[Peetwo]

Airline liability in the 21st century? -

I note that yesterday international aviation law expert Joseph Wheeler wrote an article for the Oz, that is very relevant in hindsight to Karen's compensation case and therefore well worth the time to read... :

Airline liability laws given a timely upgrade

Aftermath of the Flydubai crash in southern Russia last year.

• Joseph Wheeler
  
• The Australian
  
• 12:00AM April 27, 2017
  

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In the past weeks, countries that were previously glaringly missing from the modern world of air carrier liability law have ratified laws providing passenger benefits and improved standards for Australians travelling overseas.

Both Indonesia and the Russian Federation have incorporated the Montreal Convention 1999, which sets out air carrier liability rules for passenger delays, baggage losses, injury and death. Given the chequered history of air safety in both nations, this step forward means an immediately improved legal landscape for citizens of those countries, as well as many benefits that will equally apply to Australian travellers.

After New Zealand, Australia’s greatest number of international departures for short-term travel (ie, less than one year), is to Indonesia. In 2016 Indonesia beat the number of Australian visitors to both the US and Britain and, over the last 10 years, the trend in departures has grown by a staggering 546 per cent.

Annually, this equates to about 1.2 million Australians moving between holiday destinations like Bali and ports around Australia on the nine or so foreign and local airlines that transport them.

The situation for the past few years has been that Indonesian air carriers carry the bulk of Australian travellers (about 40 per cent). The increase in movements shared with our northern neighbours has dramatically developed since the proliferation of low-cost carriers, coupled with the social benefits of the mining boom of the early 2000s. By far, the majority of travellers are holidaymakers.

Given the numbers of Australian travellers going to Indonesia, there was always a need for the law to protect them in the event of situations regarding delays and, thankfully less often, accidents causing injuries and death. However, previously, Australians who booked separate legs of flights with airlines to and from Indonesia fell under the older Warsaw Convention regime, which drastically restricts rights to compensation, where claims could be made, and how much compensation could be obtained — the limits were considered low by international standards even in the early 1990s.

As many travellers are moving towards picking flights solely on price point, the trend has meant that many bought individual flight legs either from separate carriers or at separate times. This prevented the Montreal Convention applying to their travel (it only protects Australians flying to “Warsaw countries” where they have booked a round trip ticket in the one booking to/from Australia). Going forward, the situation will not be so complicated. Travellers will fall under the new and passenger-friendly Montreal system, no matter where and when they book Indonesian/Australian international travel. One key result is that in the event of injury or death, compensation will reflect international standards and, but for a couple of unlikely circumstances, be theoretically uncapped.

The benefits extend beyond compensation payments. A major advantage for people needing to apply the Montreal Convention is the choice of jurisdiction to bring their claim.

The ratification by Indonesia means Australians can bring their claims against foreign or local airlines in an Australian court, rather than submit to Indonesian legal procedure and assessment of their financial losses. This is a major win for Australian travellers, and one we must be grateful to Indonesia for pursuing as it continues to update its laws to harmonise them with the rest of the aviation world.

Russia has also accelerated its ratification of the same Convention, with President Vladimir Putin signing it into law on April 3. While this comes shortly after the first anniversary of the Flydubai FZ981 crash case (a major international accident which falls under the older Warsaw regime) and thus cannot necessarily help those who have suffered through such losses in the past, the act by the Russian government is one which not only brings tangible and positive protections going forward for both Russian passengers themselves, but also Australians travelling abroad to Russia.

As major sky-faring nations and increasingly important sources of inbound tourists, it is hoped these ratifications will improve passenger safety, because airlines and their insurers will now be potentially exposed to far higher financial losses, under the new passenger-friendly law, should an accident occur.

The Montreal Convention takes effect for Indonesia from May 19 2017, and for Russia 60 days after it deposits the instrument of ratification signed on April 3 with ICAO in Montreal.

Joseph Wheeler is the principal of aerospace law firm IALPG and leads Maurice Blackburn’s aviation practice, in addition to being aviation legal counsel for the AFAP.

MTF...P2