HOW TO CLAIM COMPENSATION IN AN AIRLINE CRASH: KENYA

(Aviation series 4)

In our previous legal insight: aviation series 3, we looked at liability in air travel. You can access the insight via link: LIABILITY IN AIR TRAVEL: KENYA – A.O.Wanga Advocates in this article we discuss how one can claim compensation for his/her dependant in case of a plane crash. It is important to note that whenever a passenger books a fight and pays for the ticket, there is established a contract of carriage between the passenger and the airline involved. This contract of carriage is a legally binding contract enforceable in law.

Kenya is a signatory to the (Monreal Convention 1999) formally known as the Convention for the Unification of Certain Rules Relating to International Carriage by Air. (the Convention came into force on 4^th November 2003).

Article 17 of the Monreal Convention on Liability of the Carrier and Extent of Compensation for Damage Provides that:

1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.
3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

Article 19 on delay provide that “the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”.

Now, whenever there are fatal airline crashes, insurers and the airlines concerned tend to approach dependants of the deceased or victims for negotiation and compensation to avoid battling claim cases in different countries with different jurisdictions. Sometimes, the airlines set the maximum claims per person especially if the airlines can demonstrate there was no negligence on their part.

Under the Monreal Convention below is an overview of the compensation limit set. These limits are reviewed after every 5 years:

In case one intends to claim compensation from an airline after a plane crash, one is required to do the following:

1. Obtain all information and documentation relating to the flight. These may include:
2. Prior correspondence with the airline.
3. Ticket receipts.
4. Boarding passes.
5. Receipts for extra expenses.
6. Photos and other visual assets that could fortify your case.
7. Fill and file a compensation claim with the airline. Most airlines have a process of filing complaints and claim either online or by physically visiting their offices.
8. Lodge a formal complain with the airline. This can be done by sending a demand letter.
9. If the airline fails to respond or act, you can escalate the case to the ministry responsible for transport and other internal state agencies in charge of aviation.

Note: It is advisable to always try alternative dispute resolution before resolving to court as the last resort option.

At A.O. WANGA ADVOCATES we are happy to assist you with all your aviation matters in Kenya. For more information or assistance in Aviation law contact us on info@aowangaadvocates.com or +254794600191

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