Chapter 1

1.1 Non-aviation practitioners commonly argue that air carriers’ international liability is not one of the most exciting legal areas. This belief derives mainly from the impression of tidiness that the limited production of aviation-related case law creates. It also stems from the feeling of certainty that the system of international conventions regulating the liability of air carriers to passengers for death and injuries in international transportation gives to the non-specialised legal community.

1.2 This view is only justified if one stays on the surface of this international legal system, disregarding the practical realities of aviation post-accident management. What many non-aviation lawyers miss is that every aviation accident causing death and/or injuries to passengers or to persons on the ground is a highly visible risk event that as often as not triggers multi-faceted social reactions.

1.3 The magnitude of these reactions is not necessarily determined by the gravity of the accident and the number of people who died or were seriously injured. Instead, it is propelled by a media-driven quest for naming and shaming the aviation industry on the basis that it recklessly, if not intentionally, disregards safety standards in its pursuit of profit. As a result of the international characteristics of the industry, the implications of this quest are not confined to the place of the accident but rapidly surpass the narrow boundaries of the jurisdiction in question and have the potential to influence policy-makers, judges and litigants, as well as the travelling public and the operations of air carriers on a worldwide basis.

1.4 In this setting, aviation lawyers are frequently expected to exceed their traditional role of mechanically applying the provisions of international conventions and related domestic laws to resolve specific disputes. Instead, they are required to play an active role in the management of aviation accidents and advise the carrier from the immediate aftermath of an accident until the conclusion of the ensuing claims, and sometimes even beyond. This advice, though, is not limited to “black letter law” but lies at the crossroads of a number of areas which have the mitigation of the social effects of an accident and the protection of the public image of the air carrier as their starting point. As a result, the handling of the claims arising from an accident is not an isolated task which is guided by legal principles to the exclusion of any broader social considerations. Instead, it becomes part of the risk management plan of a carrier and its insurers, and on numerous occasions the decision whether to litigate or settle a claim is related to the prevailing social, political, and regulatory environment after an accident rather than the strength of the claim itself.

1.5 Admittedly, aviation accidents did not always have such a profound effect on the surrounding social and political environment. Although they were always risk events that triggered public attention, their social treatment at the beginning of the twentieth century bore elements of industrial protectionism even contrary to the paternalistic social attitudes that were gestating at the time. The imposing features of flying and the limited ability – compared to contemporary standards – to scientifically trace the causes of aviation accidents beyond doubt gave air carriers a free pass to develop their operations. At the same time the drafters of the Warsaw Convention 1929 endorsed this trend by creating a liability system that turned this de facto immunity to a legal standard, and the judiciary lent a sympathetic ear to the technical experimentations of the industry.

1.6 This way a strong social belief was formed that aviation deserves distinct legal treatment on the basis of its risk characteristics, glamorous image, and growth potential. Reaping the benefits of an environment that bore striking similarities to the Industrial Revolution of the nineteenth century, air carriers set the ground rules for their operations and future commercial expansion without being particularly constrained by or considerate of an already forgiving international legal framework.

1.7 However, the corporatisation of the industry, the technological advances that made aircraft accident investigation an exact science, and the increased expectations of the public as a result of the improved living conditions in the Western world following World War II meant that the criticism-free days of the industry were over. Aviation started to lose the operational and social characteristics that distinguished it from other industries at the time. Aviation accidents were not regarded anymore as unusual and unexpected risk events that were nobody’s fault, but were increasingly attributed to the erratic behaviour of the carriers.

1.8 Inevitably, it became harder for defence lawyers, drafters of private international air law, and the judiciary to justify the special legal treatment that the Warsaw Convention 1929 was offering to air carriers. Their reactions, though, were different, demonstrating a clear lack of consensus on the role of air carriers in a post-industrial world. Defence lawyers and the drafters of private international air law conventions rejected an overhaul of the international liability system that would reflect the new operational and social conditions. Instead they opted for incremental changes to this system in an attempt to retain the legal status quo while giving the impression to the travelling public that their recovery prospects increased.

1.9 The judiciary, especially in the USA, did not follow suit and started the readjustment of the Warsaw Convention 1929 and its amendments to the standards of the new social order which were expressed through increasingly influential consumer-protection organisations and the claimants’ bar. This readjustment took various forms, yet the common thread was the effort to inject into the interpretation of the various versions of the Warsaw Convention the social scepticism over the ability of technology to offer a risk-free environment and the dissatisfaction with the quality of services offered to the public.

1.10 From this moment onwards, the resolution of disputes arising in the international transportation of passengers by air took a twist that constitutes the foundation of modern aviation post-accident management: a personal injury claim is no longer an expression of discontent at the individual carrier but exceeds this private relationship revealing the disappointment of the public with the behavioural and safety standards of the industry, as well as with the legal regulation of the carriers’ international operations.