By Ugo Ezeugwa, LL.M[1]

Introduction

In most cases, when aircraft accident or serious incident occurs, it is not only passengers and goods carried in the aircraft that suffer damage. There may be instances where persons or property on the surface in no way associated with the flight, are also affected. The accident or serious incident may lead to injury to persons or loss of lives or damage to property of other persons who were not in the flight.

Furthermore, aircraft may cause damage to persons or property including other aircrafts, while taxiing or landing. Again, it may happen that two aircrafts may collide while in the air, thus causing damage to persons or property in the air.

Broadly speaking, damage caused by an aircraft to persons or property not connected with the air carriage, falls into three distinct categories as outlined below:

  1. Damage to persons or property on the surface caused by aircraft in flight;
  2. Damage caused by aircraft in flight to persons or property in the air and;
  • Surface damage caused by aircraft operating on the surface.

It is noteworthy that the Montreal Convention[2] regulates the air carrier’s liability in Nigeria in respect of injury or death of passengers and loss or damage to baggage and cargo and delay in international carriage by air. A modified version[3] of the Montreal Convention applies to non-international carriage as well. Both the Montreal Convention and the modified version are not concerned with the liability of aircraft to persons or property not connected with the air carriage.

This article seeks to examine the legal framework in Nigeria for dealing with the liability of aircraft for damage caused by an aircraft to persons and property not associated with air carriage. It also seeks to explore whether an aircraft is liable for trespass and nuisance by mere message over a person’s property.

 Damage to persons or property on the surface caused by aircraft in flight

An international treaty which was put in place to regulate damage to persons and property on the surface caused by aircraft in flight is, the Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface, signed at Rome on 7th October, 1952, (“The Rome Convention”).[4]

Although, the Convention was ratified by Nigeria on March 6, 1970, however, she issued an instrument of denunciation of the said Convention on 10th May, 2002 and the denunciation took effect on 10th November, 2002.

However, the legal position in Nigeria, is that where damage is caused to third parties on the surface within Nigerian, by an aircraft, (whether Nigerian or foreign aircraft), liability will be regulated by Nigerian domestic law i.e common law and statute.

The aircraft owner may be liable under the common law tort of negligence.

Furthermore, relevant statutory provisions can be found in the Civil Aviation Act, 2006 (CAA, 2006).

Section 49 (2) of the CAA, 2006, provides:

Where injury , loss or damage is caused to any person or property on land or water by an article or a person in or falling from an aircraft while in flight, taking off or landing , then, without prejudice to the law relating to contributory negligence, damages in respect of the injury, loss or damage shall be recoverable without proof of negligence or intention or any other cause of action, as if the injury, loss or damage had been caused by the wilful act, neglect or default of the owner of the aircraft;

provided that the injury, loss or damage is caused in circumstances in which-

(a) damages are recoverable from the owner in respect of the injury, loss or damage by virtue only of the foregoing provisions of this subsection; and

(b)  a legal liability exists in some person other than the owner to pay damages in respect of the injury, loss or damage,

the owner shall be entitled to be indemnified by that other person against any claim in respect of the said injury, loss or damage.

Curiously, section 49(2) only refers to damage caused by “article or a person in or falling from an aircraft while in flight” but omitted damage caused by the aircraft itself. Section 49 (2) can be contrasted with Article 1 of the Rome Convention which refers to damage caused  “by an aircraft in flight or by any person  or thing falling therefrom…” or , section 49 U.S.C S 44 1112 (b) which refers to damage which occurs “because of  the aircraft , engine  or propeller  or the flight  of  or  an object  falling  from  the aircraft engine  or propeller”.

It is submitted that the omission of damage caused by the aircraft itself from section 49 (2) of the CAA, is an anomaly. Therefore, the draftsman should amend the said section to include damage caused by the aircraft itself and not just damage caused by an article or a person in or falling from the aircraft.

However, by virtue of the provisions of section 49 (2) of the CAA, it can be deduced that even where the damage was caused by the wrongful or negligent act of a person other than the owner, the owner of the aircraft would, nevertheless, be liable. In view of this, it appears that the liability of the owner is absolute and admits of no exception whatsoever, except the contributory negligence of the injured party[5].

In Green v. Zimmerman[6], an aircraft was held strictly liable for damage caused to fish by chemicals in aerial crop spraying.

Where the aircraft owner has hired out or leased the aircraft to an operator and has no control over its operations, he will not be liable. Statutory support for this can be found in section 49 (3) of the CAA.

Section 49 (3) provides that “where any aircraft has been bona fide demised, let or hired out to any person by the owner thereof and no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of the owner, this section shall have effect as though reference to the owner here were substituted for references to the person to whom the aircraft has been so demised, let or hired out”

By virtue of section 49 (3), though the owner of the aircraft is ordinarily liable, where he has hired it in good faith to any other person, and no pilot, commander, navigator or operative member of the crew, is in his employment, the person to whom the aircraft is hired is liable and not the owner[7].Thus, section 49 (3) takes away liability from the owner or lessor and rests the same on the lessee.

In the US, an aircraft owner or lessor may be insulated from exposure to liability by applicable US federal law; commonly used contractual provisions and; general tort principles which require proof of negligence on the part of the owner.[8]

For example, section 49 U.S.C S 44 1112 (b) provides:

“A lessor, owner  or secured  party is  liable for  personal injury, death  or  property loss  or damage  on land  or water  only  when a civil aircraft , aircraft  engine  or  propeller  is in the actual  possession  or control of the lessor, owner or secured party  and the  personal injury, death or  property loss or damaged occurs because of:

  • the aircraft , engine or propeller  or
  • the flight of  or  an object  falling  from  the aircraft engine  or propeller”.

Thus, liability of an owner will arise if he directly operates the aircraft or engages others to do so, and will likely be deemed “in actual possession or control” and thus not be able to take advantage of the exception to section 44112 of the US federal law.

See  Matei v. Cessna  Aircraft Co[9]; Rogers v. Ray Gardner  Flying  Service[10]; In re Lawrence W. Inlow[11]

Damage caused by aircraft in flight to persons or property in the air

Presently, no international convention is in place to regulate aerial collisions.[12] Where two aircrafts of different nationalities collide, a determination has to be made as to the applicable conflict of law rules. It has been suggested that where a collision occurs over air space of a country, the domestic law of that country may apply as the lex loci delicti.[13]

But where a high sea collision occurs, it may be that law of the State most closely connected with the provision of air traffic services for the aircraft in question, will apply. However, if the collision occurs between aircrafts with the same State of registration, it has been suggested that the law of the State of registration should apply[14].

In Nigeria, there are no statutory enactments in regard to damage caused to a person or property in the air from aerial collision of two Nigerian registered aircrafts within Nigerian airspace. It seems that the common law tort of negligence may be applicable in the circumstance.

Passengers carried on one of the colliding aircrafts have a claim against the owner under the Montreal Convention, while possibly bringing an action in tort against the other aircraft[15].

Damage caused by aircraft operating on the surface

An aircraft may cause damage when taxiing, taking off or landing by colliding with people, animals, other aircraft, airport vehicles, facilities or buildings. Both the statute and the common law may apply in regard to claim for damages.

S.49 (2) of the CAA provides that a claim for damages can lie where “injury, loss or damage is caused to any person or property on land or water by an article or a person in or falling from an aircraft while … taking off or landing …….”

Again, it is submitted that from the express wordings of section 49(2), it only creates liability for damage caused by “an article or a person in or falling from an aircraft while…… taking off or landing…..” It has not, in my view, created liability for damage caused by the aircraft while taking off or landing. This lacunae should be filled by amendment of the relevant section.

Under the common law tort of negligence, an aircraft may be liable for damage caused to a person or property on the surface while taking off or landing.

In Guille v. Swan[16] , the defendant balloonist, landed his balloon in the vicinity of the Plaintiff’s garden. When the defendant descended, he was in a dangerous situation and asked for assistance from a person who was working in plaintiff’s field. The spectacle attracted the attention of hundreds of local residents who, in all the excitement, broke through Swan’s fences and spoiled his vegetables and flowers. The damage caused to the balloon was minimal, totalling approximately $15 , while the damage resulting from the stampede of people was about $90.The Supreme Court of New York found the defendant  liable for all the damages that occurred on the premises as  he should have anticipated  that his descent and landing would most likely have attracted such crowd.

In certain situations, liability for damage may arise out of contract rather than in tort; for example, where there is collision with a catering or re-fuelling vehicle providing services to the particular aircraft.

Trespass and nuisance over airspace above land

The maxim, Cujus est  solum ejus  est usque ad coelum  et ad inferos ( “he who owns the land owns what is above and below it”) applied to enjoyment of private rights . It was once held[17] that to invade the airspace above the land of another person amounts to trespass.

The acceptance of this maxim for a long time created a lot of difficulty. The German Civil Code (1896) and the Swiss Civil Code (1907), while recognizing the maxim, adopted a functional approach limiting the right of the owner to such a height and such a depth as are necessary for his enjoyment of his land[18].

In common law countries, the courts have arrived at a broadly similar approach.

Thus, in Baron Bernstein of Leigh v. Skyviews and General Ltd[19], where the defendant company took a single aerial photograph from a plane while overflying the plaintiffs country residence, the English court held that landowner’s rights in the airspace above his land are restricted to such height as is necessary for the ordinary use and enjoyment of his land and structures on it. Aerial photography of his house did not infringe his rights. The land owner has no greater rights than any other member of the public.

Today, in most countries, either through judicial decisions or express legislations, aircraft would be allowed to fly over the private properties of others in normal flights in accordance with aeronautical regulations. This immunity applies only to the mere passage and does not extend to damage cause by it.[20]

In Nigeria, for example, statutory measures have been taken to protect aircrafts from suits for trespass or nuisance over air space above the land of other persons.

Section 49 (1) of the CAA, 2006, provides as follows:

 No action shall lie in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case as reasonable, or the ordinary incidents of such flight, so long as the flight over such property duly complies with any regulations in force made in respect thereof.

Conclusion

The Rome Convention 1952 has no application in Nigeria. Thus, the liability of aircraft for damage to persons or property on the surface caused by aircraft in flight is regulated by domestic law; i.e common law and statute.

Presently, there is no international treaty regulating aerial collisions. Thus, the liability of aircraft in cases of damage caused by aircraft in flight to persons or property in the air may raise difficult questions of conflict of laws, especially if the collision involves aircrafts of different nationalities. Where the collision involves two Nigerian registered aircrafts within Nigerian airspace, it seems the common law tort of negligence may be applicable.

Liability for surface damage caused by aircraft while taking off or landing may be governed by statute and common law tort of negligence.

It is, however, suggested section 49 (2) of the CAA be amended to include in its fold, damage caused by the aircraft itself while in flight, taking off and landing  and not just damage caused by an article or a person in or falling from the aircraft.

Statute protects the aircraft from liability for trespass and nuisance for flying over the private properties of others in normal flights in accordance with aeronautical regulations. This protection applies only to the mere passage and does not extend to damage caused by an aircraft.

[1] Ugo Ezeugwa, LL.M, Managing Partner, StrongTower & Barfields, Lagos, Nigeria.

[2] The Convention for the Unification of certain Rules relating to International Carriage by air signed at Montreal in 1999.

[3] For non- international carriage, see, the Modifications to the Convention for the Unification of Certain Rules relating to International Carriage by Air, which have been incorporated in the Third Schedule of the CAA, 2006.

[4] Michael Gill, Scratching Beneath the Surface: The Unlawful Interference Convention 2009, in From low lands  To High Skies: A Multilevel Jurisdictional Approach Towards Air Law, In Essays in Honour of John Balfour 228 (Pablo Mendes de Leon ed.,2013).The Rome Convention 1952 replaced the Convention for Unification of Certain Rules relating to Damage caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May, 1933, (“The Rome Convention 1933”).

[5]   Clerk & Lindsell on Torts, 15thed , p.1541.

[6] Carolina Supreme Court, 1977; 14 AV1 18,199, 1976-8)

[7] See Greenfield v. Law (1955) 2 Lloyd’s Report, 696.

[8]  Shupe et  al, Schnader Harrison Segal & Lewis, LLP, May 2, 2004, AIA Annual Conference, accessed on 16th September, 2018 at www. Schnader.com, C/F US federal law section 49 U.S.C. S 44 1112 (b).

[9] 35 F. 3rd  1142 ( 7th  Cir. 1994)

[10] 435 F 2d 1389 ( 5th Cir. 1970)

[11] 2001 U.S Dist. Lexis  2747 ( SD Ind. Feb. 7, 2001).

[12] Tim  Unmack,Civil Aviation: Standards and Liabilities, LLP, London Honkong, 1999, p.365.

[13] Id, p.365.

[14] id, p.365

[15]id, p.365.

[16] 19 Johns 381 ( NY Sup. Ct,1822).

[17] See Kelsen v. Imperial Tobacco C. ( of Great Britain and Ireland) Ltd {1957} 2 QB 334.

[18]www.britannica.com/topic/air-law. accessed on 12  November, 2018.

[19][ 1978] 1 QB 479.

[20]www.britannica.com/topic/air-law. accessed on 12  November, 2018.