Civil Aviation/Dispute Resolution
17th February 2020
THE APPLICABILITY OF THE REVISED LIMITS OF LIABILITY UNDER
THE MONTREAL CONVENTION TO CIVIL AVIATION CLAIMS IN NIGERIA.
This piece seeks to discuss the applicability of the revision of the limits of liability under the Montreal Convention 1999 to civil aviation claims in Nigeria, the consequences of the revision of the limits of liability on domestic laws of member states and their constitutional guarantees, if any. It contrasts the Nigerian position with some other Montreal Convention member jurisdictions to see areas of convergence or divergence. The scope of the comment shall be limited to deaths even though the revision of the limits of liability affects other claims under the convention occurring in international and non-international carriage by air in view of their peculiarities. The article ends with a call on the relevant public officers in Nigeria to take urgent steps to bring Nigeria’s aviation industry and applicable laws in tune with global standards.
THE MONTREAL CONVENTION 1999 AND THE NIGERIAN AVIATION INDUSTRY
By virtue of section 12 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), a treaty or convention cannot have the force of law in Nigeria until enacted into law by the National Assembly. It is also trite that in Nigeria, the Constitution is Supreme over and above all other statutes, including international treaties and conventions subscribed to by Nigeria.
Thus, it has become the norm that upon Nigeria’s subscription to an international treaty, a domestic statute is passed to bring it into force. According to a learned commentator, there are basically two ways of domesticating an international treaty in Nigeria. It is either by directly enacting specific provisions in an implementing statute or the entire treaty is annexed usually in the form of a schedule to the statute. Example of the former is in the Third Alteration Act, 2010, while that of the latter is the Civil Aviation Act, 2006.
The world over, the aviation industry is one of the most highly regulated industries for security or economic reasons. Aviation provides the only worldwide transportation network, and this makes it essential for global business and tourism. It plays a vital role in facilitating economic growth, particularly in developing countries.
Nigerian courts have also realized the importance of putting the country on the global map in terms of international best practices by adopting the rules of international law. In the case of BRITISH AIRWAYS V. ATOYEBI, the Supreme Court held as follows:
“…On the duty of Nigerian Courts to continue to apply rules of international law, Wali, JSC at page 150 A – B (supra) stated thus: “Nigeria, like any other Commonwealth country inherited the English common law rules governing the municipal application of international law. The practice of our Courts on the subject matter is still in the process of being developed and the Courts will continue to apply the Rules of international law provided they are found to be not over-ridden by clear Rules of our domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law.”
It is submitted that the nature of the aviation industry necessitates periodic and frequent changes in their rules to ensure safety of freight and passengers. By the same token, losses of baggage, injuries and sometimes death may occur in the course of transportation. The aim of the passing of the Montreal Convention 1999 (and the Warsaw Convention) before it, was to have uniform rules that apply across all member countries to ensure the predictability of compensation for any loss or death from the skies, no matter the jurisdiction.
On the construction of the provisions of the Montreal Convention, the Nigerian Supreme Court has posited that the essence of the convention is essentially to protect and compensate air traffic passengers adequately. In the case of MEKWUENYE V. EMIRATES AIRLINES, the apex court held:
“Where a right is established, a remedy must be in place. It is within that ambit that the provision of the Montreal Convention ought to be interpreted in order that the purpose of the enactment would be best understood; that is, to give better protection and compensation to the consumer, and facilitate faster air cargo shipments. In other words, the courts are not to be enslaved with a tight, inequitable literal interpretation of the Article 29 of the Montreal Convention to the detriment of consumers. Therefore, the Convention is to be read as a whole and not in bits and pieces to understand the intention of its makers.”
Thus, haven stated the philosophical basis of the existence of uniform rules for the aviation business, the problems posed by the diverse legal systems ratifying the convention is worthy of an interrogation. Most often than not, the convention ought to be domesticated in the territory of a state party to take effect. The question then is, what happens when the Convention is amended?
LIMITS OF LIABILITY IN AVIATION CLAIMS INVOLVING DEATH
The limit of liability in aviation claims involving death and injury is as provided for in Section 48 of the Civil Aviation (Repeal and Reenactment) Act, 2006 and Article 21 of the Montreal Convention 1999 contained in Third Schedule to the Act as follows:
“For damages arising under paragraph 1 of Article 17 not exceeding 100,000.00 United States Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.”
The body responsible internationally for the revision of these limits under the convention is the International Civil Aviation Organization (“ICAO”) and by its 2019 revision had proposed an increase in the Special Drawing Rights’ limits by 13% effective from 28th December, 2019. It is worthy of note that the ICAO’s directions/recommendations are usually subject to the legal requirement for the domestication by individual state parties for same to take effect.
In many countries, such as Nigeria, there is the requirement for the state parties to reflect these changes in the limits from time to time, other than by legislative amendment of their laws. Section 48 (2) of the Civil Aviation Act, 2006 provides:
“The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in Schedule III of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non-international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”
Furthermore, by virtue of the Third Schedule of the Act, (Modifications to the Convention for the Unification of Certain Rules Relating to International Carriage by Air), Article 24 thereof provides as follows:
“Without prejudice to the provisions of Article 25 of this Convention, the limits of liability prescribed in Articles 21, 22 and 23 shall be reviewed by the Minister of Aviation upon advice by the Nigerian Civil Aviation Authority at seven year intervals, the first such review to take place at the end of the seventh year following the date of entry into force of this Act.”
A community reading of the above provisions shows clearly that as it relates to non-international carriage by air accidents in Nigeria, the Minister is expected to issue an order upon the advice of the NCAA, which shall be gazette in order to bring the amendment into force in our body of laws.
This approach is similar to what is obtainable in Singapore, where the Minister of Transport had by a Gazette issued electronically on 7th November, 2019 made the “Carriage by Air (Montreal Convention, 1999) (Revision of Limits of Liability) Order 2019” slated to come into operation on 28th December, 2019. The order adopted in its entirety the recommendation of the ICAO.
However, the position in Kenya is quite slightly different in that, the Kenyan Constitution has provided for the automatic applicability of any convention ratified by that country. Section 2(6) of the Kenyan Constitution 2010 provides: “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”
By the literal rule of interpretation of statutes, the above stated provision has left no room for domestication or discretion on the part of the Minister of Aviation for the revised rules to apply. The mere proof of revision of the limit of liability by ICAO should compel the court to take judicial notice of them and apply the new rules in Kenya.
It is the writer’s view that the question as to what is the effect of the revision of the limits of liability under the Convention will absolutely depend on the mode by which the international treaty is made applicable by the domestic laws of state parties.
There is no gainsaying that in a state member like Kenya, in view of the constitutional framework that has made any treaty or convention ratified by that country part and parcel of the law of Kenya, a review, as in the instant case is automatically applicable to civil aviation claims.
On the other hand, countries such as Nigeria, that require a further step as provided for in Article 24 of the Third Schedule of the Civil Aviation Act, 2006 must see to it that the Minister of Aviation does the needful by issuing the necessary gazette.
Modern day economic realities as well as the need to place operators on their toes in air services delivery would have influenced the ICAO in reviewing the limits of liability. In both cases, Nigerian air passengers are not having the best of times. In a 2018 survey of the Murtala Muhammed Airport (MM2), although respondents were satisfied with the reliability of service attribute, the respondents were not satisfied with other service attributes, which include immigration staff attitude, getting to and fro the airport with ease, clarity of boarding calls and airport public announcement, amongst others. The volume of cases that have approached the courts for adjudication in the last decade is also an indicator that all is not well with the industry in Nigeria. Therefore, it will be highly unfortunate if a claimant, in line with international best practices, cannot take full advantage of the 13% increment on the limit of liability by ICAO because a public officer is yet to do his/her job. The Federal Government, through the Minister of Aviation, should take expedited steps to issue a gazette in line with the provisions of the Civil Aviation Act, 2006. Till this is done, a claimant in a carriage by air accident or loss of baggage claim in Nigeria is unfairly stuck with the outdated limits sets out in Article 21 of the Third Schedule of the Civil Aviation Act, 2006.
For further information on this article and area of law, please contact
Abdulkabir Badmos at: S. P. A. Ajibade & Co., Lagos by
telephone (+234 1 472 9890), fax (+234 1 4605092) mobile
(+234.8134667233) or email email@example.com
 Abdulkabir Badmos, Associate Dispute Resolution Department, SPA Ajibade & Co., Lagos, Nigeria.
 Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montreal, 1999). S. Treaty Doc. No. 106-45, available at: http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/toc.html [hereinafter Montreal Convention]. This treaty, which entered into force on Nov. 4, 2003, has 104 states parties; among them is the United States, for which the treaty entered into force on Nov. 4, 2003.
 Abacha v. Fawehinmi (2000) FWLR (Pt.4) 553 at 586.
 See https://ir.unilag.edu.ng/jspui/bitstream/123456789/533/1/Inaugural%20Lecture %20-%20Prof. %20Akindele%20Babatunde%20Oyebode.pdf accessed on 24th January, 2020.
 (2014) LPELR 23120 (SC) per KEKERE-EKUN, J.S.C (pp. 27-28, paras. F-B).
 (2019) 9 NWLR (PT.1677) 191 at 225-226, paras H-B.
 Kimani and Kirimi, “Revised Limits Of Liability Under The Montreal Convention 1999”, available electronically at http://www.mondaq.com/article.asp?articleid=878842&email_access=on accessed on 24th January, 2020.
 See https://www.icao.int/secretariat/legal/Pages/2019_Revised_Limits_of_Liability_Under_the_ Montreal_Convention_1999.aspx accessed on 21st January, 2020.
 See https://www.caas.gov.sg/legislation-regulations/legislation/carriage-by-air-(montreal-conven tion-1999)-act accessed on 23rd January, 2020.
 Adeniran and Fadare: “Assessment of Passengers’ Satisfaction and Service Quality in Murtala Muhammed Airport (MMA2), Lagos, Nigeria: Application of SERVQUAL Model” J Hotel Bus Manage 2018, 7:2 available electronically at https://www.longdom.org/open-access/assessment-of-passengersrsquo-satisfaction-and-service-quality-in-murtala-muhammed-airport-mma2-lagos-nigeria-application-of-servq-2169-0286-1000188.pdf accessed on 27th January, 2020.