Liability for Acts of Terrorism: The New Unlawful Interference Convention

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Liability for Acts of TerrorismThe New Unlawful
Interference Convention
Michael Gill, Senior Legal Counsel IATA

• McGill University - Institute of Air Space Law
• 31 October 2009

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The search for a fair compromise

• IATA advocated a purist approach States, not
  airlines, are targets of terrorist activity
• We sought a reasonable compromise which would
  provide
• Legal certainty
• Compensation for victims
• Protection for the airlines and other industry
  stakeholders

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The essential feature - the liability cap

• Airline or its employees acted intentionally or
  recklessly and with knowledge
• Act of employee airline must prove that an
  appropriate system for selection and monitoring
  of staff has been established and implemented
• Rebuttable presumption that an airline has not
  acted recklessly if it proves that a system to
  ensure compliance with Annex 17 of Chicago
  Convention in its home State has been established
  and implemented

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Does the Convention provide balance?

• Strict liability for risk of damage which is not
  aimed at airlines
• Liability cap is weak
• Airlines are uncomfortable with exclusive remedy
  restrictions on recourse
• Overall scheme is unfairly weighted against the
  airlines

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Operational challenges of the International Fund

• Any additional charge on airline tickets/air
  waybills presents commercial issues
• The airline is responsible for remittance of
  funds will it be feasible to pass on
  contributions to passenger/shippers ?
• Airlines must weigh up the cost/benefits of the
  Convention scheme without knowing the exact level
  at which contributions will be set

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Entry into force

• 35 ratifications
• Only 7 signatories so far
• 750,000,000 departing passengers per year
• Some scenarios