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The crash of Ukraine International Airlines (UIA) flight PS752 may be the latest collateral damage in hostilities between Iran and the US in the Middle East, or the first accidental aviation tragedy of 2020 – either way, it raises a number of aviation legal and aeropolitical issues in addition to the usual safety investigative matters that follow international air accidents.
On Wednesday, 8 Jan 2020 at 3.37am (Iranian local time) the United States Federal Aviation Administration (FAA) issued a series of Notices to Airmen (NOTAMs: A0001/20; A0002/20; A0003/20) prohibiting all US air carriers and commercial operators from flying in the Tehran Flight Information Region (FIR) due to heightened military activities and increased political tensions in the Middle East, which present a conflict-zone type risk for civil aviation – eg, an inadvertent targeting risk due to the potential for miscalculation or misidentification. This was published in response to Iran launching missiles into Iraq over the busy commercial corridor in eastern Iraq. While this is typically not an area traversed by US civilian aircraft anyway due to pre-existing warnings by the FAA, it is a salutary warning to other carriers who monitor FAA NOTAMS to beware in the region.
Less than 3 hours after the NOTAM issue, at 6.12 am, flight PS752, a Boeing 737-800 departed Imam Khomeini International Airport in Tehran and crashed only minutes later killing all 176 people on board. Of those on board, 82 were Iranian, 11 Ukrainian, 63 Canadian, 10 Swedish, 4 from Afghanistan, 3 Germans, and 3 from the United Kingdom.
No one has claimed responsibility for bringing down flight PS752, and before any air crash investigation there has and can really only be speculation as to the causes of the crash. It may be that the accident occurred due to one or more of a variety of technical, systemic and human factors issues. What cannot be discounted, given the timing and location of the crash, is that the aircraft may have become caught up in hostile action either not intended to affect civil aircraft, or perhaps directly targeted to bring attention to the region.
The Gulf is no stranger to aircraft shoot down attempts and as recently as 20 June 2019, the FAA banned their carriers from flying in the Persian Gulf and Gulf of Oman after a drone shoot down by Iran, in a move already actioned by several other airlines including Australia’s Qantas. Such emergency NOTAMs by the FAA are significant in that several States follow FAA warnings about conflict zones, in the wake of the MH17 shoot down. The shoot down of the drone happened in roughly the same location as American forces from the USS Vincennes downed an Airbus A300 of Iran Air (flight 655) in a tragic incident on 3 July 1988, which caused a variety of political tensions and debate in the years that followed as to the motivations behind the shoot down.
Under international law however, families of the victims may be eligible for compensation from the air carrier Ukraine International Airlines as a matter of law, even if the airline is found to not be primarily at fault and even if the aircraft was brought down as a result of being mistargeted or targeted actively within the conflict zone. This was the case for passengers who lost their lives on Malaysia Airlines flight MH17, which was considered to have been brought down in a conflict zone by rebel forces but where the air carrier was still required to compensate the grieving families. The shooting down of MH17, after other events like Iran Air flight 655, led to the creation of an International Civil Aviation Organisation (ICAO) conflict zone risk information repository but that failed given the sensitivities of States sharing security intelligence in such a public way. As one of many convergent sources of information most carriers supplement their own intelligence with advisories locally and from major aviation safety regulators like the FAA and EASA.
In relation to whether airline compensation claims are possible, and the extent to which they could be made out, will vary depending on the routing/ticketing and itinerary of the passenger and a variety of complex associated jurisdictional questions to determine which private international air law scheme will apply to each passengers’ carriage.
There are two main international conventions that govern air carrier liability for international flights such as this, they are known as the Warsaw Convention 1929 and the Montreal Convention 1999 (MC99).
For the families of victims of flight 752, the question of liability as well as the limit will be live issues. If Ukrainian passengers had booked round trip travel to Iran, then it is likely the modern and passenger friendly MC99 would apply, but if others had booked only one way journeys between the two countries (eg one way Tehran to Kiev) then the limits on liability of the older Warsaw regime might apply to severely restrict the damages available to families.
For those passengers whose travel could be considered to attract the provisions of the MC99, then the freedom to sue in their home country might be an attractive option given that unlike Warsaw, the Montreal Convention permits passenger actions for death to be brought in the territory the passenger has his or her principal and permanent residence at the time of the accident, as long as some other requirements in relation to connection of the air carrier to that jurisdiction are also met.
In addition, under MC99 the limits on liability for death and injury have risen recently under the escalator clause, Article 24, of the Convention. Revised limits of liability established under Articles 21 and 22 of the Convention, in a currency tied to a basket of currencies known as Special Drawing Rights (SDRs), are effective as of 28 December 2019, as follows:
|Original limit (SDRs)||Revised limit (SDRs) as of 28 December 2019|
|Compensation in Case of Death or Injury to Passengers||100 000||128 821|
This means that for families who have lost loved ones, compensation may be offered up to 128,821 SDRs (or about $177,869.40USD at 9 January 2020 exchange rates) without need for proof of fault of the carrier under prevailing air carrier insurance arrangements which should be in place at Ukraine International Airlines. More may be available under certain conditions which we can advise on.
How we can help
IALPG has a long track record in aviation litigation and claims worldwide and is focussed on achieving the best outcomes for families affected by tragedies like flight PS752.
IALPG’s Legal Practice Director, Joseph Wheeler, was the lead lawyer in a team which resolved the claims of 38 Ukrainian and Russian citizens who lost their lives out of the 55 passengers lost on Flydubai flight FZ981 in March 2016. This was the last major crash of a Boeing 737-800 in civilian service before UIA flight PS752. He has also pursued cases for families affected by the tragic 2014 downing by missile of Malaysia Airlines flight MH17 over Ukraine.
IALPG is also pursuing a class action against Boeing with our partners at Chicago firm PMJ PLLC in the United States District Court for the Northern District of Illinois on behalf of more than 5,000 Boeing 737 MAX pilots from 16 airlines worldwide who were financially and socially aggrieved by the issues which led to the grounding of the MAX in March 2019 after the second of two fatal crashes of the MAX (see 1:19-cv-05008 Pilot X v. The Boeing Company, In re: Boeing 737 MAX Pilots Litigation).
For information about compensation or your rights following air crashes contact us at firstname.lastname@example.org or +61 7 3040 1099.