International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

We are not aware of any decision of the superior courts of record in Nigeria (the State and Federal High Courts, the Court of Appeal and the Supreme Court) where the question of the liability for passenger injury or death under the Montreal Convention regarding international carriage have been decided. However, it is envisaged that when such questions arise in the future, the courts will likely follow the interpretation of similar provisions decided under the earlier Warsaw Convention because the Nigerian legal system recognises and applies the principle of judicial precedent.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

Earlier cases decided under the Warsaw Convention did not provide a definite position on the exclusivity of the Warsaw Convention for liability arising for passenger injury or death as the question of exclusivity did not arise in those cases. In the decisions involving other convention claims (claims other than for passenger injury or death), the Supreme Court and the Courts of Appeal in Nigeria have held that the Warsaw Convention (which is the Convention upon which most of the cases are based) should provide the sole basis for air carrier liability. It is envisaged that claims for passenger injury or death that will be considered under the Montreal Convention will not depart from this position.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

Nigerian courts have not made a definitive consideration of who is a ‘carrier’ under the Montreal or Warsaw Conventions. It is important to note, however, that the first rule applied in Nigeria in interpreting statutes is the literal rule (ie, that words should be given their literal and ordinary meaning within the context of a statute). It is envisaged that the court will apply the literal rule where it has to make a determination of who is a ‘carrier’ under both Conventions.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

The questions of what constitutes ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ have not each been specifically considered in the cases where carrier liability for damages for death or passenger injury have been adjudicated on. In the case of Harka Air Services (Nig) Ltd v Keazor, the plaintiff suffered bodily injury on a domestic flight as a result of the crash-landing of the aircraft. On further appeal to the Supreme Court, although the question of what acts constitute an ‘accident’ was not in issue, the apex court seized the opportunity and defined ‘accident’ as ‘an occurrence associated with the operation of an aircraft which takes place between the time any person boards an 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’. The question of what will constitute ‘an occurrence’ was not considered and will therefore be determined as more cases dealing with the issue are decided by the courts.

The concept of what will be considered as ‘serious injury’ as it relates to the applicability of article 17 of the Montreal Convention is yet to be determined by Nigerian courts. Given that Nigeria has a common law background, the courts will look to see how other common law countries have decided the question and this will provide persuasive authority whenever the court is called upon to determine the question.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

The ambit of articles 21 and 20 of the Montreal Convention have not yet been tested in the Nigerian courts.

However, the court decisions where the question of ‘wilful misconduct’ has been considered suggest the application of a subjective standard in determining whether an act or omission will be considered as ‘wilful misconduct’. In the case of Harka Air Services (Nig) Ltd v Keazor, the apex court upheld the findings of a Federal High Court and the Court of Appeal that the airline was guilty of wilful misconduct for taking off for flight during bad weather. The Supreme Court upheld the necessity for the existence of the mental element in allegations of wilful misconduct and opined that the court, in determining the question of wilful misconduct ‘is not entitled to attribute to one pilot, the knowledge which another pilot has in assessing whether the first pilot is or is not guilty of wilful misconduct’.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

Yes, the CAA 2006 provides in section 48(3) that in the case of an aircraft accident resulting in death or injury of passengers a carrier should make advance payments of at least US$30,000 to the natural person or such natural persons who are entitled to claim compensation in order to assist such people to meet immediate economic needs. Such advance payments do not constitute recognition of liability and may be set off against any sums subsequently paid as damages by the carrier.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Nigerian courts have not considered the question of jurisdiction for airline liability under article 33 of the Montreal Convention and article 28 of Warsaw Convention. However, in general litigation practice before the courts, the doctrine of forum non conveniens is recognised by the Nigerian courts and the courts will consider the circumstances of each particular case in recognising or refusing to recognise a particular jurisdiction.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

Case law on the two-year limitation period stipulated in article 29(1) of the Warsaw Convention has been applied strictly. In one of the cases decided in the Court of Appeal, the Court stated that ‘the limitation period laid down in article 29(1) cannot be suspended or interrupted, even by agreement of the parties’.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

The questions relating to liability for code-share and similar arrangements have not arisen in the Nigerian courts.