The aviation industry contributed 0.14% to the nations GDP in the year 20191. The industry has contributed immensely to the growth of the economy with the creation of jobs, attraction of foreign investments and the development of other sectors. Air transport is the most preferred means of transportation in Nigeria- despite the higher price tag, it is the safest, fastest and most reliable means of transportation. This accounts for the boost in revenue being accrued to the nation's coffers through the industry. However, this great feat is being hampered by the new trends of air accidents, flight delays, loss of baggage, cargo and various other challenges being faced by passengers. This article borders on the rights of passengers, protection of air flight customers and liability of airline operators in loss of baggage claims under International conventions and Nigerian law.
RIGHTS OF AIRLINE PASSENGERS
The principal legislation governing the rights of air flight passengers in Nigeria is the Civil Aviation Act 2006. The aviation industry is equally governed by international laws which include the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) 1999 as successor to the original convention on air carrier liability, the Warsaw Convention 1929. The Montreal Convention was recognised and ratified under Nigerian law by Section 48(2) of the Civil Aviation Act 2006 in accordance with the provisions of the 1999 Constitution of Nigeria.2 Some major rights of a passenger are:
- The right to the full value for money paid
- The right to compensation for flight cancellation, delays, damaged/loss baggage and denied boarding for reasons other than technical, weather conditions, air traffic control restrictions, security risks and industrial disputes that affect the operation of the flight.3
- The right to seek redress for all irregularities during a flight.4
- The right to timely feedback in respect of matters/complaints lodged with service providers.5
- The right to be fully informed about flight status.
- The right to be treated with respect and dignity irrespective of race or physical condition.
The Civil Aviation Act 2006 establishes the Nigerian Civil Aviation Authority (NCAA)6 to regulate and deal on safety and technical issues in the aviation industry. The Act also grants the NCAA the powers to make regulations and pursuant to which the Consumer Protection Regulation was introduced under Part 19 of the Civil Aviation Regulations 2015. In furtherance of their duties, the NCAA established the Consumer Protection Department in March 2001 to ensure that passengers receive optimum and quality services during air transport. The Consumer Protection Department has the responsibility of informing, educating and protecting consumers and ensuring that they are provided quality service within the aviation industry. This is an initiative in clear acknowledgment of their obligations to manage passenger expectation and ensure their satisfaction to all reasonable extent.
Similarly, under the Montreal Convention 1999, which has been adopted into Nigerian law under the Civil Aviation Act7, airline carrier is liable for certain actions which would put the consumer/passenger at risk. The convention governs the rights and liabilities of carriers, passengers, consignors, consignees and other persons, and applies to both international and domestic carriage. It provides that the carrier is liable for damage sustained in case of death or bodily injury of a passenger if the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking8.
The Convention provides that the carrier shall be liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage if the event which caused the damage took place during any period within which the checked baggage was in the charge of the carrier9. Furthermore, the Convention provides that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo, and can only be exempted if he can prove that he took all the measures to avoid the damage10. These liabilities also conversely serve as the right of the passenger/consumer under Nigerian law.
LIABILITY OF AIRLINE OPERATORS OVER THE LOSS OF BAGGAGE
In Nigeria, the courts have cited three main legislation11 applicable to regulation of liability of carriers to their passengers. They are: the WARSAW Convention12, the MONTREAL Convention 1999 and the Civil Aviation Act 200613. See the case of Emirate Airline v Aforka14.
Airlines owe a duty to the passengers to ensure that their baggage is protected from loss, theft or damage. This duty arises out of the contract which is believed to exist between an airline and a passenger or the owner of the cargo. The contract which exists between a passenger and an airline is referred to as a contract of carriage by air. A breach of this contract results in a number of liabilities on the part of the airline operators. In the case of Cameroon Airlines v Mr Mike Otutuizu15 the court stated that once a passenger purchases a ticket, a contract is established between the passenger and the airline, also, where the passenger has any other luggage other than a hand luggage, a ticket is to be issued in respect of such luggage. This is only applicable to private persons and their luggage.
With respect to the contractual relationship between a consignor and consignee, The Second Schedule of the Civil Aviation Act under Article 1116 states that the air waybill or cargo receipt is evidence of the conclusion of a contract, on the surface of it, and a promise to abide by the conditions of carriage agreed to. On the basis of the duties imposed on airlines, Articles 17 to 3017 of the Convention- which are contained under the Second Schedule of the Civil Aviation Act- outlines liabilities which a carrier is expected to bear in the event that certain circumstances occur. They are:
Liability for the death or injury of a passenger: Section 48(3) of the Civil Aviation Act pronounces the carrier liable to the sum of at least $30,000, payable within 30 days from the date of said accident. This can also be seen under the Montreal Convention. Article 17 of the Montreal Convention provides that a carrier is liable for any damage resulting from the injury or death of a passenger, as long as such passenger was still aboard the aircraft or in the process of embarking or disembarking from the aircraft.
Liability for damage to cargo: Article 18 also provides that a carrier will be held liable if damage occurs to a cargo aboard an airline, provided such damage occurred during the time of carriage.
Liability for delay: any damage resulting from the delay in carriage of cargo, luggage or passengers, will be borne by the airline, unless it can show that the situation was beyond control and therefore unavoidable18.
In light of the liabilities discussed, the Civil Aviation Regulations 2015 states that the airline carrier shall be liable to compensate an aggrieved passenger for flight cancellation, delays, damaged/loss baggage and denied boarding for reasons other than technical, weather conditions, air traffic control restrictions, security risks and industrial disputes that affect the operation of the flight.19
From a global perspective the Convention for the Unification of certain rules relating to international carriage by air, commonly known as the Warsaw Convention20, is an international convention which regulates liability for international carriage of persons, luggage, or goods performed by aircraft for reward. The Warsaw Convention created world's first, single and uniform international system of rules for international carriage of passengers and cargo by air, including limitations of air carrier liability. The practical benefit to passengers, shippers and consignees was protection; for carriers, it was knowledge of the extent of their liability, the risk of which may be insured against.
The Montreal Convention 1999 replaced this Warsaw Convention21 and also makes the airline carrier liable for any loss or damage to the baggage of a passenger22 and unlike the Warsaw the limitation of liability measures on carriers was underplayed. The liability of a carrier in respect of damage suffered by a passenger caused by the loss, damage, delay or destruction of baggage would be unlimited if it is proven that the damage resulted from an act or omission of the carrier, its servants or agents, and specifically done with the intent to cause damage or recklessly and with the knowledge that damage might probably result, provided that at the time of the commission of the act or omission such servant or agent was acting within the scope of its employment.
From the above it can be gleaned that the domestic legal regime of aviation liability in Nigeria consists of international conventions (most notably the Montreal Convention), the Civil Aviation Act, and regulations on liability put in place by authorized agencies.23 According to the National Civil Aviation Policy, "the Civil Aviation Act . . . together with regulations made by the [Nigerian Civil Aviation Authorities] NCAA constitutes the primary law regulating civil aviation in Nigeria."
Regulations concerning liability of air carriers are the Consumer Protection Regulations contained in Part 19 of Nigeria Civil Aviation Regulations 2015. These regulations are crucial to the issue of liability as they fill some of the gaps left in the Montreal Convention and the Civil Aviation Act. For instance, the Montreal Convention and the Civil Aviation Act do not provide for cases of denied boarding or flight cancellation, but these situations are contemplated by the Consumer Protection Regulations.24
Nevertheless, victims of air disasters can make claims under the law of torts because most air disasters give rise to tortuous liability. Although it has been observed that most personal injury claims in Nigeria are based on the common law with no statutory framework regarding compensation for personal injuries (except for employment injuries), legislation establishing tortuous liability does exist from which claims for damage arising from air carriages can be made.25 Liability also arises from the contractual relationship between air operators and passengers, and criminal laws in Nigeria impose liability for accidents and death. We would therefore examine this statutory liability
As provided under the Civil Aviation Act
- Damage Sustained in the Case of Death or Bodily Injury of a Passenger
- Liability for Damage Sustained in Case of Destruction or Loss of Baggage or Cargo
- Liability for Delay of Persons, Baggage, or Cargo
- Liability of Air Carriers to Third Parties
Consumer protection regulations in part 19 of the Nigerian Civil aviation Regulations
The compensation provided under these regulations is supplementary to similar compensation under the Civil Aviation Act. (sec 30 (5).
- Denied Boarding
- Delay of persons
- Delayed, Lost, and Damaged Baggage
Other applicable law such as Tort Law and Contract Law - It should be noted that these ones use the common law principle of fault based mechanism to determine whether the Airlines are liable or the extent of damages to be awarded. However, Considering that there are already existing applicable statutory law governing and regulating the activities of the parties, it is advisable that the Court takes primary cognizance of such legislation and the principle of contract be supplementary or applicable where there is a lacuna.
Nigerian Case Law and the Compensatory Regime for Airline Liability
Nigerian Case law has brought to light certain concerns when these baggage or damage claims arise against airline operators. There are laws regulating the liability of the carrier to its passengers. An airline's liability to its passengers or customers could arise as a result of a) Injury sustained on board an aircraft or b) Death arising from the course of a journey or c) Damage or loss of goods d) Delayed or denied boarding or e) Interactions in the course of preparing for or the actual conduct of flight operations26. These were highlighted in the case of Harka Air Services (Nigeria) Ltd v Keazor27.
In the case of Emirate Airline v Aforka & Anor28, the court examined the conditions for a claim to succeed when it considered whether the claimant needed to show that the carrier had knowledge that damage would probably result to his item or passengers onboard. The learned judge cited a prior case of Cameroon Airlines v Jumal Abdul-Kareem29 and decided that to be able to award substantial damages, it is not enough for the Claimant to show that the damage was occasioned by negligence, recklessness or malicious intention but he must also show that the carrier had prior knowledge that damage would probably result. This goes to show that the Claimant cannot hide under the doctrine of res ipsa loquitor but must plead and prove that there was in fact prior knowledge of possible damage occurring.
LIMITATION OF LIABILITY OF THE CARRIER
When awarding damages, the courts have drawn the distinction between general and special damages. For general damages the law will presume as the direct, natural or probable consequence of the act complained of while special damages are such as the law will not infer from the nature of the act. For special damages to be claimed, all losses on the said item must have crystallized in terms and value30. This was the decision in the case of Emirate Airline v Mekwunye31. The courts have shown that despite the need to compensate passengers for damages and inconvenience occasioned, the courts would not grant claims amounting to double compensation32. In the case of Tsokwa Motors (Nig.) Ltd v. UBA Plc.33 the Supreme court per Aderemi JSC held that where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head34.
The Montreal Convention 1999 also provides for the limited liability of the carrier as it pertains to the baggage lost. The convention states that; in the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 United States Dollars for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger's actual interest in delivery at destination35. The passenger therefore would be entitled to the full value of his baggage if he declares an interest in delivery at the destination of the baggage, however if it is found otherwise he would be entitled to USD 1000.
Interestingly, Nigerian Courts have cited how Article 22(1) of the Warsaw Convention was applied to the South African Case of Cameroon Airlines v Otutuizu36. A briefcase containing $20,000 and valuables was taken from a passenger and was never returned to said passenger. The Court was of the opinion that in this instance, the limit on damages as set out in the Convention would be waived as it was an intentional malicious misconduct.37 This is important as it ensures that the airline operator and its agents cannot abuse the liability limit when damages accrue to the passenger. The operators have a duty to orient and scrutinize staff as they would not be excused based on vicarious liability.
This introduces an angle of what would amount to willful misconduct by an airline operator or his agents/staff and the Court in Harka Air Services (Nigeria) Ltd v Keazor38 cited an illustration- Willful misconduct is a deliberate wrongly acts by a pilot, airline staff, or its agent which gives rise to a claim for damages by passengers. When staff of an airline act with reckless indifference, such unacceptable behaviour especially by a professional person amounts to willful misconduct. A Pilot that lands his plane without clearance from the control tower may in our view be guilty of willful misconduct. In the case of Egypt Airline v Abdoulaye39 the courts added that an attitude of indifference is one that the law can consider as one that amounts to willful misconduct40.
In the case of Cameroon Airlines v. Otutuizu41 the court held that the Carrier shall not be entitled to avail himself of the provision of the Convention, which exclude or limit his liability if the damages is caused by his willful misconduct or by such fault on his part as in accordance with the law of the Court seized of the case, is considered to be equivalent to willful misconduct. Similarly, the carrier shall not be entitled to avail himself of the said provision, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.
Airline safety and an assurance of security of the passengers' assets and life are what have made the aviation industry a thriving industry in Nigeria. However, the threats to these would lower passengers trust in airline carriers and cause a reduction in patronage for airline travel. The Regulatory Agency and the Court while creating and interpreting legislation that asserts and protects the consumers' needs to conversely ensure that it creates a competitive industry for airlines to also thrive. With certainty of the risk attributable to the operators the Insurance premium and coverage would become readily available at a reduced fee, more so the regulations should also set out reasonable caps for carrier liabilities and a strict legislation that guarantee effective performance from the carriers would also improve the confidence and reliance placed within the sector both internationally and locally.
1. Fakoyejo Olalekan, "Aviation's GDP Contribution up by 0.14%, 2020 will be Down" (March 16, 2020, Nariametrics) < https://nairametrics.com/2020/03/16/aviations-gdp-contribution-up-by-0-14-2020-will-be-down/#:~:text=The%20contribution%20of%20the%20Aviation,62%20billion.&text=35%20billion%20to%20the%20country's,to%20political%20activities%20in%20Nigeria.> accessed 16th September,2020.
3. Civil Aviation Regulations 2015, Regulation 19.6.1.
4. Civil Aviation Regulations 2015, Regulation 19.12.1.
5. Civil Aviation Regulations 2015, Regulation 19.18.
6. Section 2 of the Civil Aviation Acct 2006
7. by virtue of Section 48 of the Civil Aviation Act 2006
8. Article 17.1 of the Montreal Convention
9. Article 17.2 ibid
10. Article 19 ibid
11. Saudi Arabian Airlines and Anor v Jahlive Sadakka (Nig) Ltd (2018) LPELR-46771 (CA)
12. This has been repealed and replaced by the Montreal Convention
13. See THIBODEAU v AIR CANADA  3 S.C.R 340 and EMIRATE AIRLINE v AFORKA (2014) LPELR - 22686 (CA)
14. (2014) LPELR - 22686 (CA)
15. (2011) 2 KLR (Pt. 291) 373
16. Montreal Convention 1999
17. Montreal Convention 1999
18. Article 19 Montreal Convention 1999
19. Ibid n. 3
20. The Warsaw Convention was domesticated in Nigeria by the Carriage by Air (Colonies, Protectorates, and Trust Territories) Order 1953, which was contained in Vol. XI of the 1958 Laws of the Federation of Nigeria. However, the Civil Aviation Act repealed the Carriage by Air Order.
21. The Warsaw Convention 1929 which is applicable and relevant to the instant appeal was domesticated as a Nigerian law by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 Vol. XI Laws of the Federation 1958, as amended by the Hague Protocol. It is still part of the existing law in Nigeria pursuant to Section 315 of the 1999 Constitution as it has not been repealed by any law or rendered invalid or incompetent by any court of competent jurisdiction. An important International convention like the Warsaw Convention cannot be said to be impliedly repealed when the country is still taking advantage of its provision and has not promulgated similar enactment to replace it. The convention is so important to this country both domestically and internationally to be avoided. A vacuum of such magnitude cannot be tolerated in our legal system. It is a notorious fact that all air travelling tickets, whether domestic or international contain notices alluding to the provision of the Warsaw Convention being referred to in this case as the 1953 Order. The 1953 Order can certainly be taken judicial notice of under Section 74 (1) (a) of the Evidence Act (Cap 112) Laws of the Federation of Nigeria." Per ADEKEYE, J.S.C (Pp. 27-28, paras. F-G)
22. Ibid n. 8
23. National Civil Aviation Policy (2013), pts. 1-10
24. pt. 19.4.
25. See generally Civil Aviation Act (Nigeria), sched. III
26. See also Section 48 of the Civil Aviation Act 2006. Warsaw Convention 1929 Montreal Convention 1999
27. (2011) LPELR-1353(SC)
28. (2014) LPELR-22686(CA)
29. (2003) 11 NWLR (Pt. 830)
30. See also Shodipo & Co Ltd v Daily Times (1972) All NLR 842
31. (2014) LPELR-22685(CA)
32. See also Tsokwa Motors (Nig.) Ltd v. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347 SC
33. (2008) 2 NWLR (Pt. 1071) 347 SC
34. See also Okongwu V. NNPC (1989) 4 NWLR (Pt.115) 296 @ 315; NPM Board v. Adewunmi (supra); Swiss-Nigerian Wood Industries Ltd v. Danilo Bogo SC. 14/70 and Emirate Airline v. Ngonadi, CA/198/2012 delivered on 19 -12 -13
35. Article 22 of the Montreal Convention 1999
36. (2011) LPELR-827(SC)
37. See also Oshevire V British Caledonian Airways Ltd (1990) 7 NWLR (Pt. 163) 507
38. (2011) LPELR-1353(SC)
39. (2017) LPELR-43331(CA)
40. See also HARKA AIR SERVICE (NIG) LTD V. EMEKA KEAZOR Esq (2011) 13 NWLR Part 1264 p. 320 at p. 364
41. (2011) LPELR-217/2004 9SC); See also South African Airways v. Obi (2013) LPELR-40642 (CA); British Airways v. Atoyebi (2014) LPELR-23120 (SC); Harka Air Services v. Keazor (2011) LPELR (SC); Oshervire v. British Caledonian Airways (1990) 7 NWLR 507 and Egypt Air v Danshariff (2019) LPELR-48116(CA)
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