Aviation Briefs

At the latest session of the Organisation in Montreal in October 1989, the Legal Commission set out its work programme in the following priority:

1. Marking of plastic explosives;

2. Ratification of new Protocols to modernise liability provisions of the Warsaw System;

3. Global air-ground communications;

4. Future Air Navigation Systems (FANS);

5. Compatibility of the Chicago Convention with the UN Convention on the Law of the Sea;

6. Liability of air traffic control agencies; and

7. Instruments of the Warsaw System.

The only item deleted from the legal agenda was terrorism.

Presumably, this was due to the inclusion of airports in the Protocol covering acts of violence.

The item of primary importance, the marking of plastic explosives, clearly has its origin in the Lockerbie disaster. Understandably with Semtec plastic explosives freely available from several suppliers, and being almost undetectable, ICAO wants to ensure an industry standard mechanism which will allow for detection of small but lethal amounts of the explosive.

The second most important issue on the list, the ratification of Montreal Additional Protocols No. 3, 1975 and No. 4, 1975 is a result of the increasing concern felt by member nations of ICAO about the confusing and fragmented Warsaw System that has evolved. The new Protocols link liability to a weighted average of five major currencies so that the limit can remain realistic.

The Warsaw System, now more than 60 years old, is based on the original Warsaw Convention of 1929. Basically this reversed the burden of proof so that carriers assumed liability without proof of fault in exchange for a limitation of liability. Although the general principles contained in that Convention are still almost universally accepted there are ongoing diffi- culties with respect to the amount of liability. In order to alleviate this difficulty the Convention has been amended by seven additional treaties, five of which are not yet in force, in addition to one intercarrier agreement and various domestic regulations. Depending on which combination of protocols applies in any situation, a range of differing liability limits may apply.

This fragmentary evolution of the Warsaw System, with numerous protocols and conflicting liability limits is contrary to the initial intention of sovereign states to devise a universal, standard system of liability.

Member nations of ICAO are hoping that by widespread ratification of the two additional Protocols the Warsaw System will return universal predictability to carrier liability.

There are moves by the US airline industry to cover the increased liability with a government controlled scheme of compulsory passenger insurance. Australia is awaiting the outcome of this initiative before ratifying the protocols.

Given the difficulties encountered to date in obtaining universality, the ICAO Legal Committee has a lot of work in front of them.

Mental Whiplash

The ALA A held its 1989 conference in Melbourne with the major themes covering aircraft finance, terrorism and insurance. A pleasing number of eminent Australian and New Zealand speakers contributed with excellent papers. Speakers came from four other continents and added to the extremely high standard of international material made available through the Association.

One trend in the United States was outlined by John Romans of New York who reflected on recent cases where passengers have recovered for fright alone. Courts have awarded damages for both pre-impact terror and what the American Psychiatric Association calls PostTraumatic Stress Disorder. This has been colloquially dubbed ‘Mental Whiplash’.

Pre-impact terror awards initially went to the dependents of accident victims. For example, one court considered $10,000 was just compensation to the family for thirty seconds of preimpact fear suffered by the deceased. Another court awarded half a million dollars for the terror experienced during the period that a light aircraft fell11,000 feetto crash. $20,000 was awarded to the children of parents killed in an air crash along with $65,000 each for the loss of love, affection and companionship.

Then in 1989, a flight attendant received $25,000 from a jury for her ‘pre-impact’ fear when a runaway bar cart careered down the aisle during takeoff. The attendant survived the ‘crash’ and such awards have taken on a new lease of life.

These cases have extended the right to recover damages for conscious pain and suffering to incorporate either real or imagined recognition of approaching death – and a scribbled note on a sick bag is the best possible exhibit.

On the other hand the recoveries for mental whiplash have evolved from tort law and the public fascination with cases such as the Aloha Airlines jet where the roof peeled away.

The justification for the claims arrived in 1980 when the American Psychiatric Association included a diagnosis of ‘shell shock’ in its Manual of Mental Disorders The criteria described symptoms which were extremely to verify and were dependent on the testimony of the victim. Unfortunately, the symptoms seemed to be prolonged by the pending litigation.

As noted in the accompanying item, ratification of the new Montreal Protocols will effectively increase the liability of the airline. The courts have still not agreed on the coverage of mental anguish under the Warsaw Convention but this increase will surely generate greater interest in mental whiplash.