A REVIEW OF THE 2006 CIVIL AVIATION (REPEAL AND RE-ENACTMENT ACT) EXPLAINING CHANGE IN NIGERIAN LAW WITH REFERENCE TO CASES ON AVIATION LAW IN THE PAST DECADE IDENTIFYING KEY CONTENTIOUS ISSUES

The new Civil Aviation Act was passed into law in Nigeria on November 14, 2006.

The process of developing the Act was informed and based on the International Civil Aviation Organisation’s (I.C.A.O) guidelines and principles. The policy emerged from process of consultation between stakeholders and Government representing a consensus view in Nigeria of how the aviation sector should operate and be structured.

The new law seeks to establish aviation safeguards, enforce safety guidelines, improve security checks, prescribe ministerial powers, define offences that endanger safety and also enact penalties for violation. It also re-addresses the issues of compensation for passengers, provision for airline operator’s access to external funding and the regulation of licences and permits for air transport particularly concerning eligibility, suspension and revocation.

For years, the Nigerian aviation sector was in dire need of reform in all its facets from infrastructure to navigational facilities and regulations. This culminated into some embarrassing and in some cases, even fatal accidents which most experts unanimously agree need not have occurred. The climate at that time necessitated a desperate change in the country’s aviation policy if it was to be held in any regard by the international community.

With the advent of the new law, Nigeria joined the league of modern nations of the world. It now complies with most of the I.C.A.O standards and principles. In fact it was recently scored a healthy 93.1% by the body in a recent safety audit. The country’s civil aviation authority, the National Civil Aviation Authority (N.C.A.A) has also received a lot of favourable reviews from home and abroad. The head of the Agency, Dr. Harold Demuren was recently quoted as saying that the N.C.A.A was now completely autonomous (which was one of the I.C.A.O guidelines) and also that Nigerian carriers would soon resume direct flights to the United States. There have since been a number of sweeping measures carried out around airports in accordance with the new law most recently of which invoke the provisions of Section 30(3) (l) of the 2006 Act which state;

“The Authority shall have power to…prohibit and regulate the installation of any structure, which by virtue of its height and position is considered to endanger the safety of air navigation.”

Perhaps, the most striking area in which the 2006 Act affects contemporary Nigerian law is as regards Carriers Liability. The new Act by virtue of Section 48(1) and (2) repeals the Carriage by air (colonies, territories and other trust territories) Colonial Order 1953 which hitherto regulated carriage of persons and goods by air. In its place, the Act provides for the application and adopts the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Montreal (Montreal Convention) to both international and non-international carriage by air. The former Convention was adopted from the Warsaw Convention and a brief history of how this came to be applicable in Nigeria would follow suit.

The Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw on October 12, 1929, (The Warsaw Convention) together with a number of subsequent legal instruments that amend and update the Warsaw Convention (i.e. the Hague Protocol, 1955; the Guadalajara Convention, 1961; the Guatemala City Protocol, 1971; the Montreal Additional Protocols Nos. 1, 2 and 3, 1975 and the Montreal Protocol No.4) all form what is known as the ‘Warsaw System’. The system provides for an international treaty framework for liability rules governing international aviation, documentation- such as tickets and air waybills and compensation arrangements for passengers.

The necessity for an international code arose from the multiplicity of substantive rules on international carriage in different countries. The existence of a multiplicity of laws gave rise to problems of private international law. One of the main objectives of the Warsaw Convention was, therefore, to harmonise international aviation law by adopting a uniform code to be applied by the countries adopting the convention.

The Warsaw Convention became applicable in Nigeria by virtue of the Carriage by Air (colonies, protectorate and trust territories) Order 1953. By this Order, the Queen of England extended the operation of the English Carriage by Air Act, 1932, to Nigeria by virtue of Nigeria’s status as a dependant territory. With respect to domestic carriage, the applicable law prior to the Civil Aviation Act (protectorates, colonies and trust territories) (Non-international Carriage) Order of 1953. The Nigerian Supreme Court confirmed the applicability of the Warsaw Convention in Nigeria in Ibidapo v. Lufthansa (1997) 4 NWLR (Pt. 498) 124. It held;

“From 1960 to date, all the received English laws, multilateral and bilateral agreement concluded and extended to Nigeria, unless expressly repealed or declared invalid by a court of law or tribunal established by law, remain in force subject to the provisions of Section 274(1) of the 1979 Constitution. The 1953 Order making the Warsaw Convention a part of the existing law in Nigeria still subsists since it has neither been repealed nor declared invalid.”

As time progressed however, the Warsaw Convention provisions became unrealistic and the quantum of compensation which had until this point in time been operational had become deceptive and far removed from economic reality. There, as mentioned earlier, were a slew of other Conventions and Protocols but there still seemed to be major problematic points particularly as concerning carrier liability limits. Most of the carriers wanted a regime that would please their customers. As explained by Clarke in ‘Contracts of Carriage’,”…The customer that comes to mind is not the trader who might lose cargo but the passenger who might lose life or limb. It was perceived as not being in the carrier’s interest to be seen in protracted wrangling with customers over liability.”

All these and more are what finally led to the Montreal Convention which was signed on May 28, 1999 and came into force on 28^th June 2004. The Montreal Convention is a consumer driven treaty whose philosophy is reinforced in the preamble to the Convention in the following words;

“Recognising the importance of ensuring the protection of the interests of consumers in international Carriage by Air, and the need for equitable compensation based on the principle of restitution.”

A number of its important and innovative provisions will be briefly highlighted. They include Article 3 which deals with e-commerce ticketing and air waybills (This provides for the modernisation and simplification of documentation relating to passengers, baggage and cargo), Article 18, where the carrier may be exonerated from liability if it is proved that the damage resulted from an inherent defect, vice or quality and Article 21, which is central to the Convention and relates to compensation in case of death or injury to passengers. This provision revolutionizes the concept of unlimited liability. Compensation for passengers is now based on a two-tier approach. The first provides for strict liability of up to 100,000 Special Drawing Rights (SDRs) of proven damages irrespective of the carrier’s fault. SDRs are an artificial ‘basket’ of currency developed by the International Monetary Fund for International accounting purposes to replace gold as a World Monetary Standard.(As of April 1^st, the exchange rate was 1.00 SDR=1.135 EUR or 1.00 SDR= 1.51 USD.)See also Article 23

There is however no limit of liability in the second tier for proven damages claims in excess of 100,000 SDRs where there is a presumption of fault of the air carrier.

Article 22 provides for liability of the air carrier for baggage (either accompanied or unaccompanied) to a limit of 1,000 SDRs for each passenger, unless a special declaration is made to the carrier by the passenger. If the carrier admits loss of checked baggage or check baggage has not arrived after 21days, a passenger may make a claim. The liability limit for cargo is 17 SDRs per kilogram. Where damage is caused by delay, liability of a carrier is 4,150SDRs per person. Court costs may also be awarded to the claimant. However it does not apply if the carrier can prove it and its employees took reasonable care to avoid the damage.

A proviso in the Article, sub-section 6 also provides that where permitted by the law of the forum, a claimant may be awarded court costs and other legal expenses (including lawyer’s fees) with interest, if the amount of damages awarded to the claimant exceeds any written settlement offer made by the carrier within six months of the accident or before litigation commenced.

Article 24 deals with the review of limits and provides for a quasi-automatic review mechanism (escalator clause) with a regular review of carrier’s liability limits every five years to take account of inflation. It should be pointed out that the lack thereof was one of the reasons why the Warsaw Convention became redundant in the first instance.

Article 28 makes provision for advance payments and requires that carrier’s make same without delay following aircraft accidents, to assist victims or their relatives to meet their immediate economic needs. These payments are not to constitute recognition of liability, and may be offset against any amount of compensation subsequently paid as damages by the carrier. Section 48(3) of the Civil Aviation Act also stipulates the quantum of the advance payment of “…at least US $30,000 (Thirty thousand United States Dollars) within 30(Thirty days) from the date of such accident…”

Article 29 discusses basis of claims and expressly provides that punitive, exemplary or other non-compensatory damages may not be recovered in any claim arising from international carriage by air.

Article 33 deals with jurisdiction and is another significant addition to the Convention in that it creates a fifth jurisdiction on where proceedings can be initiated based on the passenger’s principal and permanent residence as along with the other four which are; the domicile of the carrier, the principal place of business of the carrier, the place of business of the carrier where the contract was made and the place of destination.

The fifth jurisdiction however comes with conditions which must be satisfied. They are;

(1) The state must be the principal or permanent residence of the passenger

(2) The state must be one to or in which the carrier operates, either on his own aircraft or on another aircraft on the basis of a commercial agreement.

(3) The state must also be one in which the carrier, or another carrier with which it has a commercial agreement, has leased or owned premises from which it conducts its business.

Articles 39, 40 and 41 relate to code-sharing and other forms of indirect carriage. It is inter alia provided that both the actual carrier or operating carrier and the contacting carrier whose code is used on the operating carrier are jointly liable for passenger deaths and injuries as well as for loss or damage to baggage and cargo.

Article 55 simply states that the Montreal Convention takes precedence over the entire Warsaw system.

A legitimate question then can be asked as to whether the new Civil Aviation Law would have any effect on aviation law as practised in Nigeria. This can be weighed against the precedence laid down in aviation-related cases. We would examine the contentious issues in these cases and compare them with what the new Act (adopting the Montreal Convention) postulates. It should be noted that Nigeria seems to be a little cautious as regards litigating on aviation matters as can be seen in the law reports. There are only a handful of cases on aviation matters and whether the recent survey which says that only 2million of the about 150million citizens in the country use air travel has any bearing on this, would make for good debate.

In SUDAN AIRWAYS vs. MOHAMMED ABDULLAHI (1998) 1NWLR (Pt.687) 271 C.A, the issue that arose was whether the High Court of a State had jurisdiction to adjudicate on matter governed by the Carriage of Air, Order 1953. The Court of Appeal in delivering judgement held that by virtue of the provisions in Section 7(1) (l) of Decree 60 of 1991 and 230(1) of the 1979 Constitution of the Federation (now Section 251 of the 1999 Constitution), there was no doubt that the only court having exclusive jurisdiction on aviation matters including carriage of goods and passengers was the Federal High Court.

Section 63 (1) of the 2006 Civil Aviation Act further reiterates that;

“The Federal High Court shall have jurisdiction to try all offences committed under this Act, and to hear all matters involving the Authorities and its obligations under any law.”

As mentioned above, the Constitution which is the highest authority in the land expressly states that the Federal High Court is the court with exclusive jurisdiction to try aviation matters but it is rather astounding as to how the High Court in Lagos has given conflicting decisions on this issue. It is expected to be trite law. See NACIA ONWUAKA vs. KLM (Unreported decision of Okunnu J of the High Court of Lagos State in Suit No. LD/1624/2005 delivered on December 1, 2006) and OKULAJA vs. KLM (Unreported decision of Adebiyi J of the High Court of Lagos State in Suit No. LD/3445/99 delivered on December 12, 2005).

In KABO AIR LTD vs. OLADIPO (1999) 10NWLR (Pt.623) 517 C.A, the issue of jurisdiction again arose along with whether the Carriage by Air, Order 1953 was applicable in Nigeria and on the condition precedent to the award of damages in international carriage by air. The Court held that the Order was applicable as it was an existing and applicable law in Nigeria and on the condition precedent, that from Article 22 of the Order, “…the liability of an airline is predicated on the declared total weight of the luggage lost by the passenger or the claimant. Therefore the claimant must plead and prove the weight of his lost luggage before the liability of the airline can be determined. Otherwise, there would be no basis of assessment and award of damages.”

The issue of Jurisdiction has already been addressed and so has the applicability of Order 53. See IBIDAPO vs. LUFTHANSA (Supra). On the holding on the condition precedent, this was one of the rather unfair provisions of the Order which the Montreal Convention sought to correct. Article 22 (2) goes further to state;

“Subject to the provisions of paragraph (4) of this article in the carriage of luggage of which the carrier takes charge and of cargo, the liability of the carrier in respect of destruction, loss and damage is limited to a sum of 250 francs per kilogram”.

The new law abolishes the per kilogramme baggage liability limit and instead provides a more rounded system for quantum of damages. Article 22 (2) of the Montreal Convention states;

“In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1000SDRs for each passenger unless the passenger has made at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.”

Asking the claimant to plead and prove the weight of his lost luggage before assessing and awarding damages is a rather onerous task. With the new law, that assessment is now uniform and a lot easier.

In UTA FRENCH AIRLINES vs. MARIE FATAI-WILLIAMS (2000)14NWLR (Pt.687) 271 C.A, the aviation issue that came up was whether the limitation period laid down in Article 29 of Carriage by Air( Colonies Protectorate and Trust Territories) Order of 1953 could be suspended by agreement between the parties. The Honourable Court held;

“The limitation period laid down in Article 29(1) of Carriage by Air (Colonies Protectorate and Trust Territories) Order of 1953 cannot be suspended or interrupted even by agreement of parties. It is of a predetermined nature and cannot be suspended or interrupted.”

The 2006 Civil Aviation Law also aligns with the view of the learned Court. It states in its Schedule (Montreal Convention), Article 29 and Article 35 respectively that;

“In the carriage of passengers, baggage and cargo, any action for damages, however founded, under this convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.” and

“The right to damages would be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”

The legal regime under the convention is a rather exclusive one. If a claim was to arise in the course of carriage of persons, luggage or goods for reward, the claimant can only seek redress under the convention. An action cannot be brought under common law, whether in contract or tort.

In the case of CAMEROON AIRLINES vs. JUMAI ABDUL-KAREEM (2003) 11NWLR (Pt.830) 1 CA, a number of issues were up for determination by the Court of Appeal. They were;

1. Whether the trial court was right in holding that the case between the respondent and the appellant was not governed exclusively y the Warsaw Convention.
2. Whether the trial court was right in awarding damages in excess and far beyond the limit of the carrier’s liability for loss of registered luggage when the appellant had not lost its right to rely on the limit to its liability under Article 25 of the Warsaw Convention.
3. Whether the respondent had satisfactorily discharged her responsibility in her claim for loss of her registered luggage under Article 22 of the Warsaw Convention.

The Court held on the 1^st issue that by virtue of Article1 (1) of the Warsaw Convention, the instant case was to be governed by the Convention. The onus of identifying the exceptional circumstances to take the matter out of the Warsaw Convention rests on the respondent.

The 2006 Civil Aviation Act also supports this position. Section 48 as mentioned above vests the governance of such matters under the applicable Convention. This view is not a departure from what was previously held.

On the 2^nd issue, the Court held thus;

“For liability to be at large in respect of carriage of goods by air it must be shown that the damage was caused by wilful misconduct as provided for under Article 25 of the (Warsaw) Convention. Article 25 is to checkmate the carrier relying on wilful misconduct on the limitation of its liability. In the instant case, for the respondent to be entitled to the huge damages awarded her, her claim must come within the exception as provided under Article 25 of the Convention.” (Emphasis mine)

The onus is on the plaintiff to establish wilful misconduct. The onus on the plaintiff is a heavy one. The plaintiff must not only prove how the loss or damage occurred, he must also prove what state of mind the person was who caused the damage. The burden of proof on the plaintiff would seem insurmountable given that the plaintiff will often have little or no information as to what caused the loss.

Article 22 of the Montreal Convention, as stated earlier, mitigates this labour and instead stipulates a uniform amount to be paid by the offending carrier. Sub-section (5) however mentions that ‘where it is done with intent to cause damage or recklessly’, the limited liability provisions would not apply. It states;

“The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servants or agents was acting within the scope of its employment.”

On the 3^rd issue, the Court again made reference to Section 22 of the Warsaw/Carriage by Air, Order 53 in holding that, for the party to activate the provisions of Article 22(2) of the Convention, she must prove amongst others that there was a special declaration of the value of the registered luggage made at the time when the luggage were handed over to the carrier. The respondent did not meet the parameters. The new law in Section 22(2) upholds this principle, but as mentioned above, provides a more balanced amount of what the carrier should pay to the passenger in event of loss of baggage.

There is also the matter between I.M.N.L vs. PEGOFOR INDUSTRIES LTD. (2005) 15NWLR (Pt.947) 1SC. The aviation law questions raised were on the applicability of the Carriage by Air (Colonies Protectorates and Trust Territories) Order, 1953 in the contract, which was found irrelevant and not applicable in the case and whether the Order was applicable to courier service. The Court held that it was not also applicable in the case as the law governed the relationship between the airline carriers and those with whom they enter into a contract of carriage of goods by air. Also see Article 2 (2) Warsaw Convention. The 2006 Civil Aviation Act/Montreal Convention is somewhat more flexible as in its corresponding Article 2 (2), it states that the carrier would only be liable to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations.

Finally, in CAMEROON AIRLINES vs. OTUTUIZU (2005) 9NWLR (Pt.929)202 C.A, the issues up for determination were peculiar as regards to aviation law. They were;

1. Whether the Warsaw Convention absolves the carrier from liability for failure to carry passenger to agreed destination.
2. Whether damages in a breach of contract of carriage by air is limited by the Warsaw Convention.
3. On the application and effect of Articles 17, 18 and 19 of the Warsaw Convention in the contract.

A summary of this case was that the respondent bought tickets from the appellant to fly him to Swaziland. The respondent was however flown to Johannesburg and because he did not have the necessary documents, was arrested, detained and deported. He also lost $20,000 US Dollars and other personal effects which were taken from him by South African authorities.

The Court held on the 1^st issue that that while the Warsaw Convention provides that a carrier could alter the routes a particular flight takes, it does not absolve the carrier from performing a contract legitimately entered into with others to transport such persons to the agreed destination. On the 2^nd issue, the Court again held that the Convention did not anywhere set a limit to the amount recoverable in the event of a plaintiff’s success in a claim against a defendant airline for failure to transport the plaintiff by air to an agreed destination.

On the 3^rd issue, the Court unanimously held that the mentioned articles only related to registered luggage or goods damaged in the course of an aircraft flight. It had nothing to do with a breach of contract.

The above case had more to do with a fundamental breach of contract as against the carrier’s liability under the Convention. When reviewed with the 2006 Nigerian Civil Aviation law, it would probably come up with the same results as it is stricto sensu a breach of contract matter actionable under common law.

The 2006 Nigerian Civil Aviation Law is, on the whole, nothing short of revolutionary as it not only positions the country’s aviation industry up with the modern aviation nations of the world but also makes adequate and appropriate provisions for carriers, passengers, insurers and the government alike. The adoption of the Montreal Convention plays no small role in this but what impact it would be able to practically achieve in aviation law in Nigeria remains to be seen. As there are still only a sprinkling of aviation cases in Nigerian law which border on similar issues, the rest of the provisions are yet to be tested.

In conclusion, it should be noted that the focus of litigation would shift from having to establish ‘wilful misconduct’ on the part of the carrier to the issue of negligence on their part. This is because the Act now allows a carrier to avoid liability where it proves that it was not negligent. It is expected that it is a defence that would often be relied on. The claimants too would also thoroughly explore the avenue of contributory negligence in order to apportion liability on the carrier.

Sola Odebunmi is a counsel in the law firm STRACHAN PARTNERS and is a member of the “Air & Sea Transport Unit”.