As the investigation into the downing of a Ukrainian passenger aircraft near Tehran, Iran last week continues, many questions remain unanswered, including how the families of the victims killed in the crash will be compensated.
An international treaty known as the Montreal Convention governs the liability airlines have and sets rules for compensation if there disruptions or damages during a flight — but it has not been put into force in all countries.
On Saturday, Iran admitted that its military “unintentionally” shot down the plane, killing all 176 aboard, including 57 Canadians, after repeatedly denying it was responsible.
In a statement, Iran said the country’s military was on high alert due to “unprecedented threats” from the U.S. and that the aircraft was approaching a “sensitive military base” belonging to the Revolutionary Guards Corps after takeoff.
In an interview with Global News on Monday, Prime Minister Justin Trudeau said Canadian officials would be hosting a meeting with international partners in London on Thursday to discuss the “next steps.”
He said Canada has demanded full admission and acknowledgement of responsibility from Iran and added that some form of compensation is “going to have to come.”
What is the Montreal Convention, and what does it say?
The Montreal Convention is an international treaty that governs the liability airlines have for passengers, baggage and the transportation of goods.
It came into force in 2003 and modernized rules established in the 1929 Warsaw Convention.
The Montreal Convention was adopted by some — but not all — of the member states of the International Civil Aviation Organization (ICAO). In Canada, the Montreal Convention was incorporated into the Carriage by Air Act, meaning it has the force of law.
When it comes to bodily injury or death, the treaty says an air carrier is liable for damages sustained in an accident that took place on board or while embarking or disembarking from an aircraft.
According to the Montreal Convention, an air carrier is liable for damages of up to 128,821SDR (Special Drawing Rights) — approximately C$230,000.
The airline is strictly liable up to this amount, meaning passengers do not have to prove fault, just an amount.
In an email to Global News, air passenger rights activist Gabor Lukacs said there is “no defence available for such liability.”
He said a passenger can claim as much as they want, but the amount of compensation is ultimately decided by the court, based on the law.
“Up to $230,000 liability is statutory,” he explained. “So the only question is how much damages were incurred.”
The airline can avoid paying more, though, if it can prove that the damage was not due to negligence or another wrongful act, or if it can prove the damage was due solely to the negligence or wrongful act of another party.
How does it apply to the plane crash in Iran?
Lukacs said that when it comes the crash in Iran, the plane was operated by Ukraine International Airlines, which means the airline is liable to compensate the victims’ families.
In Ukraine, the Montreal Convention went into force in May 2009, according to the ICAO.
“The airline would have to compensate the passengers,” Lukacs said in an email to Global News. “And then the airline may try to recover its losses from other parties.”
According to Lukacs, in this case, the airline’s decision to fly in a conflict zone would make it “very difficult” to defend against having to pay damages beyond the base $230,000.
“It is important to note that under the Montreal Convention, the onus (burden of proof) is on the airline, not the passengers, when it comes to defences,” he explained.
Yevhenii Dykhne, the airline’s president and chief executive officer, has claimed the airline followed security procedures and had “no information about possible threats” when the aircraft departed from Boryspil airport in Kyiv, Ukraine.
“At the time of departure from Tehran, it was exactly the same,” he said.
The airline’s vice-president, Ihor Sosnovsky, has placed the blame squarely on Iran, saying it was “completely irresponsible” that the country’s airspace was not closed ahead of the incident.
What has Ukraine said?
In a statement on Saturday, Ukrainian President Volodymyr Zelenskiy said he expects Iran to compensate the victims’ families.
“We expect from Iran assurances of their readiness for a full and open investigation, bringing those responsible to justice, the return of the bodies of the dead, the payment of compensation, official apologies through diplomatic channels,” Zelenskiy said.
Earlier on Saturday, Ukrainian Prime Minister Oleksiy Honcharuk said the country would pay each of the victims’ families US$8,350 and that diplomats were working on how to receive compensation from Iranian authorities.
Is the Montreal Convention an adequate way of compensating families?
Lukacs said that while the Montreal Convention is “far from perfect,” it does provide some basic protection to passengers.
“The basic tier liability limit of $230,000 is inadequately low with respect to the jurisprudence on damages for death in North America but is an absolute liability,” he wrote. “The airline cannot weasel out of it.”
He said the treaty also clarifies where passengers can sue for damages.
“Overall, the uniformity and the guarantees that the convention brings to passengers creates a better situation than if it did not exist,” he said. “Passengers would be worse off without it.”
— With files from Reuters