Q&A – 14 November 2022
Liability of airlines in event of crash
I am a frequent traveler by air, both within and outside Tanzania. I and many other people have been traumatised by the recent aircraft crash. Some people have vowed not to travel by air for the remaining span of their lives. Moreover, since the accident many people have been discussing the rights of the families of the deceased and the survivors. In those discussions, a friend of mine told me that there is no law governing the liability of airlines in Tanzania for incidents of this kind as they are acts of God. Is my friend correct?
To begin with, the FB Attorneys Q&A team takes this opportunity to console the families of the deceased for untimely deaths of their loved ones and pray for the speedy recovery of the injured persons.
Now back to your question. Firstly, your friend is wrong to tell you that Tanzania has no law governing the liabilities of airlines in incidents of aircraft crashes. Secondly, note that the Force Majeure Doctrine (act of God) cannot be invoked by airlines as legally valid defence as far as aircraft accidents are concerned. The liability of the carrier and extent of compensation for damage is covered under Part III of the Civil Aviation (Carriage by Air) Regulations, 2008 (the Regulations).
Regulation 20(1) strictly states that the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition 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. Regulation 20(2) adds that the carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier.
Regulation 24 governs compensation in case of death or injury of passengers. Regulation 24(1) provides that for death or body injury arising under sub regulation (1) of regulation 20, as stated above, the carrier is liable to pay the victim an amount not exceeding the equivalent in Tanzanian Shillings of United States Dollars 120,000 for each passenger and strictly prohibits the carrier to exclude or limit its liability.
Note that there are certain circumstances the carrier can be liable to pay claims for an amount exceeding USD 120,000 per deceased or bodily injured passenger, if negligence is proved. Nevertheless, Regulation 24(2) relieves the carrier from the payment of the amount that exceeds USD 120,000 for each passenger if the carrier proves that such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents or where it can prove that such damage was solely due to the negligence or other wrongful act or omission of a third party.
The families of the deceased or the survivors of the accident can also claim compensation for the baggage. The liability of the carrier in the case of destruction, loss, damage or delay of baggage is limited to the equivalent in Tanzanian Shillings of United States Dollars 1200 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. For declared baggage 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.
Under the Regulations, the carrier is also liable to pay for lost cargo. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of the equivalent in Tanzanian Shillings of United States Dollars 20 per kilogram, unless the consignor has made, at the time when the package 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 whereby the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
In responding to your question we have limited our scope to the Tanzanian laws governing liability of the carrier and extent of compensation for damage. Take note that there might be international aviation laws varying the extent of claims for damage from the amounts stated in our response above. To be noted also is a fact that the response hasn’t explored the extent to which the carrier insurance can affect the claim. For that matter, this response to your question should not be relied upon exhaustively as a legal opinion by any of the claimants or otherwise.
Disclosure of truth to lawyer
I am charged with a criminal offence and am wondering whether I should tell my lawyer the truth? What if the lawyer refuses to defend me after hearing me? What are the lawyer’s duties to me as his client?
There is what you call an Attorney Client privilege whereby your lawyer cannot disclose any information relating to an offence you have committed. It may not fully apply to an offence you are about to commit.
Whilst lawyers might be employed by you, they are still officers of the Court, and therefore cannot lie or misguide the Court. Hence if your lawyer knows you are guilty of an offence, the first thing he must do is tell you to plead guilty to that offence, unless there are factors that your lawyer can legally use to mitigate the offence or its consequences.
Your lawyer can attack the prosecution’s evidence and can come up with arguments that may be less than rock solid, so long as they are reasonably supported by the evidence.
You must appreciate that every attorney is going to be different in what he/she wants to know, and things will vary based on the specific case, Court, and gravity of the charges. As a general rule, you should never lie to your attorney as this will ultimately backfire.
Lastly, after hearing the trust, the lawyer has a right to discontinue to represent you. He however cannot testify against you in Court.