Position of Air Law in term of liability scheme in Malaysia

The liability scheme of air carrier is governed by Carriage by Air Act 1974 which incorporating the Warsaw Convention.

The Objectives of the Convention:-

1. To limit the a carrier’s liability in the event of catastrophic aircraft disaster which might otherwise threaten the airline industry
2. To achieve uniformity in air carriers liability and documentation for transportation
3. To avoid involved conflict of law
4. To facilitate the transactions between countries around the world

Definition

1. Who is Air Carrier?

To include not only parent holding company of the carrier but also the       aircraft’s maintenance company and the operator of the helicopter from which the aircraft took off. (case law)

What who is the carriage?

They are :-

1. Passenger
2. Baggage
3. Cargo

What is the liability scheme?

Article 17 of the Warsaw Convention states that the carriers is liable for that damage sustained in the event of death or wounding of a passenger or bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board.

To claim under Warsaw liability scheme that allowed a passenger to cover damages for any injury or death if the following elements were established based on Article 17:-

1. The claimant was a passenger of an international flight.
2. The claimant suffered that accident
3. The accident occurred aboard the international flight  or in the course of embarking of disembarking  the international flight
4. The accident caused the a passenger to suffer  death or wounding or bodily injury

What constitute accident or non accident?

Issues?

1. If there is no death, wounding or bodily injury but it does not constitute an accident. Can a claimant claim under Article 17?
2. If the event of death, wounding and bodily injury occurred but it does not constitute the meaning of an accident, can they claim under Article 17 of Warsaw Convention?

The answer is:-

Both issues are not entitled to claim under Warsaw Convention as it is stated that, the accident must cause the injury…

Or the claimant can’t easily claim that any kind of injury may caused by an accident.

Therefore, let us examine what is definition of an accident?

Definition of accident

1.A.17 provides no definition of an “accident”

2. The dictionary defines ‘accident’ as “a happenings not expected foreseen or intended”, or in “unpleasant and unintended happening, sometimes resulting from negligence, that results in injury, loss, damage , etc.

(Webster New World Dictionary)

Definition of accident; case law

De Marines V KLM Royal Dutch Airlines (US District Court, Eastern District of Pennsylvania,28 June 1977; 14 avi, 18, 212)

The court ruled that in the context other than the Warsaw Convention ‘ accident has been defined as an unexpected and sudden event takes place without foresight’ It follows the occurrence on the board must be unusual  and unexpected, if it is to be regarded as an accident.

to be continued..