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.

... contd.