Presented by:
Sean Gates, SeniorPartner Gates and Partners20 St. Mary At Hill,London, EC3R 8EETel: +44 (0)20 7220 5950Fax: +44 (0)20 72205951www.gatesandpartners.com 9 December 2009
Legal Developments
International legal developments of relevance to Russian carriers
International legal developments affect Russian airlines on international routes
May influence developments inside Russia Developments that start in one sector of the
industry may inadvertently influence another Therefore they are important to the Russian
carriers
The increasing trend to criminalization
No news in Russia where instigated in most accidents involving substantial material damage (“signs of a crime”)
BUT a recent development in the EU/ US with unpredictable consequences
Applicable to a Russian airline on international carriage
Criminalisation
Can affect anyone in aviation industry not just airlines – manufacturers, ATC
Globalisation/terror impetus to international co-operation increases possibility extradition
Concorde, Linate, Helios, GOL
Investigation
Chicago Annex 13 Aim of investigation: “it is not the purpose of this
activity to apportion blame or liability”Chicago Annex 13 s.12 “The State conducting the investigation of an accident
or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations”
Chicago Annex 13 s.12
Information “could be utilised inappropriately for subsequent criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigations. Lack of access to such information would impede the investigation process and seriously affect flight safety.”
Preparation
Safety Management System – documented Training - documented Insurance coverage for costs? Crisis Management System
If the worst happens
Manage and calm media storm Support involved staff Participate in investigation Political lobbying – case specific and industy
level
Practical Steps: Investigation
Experience Involvement Expertise Lobby
Legal developments
Denied Boarding Regulation
Judgement in Sturgeon v. Condor and Bock v. Air France.
Legal developments
Denied Boarding Regulation
Wallentin-Hermann v Altitalia
The fact that an air carrier had complied with the minimum rules on maintenance of an aircraft could not in itself suffice to establish that that carrier had taken “all reasonable measures”.
Legal developments
FNC decisions
Action against Cessna Aircraft Company brought in Florida by 69 European plaintiffs following the 2001 Linate accident failed.
Action against McDonnell Douglas Helicopters, Inc brought in California by 3 injured pax following the MD600N helicopter crash in the Russian Federation failed.
Legal developments
Terrorism Convention
First tier : strict and limited liability of aircraft operators. The highest monetary limit is 700 million SDRs for aircraft with a mass greater than 500,000 kgs.
Second tier for claims above this amount: the International Civil Aviation Compensation Fund (ICACF) will be set up. Contributions by each passenger, and in respect of each ton of cargo, at an amount to be agreed to by the Conference of Parties with a view to accumulating a further 3 billion SDRs
Third tier for claims exceeding the combined total of the two above amounts: if operator is found guilty of intentional misconduct or recklessness with knowledge that damage would result, it have to pay any losses that exceed 3 billion SDRs.
Legal developments
Defences to unlimited liability: i) operator has implemented an appropriate system for the selection and monitoring of employees; ii) operator has established a security system according to the provisions of the Chicago Convention.
Subrogation options: i) ICACF against operator on the same terms and conditions of the Convention; ii) operator and/or ICACF against the terrorist and any “other persons” (such as ground handlers, airports, and air traffic controllers).
The liability of “other persons” is limited to the amount for which they could have obtained insurance on a commercially reasonable basis.
“Other persons” bear unlimited liability on proof of recklessness with knowledge of the other person.
Legal developments
Owners, lessors and financiers are specifically exonerated from recourse, to the extent that they are not operators.
Manufacturers are also excluded from recourse, if they can prove that the accident was caused – at least partially – by a product that complies with mandatory design obligations
Legal developments
The Convention creates an exclusive remedy; claims can only be pursued in the Courts of the State where the damage was done.
“Mental injury” will only be compensable under this Convention if caused by a recognisable psychiatric illness resulting from bodily injury or direct exposure to the likelihood of imminent death or bodily injury.
Damage caused by nuclear incidents are substantially excluded.
Punitive, exemplary, and other non compensatory damages are excluded.
Two year limitation period.
Legal developments
General Risks Convention
No fund is established Limited liability is imposed on the operator with amounts
analogous to the Terrorism Convention The operator has the right to prove that the accident was not
due to its negligence Claims may be made against any other party responsible for
the damage -- except for owners, lessors or financiers Damage caused by a nuclear incident is excluded The forum is exclusively the place where the damage occurs
Legal developments
IATA standard ground handling agreement
The limitation of liability clause is not always held valid by domestic courts
Pure and “remote” consequential economic losses are not always excluded
France and Greece favour broad recovery and include untracked losses that operators do not presently account for
Legal Developments
Emissions Trading Scheme
Under EU ETS Under Kyoto
Legal developments
Thank you
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