RECENTI SVILUPPI SULLA RESPONSABILITÀ CIVILE DEGLI OPERATORI AEROPORTUALI ED AEREI ED ASPETTI ASSICURATIVIRECENT DEVELOPMENTS IN AVIATION LIABILITY AND INSURANCE ANIA SEMINAR MILANO 29 APRIL 2014 Nick Hughes, Partner T: +44 (0)20 7264 8555 Nick.email@example.com
MAS B-777-200 9M-MRO 08.03.2014 • Aircraft Hull claims – AVS103 issues for hull all risks and for hull war risks insurers • Which insurers agree AVS103? • Is AVS103 binding? • Which losses can be paid by AVS103? • Risks • Values • Underlying claims handling • Final loss allocation • Ancillary issues
Asiana Airlines B777 HL7742 – San Francisco 06.07.13 • Foreign Air Carrier Family Support Act 1997 – 49 U.S.C. 41313 • Prohibition against unfair and deceptive practices – 49 U.S.C. 41712 • D.O.T. Consent Order – 2014-02-20 - 25.02.2014 • Family assistance plan requirements • Reliable "toll free" telephone number and staff to take calls • Notification to families of accident as soon as practicable • Sufficient resources • Civil Penalty of US$500,000
Air Accident Investigation Reports • (Admissibility as evidence in civil proceedings) • UK • Air Accident Investigation Branch (Department of Transport) • Chicago Convention 1944 Annex 13 • Council Directive 94/56/EC of 1944 • Civil Aviation (Investigation etc) Regulations 1996 • EU Regulation 966/2010 • Powers of Inspectors, conduct of investigations, their role and standing. • Objective of investigation • Published report (but evidence and records of investigation remain private, subject to application of a court)
Air Accident Investigation Reports • Use of report by parties in liability claims on burden of proof: • Factors • (expert) opinions • Concerns of Inspectors • Make their work more difficult to do • Would inhibit co-operation of others in their work • Need to give evidence in court • HELD • Reports not conclusive and party may challenge them. Party still bears a burden of proof • Reports are of value, impartial, authoritative, prompt • Facts – prima facie admissible • Opinions – admissible as expert evidence; with judge to assess what weight should be given to the evidence • Hoyle v Rogers (2014) EWCA 257
Air Carrier Liability – Montreal Convention 1999 • Ratification update – MC99 now has 105 states party • Cases: • Accident • Failure to direct • Siddiq v Saudi Arabian Airlines (2013 M.D. FC) • Crew behaviour • Dogbe v Delta Airlines (2013 E.D.N.Y) • Injection given by doctor • Anne Ford v Malaysian Airline Systems Berhard (2013 EWCA (iv 1163)) • Cramped seating • Nguyen v Qantas Airlines Ltd (2013 QSC 286)
Embarking and Disembarking • Emotional injury/sex toy • Bridgeman v United Continental Holdings (5th Cir 2013) • Arrest at departure gate • Kruger v Virgin Atlantic Airways (2013 E.D.N.Y) • Delay – damages • Individual v Deutsch Lufthansa AG (Ukraine, Case 757/22177/13-Nov 2013) • Jurisdiction • Principal and permanent residence: diplomats • Fadhliah v Societe Air France (2013 C.D.Cal) • WC jurisdiction • Maranga v Abdulmutallab (2013 S.D.N.Y) • Carriers place of business • [ ] v China Eastern Airlines (2013 Courd'Appel, Paris • Application to third party claims • Rennes Court of Appeals (2013, 13/01146)
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: CONTEXT • Title: Convention on offences and certain other acts committed on board aircraft. Signed Tokyo 14 September 1063 • In force 4 December 1969. 185 "Contracting States". • Later Conventions • The Hague Convention 1970 (unlawful seizure of aircraft) • Montreal Convention 1971 (unlawful acts) • Montreal Convention 2009 (surface damage: general risks/unlawful interference) • Beijing Convention 2010 (surface damage from unlawful interference)
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: SCOPE The Convention applies to: • Criminal offences; and to • Acts which may jeopardise safety of aircraft/persons • Acts which jeopardise good order and discipline on board aircraft, • Provided done by a person on board an aircraft registered in a Contracting State, • "In-flight" on high seas or outside territory of any State NB: "in-flight" means from when power applied for purpose of take off until landing run ends
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: MAIN PROVISIONS • Powers given to "aircraft commander": • On (subjective) 'reasonable grounds' which (objectively) are necessary: • to impose upon any person reasonable measures including restraint necessary for safety/good order or implement other powers; • to require or authorise assistance by crew to restrain; • to request or authorise but not require assistance by passengers to restrain; • to deliver any person to competent authorities of any Contracting State; and • to disembark any person • Subject reasonable grounds of belief, power of crew member or passenger, without authorisation to take reasonable preventative measures that are immediately necessary to protect safety • Immunity: given to aircraft commander, crew, passenger, owner or operator of aircraft and charterer "for actions taken in accordance with this Convention"
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: MAIN PROVISIONS (Continued...) • Unlawful seizure of aircraft: hijack: duty on Contracting States to restore control of aircraft to lawful commander or to preserve his control etc. • Powers and duties of States: • Allow commander to disembark persons • To take delivery from aircraft commander of any person • Power to refuse to admit any person/return him • Jurisdiction: given to State of registration of aircraft • Extradition: offence treated as occurring also in territory of State of registration of aircraft
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: REFORM PROPOSALS • New Protocol to the Convention proposed by ICAO legal committee for diplomatic conference March 2014. • Scope: remove inconsistencies internal to Convention so that "in-flight" means from moment all external doors are closed following embarkation until moment such doors are opened for disembarkation. • Enforcement: to define "physical assaults or threats to commit assaults against crew members and refusal to follow lawful instructions given by the aircraft commander for safety purposes" as acts which each Contracting State is encouraged to take measures against by appropriate criminal or administrative proceedings. • Jurisdiction: extend jurisdiction also to the State of landing and to the State of the operator. [The proposal leaves open whether this is a general jurisdiction or only arising when offence or act is committed by or against a national of that State.] • Jurisdiction: enable a Contracting State to establish its jurisdiction not only over offences but also over acts committed on board aircraft registered in such State.
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: REFORM PROPOSALS (Continued...) • Provision for co-ordination between Contracting States. • In-flight security officers: (possibly controversial) to give powers and immunity to IFSOs (in the alternative) either as equal to "aircraft commander" or in the same way as any other crew member. • Extradition: to extend existing text to refer to the State of operator and State of landing. • Right of recourse: introduction of a permissive provision re costs recovery for aircraft operators.
UNRULY PASSENGERS AND AMENDMENTS TO THE TOKYO CONVENTION 1963: AMENDMENTS • Final Act of the Diplomatic Conference held at Montreal 26 March to 4 April 2014 which adopted • The Protocol to amend the Convention; and • Published a consolidated text of the Convention and the Protocol • Resolves to urge ICA to update ICAO Circular 288 Guidance Material