Harka Air Services (Nig) Ltd. V. Keazor (2011) 13 NWLR (Pt.1264) 320 at 342,para. A; 360 H. His Lordship, Rhodes-Vivour, JSC stated at page 364 C – D, that:

"Willful misconduct is a deliberate wrong act by a pilot airline staff or its agent which gives rise to a claim for damages by passengers. When staff of an airline act with reckless indifference. Such unacceptable behaviour especially by a professional person amounts to willful misconduct."

A carrier shall not be entitled to avail itself of the provisions of paragraphs 1 and 2 of Article 22 which exclude or limit its liability, if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment. Article 22 (5).

Where the breach occasioning loss is as a result of willful misconduct by a carrier, it loses its entitlement to rely on statutory limitation of liability.In Cameroon Airlines v. Mr. Mike Otutuizu (2011)2 KLR (Pt.291) 373, it was held that the carrier committed willful misconduct, thus the respondent was entitled to more damages than the limit set in Article 25 in the Warsaw Convention now Article 22 (1) and (2) in the Montreal Convention.

In the case of Oshevire v. British Caledonia Airways Ltd. 1990 7 NWLR 507, it was held that where a parcel containing valuable cargo is stolen as a result of concerted action taken within the scope of their employment by one or more employees of the carrier who also most probably stole the documents, the plaintiff would be entitled to more damages than the limit in Article 22, since the carrier had committed willful misconduct. The court held further that, in all other cases spelt out in the Convention the limits on liability must be followed but where there is breach of contract of such a magnitude that it amounts to a willful act, a willful misconduct the limits are no longer applicable.

5. Jurisdiction

An action for damages must be brought, at the option of the Claimant , either :

a. before the court of the domicile of the carrier ; or

b. of its principal place of business; or

c. where it has a place of business through which the contract has been made or before the court at the place of destination.

In respect of damage resulting from the death or injury of a passenger, an action may be brought before:

a. one of the three courts mentioned in above ; or

b. in the territory of a State Party in which at the time of the accident the passenger has his or her 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.

In Nigeria, the Claims for damages under the Montreal Convention can only be made in the Federal High Court which in Nigeria has exclusive jurisdiction over Aviation related causes of action. See Section 251 (1) K of the Constitution ; Article 33.

Conclusion

All is well that ends well, an air carriage that, ends in the delay,damage or loss of baggage/cargo or death or injury of airline passengers cannot be said to have ended well. Given the fact that, the right to compensation or damages for delayed,damaged or lost baggage/cargo or death or injury of an airline passenger has a time limit,it is advisable that, the affected passenger,consignor or victim promptly consult with a lawyer sound in aviation law.

Akintunde Esan, Legal Practitioner/Consultant, Legal Blogger and Chartered Mediator -

Managing Partner,Ase Olodumare Chambers.

For further illuminations on the right of an airline passenger or consignor in Nigeria to compensation or damages for the delay,damage or loss of baggage/cargo or death or injury of passenger on board , you are advised to contact Akintunde Esan.

AVIATION LAW: REMEDIES FOR DELAYED,DAMAGED OR LOST  BAGGAGE /COMPENSATION FOR DEATH OR INJURY OF  AIRLINE PASSENGERS IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)