Dr. Turki Musleh Hamdan
Associate Professor of Commercial Law,
Law Programme, Al Buraimi University College,
Sultanate of Oman

Abstract:

Air transport is considered the safest means at the global level, but this does not mean that the users of this means of transport are not exposed to danger, so the international legislator has decided to determine the legal regulation of civil liability for damages to passengers arising from air accidents, and this has emerged through the Warsaw Convention of 1929 and the Montreal Convention of 1999, which adopted a balanced position in which the interests of the air carrier on the one hand, and the interests of the passengers on the other hand, were taken into account, but despite that, deficiency affected their provisions: the legal regulation of their provisions did not extend to the responsibility of the aircraft manufacturer for air accidents that are due to a hidden subjective defect in it. This is one of the most important and prominent legal issues about which disputes are raised before the judiciary, and this is what happened in the explosion of the Boeing 737 Max 8 – Ethiopian Airlines Flight 302.
We raise through this study the following problems: is it sufficient to commit a mistake by an air carrier to activate the rules of responsibility that have been enacted in order to preserve the rights of the harmed person – the traveller? What is the responsibility of the aircraft manufacturer for the damage caused by a defective aircraft to the passengers and operators of the aircraft? What is the nature of the aircraft manufacturer›s obligation to ensure that the product is fit for use?
At the end of the study, I reached a set of results, the most important of which are: the air carrier is obligated to take the usual care to prepare his plane according to the rules, and therefore he is not responsible for any technical defect he does not know or is unable to detect, if there are no indications of it and it is not mentioned in the user’s manual, and the technical team was not trained on product/plane malfunctions. The carrier can, in order to disclaim his responsibility, rely on the aircraft’s airworthiness certificate, and the inspection certificate carried out by specialists to ensure its readiness for take-off. The study also concluded that the prevailing legislative trend today in consumer protection laws tends to tighten the responsibility of the professional – aircraft manufacturer -, which made his responsibility objective for the damages resulting from the hidden defect in his product, especially since the traveller is not responsible for the existence of a technical defect in the machine that is used to provide him with the required service. Rather, this falls on the shoulders of the service provider, the air carrier, who in turn proves that he had taken all the necessary measures to ensure the performance of the required service.
The study recommended the necessity of amending the texts of air law agreements by re-drafting the texts of the articles related to paying the liability of the air carrier by adding the phrase (unless the damage is due to a subjective defect in the aircraft). It also recommended amending the provisions of the air law, and clarifying the inclusion of compensation, its entitlement mechanism and its amount in relation to the injured passenger›s successor, or anyone who is affected by material or moral damage as a result of the rebound damages.

Key words: Air carrier liability, passenger damage, air accidents, Warsaw Convention of 1929, Montreal Convention of 1999.

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