Air crash: learning from the past
APROPOS of the news in your esteemed paper concerning the Bhoja Air plane crash, I conjecture that our airlines haven’t learnt any lesson from the Airblue disaster in 2010 despite cognizance taken by the Peshawar High Court in dealing with air crash victims of the PIA Fokker plane near Multan in 2006.
I googled such incidents in India for a case law, I was amazed that Indian Airlines, despite fewer air crashes, paid compensation to victims immediately, avoiding any litigation under Carriage by Air Acts based on the Warsaw Convention.
There is no Indian case law and no victims in India went to court since Airlines paid compensation promptly whereas the suit filed by the widow of deceased Dr Altaf Hussain is still pending for payment of her compensation in Sindh High Court against PIA in the above-cited PIA Fokker crash in 2006.
Even issues have not been framed in the suit, let alone payment of compensation to the widow.
Under Carriage by Air (International Convention) Act, 1966, compensation must be paid to air crash victims immediately as specifically computed according to the schedules thereto.
The formula is provided in the afore-cited act which is not followed by any Pakistani airline. Now lately another Carriage by Air Act 2012 has been promulgated based on the international Montreal Convention, which also provides the specific formula for determination and payment of compensation to widows and orphans of air crash victims which is flouted and prolonged by Pakistan’s airways.
When victims invoke the tort jurisdiction of civil courts against these private or national carriers, these litigants have to pay huge legal costs and are confronted with usual legal procrastination in disposal of their cases in violation of Islamic injunctions and statutes in force in Pakistan.
An amendment may be inserted in the Carriage by Air Acts so that airlines may be mandated to pay immediate interim relief pending the final computation/determination of compensation.
There is a provision in the law that if ‘no fault’ is pleaded by airlines, then a specific amount of compensation must be paid and if the airlines are saddled with culpable and onerous liability, then the court may go into the evidence of the claims of air crash victims.
Courts are requested to expedite cases under Carriage by Air Act 1966 or 2012 in consideration of widows’/orphans’ case emergency on a day-to-day basis, besides awarding the admitted amount of compensation on the first date of hearing according to Schedule I of the aforementioned Act.
ABDUL SAEED KHAN GHORI
Advocate, Supreme Court
AS president, Society of Air Safety Investigators, Pakistan, I was shocked to learn that soon after the crash there was a process of criminalisation similar to that of the famous Pan Am 103 flight. Unfortunately, terrorism and sabotage of aircraft since 1980s gave birth to criminal investigation into aircraft accidents.
However, the aviation world learned that a criminal investigation in the wake of a major aircraft accident should be reserved for deliberate acts of sabotage.
An FIR lodged by the police, citing Sections 302(intentional murder), 286 (negligent conduct with respect to explosive substance), 427 (mischief causing damage), 2890 (rash navigation of vessel) and 120 (criminal conspiracy), is out of place at this stage.
Criminalisation of aviation accidents is not in anyone’s interest, and Bhoja Air is not an exception. In aviation there are already abundant ways to deter bad acts. Flight crews risk their own lives every day.
While they ordinarily exercise great judgment, one lapse of judgment, like failing to declare an emergency or failing to get the airplane down through bad weather, can lead to tragedy.
Based on my experience with the USA’s NTSB, UK AAIB, Italian ANSV, Russian IAC and Iranian CAA, guilty pleas and convictions are not victories for prosecutors or the traveling public.
The situation is that Pakistanis have no confidence in the investigations conducted by the CAA: previous investigations have not been able to go beyond identifying aircrew’s weaknesses to handle emergency situations.
Crimnalisation will only divert the attention from the real issue. I take it as my duty to caution that one should not fall prey to the notion that criminal investigations will bring any improvement to safety. The world had tried it and in vain.
By criminalising the Bhoja accident, the administration is playing with the sentiments. It is creating fear amongst operators and desire to take revenge by affected families; divert attention of the media, public and victims’ families from the fact that it had not acted on the Sindh High Court orders in the CP NO D-2473 of 2010, Oct 25, 2010, and CP No. D 3544, Feb 2, 2011.
The first order directed the federal government to hold an independent investigation into the Air Blue crash by independent experts according to ICAO standards.
The second order required for the justification of Capt Nadeem Yousuf Zai to hold the appointment of DGCAA, Pakistan.
WG CDR (Rtd) SYED NASEEM AHMED