LIABILITY IN AIR TRAVEL: KENYA

(Aviation series 3)

Liability refers to the legal responsibility or obligation of an individual, organization, or entity to compensate for any harm, damage, loss, or injury caused to another party, either intentionally or through negligence. It can arise from breach of contract, tort (wrongful acts), or statutory duties. It often leads to the requirement to pay damages or fulfill specific legal obligations.

Liability in air travel encompasses various legal aspects. It ranges from passengers’ rights to the responsibilities of airlines and their crew. In Kenya, the Kenya Civil Aviation Authority Act has played a crucial role in regulating and overseeing civil aviation in Kenya, ensuring safety, airworthiness, and consumer protection, which indirectly affects the rights of passengers. The Consumer Protection Act affords passengers general protection against unfair trade practices and unsafe products or services, which can extend to aviation services.

1. Passenger’s rights

Passengers may be entitled to compensation for delays over a certain duration (e.g., 3 hours or more for long-haul flights), unless the delay is caused by extraordinary circumstances (e.g., weather, security risks etc.).  Passengers have the right to compensation if their flight is canceled, unless it was due to extraordinary circumstances, and if they were not informed sufficiently in advance.  In cases of canceled flights, airlines are generally required to offer passengers either a full refund or re-routing to their final destination at no additional cost. For overbooked flights, passengers may be entitled to compensation or the choice between re-routing or a refund under certain conditions.

Right to Care in the event of long delays (especially overnight), airlines are required to provide passengers with essential care, such as meals, refreshments, and hotel accommodation if necessary. Passengers are protected from discrimination based on nationality, disability, or any other unjustifiable reason during travel.

Passengers have a right to be protected from physical harm while traveling. Airlines must ensure that their aircraft are well-maintained, comply with safety regulations, and are staffed by adequately trained personnel.

2. Crew Responsibilities

• Duty of Care: Airlines and their crew members have a duty of care towards passengers, ensuring that their safety and well-being are prioritized. This includes providing clear instructions in emergencies, assisting with medical issues, and maintaining control over the flight operations to avoid accidents.
• The airline crew is responsible for conducting safety briefings before departure, ensuring passengers are familiar with emergency exits, seat belts, and the use of oxygen masks, among other safety measures. Crew members must also check that safety equipment (e.g., life vests, fire extinguishers) is readily accessible and functional.
• In-Flight Safety and Security: crew members are responsible for ensuring the safety of passengers during the flight, including handling medical emergencies, ensuring that passengers follow safety regulations, and intervening in cases of unruly passengers or potential security threats. Pilots are specifically responsible for the safe navigation and operation of the aircraft, ensuring adherence to aviation regulations.
• Ensuring Compliance with Aviation Laws: Crew must follow aviation regulations, including maintaining the security of the aircraft and its passengers, ensuring compliance with baggage rules, and adhering to the maximum flight time limits to avoid fatigue.
• 3. Types of Liability in Air Travel

1. Contractual Liability:  Airlines enter into a contract with passengers when a ticket is purchased. This contract outlines the airline’s obligation to transport passengers safely from one destination to another. Airlines are generally liable for breach of contract if they fail to perform the terms of the ticket agreement, such as cancellations without adequate notice or failure to provide the services promised.
2. Tort Liability (Negligence): If an airline or its crew fails to exercise reasonable care in ensuring the safety of passengers, it may be liable for damages under tort law (i.e., negligence). Examples of negligence include improper handling of baggage that leads to damage, inadequate maintenance of the aircraft, or failure to ensure the safety of passengers in emergency situations. If a passenger is injured due to crew negligence or airline failures, the airline may be held liable for medical costs, pain and suffering, and other damages.
3. Accident Liability: Airlines are strictly liable for certain types of damages in the event of accidents. For personal injury or death, airlines are strictly liable for injuries or fatalities caused during the flight, even if the airline is not at fault. Airlines are also responsible for compensating passengers for lost or damaged baggage during air travel. Airlines can also be held vicariously liable for the actions of their employees, including pilots, flight attendants, and ground crew, while they are acting within the scope of their employment. For example, if a flight attendant causes harm to a passenger through negligent actions, the airline may be held responsible for the harm caused.

4. Legal Recourse for Accidents

Claiming Compensation for Personal Injury or Death as passengers or their families are entitled to compensation for personal injury or death resulting from an accident during the flight, including during takeoff, landing, or while passengers are in the aircraft.Compensation may include medical expenses, lost wages, pain and suffering, and funeral costs in cases of death. Passengers must usually file a claim with the airline directly, though they may also take legal action in court if their claim is not settled.

If baggage is lost, delayed, or damaged, passengers have the right to file a claim with the airline.In cases of significant baggage damage, or if the damage was caused by the airline’s negligence, passengers can seek additional compensation.

Passengers who suffer harm due to the airline’s negligence may file a lawsuit in the jurisdiction where the airline is registered or where the accident occurred. Passengers can claim compensation for any damages that exceed the liability limits provided by international conventions. In case of serious accidents, families of deceased passengers may also pursue wrongful death claims against the airline.

Many airlines provide alternative dispute resolution methods, such as arbitration or mediation, to resolve complaints without going through formal court processes. This is particularly useful for smaller claims, such as those involving baggage issues or minor personal injury claims.

For Passengers, understanding your rights ensures that you are prepared for any issues that may arise during air travel, from delays to injuries. It also helps you in seeking compensation if things go wrong.

For Airlines, recognizing your responsibilities towards passengers and crew members and understanding the legal recourse available in the event of accidents or failures is crucial for compliance with aviation laws and maintaining good customer relations. It is crucial to ensure the safety, security, and fair treatment of passengers so as to be accountable and observe airline obligations under national and international laws.

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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