The hypothetical case of the crash of an Asian Airlines due to pilot error in Hong Kong presents an interesting challenge from the point of view of lawyers representing the passengers. The purpose of this paper is to advise the passengers as to whether or not they can obtain compensation from both Asian Airlines and AsianÆs 55% owner Best Travel Ltd., especially when they hear that Asian may not be solvent.
It is clear that Asian as operator of the airline and airplane in question at the very least shares some of the responsibility for not successfully ensuring the safety of the passengers and is therefore liable to pay at least a portion of the damages judged by any court as due them.
In assessing the relevant liability in damages for death or personal injuries sustained by passengers as a result of aircraft accidents ôit seems almost instinctive therefore, that plaintiffs turn to the airlines for some form of compensationö (Elsmore 2004:1). Air carrier responsibility for aviation accidents has been established through jurisprudential interpretation of the Warsaw Convention relating to International Carriage by Air of 1929 (Magdelenat 1990:5). ôIt introduced the concept of limited liability for compensation of passengers and the quid pro quo for which there is a rebuttable presumption of liability on the part of the carrier, ie a reversal of the traditional burden of proofö (Elsmore ibid.). In other words, in return for a ôpresumption of liabilityö, the airlines got caps on their liability for damages.
In order to advise the passengers one would have to know the type and extent of the injuries that occurred when the Asian plane went down in the ocean. While deaths from aviation accidents are generally compensated according to formulae laid out in the Warsaw Convention and its many more recent updates, injuries present a potential legal thicket for plaintiffs.
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