In virtue of technology development and progress in international economic and also political relations, the air transportation has become a preferable transportation type in the world. Despite of technical developments in aviation and high security of aircraft, aviation accidents, thereby the liability of air carriers have become unavoidable. This article is intended to provide a general information regarding air carrier liabilities for death or bodily injury arising from aviation accidents in domestic and international flights.
Liability of Air Carrier in Domestic Flights
Civil Liability
The article 106 of Turkish Civil Aviation Act (TCAA) is taken as basis regarding the national air transportations. Accordingly, the TCAA is applied for domestic flights. In cases which are not enacted by TCAA, the Warsaw Convention of 1929 and Hague Protocol of 1955 ("Warsaw/Hague Convention") will be applicable. If a case is not regulated in Warsaw/Hague Convention neither, the obligations and trade law principles will come in question.
According to the art. 120 of TCAA, the air carrier is liable for damages arising from death or bodily injuries in case of aviation accidents occurred in aircraft or during boarding or alighting. Depending on the fault of air carrier, this liability may be limited or unlimited. The cases in which the air carrier may not be held liable have been stated in the TCAA. Accordingly, the liability of air carrier is principally limited. Due to coming of Montreal Protocols in force in Turkey in 1991, the liability of air carrier is limited to 16.600 Special Drawing Rights. However, air carrier may increase its liability limit through agreements according to the art. 124 of TCAA.
The liability of air carrier will not be limited,
- if no flight ticket is issued or if the flight ticket is not issued as required,
- if the damage is caused by intentional or recklessly/negligent acts of air carrier or its employees.
However, it is possible for air carrier to benefit from the possibility of exculpation through proving that all the necessary measures have been taken or that there was no possibility to take such measures.
Criminal Liability
In aviation accidents with decease and injury, Criminal Code provisions come in question. Accordingly, in case of death, the responsible individuals shall be prosecuted ex officio due to negligent manslaughter. By virtue of the fact that the airlines are legal entities, their legal representatives such as board members or directors shall be prusecuted and sentenced.
In case of bodily injury, the responsible individuals shall be prosecuted upon complaint of the injured parties. If conscious neglicence is present in a case, the prosecution of responsible individuals will be ex officio.
Action for Damages: Which rights and claims do claimant(s) have against air carrier(s)?
In case of death of a passenger in an aviation accident, his/her family or relatives may file a suit for damages against the air carrier and its employees. If a bodily injury arise from an aviation accident, only the injured party (passenger) has the right to demand the compensation of material and immaterial damages.
In such a case the relatives, family of the decedents or the injured passenger(s) shall prove the presence of an aviation accident and the causation between damages and accident. According to the related laws, an aviation accident should occur in the aircraft, during boarding or alighting.
When shall injured parties file a suit for damages?
The right of institute legal proceedings against the air carrier prescribe within two years as from the date of landing of the aircraft or as from the date in which the aircraft should land. (art. 131 TCAA; art. 29 Warsaw/Hague Convention).
What may these persons demand from the air carrier?
In case of decease and bodily injury of passenger due to aviation accident in a domestic flight, the Turkish Code of Obligations ("TCO") will be applied.
The family or relatives of the decedents may demand
- the treatment and funeral expenses, damages from labour loss (if existent), loss of support as compensation of material damages (art. 53 TCO)
- compensation of immaterial damages due to the burden and sorrow about the decease of the passenger (art. 56 TCO)
The injured passenger may demand
- compensation of his/her material damages such as treatment expenses, labour loss (art. 54 TCO)
- compensation of immaterial damages (art. 56 TCO)
Liability of Air Carrier in International Flights Starting or Ending in Turkey
In regard to liability of air carriers in international flights which start or end in Turkey the Montreal Convention of 1999 comes in question. This convention came in Turkey in 26.03.2011 in force. To the flights occur after 2011 clauses of this convention will be applicable.
In case of decease or bodily injury of passenger(s) in an aviation accident, the liability of air carrier is limited to 100.000 Special Drawing Rights according to the Montreal Convention. The air carrier is liable for all material damages caused by aviation accident. However, this convention does not provide the right to the injured persons or to the family or relatives of deceased passenger(s) to claim only for immaterial damages which don't result from material damages. (Art. 29 Montreal Convention) Accordingly, only the immaterial damages arising from material damages may be claimed from air carrier. The scope of damages arising from aviation accidents in international flights differs from damages arising from aviation accidents in domestic flights in this regard. Nevertheless, cases in which the passenger does not have material damages or that no aviation accident according to the TCAA or conventions exists and only immaterial damages were caused, claim for such immaterial damages shall be possible for injured persons.
The liability of air carrier has been regulated by international conventions and thereby the rights of injured parties are guaranteed by these laws. Since Turkey is a party to international conventions such as Montreal Convention, Warsaw Convention and Hague Protocol, Turkish Laws concerning aviation are in accordance with international conventions, so that a similarity of rights in national and international laws is provided.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
