Negligent Entrustment of Leased Aircraft and Crew: Some Legal Issues

Abstract

Negligent entrustment is a civil wrong grounding an action in tort law which arises when one party is held liable for negligence because he negligently provided another party with a an object that could cause harm to another and the latter caused injury to a third party with that object. The cause of action most frequently arises where one person allows another to drive his vehicle. Common law countries apply the The Corporate Manslaughter and Corporate Homicide Act of 2007, which provides that an organization is guilty of an offence if the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased. The Act applies inter alia to a corporation. The offence is termed ‘corporate manslaughter’, insofar as it is an offence under the law of England and Wales or Northern Ireland; and ‘corporate homicide’, insofar as it is an offence under the law of Scotland. An organization that is guilty of corporate manslaughter or corporate homicide is liable on conviction to a fine and the offence of corporate homicide is indictable only in the High Court of Justiciary. The Act provides, inter alia, that the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the Organization that were likely to have caused failures in the provision of services by the corporation could be taken into account in determining the culpability of that entity. The possible application of this legislation to air transport is a reality, as exemplified in the Helios trial which opened on 26 February 2009 in Cyprus. The trial pertains to the island’s worst air tragedy, when 121 people perished on a charter plane that slammed into a Greek hillside nearly four years ago. According to reports, at the time of writing, Helios Airways and four airline officials faced charges of manslaughter and reckless endangerment in one of the most complex and high-profile cases in the eastern Mediterranean island’s legal history. Plaintiffs, who are relatives of the dead, have called for criminal action against those deemed responsible when the Helios Airways Boeing 737–300 ran out of oxygen and crashed outside Athens in August 2005. It has also been reported that, although the authorities have not named those to be charged, the accused are known to be officials who held top management positions in the airline at the time of the crash. Against this backdrop, this article analyses the offence of negligent entrustment and draws a link between the offence and the leasing of aircraft and crew.