A PRESENTATION BY HON. JONATHAN KISH ADAMU Esq. AT THE CLASFON MONTHLY MEETING ON THE 17TH DAY OF SEPTEMBER 2018 AT THE REIZ CONTINENTAL HOTEL ABUJA
Transportation, whether domestic or international, is an important factor in a nation’s socio-economic life and development. The aviation industry has played a significant role in the development of economies around the world. Air transportation has, over the years, proved to be a preferred choice of transportation due to factors such as its safety, speed, mass conveyance of persons and goods and its effective prospect over other means of transportation. The global aviation industry has grown significantly, driven by the increasing interdependence of economies in both industrialized and developing countries. Consequently, the aviation industry has become a strategic sector, providing employment, spurring foreign direct investment, supplying linkages to other sectors of the economy, and thus, reinforcing the emergent global production chains.
The aviation industry is a critical element in Nigeria’s transportation system and indeed its economy. The consistent rise in the number of air passengers and aircraft carriers has spun a thriving service industry, driven not just by private-sector profit motives but also by innovation and the strong desire to satisfy customers. However, the dreadful danger that bedevils the Nigerian aviation industry is the increasing number of recurrent air accidents. Placing this reality in perspective, an airline operator is mandated to take extra care to ensure the safety and air worthiness of an aircraft as this is a vital criteria for operation within Nigeria’s airspace. Consequently, the Nigerian aviation industry requires adequate regulation especially on safety, the rights of air passengers and the liability of air carriers. It is however, quite worrisome that air passengers still face distressing challenges such as delay of scheduled flights; cancellations; lost, damaged or delayed baggage etc., despite the existence of laws and implementation of new policies regulating the aviation industry. This paper will examine the liability for flight delays, the airlines passenger’s rights and remedies in Nigeria.
The International nature of aviation industry gives it dynamism of some sort. Therefore, apart from the national law and regulations which regulate the industry, international convention like (previously) the Warsaw Convention, 1929 and (now) the Montreal Convention, 1999 also regulates the aviation industry in Nigeria. This convention is referred to as Convention for the Unification of Certain Rules Relating to International Carriage by Air (“the Montreal Convention as Modified”). The principal law currently regulating the rights of air passengers in the Nigerian aviation sector is the Nigerian Civil Aviation Act. The legal committee of the International Civil Aviation Organization at its second meeting in Geneva in June 1948 resolved that revision of the Warsaw Convention was necessary and this led to the Hague Protocol of 1955, the Montreal Protocol (1-4) and the Guatemala City Protocol. Finally, at the International Conference on Air Law held in Montreal from the 10th of May to the 28th of May, 1999, the Montreal Convention was signed and it came into effect in 2003.
Aviation Laws are body of international and domestic laws governing various aspects of civil aviation.
The liability for flight delays, the airlines passenger’s rights and remedies in Nigeria are regulated by International Conventions. These Conventions have as their objective the unification of certain rules relating to International Carriage by air in order to ensure uniform standard, the orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation. The ultimate purpose and intention of these Conventions is to remove those actions governed by them from the uncertainty of the domestic laws of the member States. Thus, all countries that are signatories apply them without recourse to their respective domestic Laws. See Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, per Rhodes-Vivour, JSC
- Warsaw Convention 1929
The Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 commonly known as the Warsaw Convention as amended by the Hague Protocol 1955. It was signed in Warsaw on 12 October 1929, and became effective on 13 February 1933.
The Warsaw Convention was the first convention that imposed liability on a carrier towards the passengers for death and bodily injury, delay of passengers as well as for damage to and/or loss of baggage. However, limitations on the extent of liability were considered to be insufficient when compared with present day economic reality. Consequently, the Montreal Convention changed the Warsaw system as it concerns the liability limits in cases of death and injury.
- Montreal Convention1999
The Montreal Convention formally (the Convention for the Unification of certain rules relating to International Carriage by Air). It is also termed the Agreement Relating to Liability Limitation of the Warsaw Convention and Hague Protocol. The Convention is a multilateral treaty adopted by a diplomatic meeting of the International Civil Aviation Organization (ICAO) member states at Montreal on 28th May, 1999. By September 5, 2003 the Montreal Convention was ratified by 31 states including Nigeria. It became effective on November 4, 2003.
The Convention retained the core provisions of the Warsaw Convention , it however, reviewed upward the limitation on liability for death and personal injury cases, waived the airlines’ due care defences and made the carrier’s liability an absolute liability in the absence of passenger’s negligence. The Montreal Convention recognized the protection of the interests of air passengers and the need for equitable compensation. Notwithstanding the above, the Montreal Convention did not expressly cover certain areas of the air passenger-carrier relationship which more recently have given rise to increased regulatory activity by supervising agencies. These areas include assistance to passengers in cases of travel disruption, price transparency and so on. Article 19 of the Montreal Convention (as modified) deals with the issue of flight delays by making the carrier liable for damages occasioned by delay in the carriage by air of passengers, baggage or cargo.
DOMESTIC APPLICATIONS OF INTERNATIONAL AVIATION LAWS
The International treaties particularly the Warsaw and Montreal Conventions which govern the rights and liabilities of airline/carriers, passengers, have been domesticated in Nigeria and made applicable to both international and non-international air carriage contracts.
- Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953
The Warsaw Convention 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. It came into operation on the 1st day of January 1954. This law is no longer part of the existing law in Nigeria contrary to popular opinion as held in the case Ibidapo v. Lufthansa, which was decided before the commencement of the 2006 Civil Aviation Act, as it has been repealed by Section 77 (1) of the Civil Aviation Act, 2006 which provides that:
- “Subject to the provisions of subsection (2) of this section, the following enactments are hereby repealed;
- Carriage by air (Colonies, Territories and other Trust Territories) Colonial Order 1953;
- Civil Aviation Act, Cap. 51 LFN 1990;
- Civil Aviation (Amendment) Act, 1999; and
- Nigerian Civil Aviation Authority (Establishment) Act, No. 49 1999.
- All regulations, by‐laws, orders and subsidiary legislation made under the Civil Aviation Act, 1964 Cap. 511. FN 1990) shall continue to be in force until new regulations, by‐laws, orders and subsidiary legislation are made pursuant to this Act.”
While Section 77 (1) Civil Aviation Act, 2006 repealed the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, Section 48 (1) of the Act made the Montreal Convention applicable to international carriage by air in Nigeria. Section 48 (1) provides as follows:
“The provisions contained in the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 set out in the Second Schedule of this Act and as Amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”
- Carriage by Air (Non-International Carriage) (Colonies, Protectorates And Trust Territories) Order 1953
The Warsaw Convention was made applicable to non-international carriage/flights in Nigeria by virtue of the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953.See Kabo v. Oladipo (2000) 4 KLR (Pt.102) 1413. However, by virtue of Section 48 (2) of the Civil Aviation Act, 2006 from the date of commencement of the Act the Montreal Convention shall apply to non-international carriage by air within Nigeria. For ease of reference Section 48 (2) of the Act is reproduced below:
“The provisions contained in the Convention for the Unification of Certain Rules Relating to international Carriage by Air signed at Montreal on 28th May, 1999 has been modified and Set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non‐international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage and shall subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”
- Civil Aviation Act, 2006
The Montreal Convention was incorporated into Nigerian law by virtue of Section 48 of the NCAA Act 2006, with modifications as set out in its Third Schedule; the Montreal Convention became the basis for establishing of an airline’s liability for both international and non-international carriages and flights in Nigeria. See Section 48 (1) and (2) Civil Aviation Act, 2006; Emirate Airline v. Tochukwu Aforka & Anor.
The implication of Section 48(2) is that the Montreal Convention (as modified) will have the force of law and apply to international carriage by air to which the rules apply from the commencement of the Act, irrespective of the nationality of the aircraft performing the carriage. It further provides that the Montreal Convention (as modified) shall be subjected to the provisions of the Act and shall govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
The NCAA which is the principal law regulating the Nigerian aviation industry establishes the National Civil Aviation Authority (NCAA) and confers on it the duties and responsibilities of making regulations relating to the protection of air passengers.
The NCAA Regulations, 2015 also deals with air passenger protection. Part 19 of the regulation provides for air “passengers rights and airlines obligations to passengers”. The regulation further addresses issues on consumer protection and sets out specific parameters for compensation for overbooking and denied boarding as well as delays and cancellations of flights. It further provides for minimum rights and obligations for air passengers and air carriers. The sphere of its application is restricted to passengers moving from one airport located in Nigeria to another airport in Nigeria, or passengers from another airport outside Nigeria to an airport in Nigeria, or passengers from a Nigerian airport to another airport outside Nigeria. Furthermore, the Nigeria Civil Aviation Policy introduced by the Federal Ministry of Aviation pursuant to section 1 of NCAA, 2006 also makes provisions strengthening the protection of air passengers. Its provisions strengthen the existing regulatory framework of the aviation industry and move the industry closer towards the direction of the safety, security and economic needs of the country by preserving and maintaining the powers and independence of NCAA to carry out effective safety oversight and regulation of the aviation industry. The Act also ensures that the safety regulatory regime of Nigeria meets the International Civil Aviation Organization’s (ICAO) eight critical elements of a safety oversight system which encompasses aviation security, training, safety and quality control.
It is instructive to note that, the Montreal Convention prevails over any rules, which apply to international carriage, by air including the Warsaw Convention. See Article 55 of the Montreal Convention. In Nigeria, Civil Aviation Act, 2006 domesticated the Montreal Convention by repealing the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 which domesticated the Warsaw Convention.
The Act also domesticated other international treaties to which Nigeria is a party, including (among others) the Chicago Convention 1944 and the Cape Town Convention 2001.
CONFLICT BETWEEN INTERNATIONAL LAWS AND DOMESTIC AVIATION LAWS
The Montreal Convention and other Conventions to which Nigeria is a signatory are international treaties, international agreements and compromise principles, which the high contracting States have submitted to be bound by. They are therefore an autonomous body of law whose terms and provisions are above domestic legislation. Thus, any domestic legislation in conflict with the Conventions is void.
The law is that, where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence, an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law. Cameroon Airlines v. Abdulkareem (2003) 11 NWLR (pt.830) 1; El Al Israel Airlines Ltd. v. Tseng 919 F. Supp 155 S.D.N.Y. 1996 ; Sidhu v. British Airways (1997) 1 All ER 193; Air France v. Saks 105 S.C. 1338 470 U.S., 392 84 L.Ed 2d 289 (1985).
AIRLINE PASSAGER’S RIGHTS IN NIGERIA
Traveling by air confers certain rights on air passengers and these rights are recognizable all over the world with Nigeria not being an exception. Air passenger rights in the aviation industry can be referenced as the rights of air passengers which pertain to precautions which an air carrier must take to protect its passengers and their luggage from harm, loss or damage as prescribed by law.
Some of the rights available to passengers, as contained in the Nigeria Civil Aviation Regulations (NCAA Regulations), 2015 include:
- the right to the full value for air passenger’s money;
- the right to compensation for flight cancellation, delays, damaged/lost 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.
- The right to book and confirm tickets with an airline of your choice.
- The right to the provision of a conducive airport environment before, during, and after flights.
- The right to seek redress for all irregularities during your flight.
- The right to timely feedback in respect of matters/complaints lodged with service providers.
- The right to be fully informed about flight status.
- The right to be treated with respect and dignity irrespective of race or physical condition.
Nigerian courts gave credence to this right in some disputes brought before it. It is questionable whether air passengers in Nigeria actually enjoy the rights enumerated above as the legal framework designed to guarantee the enjoyment of such rights are lagging behind in comparison to other climes and low level of consumer education ensures that airline operators who are constantly in breach of these rights are easily let off the hook by regulators who lack the political will to wield the big stick. Air passengers in the country often face difficulties such as denied boarding, delays and cancellation of scheduled flights, unfair treatment among others.
LIABILITY OF AIRLINE DELAY
An airline’s liability to its passengers or customers could arise as a result of:
- Injury sustained on board an aircraft or
- Death arising from the course of a journey or
- Damage or loss of goods
- Delayed or denied boarding or
- Interactions in the course of preparing for or the actual conduct of flight operations.
See Harka Air Services (Nig.) Limited v. Keazor Esq. per Adekeye, J.S.C
The Liabilities for the carrier are contained in Articles 17 to 30 of Montreal Convention which is the applicable Convention in Nigeria. This paper is to look at the liability for flight delays, the airline passenger’s rights and remedies in Nigeria.
Liability for Delay in the Carriage of Persons:
The liability of the carrier to each passenger in respect of damage caused by delay is limited to 4150 USD.
The liability of the carrier in respect of damage suffered by a passenger caused by delay or destruction, loss, damage or delay of baggage will be unlimited, if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that in the case of such act or omission of a servant or agent, it is also proved that such servants or agents was acting within the scope of its employment.
The liability sums mentioned in Articles 22 shall be converted to Naira at the existing official exchange rate.
The Minister of Aviation is statutorily empowered by Article 24 to review the limits of liability prescribed in Articles 21, 22 and 23 upon the advice by the Nigerian Civil Aviation Authority at seven year intervals, the first of such review is to take place at the end of the seventh year following the date of entry in force of the Civil Aviation Act, 2006.
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive exemplary or any other non-compensatory damages shall not be recoverable. See Emirate Airline v. Tochukwu Aforka & Anor. (supra) pages 49-50, paras. A-A , per Augie, J.C.A.
AVOIDANCE OF LIABILITY
An airline carrier can avoid or escape liability under or in the following circumstances:
- Defence of Due Diligence: A carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measuresthat could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
- Contributory Negligence: Where the damage, death, or injury was caused or contributed to by the injured or dead person’s negligence. The carrier shall be wholly or partly be exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage or death.
- Effluxion of Time: The right to damages shall be extinguished, if an action is not brought within a period of two years, calculated from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.See Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498)124 at 161
- Unlimited Liability of Carrier: There are situations in which a passenger will be entitled to damages for breach of contract of carriage by an airline more than the limit set under the Convention , these situations include :
- Willful Misconduct: In the case of Harka Air Services (Nig) Ltd. V. Keazor (2011) 13 NWLR (Pt.1264) 320 at 342,para. A; 360 H.His Lordship, Rhodes-Vivour, JSC stated at page 364 C – D, that:
“Willful misconduct is a deliberate wrong act 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 carrier shall not be entitled to avail itself of the provisions of paragraphs 1 and 2 of Article 22 which exclude or limit its liability, if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
Where the breach occasioning loss is as a result of willful misconduct by a carrier, it loses its entitlement to rely on statutory limitation of liability. In Cameroon Airlines v. Mr. Mike Otutuizu it was held that the carrier committed willful misconduct, thus the respondent was entitled to more damages than the limit set in Article 25 in the Warsaw Convention now Article 22 (1) and (2) in the Montreal Convention.
In the case of Oshevire v. British Caledonia Airways Ltd it was held that where a parcel containing valuable cargo is stolen as a result of concerted action taken within the scope of their employment by one or more employees of the carrier who also most probably stole the documents, the plaintiff would be entitled to more damages than the limit in Article 22, since the carrier had committed willful misconduct. The court held further that, in all other cases spelt out in the Convention the limits on liability must be followed but where there is breach of contract of such a magnitude that it amounts to a willful act, a willful misconduct the limits are no longer applicable.
AIRLINE PASSENGER’S REMEDIES IN NIGERIA
The prominent agency that ensures protection of air passengers is the Nigeria Civil Aviation Authority (NCAA). The NCAA was established by Section 2 of the NCAA, Act 2006. It certifies and monitors the technical equipment, personnel and airports in Nigeria. It is the apex regulatory body vested with the duty of overseeing the activities of airlines, pilots, engineers, cabin staff, airports and all service providers in general including the airport authority. In discharging this duty, the NCAA makes regulations guiding the aviation sector. One of such and the most relevant to this paper is that which deals with the rights and remedies available to air passengers.
The NCAA also launched the Consumer Protection Department in March, 2011 to ensure that the rights of all aviation consumers are well protected. It has the duty of educating consumers and ensuring that quality services are rendered to them. In doing this, it collates and follows up on consumers’ complaints and guarantees that adequate compensation is paid to deserving complainants.
It will not be out of place to mention that the Consumer Protection Council (CPC) also has a role to play in the industry. CPC was established by the Consumer Protection Council Act. The CPC is the apex consumer protection agency for all industries in Nigeria and this of course includes the aviation sector. The CPC has the broad duty of eliminating consumer rights abuses in Nigeria. It also has the function of providing speedy redress to consumers’ complaints through negotiation, mediation and conciliation. It has the power to cause the offending company, firm or trade associations to protect, compensate and provide reliefs and safeguards to injured consumers.
Consumer protection and the protection of consumer rights is vital in the service industries like the Nigerian aviation industry where basic rights of air passengers to safety and satisfaction are blatantly ignored. In March this year an Arik aircraft was reported to have been filled with smoke from the aircraft’s cabin during a flight from Nigeria to Ghana. The sorry plight of the passengers was aggravated by the failure of the oxygen masks to deploy during the scary incident. The case of one of Dana aircraft’s cabin doors falling off while in motion on 7th February 2018 and another of its aircraft overshooting the runway on 20th February 2018 are more examples.
Consumer (air passenger) protection refers to government laws and regulations which are designed for the protection of the rights and safety of consumers. It is therefore worthy of note, to state that the key players in the Nigerian aviation industry are the government (through its various industry regulators), air carriers and the air passengers (the consumers). In the Nigerian aviation industry, air passenger protection is regulated by international conventions, the Nigerian Civil Aviation Act, 2006 and the policies and regulations made pursuant to the Act.
An air passenger who has suffered a wrong in Nigeria reserves the right to lay a complaint to CPC which is the overall agency with the reserved responsibility for protection of consumers (including air passengers) in Nigeria. Aside this, the Civil Aviation Regulations also mandates every airline to establish a consumer protection desk at every airport where it operates and to appoint an officer to manage the desk for the purpose of receiving and resolving air passenger complaints. Furthermore, the regulation stipulates that in the circumstance where it is impracticable for such complaints to be resolved, same should be channeled to the head offices.
An air passenger who desires to lodge a complaint about violations of rights may also do so with the Directorate of Consumer Protection (DCP) of the NCAA pursuant to the Nigerian Civil Aviation Authority Consumer Bill of Rights; a bill based largely on Part 19 of the Civil Aviation Regulations 2015. Upon receipt of such complaint, the DCP is expected to conduct an investigation into the complaint. It will inform the airline of receipt of the complaint and give it the opportunity to respond and advice on steps taken to resolve the matter. The DCP is expected to adjudicate on the merits of the complaint and determine whether it can be resolved at that stage or be transferred to the NCAA Administrative Hearing Panel (AHP).
The AHP is a quasi-judicial body and both parties to a complaint are to transmit a statement to the panel upon which they can both be heard. Consequently, the panel may make any order ranging from the payment of compensation to the complainant, payment of fines or penalties or even referral for criminal prosecution where appropriate. However, it is important to note that there is no provision for the enforcement of the orders made by the panel and as such, this leaves an aggrieved complainant with the only option of recourse to the Federal High Court in the form of a civil lawsuit.
According to Ogakwu, JCA in Otoakhia v. Aero Contractors Nigeria Limited, the Federal High Court has original and exclusive jurisdiction in matters pertaining to aviation, safety of aircraft and carriage of passengers and goods by air. This position of the Court of Appeal is in tandem with the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999. However, where an aircraft passes through the airspace of several countries, it naturally falls within the realm of international law and this raises difficult questions of conflict of laws.
In conclusion, the various regulators in the sector must increase their awareness drive regarding air passenger rights and ensure that complaints are fully investigated and sanctions meted out to defaulting air carriers whose poor consumer protection service and safety measures have continued to erode the confidence of air passengers in the sector. These efforts must be geared towards attracting proper investments and patronage into the industry thereby ensuring that Nigeria’s quest to attain its full potentials of becoming the aviation hub of Africa is not hampered.
A Mustapha ‘An Appraisal of Air Passenger Protection Laws for Delay of Flight in Nigeria’ (2017) International Journal of Social Science and Humanity, Vol. 7 No. 1
1999 Constitution of the Federal Republic of Nigeria (As amended)
Nigeria Civil Aviation (Repeal and Re-Enactment) Act, 2006
Nigeria Civil Aviation Regulations, March 2009
Consumer Protection Council Act Cap C25 LFN 2004
Akintunde Esan “Aviation Law: Remedies for Delayed, Damaged or Lost Baggage/Compensation for Death or Injury of Airline passengers in Nigeria” https://akintundeesan.blogspot.com/2015/07/aviation-law-remedies-for.html
Unini Chioma “Regulatory Framework for Air Passenger Safety and Protection in Nigeria” (2018) www.thenigerialawyer.com