Aircraft Hijacking: Liability Issues and the Extent of State Responsibility
Air transportation is sometimes utilised by terrorists through hijacking of aircrafts to fulfil terrorist objectives. The September 11 2001 attack in the US is widely regarded as the most severe incident of aircraft hijacking in aviation history. The possibility of a terror attack was also signified as a probable cause of the crash of Egypt Air flight MS804 enroute Paris to Cairo on May 19, 2016. In a situation of hijacked aircraft resulting into bodily injury or death of passengers on board, passengers are entitled to compensation. The aviation liability regime makes air carriers liable for death, wounding and other bodily injury of passengers as long as the accident causing the death or injury took place during a carriage by air.
The liability of air carriers for accidents in this regard has been held in Husserl v. Swiss Air Transport Company, Ltd; Evangelinos v. Trans World Airlines, Inc.; Krystal v. British Overseas Airways Corp. to include those situations of hijacking. Air carriers are also liable for damage caused to persons on the ground in such situations. Although a state cannot be held liable to passengers in terms of compensation in situations of hijacking, it can be vicariously liable for torts committed by its employees. So, where Air Traffic Controllers (Air traffic control is usually run by governments) or staff of government owned airports who through their acts or omissions, can be held liable in tort for negligence for a situation of hijacking, then the government can also be held vicariously liable.
The fact that hijacking of aircrafts is a terrorist act directed at states and air carriers are only used as proxy has made it necessary to discuss the role governments should play regarding compensation of victims. It is instructive to note that the conventions relating to aviation security during air carriages merely oblige state parties to criminalise hijackings of aircrafts and expedite extradition as required. Annex 17 to the Convention on International Civil Aviation of 1944 (Chicago Convention) also accords oversight functions to states, and they are to ensure that air carriers develop and implement effective complementary security programmes compatible with those of the airports out of which they operate. Annex 17 recognises that airline operators have a primary responsibility for protecting their passengers, assets and revenues.
The International Aviation Transport Association (IATA) has expressed that government should provide indemnity to air carriers regardless of whether the insurance market can provide cover for such. Many states nonetheless do have initiatives aimed at managing “emerging threats to air transportation”. The concept of state responsibility for the victims of crime has been embraced by states and most states have established victim support fund programmes where victims of violent crimes are compensated by the government. These programs are at times aimed at preventing litigation claims as they may “exist in parallel to,” or “as a substitute” for court claims for personal injury. In Europe, the Convention on the Compensation for Victims of Violent Crimes ensures that where compensation is not fully available from other sources the state shall compensate victims to an intentional crime of violence. The EU Council Directive 2004/80/EC of 29 April 2004 also mandates member states to provide national schemes on compensation for victims of intentional crimes committed in their jurisdictions. The US Victim of Crime Act of 1984 provides the framework for victim compensation and assistance. Victims of terrorist attacks in the US have thus received monetary compensation from the Crime Victim Fund. For instance, part of the Crime Victim Fund was used to respond to the needs of victims of the September 11 terrorist attacks; likewise the victims of the 2013 Boston Marathon bombing and the Colorado movie theatre shooting attack among others. In Nigeria, there is the Victim Support Fund which is specifically to cater for victims of terrorism in Nigeria.
Government Victim compensation programs have immense impact on victims (or their families), as well as on air carriers. Victims usually have a sense of belonging when they receive compensation from the government. Victims’ unfortunate situations are ameliorated when government compensates them as this implies additional compensation to that which is mandatory of air carriers. Air carriers on their part are relieved to some extent as it has been revealed that where compensation is made an alternative to litigation against air carriers, many victims would rather receive government compensation than to opt for litigation.
While it is the duty of states to protect their subjects, the international law regime does not make states (who are victims themselves) liable to victims of terrorist attacks. Making states liable to air passengers for aircraft hijacking will go against the privity of contract. Also, liability usually flows from a duty, and that of air carriers stems from the common law duty of the air carrier to use the highest degree of care in protecting its passengers from injury. As states are only duty bound to provide oversight functions to air carriers by ensuring compliance to ICAO’s Standards and Recommended Practices (SARPs), they cannot therefore be liable for the protection of passengers. So, while states in most cases assume responsibility to compensate victims in situations of terrorist attacks on aircraft such as hijacking, the liability for the bodily injury or death is still on the air carriers, and government, unless it is vicariously liable, can at best, only offer assistance on indemnity.
- Roberta L. Wilensky, “Flying the Unfriendly Skies: The Liability of Airlines under the Warsaw Convention for Injuries Due to Terrorism” (1987) 8 Nw. J. Int’l L. & Bus.
- Paul Stephen Dempsey, “Accidents & Injuries in Air Law: The Clash of the Titans” (2009) Annals of Air & Space Law, Vol. XXXIV Institute of Air & Space Law, Mcgill University www.docplayer.net/715792-
- Ruwantissa Abeyratne, Aviation Security Law (Germany: Springer Science & Business Media, 2010) p. 40
- Kimberley N. Trapp, State Responsibility for International Terrorism (New York: OUP, 2011)
- P. Heaton, I. Waggoner, J. Morikawa, “Victim Compensation Funds and Tort Litigation Following Incidents of Mass Violence” (2015) Buffalo Law Review Vol. 63 P. 1264 www.rand.org/pubs/external_
- Hadfield, Gillian K., “Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund” (2008) Law and Society Review vol. 42, issue 3, USC CLEO Research Paper No. C08-8; USC Law Legal Studies Paper No. 08-9. http://ssrn.com/abstract=
- Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963 (Tokyo Convention); www.refworld.org/docid/
- Hague Convention for the Suppression of Unlawful Seizure of aircraft 1970
- Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971
- Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (Warsaw convention)
- Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal, 28 May 1999. (Montreal Convention)
- Convention on the Compensation for Victims of Violent Crimes 1983
- EU Council Directive 2004/80/EC of 29 April 2004 www.eur-lex.europa.eu/legal-
- Victim of Crime Act of 1984 42 U.S. C.A. S 10601 www.law.cornell.edu/uscode/
- “War Risk Exclusions” presented by IATA at ICAO Assembly 35th session. A35-WP/97, LE/8,17/08/04
- “EgyptAir: Crashed flight MS804 ‘not seen to swerve” BBC News 24 May 2016 www.bbc.com/news/world-middle-
- Husserl v. Swiss Air Transport Company, Ltd 351 F. Supp. 702 (1972)
- Evangelinos v. Trans World Airlines, Inc 550 F.2d 152 (3d Cir. 1977)
- Krystal v. British Overseas Airways Corp. 403 F. Supp. 1322.
- National Association of Crime Victim Compensation Boards, “Crime Victim Compensation: An Overview” www.nacvcb.org/index.asp?bid-
- U.S. Congressional Research Service. The Crime Victims Fund: Federal Support for Victims of Crime (R42672; Oct 27, 2015), by Lisa N. Sacco, P. 13 www.fas.org/sgp/crs/misc
- US Department of Justice, Attorney General Announces $8.3Million to support Victims of Boston Marathon Bombings January 13, 2014 www.justice.gov/opa/pr/
attorney-general-announces-83- million-support-victims- boston-marathon-bombings
- Victim Support Fund, Victims Support Fund Committee visits President Muhammadu Buhari August 10, 2015. www.victimsupportund.ng/
victims-support-fund- committee-visits-president- muhammadu-buhari/
- Directory of International Crime Victim Compensation Programs 2004 – 2005. www.ncjrs.gov/ovc_archives/
This note was contributed by Adejoke O. Adediran; Research Fellow at the Nigerian Institute of Advanced Studies, Abuja. Email – firstname.lastname@example.org
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