[Draft] Air Transport Liability Convention

[Kelssek]

Air Transport Liability Convention
Advancement of Industry: Tort reform

Whereas there is a wide variation in laws on liability across member states, which may create legal risk and uncertainty for users and operators of international air transportation; and,

Whereas it is desirable to establish common standards on liability in international air transportation, thereby simplifying litigation arising from injury or loss due to accidents on international flights, creating better protection for users of air transport services, greater certainty for companies, and reducing the scope for jurisdictional disputes,

Now therefore, the World Assembly enacts as follows:

1. This resolution shall apply to the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.

2. (1) A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
(2) Carriers shall be liable for:

1. any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
2. any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.

3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:

1. actions of the claimant that contributed to the harm,
2. acts of war, insurrection, or civil unrest,
3. compliance with government authorities, such as actions taken to enforce customs regulations, or
4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.

4. (1) The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
(2) Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.

5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:

1. the carrier has its domicile,
2. the carrier has its primary place of business, or
3. the contract for carriage was made.

[Kelssek]

I believe the preamble describes simply the rationale and purpose of this proposal. We now welcome questions and comments from delegates.

Gerard Poullet
Ambassador to the WA

[Honeydewistania]

Your lists were slightly messy, so I reformatted them using the list function and hopefully the meaning is still the same. If you prefer your current look though feel free to continue using it.

Code: Select all

Whereas there is a wide variation in laws on liability across member states, which may create legal risk and uncertainty for users and operators of international air transportation; and,

Whereas it is desirable to establish common standards on liability in international air transportation, thereby simplifying litigation arising from injury or loss due to accidents on international flights, creating better protection for users of air transport services, greater certainty for companies, and reducing the scope for jurisdictional disputes,

Now therefore, the World Assembly enacts as follows:[list=1]

[*]This resolution shall apply to the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.
[*][list=a][*]A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
[*]Carriers shall be liable for:[list=i]
[*]any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
[*]any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.[/list][/list]
[*]Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:[list=a]
[*]actions of the claimant that contributed to the harm,
[*]acts of war, insurrection, or civil unrest,
[*]compliance with government authorities, such as actions taken to enforce customs regulations, or
[*]generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.[/list]
[*][list=a][*]The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
[*]Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.[/list]
[*]Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:[list=a]
[*]the carrier has its domicile,
[*]the carrier has its primary place of business, or
[*]the contract for carriage was made.[/list][/list]


Whereas there is a wide variation in laws on liability across member states, which may create legal risk and uncertainty for users and operators of international air transportation; and,

Whereas it is desirable to establish common standards on liability in international air transportation, thereby simplifying litigation arising from injury or loss due to accidents on international flights, creating better protection for users of air transport services, greater certainty for companies, and reducing the scope for jurisdictional disputes,

Now therefore, the World Assembly enacts as follows:

1. This resolution shall apply to the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.
2. 1. A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
   2. Carriers shall be liable for:
      1. any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
      2. any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.
3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:
   1. actions of the claimant that contributed to the harm,
   2. acts of war, insurrection, or civil unrest,
   3. compliance with government authorities, such as actions taken to enforce customs regulations, or
   4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.
4. 1. The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
   2. Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.
5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:
   1. the carrier has its domicile,
   2. the carrier has its primary place of business, or
   3. the contract for carriage was made.

[Picairn]

Honeydewistania, there is a redundant [/list] tag in your post.

[Honeydewistania]

Honeydewistania, there is a redundant [/list] tag in your post.

Well, that's embarrassing. Fixed

[Imperium Anglorum]

I think Honeydewstania's reformat is a good idea

[Kelssek]

OOC: formatting changed, hope that's better.

[Imperium Anglorum]

More on formatting. It may be simply because I have not been exposed to it, but I think it's irregular to use as sub-lists (a) and then (1) in different sections. Regardless—

1. This resolution ... shall apply to ... the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.

I'd change to something like "resolution applies only to" in the areas between ellipses.

2. (1) A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
(2) Carriers shall be liable for:

1. any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
2. any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.

3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:

1. actions of the claimant that contributed to the harm,
2. acts of war, insurrection, or civil unrest,
3. compliance with government authorities, such as actions taken to enforce customs regulations, or
4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.

Elsie Mortimer Wellesley first remarks, "Consider putting the definition in a wholly separate section instead of keeping it here; I think it may also be important to look at the resolution Respondeat superior as to how the Assembly currently deals with delicts emerging from employees, which definitely would be important in a services context".

But after a pause, she continues, "I think though, I'd definitely want to limit carrier liability to cases where the proximate cause of the injurious delict is action or omission by the carrier or its employees. While I recall that the ancient provisions of the Twelve Tables would have a specific talion determined by statute, I think a more reasonable approach would be one taken by the ancient lex Aquilia, as amended by the lex Hortensia 1822, which requires under the 1906 Praetorian Edict such a dispute to be taken up as", the universal translator stops for a moment, as the phrase actio utilis is heard under her breath, rendered a few seconds later "an expedient action".

Taking a moment to remember her law, she continues, "It comes from time immemorial to apply the non iure provisions of section 8(24) of the Twelve Tables in actions of negligence, because failure to provide a duty as provided by law ought to be punished. Such iniuria should not be permitted, though I wonder how it might be possible for a specific set of duties to be imposed on carriers of this sort in a fair-minded way. I think it would be wise to avoid a committee, but it may also be difficult to synthesise a coherent framework for such duties".

"It also may be important to note standards related to culpa are both differential and subjective". An enormous tome is lifted to Mrs Mortimer Wellesley, entitled Digest: Restatement 1906, and she reads "For example, 'Mucius Scaevola introduced foreseeability as an element of negligence in iniuria actions, arguing that only those things that could have been foreseen by a diligent man are culpa and prohibited by the lex Aquilia'".

4. (1) The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
(2) Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.

Mrs Mortimer Wellesley continues, "This reminds me also of how the lex Aquilia requires payment in iniuria actions for foregone profits or services not only at the chattel but at the personal level", reading from the tome again, she continues, "Ulpian, for example, argued that in death and chattel injury cases, we ought not only to look at 'how much it was worth when he was killed, or rather how much it was worth to us that he should not be killed'. I wonder also whether the archaic forms of action involving noxa and the provision of corporal punishment to dependent wrongdoers, in lieu of properties such dependents necessarily cannot have, might also apply in some less enlightened states".

5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:

1. the carrier has its domicile,
2. the carrier has its primary place of business, or
3. the contract for carriage was made.

"I would imagine first that contracts may be made under express provision of the application of certain laws. It's common to embed legal practice in certain understandable jurisdictions, even to the chagrin of locals. Many contracts in our nation are made with express application of laws either in the Kingdom or the Republic to avoid the extreme messiness of mixed actions. In my mind, such legal assignment provisions ought to be respected. Moreover, there are state aid concerns which could come up in cases where a state-sponsored carrier is indemnified of liability by, say, a legislature's directed judgement. This would greatly harm any ability for people to see redress for, in the worst case, the deaths of their family members."

OOC: Some explanations required. Elsie is from the Roman republic, one of the two countries which forms the United Commonwealth. The Republic applies Roman law (it also claims to be the direct continuation of the Roman republic). A delict is analogous to a tort. Under Roman law, it was regulated by the lex Aquilia but emerged originally from the Twelve Tables. See generally Johnson (ed) The Cambridge Companion to Roman Law (2015) 246–71.

An iniuria is exactly what it says, an injury. It is a form of delict. Culpa means fault (cf culpability). Mucius Scaevola and Ulpian were Roman jurists quoted in Justinian's Digest (6th century AD). The most relevant book of the Digest in this matter is probably book 9. Noxa is a harm (it's where we get the word noxious). A lot of Roman law deals with slaves, who were not considered legal persons. Delicts alleged against a slave were defended by the owner, analogous also to how delicts committed by dependents were defended by their paterfamilias. This also applies by analogy to how employees are treated in cases related to "quasi-delicts".

[Araraukar]

Carriers shall be liable for ... any injury or death to a passenger resulting from an unexpected event aboard an aircraft

"Why should a passenger's heart-attack or stroke be the carrier's fault? I'm aware of 3.d. existing, but you're starting from making them responsible for random luck. 3.d. merely says they may be excused because of such factors, not that the liability wouldn't apply in such cases."

[Separatist Peoples]

any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and

"Regardless of the intervening negligence or intentional acts of a third party? Regardless of whether the airline satisfies its standard of care and breaches no duties?"

any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.

"See above."

3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:

1. actions of the claimant that contributed to the harm,
2. acts of war, insurrection, or civil unrest,
3. compliance with government authorities, such as actions taken to enforce customs regulations, or
4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.

"These are a paltry few exceptions for the breadth of tort law, ambassador."

4. (1) The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.

"Policy limits on liability regardless of the compensation necessary is inherently unjust."

(2) Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.

"Then why bother with the limits in the first place?"

5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:

1. the carrier has its domicile,
2. the carrier has its primary place of business, or
3. the contract for carriage was made.

"An unusually myopic consideration of jurisdiction. We are opposed until the authoring ambassador improves their treatment of negligence and jurisdiction."

[Kelssek]

The hon. Mrs. Wellesley's discourse on the question of negligence is well received and we shall study these issues further. I will say at this point that we have no wish to standardize the law on negligence across member states, given how central the concept is in the law. This would be an extremely far-reaching move and one with potentially broad unintended consequences. Furthermore, our philosophical position on national sovereignty is that we see value in pluralism and a diversity of institutions and legal practices adapted to suit local circumstances, cultures, and preferences. Our approach is to manage the uncertainties and unknowns of such pluralism, not erase it.

I wonder also whether the archaic forms of action involving noxa and the provision of corporal punishment to dependent wrongdoers, in lieu of properties such dependents necessarily cannot have, might also apply in some less enlightened states

If I understand you correctly, are you suggesting to explicitly restrict this to civil liability? I think this would in fact be a good suggestion we will consider. We would not want to inadvertently preclude liability for criminal negligence.

As regards jurisdiction, the delegation from Imperium Anglorum is concerned about restricting the ability of people to seek redress and for contracts to have legal assignment provisions. Separatist Peoples also want a greater choice of jurisdictions although they do not specify why. I think this concern works both ways. Transnational corporations often domicile themselves in a jurisdiction where laws are favourable to their interests, or routinely insert legal assignment provisions into their contracts that try to accomplish the same effect. If those are allowed to stand in this area, we could have carriers get around this by putting it into their contract of carriage that a non-member state has jurisdiction, and could evade this resolution by doing that.

At the same time, it is a problem for airlines whose business is all about crossing international borders to face the immense uncertainty of being sued in any number of jurisdictions, many of which would have no connection to the event or persons in question. It is nonsensical, in our minds, that both plaintiff and defendant might face a big difference in the treatment of a tort because the crew spilled coffee on a passenger over the airspace of highly-litigious country A when ten minutes later they would be in country B where, maybe, punitive damages aren’t allowed. This is nothing compared to an air disaster which might involve dozens of countries in which the passengers who suffered injury or death bought tickets. If there are too many jurisdictions where an action could be launched, this makes it both difficult and expensive to insure against legal (and political) risks, raising the financial risks for airlines, the difficulty of insurance, and the cost of air transportation services ultimately paid by users (or even the non-availability because the legal risks make it uneconomic to provide the service).

The aim here is to strike a balance by limiting "jurisdiction shopping" to those with a direct connection to the parties involved and giving the plaintiff the choice of where to make the claim (and thus whose laws and jurisprudence will apply). If all three are the same place, then a national law indemnifying national carriers makes the problem of redress a domestic political issue and not just a legal one. This no longer crosses international lines and it is, in truth, up to citizens to question their government why the state airline should get such treatment. At the same time, if I buy a ticket to country A on state airline A from country B, it's highly unlikely that country B has state aid legal provisions that indemnify State A Airlines. I have the opportunity to sue in country B.

We are willing to contemplate adding the plaintiff’s country of residence to this list. Or those ambassadors objecting should propose what’s acceptable to them.

In regards to the issues raised by the ambassador from Araukar. As you acknowledge, your objection is obviated by section 3 paragraph (d). But I point out that it is not a medical issue internal to a person, but the harm suffered as a result of it, which can legitimately be an issue. This is especially true of a scenario like a heart attack, which is often quite survivable with timely medical care. If someone were to suffer death or injury because a carrier has a policy of not making diversions for medical emergencies, or because the crew ignored their need for assistance, then there is at least a partial liability to answer for. The carrier may not be fully to blame for the consequences of a passenger’s heart attack, but they have a scope of action in terms of how they respond to it for which they can and should be held liable.

I also remind the ambassador about the difference between awards of damages and awards of the costs of litigation. Allowing courts to award costs to one party or another does not get around the liability limit. Awards of amounts greater than that required to cover attorney and court fees would no longer be awarding costs. And this is quite justified to discourage frivolous litigation or create other incentives for good faith behaviour by litigants.

Gérard Poullet
Ambassador to the WA

More on formatting. It may be simply because I have not been exposed to it, but I think it's irregular to use as sub-lists (a) and then (1) in different sections. Regardless—

The original format, which this mostly replicates, is simply what I’m used to.

[Imperium Anglorum]

If I understand you correctly, are you suggesting to explicitly restrict this to civil liability? I think this would in fact be a good suggestion we will consider. We would not want to inadvertently preclude liability for criminal negligence.

As regards jurisdiction, the delegation from Imperium Anglorum is concerned about restricting the ability of people to seek redress and for contracts to have legal assignment provisions. Separatist Peoples also want a greater choice of jurisdictions although they do not specify why. I think this concern works both ways. Transnational corporations often domicile themselves in a jurisdiction where laws are favourable to their interests, or routinely insert legal assignment provisions into their contracts that try to accomplish the same effect. If those are allowed to stand in this area, we could have carriers get around this by putting it into their contract of carriage that a non-member state has jurisdiction, and could evade this resolution by doing that.

At the same time, it is a problem for airlines whose business is all about crossing international borders to face the immense uncertainty of being sued in any number of jurisdictions, many of which would have no connection to the event or persons in question. It is nonsensical, in our minds, that both plaintiff and defendant might face a big difference in the treatment of a tort because the crew spilled coffee on a passenger over the airspace of highly-litigious country A when ten minutes later they would be in country B where, maybe, punitive damages aren’t allowed. This is nothing compared to an air disaster which might involve dozens of countries in which the passengers who suffered injury or death bought tickets. If there are too many jurisdictions where an action could be launched, this makes it both difficult and expensive to insure against legal (and political) risks, raising the financial risks for airlines, the difficulty of insurance, and the cost of air transportation services ultimately paid by users (or even the non-availability because the legal risks make it uneconomic to provide the service).

The aim here is to strike a balance by limiting "jurisdiction shopping" to those with a direct connection to the parties involved and giving the plaintiff the choice of where to make the claim (and thus whose laws and jurisprudence will apply). If all three are the same place, then a national law indemnifying national carriers makes the problem of redress a domestic political issue and not just a legal one. This no longer crosses international lines and it is, in truth, up to citizens to question their government why the state airline should get such treatment. At the same time, if I buy a ticket to country A on state airline A from country B, it's highly unlikely that country B has state aid legal provisions that indemnify State A Airlines. I have the opportunity to sue in country B.

We are willing to contemplate adding the plaintiff’s country of residence to this list. Or those ambassadors objecting should propose what’s acceptable to them.

Elsie Mortimer Wellesley. Oh no, I was referencing the very old portions of the Digest which assign corporal punishment or restitution in kind (usually by labour) as the main form by which an injury is recovered from a dependent person. While a dependent person could be a child, the provisions were originally applied to slaves. Obviously, we do not have slaves or debt bondage in the World Assembly, but I can easily still imagine legal provisions which assign corporal punishment as means to recover against a person without assets.

As the jurisdictional question, the provision which assigns right of action does seem to apply currently to carriers which are domiciled outside the World Assembly but operating flights between places within World Assembly members. This would naturally pose a jurisdictional question as to the ability to impose such rights of action on those non-member courts. But more concretely addressing your remarks on it: a balance is necessary, we feel that freely made contractual arrangements as to the choice of laws ought to be respected.

We also agree with Ambassador Sir Benjamin, who objects to your proposal's very simplistic conception of negligence. Domestically, we have two standards of negligence based on the jurisdiction in which it takes place. In the republic, everyone has a duty to avoid foreseeable injuries – the lex Aquilia's interpretation also complicates what is meant by injury – to someone else. People are held at fault if they are the antecedent cause of the injury. In the kingdom, people have duties of care – that a reasonable person would follow – which are imposed based on a 'but for' test for cause if that cause also is the 'proximate cause'. There is a dizzyingly complicated set of commentaries on all of these from Q Mucius Scaevola through Ulpian all the way to the present.

Then there is the question of contributory negligence. To adapt an old example from the Digest, if a person walks into an active javelin range and is killed by flying javelins, Ulpian argues that person's heirs cannot claim against the range owners because the person was himself the cause. Contributory causes in the republic set aside liability. On the other hand, the kingdom recognises a balancing of contributory causes, which again complicates matters, allowing claims only if the claimant was less contributory than the defendant.

Regardless, my delegation feels there are many factors to consider in negligence cases and your proposal does not adequately deal with contributory negligence or what specifically are the duties owed by a carrier. These basic questions should be resolved before we offer our support.

More on formatting. It may be simply because I have not been exposed to it, but I think it's irregular to use as sub-lists (a) and then (1) in different sections. Regardless—

The original format, which this mostly replicates, is simply what I’m used to.

OOC: Your proposal formatting isn't consistent with UK formatting. Sections 2(1)(a) and 4(1) are different from 3(a), making it not internally consistent. If subsections are enumerated with Arabic numerals, they should remain so, and not be enumerated alphabetically. As an illustrative example, I've never seen a UK law which does this:

1 Removal of powers of court in ...

(a) Omit the comma in section 1 of the Appellate Jurisdiction Act 1876.

The '(a)' would instead be an Arabic numeral, instead of what section 3 currently does.

[Araraukar]

But I point out that it is not a medical issue internal to a person, but the harm suffered as a result of it, which can legitimately be an issue. This is especially true of a scenario like a heart attack, which is often quite survivable with timely medical care. If someone were to suffer death or injury because a carrier has a policy of not making diversions for medical emergencies, or because the crew ignored their need for assistance, then there is at least a partial liability to answer for. The carrier may not be fully to blame for the consequences of a passenger’s heart attack, but they have a scope of action in terms of how they respond to it for which they can and should be held liable.

OOC: You realize that the "timely medical care" often is not possible because even if you were optimally positioned over land, you can't land a big plane from cruising altitude very quickly without endangering everyone on board, and that if you are over an ocean and hours from the nearest airport, it's just not physically possible. And what if it's a suicide? Someone locks themselves up in the airplane toilet and slits their wrists. Why is it always automatically the carrier's fault, unless proven otherwise? Isn't guilt before the law supposed to work so that you're innocent unless proven guilty?