May 25, 2010
While it’s too early to comment on the reasons behind the unfortunate air crash that took place on May 22 in Mangalore, there are some wider issues that need to be discussed at this stage. One is the serious conflict taking place between interests of airline owners and the travellers, especially with regard to safety. Airlines state that they are interested in safety as the survival of an airline depends upon its good safety record. However, looking at the financial condition of the airline sector in India (and abroad), this is a worrying matter. There is no doubt that even in a state of high competition, while safety does come first, short cuts are adopted.
For instance, a major cause of accidents today is pilot error since new aircraft are very sophisticated and have many backups to mechanical failure. The Indian Commercial Pilots Association (ICPA) has been taking up the issue of Flight Time Duty Limitation (FTDL), which were formulated in 1992 but revised in 2005. FTDL issued by DGCA lays down rules regarding how many hours a pilot can fly and how much rest he requires so that fatigue does not set in. It appears from ICPA’s statement that FTDL rules were revised in 2005 to give pilots more rest time but were later withdrawn allegedly due to pressure from private airline operators, as they were proving to be more expensive for them.
In a similar manner, we have the case of compensation to victims of air accidents in international flights. In 1929, the Warsaw Convention set the pace by fixing an upper limit of about $6,300. This was followed by many protocols and conventions that enhanced the limits and improved other features. The latest convention in this series is the Montreal Convention of 1999, which takes into account all the existing protocols and conventions. The main feature of this convention is that it raises the limit of absolute liability up to SDR 1,00,000 (about Rs 60 lakh). In simple words, this means that a carrier is liable for damage sustained in case of death or injury of a passenger on board an aircraft (or even during the course of embarkation or disembarkation) without proving the fault of the airline. This further means that the airline has to pay an amount of up to SDR 1,00,000 in case of death or injury even if the airline is not at fault.
India, however, delayed ratification of this convention and finally adopted it in 2009. This ratification comes after 55 years; the last convention by India on this subject was the Hague Protocol of 1955, which had kept the upper limit at $16,000. We did not ratify any of the succeeding protocols or conventions, nor participated in the Kuala Lumpur Intercarrier Agreement under IATA in 1975, where airlines of the world voluntarily raised the limit to $75,000. The Montreal Convention of 1999 came into force in 2004 but due to reluctance shown by our airlines we did not ratify it until 2009, by which time most of the countries of the world had already done so.
This implies that an Indian national would be at a disadvantage in an international air accident, getting lower compensation than other nationals. This was amply proved in the case of the 2007 Kenya Airways flight KQ507 crash in Cameroon in which 15 Indian nationals died. While some families were persuaded by the airline and their insurance companies to sign up for lower compensation, a few other next of kin, who chose to retain legal counsel, were able to negotiate a much higher quantum of compensation than would have been otherwise possible. In fact, the International Foundation for Aviation, Aerospace and Development managed to organise a seminar on this subject in New Delhi with the next of kin and get them higher compensation.
In the current context, although the level of compensation for all passengers, including Indians, will be at par, the fear is that insurers of the airlines will move swiftly to enter into settlements with the next of kin and survivors so as to keep the amount at a minimum. Such a settlement would imply that claimants have waived their right to claim any further compensation. Therefore, the claimants of this crash would be well advised not to rush into early settlements and to get good legal counsel of international repute who can negotiate a far higher compensation by negotiating directly with the insurers.
The author is chairman of International Foundation for Aviation, Aerospace and Development
While it’s too early to comment on the reasons behind the unfortunate air crash that took place on May 22 in Mangalore, there are some wider issues that need to be discussed at this stage. One is the serious conflict taking place between interests of airline owners and the travellers, especially with regard to safety. Airlines state that they are interested in safety as the survival of an airline depends upon its good safety record. However, looking at the financial condition of the airline sector in India (and abroad), this is a worrying matter. There is no doubt that even in a state of high competition, while safety does come first, short cuts are adopted.
For instance, a major cause of accidents today is pilot error since new aircraft are very sophisticated and have many backups to mechanical failure. The Indian Commercial Pilots Association (ICPA) has been taking up the issue of Flight Time Duty Limitation (FTDL), which were formulated in 1992 but revised in 2005. FTDL issued by DGCA lays down rules regarding how many hours a pilot can fly and how much rest he requires so that fatigue does not set in. It appears from ICPA’s statement that FTDL rules were revised in 2005 to give pilots more rest time but were later withdrawn allegedly due to pressure from private airline operators, as they were proving to be more expensive for them.
In a similar manner, we have the case of compensation to victims of air accidents in international flights. In 1929, the Warsaw Convention set the pace by fixing an upper limit of about $6,300. This was followed by many protocols and conventions that enhanced the limits and improved other features. The latest convention in this series is the Montreal Convention of 1999, which takes into account all the existing protocols and conventions. The main feature of this convention is that it raises the limit of absolute liability up to SDR 1,00,000 (about Rs 60 lakh). In simple words, this means that a carrier is liable for damage sustained in case of death or injury of a passenger on board an aircraft (or even during the course of embarkation or disembarkation) without proving the fault of the airline. This further means that the airline has to pay an amount of up to SDR 1,00,000 in case of death or injury even if the airline is not at fault.
India, however, delayed ratification of this convention and finally adopted it in 2009. This ratification comes after 55 years; the last convention by India on this subject was the Hague Protocol of 1955, which had kept the upper limit at $16,000. We did not ratify any of the succeeding protocols or conventions, nor participated in the Kuala Lumpur Intercarrier Agreement under IATA in 1975, where airlines of the world voluntarily raised the limit to $75,000. The Montreal Convention of 1999 came into force in 2004 but due to reluctance shown by our airlines we did not ratify it until 2009, by which time most of the countries of the world had already done so.
This implies that an Indian national would be at a disadvantage in an international air accident, getting lower compensation than other nationals. This was amply proved in the case of the 2007 Kenya Airways flight KQ507 crash in Cameroon in which 15 Indian nationals died. While some families were persuaded by the airline and their insurance companies to sign up for lower compensation, a few other next of kin, who chose to retain legal counsel, were able to negotiate a much higher quantum of compensation than would have been otherwise possible. In fact, the International Foundation for Aviation, Aerospace and Development managed to organise a seminar on this subject in New Delhi with the next of kin and get them higher compensation.
In the current context, although the level of compensation for all passengers, including Indians, will be at par, the fear is that insurers of the airlines will move swiftly to enter into settlements with the next of kin and survivors so as to keep the amount at a minimum. Such a settlement would imply that claimants have waived their right to claim any further compensation. Therefore, the claimants of this crash would be well advised not to rush into early settlements and to get good legal counsel of international repute who can negotiate a far higher compensation by negotiating directly with the insurers.
The author is chairman of International Foundation for Aviation, Aerospace and Development
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