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Dhaka Tribune

What the victims are owed

Update : 16 Mar 2018, 12:46 AM
The US-Bangla passenger aircraft crash near the Tribhuvan International Airport in Kathmandu was the largest ever passenger aircraft tragedy in the history of Bangladesh, the most recent comparable incident being the crash of 1984 in Dhaka. At least 50 people were killed, with very few surviving the accident. An exhaustive investigation is essential to find out the exact reasons behind this plane crash. One or many parties, including the pilots, the aircraft authority, the airport authority, or even the manufacturer of the aircraft may be responsible for this disaster. Nonetheless, there are some strict liability mechanisms to ensure compensation for the victims or victims’ families, as there is multi-party involvement in the airline businesses. If a passenger is injured or dies due to an airplane crash, the victim or the victim’s family can claim compensation from the air carrier. One can claim compensation regardless of the terms and conditions put by the airline or travel agent during the ticket-purchasing time. Civil aviation used to be governed by the Warsaw Convention formulated in 1929. However, it is no longer in operation -- the Unification of Certain Rules for International Carriage by Air, popularly known as the Montreal Convention, replaced it in 1999 as the latter brings better protection and compensation for the passengers. The Montreal Convention outlines the responsibility of aircraft authority and rights of the passengers in case of death, injury, damage to baggage, delay cargo, etc. Bangladesh is a state party to the Montreal Convention, and has signed this convention in 2003, but has yet to ratify it. According to Article 17 of the convention: “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” The meaning of accident under this convention is an unexpected or unusual event that is external to the passenger. It can undoubtedly be said that the US-Bangla incident is one which happened without any intervention from the passenger, and deaths and injuries did occur on board for which the sufferers are entitled to claim compensation under the convention. Article 21 of the convention says the liability of the airline is to pay up to 113,100 Special Drawing Rights (SDR) in case of death or injury of each passenger. The value of the SDRs is calculated as defined by the International Monetary Fund (IMF). However, it revises itself after every five years, and the review is carried out on the weighted average of the annual rates of increase or decrease in the consumer price indices in respective country of the passenger. For this reason, different passengers from different countries of the same aircraft crash may receive different amounts of compensation. Nevertheless, the convention also has prescribed limits for the non-party countries of IMF. The families of every Bangladeshi who died on the flight can get about maximum $174,000 (which is more than Tk1 crore) under the Montreal Convention. Additionally, the victim’s family may claim an amount higher than this if they think the amount is not sufficient for their loss. In that case, the air carrier can contest that claim before the court, and can avoid the higher amount if they can prove that the death took place due to negligence or other wrongful acts or omissions of a third party, other than the airline or its staff or agent.
While the value of life cannot be measured in monetary terms, the government must ensure that the victims and their families are getting proper compensation
Claiming duesThe survivors from plane crashes suffer from two types of losses -- namely monetary and emotional. Monetary sufferings of an injured person include medical treatment cost, loss of income, loss of an organ (if any), whereas the emotional or mental loss denotes the pain and suffering arising out of the accident. In accordance with the Article 33 of the convention, every injured person is entitled to get compensation in his/her country of origin regardless of the place of accident. Nevertheless, we should keep in mind that the time limit under the Montreal Convention to claim the compensation for personal injury is two years after the accident. The process of determining whether a passenger who is suffering from a recognized mental condition is entitled to be compensated, is heavily complex. In addition, it is tough to get any compensation for purely psychological injury without having any physical wound. In the case of the US-Bangla aircraft crash, we’ve come to know from the media that all the passengers were insured, and the airplane authority will compensate all the victims and their families, whichever is applicable. Nevertheless, Bangladesh needs to enact a comprehensive aviation transportation safety law urgently, giving the effect of the Montreal Convention and to ensure safety and security of air passengers, baggage, and cargo as well. Although the Civil Aviation Authority of Bangladesh has already recommended the Ministry of Civil Aviation and Tourism to enact the law, it is yet to be done. While the value of life cannot be measured in monetary terms, the government must ensure that the victims and their families are getting proper compensation according to international law. There is no way to avoid the obligations set by international laws, and it is the government’s duty to monitor and even interfere, if necessary, to enforce compliance.Raisul Sourav is a Chevening Scholar 2017-18, now pursuing his second LLM in International Energy, Law, and Policy at the University of Stirling, UK. He is a lawyer, university teacher, legal researcher, and activist. 
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