The crucial question after an accident of a scheduled international civil airline carrier is the extent of compensation to which claimants are entitled for damage/injury/death under international conventions and corresponding national law. At present Indian claimants can claim only as much as is prescribed by the outdated 1972 Carriage by Air Act, which reflects the archaic mandate of carrier liability under the 1929 Warsaw Convention.

The Kenyan Airways crash exhibits a stark reality: India has been tardy, even deliberately negligent, in amending its law to make it passenger friendly. Is this because of pressure from airline companies which want to continue making low pay-outs to passengers who suffer injury/death and damage to baggage/cargo? Is the government protecting the incumbents? Clearly, the present regime is unacceptable for a country with a booming aviation sector or one that boasts of globalisation.

In January 2007 it was reported that the cabinet had decided to amend the 1972 Carriage Air Act suitably, as a preliminary step towards ratifying the 1999 Montreal Convention. This has not happened.

So what does all this mean for the claimants related to the 15 Indians victims of the Kenyan crash? What harm has been caused to them because India has neither ratified the 1999 Convention nor amended the 1972 Act?

One, claimants have lost the benefit of the two-tier system of compensation that could have been payable to them under Article 21 of Montreal ‘99. The first tier would have got them a payment 100,000 SDRs (Rs 70 lakh approximately) for the death of a passenger from the airline, irrespective of carrier fault. It is pertinent that Montreal ‘99 protects airlines by barring imposition of punitive, exemplary or compensatory damages on carriers.

Two, claimants cannot exercise the option under the second tier to file a claim beyond the 100,000 SDR limit, if they are prepared to prove that the crash was caused because of ‘negligence’ or ‘fault’ of the carrier.

Three, claimants will not receive advance payment from the airline payable both in case of death or injury.

In this context it is important to know that Article 50 of Montreal ‘99 mandates states to require their airlines to have insurance to cover their liability. This is critical because under Montreal ‘99 carrier liability is limitless beyond the threshold of the first 100,000 SDRs. Inevitably this will mean higher insurance premium payouts by airlines. Is this, then, the real reason why our airlines are pressurising the government against ratifying Montreal ‘99?

Four, cargo claimants will not have the right to file for an arbitration award in respect to their claim. Undoubtedly, this right under Article 34 of the 1999 Convention is critical for international trade and commerce.

Five, claimants cannot avail the obvious benefit of filing claims in Indian courts of law or courts in the countries of their residence. This is the all-important user-friendly mandate of Montreal ‘99 which makes it easier to file and pursue claims. The benefit is not available under the present regime.

Finally, it is imperative for relevant players to understand that Montreal ‘99 does not establish a skewered platform for international civil aviation in place of the old 1929 Warsaw system that was definitely protective of the nascent aviation industry to the detriment of passenger rights. In fact, the 1999 Convention corrects that imbalance. It is not an either/or platform. Eighty years on, international civil aviation has come of age and Montreal ‘99 is vital for its future growth.

Perhaps the most important benefits that accrue to a ratifying state come from Articles 21 and 37. Article 21(2) b protects a carrier against third party claims when damage caused is solely due to the negligence/ wrongful act or omission of a third party. This means that a carrier is not liable for wrongful and illegal acts by third parties that result in death/injury to passengers.

Furthermore, Article 37 gives the Right of Recourse against Third Parties. It is important to correctly recognise the potential of this right, particularly since Montreal ‘99 has been ratified by the US. When harmonised in domestic law, it will empower a government to file claims for compensation against third parties, including foreign states, in their courts of law. Inevitably hijacking and terrorist attacks on board aircrafts come to mind. The memory of IC 184 is still fresh.

Given the heightened threat perception in India from acts by non-state parties that are often supported by hostile states, the right under Article 37 will be a vital tool in the hands of the government. However, benefits will flow only when India ratifies Montreal ‘99 and amends national laws. This is because international conventions are applicable only as between ratifying states.

More is the tragedy because Kenya is among the 76 states that have ratified Montreal ‘99, while India continues to dither, unable to act.

The writer is the former representative of India to the International Civil Aviation Organisation, Montreal