Liability for Third Party Damage on the Ground — Some fundamental issues for consideration by the Council of ICAO prior to a Diplomatic Conference

Abstract

The previous issue of this Journal contained two original articles of outstanding importance: – One by the distinguished Chairman of an ICAO group, explaining for the first time the thinking behind two Conventions proposed by his group to govern the liability of civil aircraft operators for damage to persons and property on the ground caused by an aircraft in flight. – The other by an eminent member of the Editorial Board – offering independent reflections on the group’s proposals. In advance of a Diplomatic Conference, the present article [March 2008] attempts to analyze and evaluate both articles and the accompanying draft texts. States would be free to adopt either or both the proposed Conventions. Unfortunately, both proposals are flawed. The draft with the best potential for ratification is referred to as the ‘General Risks’ Convention. It is dedicated to accidents which are not caused by unlawful interference with aircraft. This is marred principally by: – A failure to preserve or update provisions of the 1952 Rome Convention with continuing relevance – such as air carrier defences in the event of armed conflict; and – applying the concept of limits and defences designed for passenger liability to the completely different circumstances of third parties on the ground. The other draft text, dealing with crashes caused by unlawful interference with aircraft (e.g. terrorism) is inspired by the highest humanitarian considerations. It aims to strike a fair balance between the needs of victims and those of air transport. The basic flaws in this draft are that: – In relation to terrorism, air transport itself is a victim; and – leading nations are already committed to the provision of compensation for death and injury caused by violent crime (including terrorism), and to give support for terrorism risks in the insurance of property. Furthermore there appears to have been no consideration of apparent conflicts with the 1944 Chicago Convention (including prior Council policy), a United Nations Resolution of 1985 and (in relation to EU members) a Directive of 2004 requiring States to assume responsibility for compensating victims of violent crime (including terrorism). Suggestions are offered to promote ratification of two unlinked international agreements: – The proposed ‘General Risks’ Convention; and – a new Terrorism Compensation Treaty for consideration by the United Nations.