A number of legal considerations apply in case of death on board aircraft – from the procedure to follow to who is responsible and whether compensation is available for the deceased's family. This update discusses both the international and domestic legislation that governs these matters.

Legislation

A number of international laws and conventions govern the occurrence of death on board an aircraft.

International conventions

The Warsaw Convention 1929 (Convention for the Unification of Certain Rules Relating to International Carriage of Air) regulates liability for the international carriage of luggage, goods and persons by aircraft for reward. Article 17(1) of the convention specifically provides for liability in case of death caused by aircraft accidents, stating that:

"the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

Another international convention governing the occurrence of death on board an aircraft is the Montreal Convention 1999, which was adopted by the International Civil Aviation Organisation member states in Montreal on May 28 1999 and ratified by 31 states, including Nigeria. It notably made carrier liability in relation to death and injury or loss or damage of baggage or cargo an absolute liability in the absence of passenger negligence.

Domestic implementation

The Civil Aviation Act 2006 incorporated the Montreal Convention and established liability for both international and non-international flights or carriage.

The Civil Aviation (Births, Death and Missing Persons) Regulation is a subsidiary law of the Civil Aviation Act. It stipulates what an aircraft owner or individual controlling the aircraft must do in the event of death. It also provides prescribed forms to encourage compliance with the applicable regulations.

Procedure

In case of death on board aircraft, international and domestic protocols govern the procedure to be followed by cabin crew or individuals controlling the aircraft.

International protocol

In January 2016 the International Air Transport Association published the suggested procedure to be followed in case of death or presumed death on board aircraft:

  • The captain should be advised immediately. The captain should then advise the destination airport to ensure that the proper authority meets the aircraft on arrival (eg, the state coroner and police).
  • The deceased should be moved to a seat with few passengers nearby or, in the case of a full flight, to his or her own seat or another area not obstructing an aisle or exit.
  • The deceased should be put in a body bag, if available, which should be zipped up to the neck. If a body bag is unavailable, the body should be covered up to the neck with a blanket.
  • The deceased should be restrained with a seat belt or other equipment.
  • Contact information should be requested from the deceased's travelling companions.
  • On arrival at the destination, other passengers should be disembarked first. Family members, if present, should stay with the deceased, who should not be disembarked until the proper local authority has arrived to take possession and there are ground personnel to assist the family members.

Domestic protocol

The Civil Aviation (Births, Deaths and Missing Persons) Regulation governs the procedure to be followed in case of death on board aircraft within the Nigerian jurisdiction.

Rule 3(1) of the regulation states that no later than six months after a death, the aircraft owner must transmit to the minister of aviation the particulars of the death in the prescribed form under Schedule 2 of the regulation.

Further, Rule 3(2) of the regulation states that any individual controlling the aircraft must record in a log book or other appropriate document relating to the aircraft the particulars of the death and make it available to the aircraft owner as soon as possible.

Death due to aircraft accidents

Liability and compensation

If a carrier is found liable for an on-board death, compensation may be due to the deceased's family.

In Nigeria, the Montreal Convention (implemented as the Civil Aviation Act) outlines the scope of liability. Under Article 17 of the convention, the carrier is liable for death where the accident that caused the death took place on board or in the course of embarking or disembarking the aircraft.

To ascertain whether there is actual liability, Article 21 of the convention highlights two scenarios:

  • where the damage does not exceed $100,000 per passenger; and
  • where the damage exceeds $100,000 per passenger.

In the former, the carrier is barred from excluding or limiting its liability. In the latter, the carrier may exclude or limit its liability if it can be proved that:

  • the damage was not due to negligence or any other wrongful act or omission of the carrier or its agents; or
  • the damage was solely due to the negligence or other wrongful act or omission of a third party.

Thus, a party claiming compensation may be less successful if the death was in no way caused by the carrier or its agents.

Liability limitations

The Montreal Convention provides for further limitations to carrier liability.

Contributory negligence or exoneration

Article 20 of the Montreal Convention stipulates that where the death was caused or contributed to by the negligence or other wrongful act or instruction of the deceased, there can be full or partial exoneration of the carrier from liability.

However, there is unlimited liability in the case of wilful misconduct on the carrier's part.

'Wilful misconduct' was defined in Harka Air Services (Nig) Ltd v Keazor(1) as:

"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 behavior especially by a professional person amounts to willful misconduct."(2)

If a carrier is found to have acted with reckless indifference, it does not qualify for full or partial exoneration under Article 20 of the Montreal Convention.

Effluxion of time

Under Article 35 of the Montreal Convention, liability for death is subject to effluxion of time whereby the right to damages will be extinguished if an action is not brought within two years of the aircraft's arrival at the destination or the date that it ought to have arrived. In Nigeria, an action must be brought before the Federal High Court within two years to avoid being subject to this provision.(3)

Advanced compensation

Both international conventions and domestic law provide for advance payments to the deceased's family. Article 28 of the Montreal Convention states that in the event of death or injury, the carrier shall, "if required by its National Law, make advance payments without delay to natural person/persons who are entitled to compensation".

This provision is expanded in Section 48(3) of the Civil Aviation Law, which states that in the case of an aircraft accident resulting in the death or injury of passengers, the carrier shall pay at least $30,000 within 30 days of the accident. However, the law specifies that such an advance payment is not a recognition of liability and may be offset against any damages awarded and subsequently paid by the carrier.

Comment

Whether caused by illness, natural causes, accidents or negligence, death on board aircraft is a plausible scenario – especially as more people choose air travel for business and holidays. As such, greater awareness of the legal and practical aspects of this sensitive topic is needed.

International conventions and the Nigerian statutory framework and guidelines protect the rights and dignity of the deceased, their families and the airline carriers.

For further information please contact Ibifuro Sekibo at George Etomi & Partners by telephone (+234 1 462 1660) or email (ibifuro.sekibo@geplaw.com). The George Etomi & Partners website can be accessed at www.geplaw.com.

Endnotes

(1) (2011) 13 NWLR (Pt 1264) 320.

(2) Ibid, page 364C–D.

(3) Constitution of the Federal Republic of Nigeria 1999, Section 251(1)(k) (as amended).

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