The Telegraph
Monday , July 21 , 2014
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Cost of flying over conflict zone

Compensation call

New Delhi, July 20: Legal eagles say that an airline will have to pay astronomical sums as compensation to the next of kin if a plane is shot down in a conflict zone.

Lawyers believe that India’s airlines should be aware of the risks they run if they ignore all the warning signs and deliberately fly over conflict zones.

“It is criminal negligence on part of the airline to fly over such an area where there is a danger of being caught in a life-threatening situation. After investigations, a case of criminal negligence can also be filed against the airline,” said Supreme Court lawyer Aurobindo Ghosh.

India’s carriers have changed the routes of their flights to Europe after the Malaysian Airlines’ Boeing 777 was shot down in eastern Ukraine last Thursday.

According to legal experts, the Malaysian airline might have to pay damages of as much as $49 million to the families of the deceased.

The next of kin can sue the airline and can ask for damages, which would be over and above the already prescribed compensation fixed under international agreements.

“Next of kin is liable under international law for compensation. My colleagues in international law are talking of a figure of Rs 2,400 crore. However, I do not think the airline would have to pay that much as the liability would be termed as an incident falling under the act of war category,” said another senior Supreme Court lawyer Deepak Bhattacharya.

But it is not just the airline, which is to be blamed for the brazen act.

Experts said the country over whose airspace the incident occurs is also responsible. “Flight safety in sovereign skies is a responsibility of a country. Ukraine should have closed down the airspace much earlier when the conflict started. By failing to do so, it may also be liable for damages,” added Bhattacharya.

According to aviation experts, carriers are liable to pay up to 113,100 special drawing rights — a reserve asset created by the International Monetary Fund (IMF) — in case of death or injury of a passenger.

In the case of Malaysia Airlines, it would amount to around $174,303 per passenger, if calculated according to Thursday’s conversion rates. As 283 passengers lost their lives in the mishap, the airline might have to cough up roughly around $49 million.

Montreal Convention

Aviation experts said that the compensations for such victims were decided under the Montreal Convention.

The Montreal Convention is a multilateral treaty adopted by a diplomatic meeting of International Civil Aviation Organization (ICAO) member states in 1999.

The convention attempts to re-establish uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo.

Under the Montreal Convention, air carriers are strictly liable for proven damages up to 113,100 special drawing rights, a mix of currency values established by the International Monetary Fund.

Data sourced from flight tracking websites show that Air India, like several other western airlines, was flying down L980 — a much-used highway in the sky that links Europe to South East Asia —until July 17 when the Malaysian plane fell out of the sky.

Reports indicate that Australia’s Qantas and Korean Air were the only ones to avoid Ukraine completely after the conflict broke out.

ICAO, the global body which looks after air routes, says it is up to individual member states to declare certain routes as zones of conflict.

Ukraine, by failing to do so even after an aerial war started over its restive eastern provinces, possibly failed to do its duty, lawyers and aviation analysts believe.