I. Socialisation of Aviation Risks and First Party Insurance

6.1 A proposal that can arguably accommodate better the risk perceptions of the mass transportation era comes from Peter Cane, a non-aviation lawyer: a two-tiered, no fault liability scheme that would require claimants to prove that their damages arose “out of or in connection with the use of aircraft”, and in the first tier would provide “low flat-rate benefits financed by compulsory levies and contributions [and in the second tier] higher benefits for those who desired them … bought by higher voluntary contributions, or by the purchase of insurance in the commercial markets”.¹

6.2 The proposed scheme would arguably make the recovery process less troublesome, and air carriers would achieve better protection by reducing settlement, litigation, and administrative costs. In an era where no-fault compensation funds and compulsory contributions are gaining impetus due to terrorist and environmental threats, this plan – with or without modifications – can play a better risk-management role than the dual system of the MC. This is so because it facilitates the recovery process by effectively separating culpability from compensation, saves costs by tailoring compensation to the claimants’ needs, and strengthens the trust relations between passengers and carriers.

6.3 Most importantly, the proposed scheme demonstrates a fundamentally different view on the management of risks in the risk society. Whereas the WCS and the MC adopt a reactive approach to aviation accidents by analysing them “in terms of individual instances of human interaction … and … focusing on responsibility, blame and incentive [the proposed scheme considers accidents] as broadly predictable occurrences which can be statistically explored and therefore dealt with in advance through insurance”.²

6.4 In an era where media-determined notions of culpability, consumer-protection theories, and the fear of catastrophic risks determine social risk perceptions and courts often require carriers to exercise unattainable levels of control over their operations, the proposed scheme has the potential to play a role that the MC is unable to fulfil. It achieves a combination of risk socialisation through the creation of a fund in the first level and risk embracing through first-party insurance that represents a systematic change in thinking about safety-related aviation risks: (i) it motivates passengers to share the responsibility of their injuries and thus encourages them to act in a responsible manner;3 while at the same time (ii) the provision of contributions from carriers ensures the viability of the fund and symbolically retains a link between compensation and responsibility on the part of risk creators.⁴

6.5 This way, the proposed legal regime parts company with the underlying logic of the private international air law conventions which so far favour a modified corrective justice approach to aviation accidents. It also distinguishes itself from the voices that called for the establishment of a system of collective responsibility for safety-related aviation risks in the aftermath of WWII. Instead, the proposal goes a step further than just regulating the relation between passengers and carriers, and aims to shape social perceptions by balancing what David Howarth has described as social individual responsibility and asocial individual responsibility.⁵

6.6 This is arguably achieved by providing a first tier where carriers as a group take responsibility, even symbolically, for virtually every consequence of their actions or their failures to act, regardless of whether those actions or omissions were reasonable and regardless of the intent that accompanied or preceded them; and a second tier where passengers take risk on themselves and make extra provision for themselves, rather than expecting carriers to do it for them.