Airlines could be faced with massive private lawsuits from relatives of people killed as a result of aircraft crashes if new International Civil Aviation Organisation rules on third-party damage liability are adopted, warn aviation lawyers.

The legal committee of ICAO is meeting in Montreal this month to discuss the draft convention on surface damage liability, which transposes the existing "presumed fault" premise for air carrier liability on to any damages caused to buildings and those inside in the event of a crash landing.

Sean Gates, a legal adviser to the International Union of Aviation Insurers, says the new convention, if adopted, would presume an airline negligent in the event of a repeat of the terrorist attacks of September 2001 that used hijacked aircraft as guided weapons. Since lax airport security could equally be to blame for any such incident, placing the blame on the air carrier would be "particularly unfair and unreasonable", according to Gates.

ICAO says the rules have been drawn up to provide uniformity of compensation to victims' families around the world and to avoid lawsuits being mounted in jurisdictions likely to award higher damages, such as the USA.

However, John Balfour, a senior partner at UK aviation law firm Beaumont & Son, says the draft text still paves the way for such actions, as it does not harmonise states' responsibilities once airlines' insurance funds are exhausted. "In the USA, the government will pay for compensation in the event of a terrorist attack, but not in all countries," he adds.

Balfour says the draft's obligation for airlines to provide up-front payments to affected third parties could be financially ruinous for airlines, which will have to wait for the receipt of insurance payments to balance their accounts.

The convention also proposes capping the limit of liability to 100,000 International Monetary Fund special drawing rights ($149,000) per person, except in the event of "unlawful interference".

Terrorist hijacks are likely to have a higher cap, since ICAO has taken into account the potential for physiological damage to victims' relatives in the aftermath of such an event, says Gates.

Source: Flight International