While the aviation industry continues to grow in Nepal, the laws that govern carrier liability have not evolved, thus denying passengers equal protection for uncompensated losses. Liability of carriers, legal obligations of air companies for passengers, their luggage, and shipments are critical to the concepts of justice and responsibility in the sphere of air transportation.
As seen in the case of the Montreal convention, Nepal has also signed several international conventions that have not been fully implemented in domestic laws and policies, especially concerning domestic operations. Studying the cases and practices of different countries also emphasises on the necessity of developing better legal and regulatory frameworks in Nepal for the passengers and to penalise the wrong doers.
The Air Carriers’ Liability and Insurance Bill, finalized in 2020 to align Nepal’s domestic aviation policies with the global standards set by the Montreal Convention of 1999, has encountered significant delays. Political instability, frequent changes in ministerial leadership, and resistance from domestic carriers to certain provisions of the bill have collectively obstructed its implementation.
Swift enactment of this legislation is imperative to enhance passenger compensation mechanisms, ensure accountability in cases of air accidents, and establish a robust liability framework within Nepal’s aviation industry.
Understanding carrier liability
Carrier liability is an accepted principle in the international aviation law which set out the responsibilities of an airline company to cover claims attributable to passengers, other people and loss of baggage and cargo due to delays or occurrence of an accident.
This legal framework is regulated by treaties like the Warsaw Convention (1929) and the Montreal convention (1999). These conventions set definite level of compensation which meant that there were specific limits to the liabilities and that the passengers could always pursue a remedy without much difficulties.
The Montreal Convention, which Nepal acceded to in 2018, pegs limit of liability at 128,821 Special Drawing Rights, or roughly $167,000 per passenger for damages arising from international carriage by air irrespective of the culpability.
However, beyond this limit, the airline may only avoid liability by demonstrating that the damage was not caused by the negligence of the airline. These rules are aimed at establishing a common minimum level of carrier liability worldwide; however, their application in the Nepali internal aviation market and fight is limited, contributing to the differentiation between foreign and domestic passengers.
Challenges in Nepal’s legal framework
Aviation laws in Nepal are not robust enough to curb or regulate the challenges that are associated with the modern flying environment. Although the Civil Aviation Act of 1959 and other regulations have some guidance on the subject, they do not contain the detailed provisions of international conventions.
Domestic flight passengers do not receive the enhanced protection that is provided by international conventions that are in place. Unlike in other countries, most airlines use accident compensation policies differently from what the law requires and hence, passengers have no solid ground to stand on.
These factors lead to disparate remunerations – that is, the families of those who were killed in an air accident can be awarded vastly different sums, depending on the airline that is engaged, and the legal system which governs the case. Furthermore, unfavourable institutional structures include the lack of specialized aviation courts, meaning that passengers take extraordinarily long trying to seek justice, which discourages them in the process.
Insights from case studies
In the past, Nepali judiciary has encountered with different cases related to carrier liability, which still has shown the loopholes of legal framework and its implementation. There is well-documented case from the 1950 when an Indian Airlines aircraft crashed in Kathmandu, causing number of fatalities and the bereaved families then had no choice but to fight the case under the Warsaw convention for several years (Drona S.J.B.R vs Indian Airlines Corporation, Supreme Court of Nepal, 1967). In the end, their efforts were thwarted on procedural issues, which means that families could not receive justice.
In another case, a Thai Airways flight crash in Nepal resulting to the loss of many people was handled resulting different outcomes of compensation to the victims. Whereas an American court granted $ 1.2 million to the family of the victim after establishing airline negligence (Nirajan Koirala vs. Thai International Airways Company Ltd., U.S. 9th Circuit Court of Appeal, 1992).
Similarly, a Thai court made a compensatory order of $ 300, 000 to another victim in same accident (Mrs. Mina Kumari Thapa vs. Thai International Airways Company Ltd., Civil Court of Thailand, Post-1992). In contrast, victims of such mishaps in Nepal continued to be awarded rather arbitrary compensations that exposed the sheer lack of effective domestic legal safeguards.
The aforementioned cases show a lamentable situation wherein an effective legal principles framework did not exist to deliver justice; thus, proves why the liability carrier standards in Nepal should align to the international standards.
The path towards reform
Nepal needs to domesticate provisions of the Montreal Convention, so passengers across domestic and international airlines receive similar protections. Specific policies must be created to aim at providing required uniformity to prevent inequitable treatment and confusion. Having clear guidelines to address several issues concerning the injuries of passengers, baggage losses, delays, and cancellations will help remove disparities and thereby, build and maintain passengers’ confidence.
The authorities should consider setting up specialist aviation tribunals or new tracks for litigations, which would save time for passengers and remove countless obstacles of prolonged legal actions. Swift mechanisms of dispute resolution will guarantee that passengers receive his/her justice within the shortest time possible making people to believe in the legal options that are available.
Another entity that requires more active participation is the Civil Aviation Authority of Nepal (CAAN) in turning these liabilities laws in action. These of activities include; assessment of different entities, surveys on practices provided by the airlines, and investigation if provided compensations adhere to the required regulations.
Awareness creation is also paramount here, people need to be more aware of their rights according to both; local and international laws as they travel. Airline transport should be required to disseminate information concerning liability rules and compensation procedures in a fairly clear and easily understandable manner.
A vision for a reliable aviation sector
Nepal has a lot of potentials in aviation; however, the proposed schemes require credibility and accountability. The stalled implementation of the Air Carriers’ Liability and Insurance Bill remains a critical setback, highlighting the fundamental need for accountability and passenger protection in Nepal’s aviation industry. Everyone should understand that enhancement of carrier liability regimes is not only the legal requirement but also the question of ethics to protect passenger.
Therefore, Nepal can make its domestic policies harmonized with the international one; thereby reducing risks by increasing the regulatory control measures that could bring an efficient and safe aviation environment. The previous cases mentioned above are good examples of how imbalances need to be rectified. Aligning Nepali laws in regards to carrier liability to the international standards ensure that the Nepali aviation industry is not left behind in meeting today’s challenging and dynamic airline operations while also protecting the passengers’ rights and safety.
