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Aviation History
1938
1938 - 1209.PDF
FLIGHT. 421 THE LEGAL SIDE In this Article Major Alan Goodfellow Offers Some Information that Should be Vital to the Air Transport Operator and of Interest to Every Air Traveller : An Explanation of the Thorny Subject of Liability IN addition to the distinctly heavy overhead charges ofoperating an airline there are many liabilities, some ofthem not too well denned, which the operator must either carry at his own risk or pass on to the shoulders of an insurance company at an equally ill-defined cost. That this is so is not entirely the fault of our legislators, and is certainly not the fault of the aviation insurance interests, which have to a considerable extent acted as a second line of subsidy to aircraft operators during the past twenty years. The trouble lies in the fact that the law in connection with air transport and its liabilities cannot yet be considered as being well settled. Its functions and difficulties are peculiarly its own, and although it has something in common with land transport, and even more in common with marine transport, the principles which have been well established by common law in connection with such things as railway trains, motor buses, and steam- ships are not always applicable to aircraft. Furthermore, air transport is to some extent governed by its own special international conventions and national statutes, which have so far been the subject of comparatively little con- sideration and interpretation by the courts. Qroping in the Dark ^ ' It follows, therefore, that the airline operator and his insurer are to a considerable extent groping in the dark when they come to consider their respective obligations and the reserve which should be credited for them, or the pre- mium which should be paid to insure them, as the case may be. It is the object of this article to clarify these obligations as far as possible, but for the reasons above stated a good deal must still be left in doubt. Third-party Liability.—The third-party liability of the aircraft operator is now ostensibly fixed by the Air Navi- gation Act, 1936 (or, rather, will "be1 as soon as Part III of tliat Act comes into force). The owner of an aircraft in this country has for many years been automatically liable for third-party damage caused by his aircraft when in flight, taking off, or land-ln g. without limit and without defence except upon grounds of contributory negligence. Under the Act of 1936 certain maximum" limitations are placed on liability lor third-party damage provided that insurance is effected As the author of this article explains, oddly conflicting regu- -lations govern the liability oi the operator in regard to the passenger and his baggage. up to these limits, and that the damage has not been caused by the wilful misconduct of the person against whom the claim is brought. The limits are based on the fully loaded weight of the aeroplane and are as follows: — (a) Up to 5,000 1b. weight—^10,000 in all, with a maxi- mum of £5,000 property damage. (b) Exceeding 5,000 lb., but not exceeding 10,000 lb.— £10,000, but with a limit for property damage not exceed- ing £1 per lb. weight of the aircraft (e.g., in the case of an aircraft with an all-up weight of 7,500 lb. which crashed and damaged property to the extent of £10,000 without causing personal injuries the limit of liability would be £7,500 only). (c) Exceeding 10,000 lb., but not exceeding 25,000 lb. —£1 for each 1b. of the aircraft fully loaded. 7d) Exceeding 25,000 lb.—£25,000. . . • _ Interpretative Difficulties These limits will come into force as soon as certain technical difficulties are settled and thereafter the air operator will have protected himself so far as is reasonably possible against third-party liability if he takes out an insurance in accordance with the terms of the Act. I say " so far as is reasonably possible " advisedly, since the interpretation of the Act may well give rise to diffi- culties, and I am by no means certain that it will be inter- preted in all respects in accordance with the intentions of the draftsmen. That, however, raises points too tech- nical and remote for discussion here. The Act, of course, only applies to internal air transport, and the operator engaged in international transport must also cover his third-party liability in the different countries to or over which his aircraft fly. These obligations vary considerably. In some cases insurance is compulsory and there is a limit of liability. In other cases liability is un- limited, but compulsory insurance is not required. In practically all cases, however, the operator may assume that his liability for third-party damage is very nearly automatic and that he must protect himself by insurance, deposit or guarantee, either up to the limits prescribed by the national laws or up to such figure as is reasonably likely to cover any damage which may be done. In 1933 an international convention was signed at Rome with the intention of standardising the third-partv Ha-
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