The Air Crash in Colombia – Some Consequences

Arguably the watershed decision on the notion of wilful misconduct in recent times was contained in the case In re Korean Airlines Disaster of September 1, 1983 where the trial court considered wilful misconduct to be: “The performance of an act with knowledge that the act will probably result in an injury or damage, or in some manner as to imply reckless disregard for the consequences of its performance”


by Dr. Ruwantissa Abeyratne

( December 3, 2016, Montreal, Sri Lanka Guardian) On 28 November, Flight 2933 operated by Bolivian-based charter airline Lamia, which was operating from Santa Cruz de la Sierra, in Bolivia, to Medellin in Colombia, ran out of fuel and crashed, killing 71 people. In the aircraft were members of Brazil’s Chapecoense football club, most of whom perished. Only six passengers survived. The up and coming club was the hope of Brazilian soccer and its members were looked upon as future international stars having stellar careers in the sport that had the potential of making them high income earners.

There are several preliminary facts to be considered. Firstly, investigators have opined that the plane crashed due to lack of fuel. According to Lamia, an intermediate stop in Bolivia had been planned for purposes of refueling but the flight had missed a stop in Cobija, in northern Bolivia, because the airport was closed at night. The pilot had mentioned the Colombian capital Bogota as a possible refueling stop, but had instead headed straight to Medellin, thus opening up a debate as to whether the crash, and loss of lives of so many young persons could be ascribed to the professional negligence of the pilot.

This was an international flight between two sovereign States. Both Bolivia and Colombia have ratified the Chicago Convention of 1944, Article 26 of which provides that in the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs is required to institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by the International Civil Aviation Organization. The State in which the aircraft is registered is given the opportunity to appoint observers to be present at the inquiry and the State holding the inquiry has to communicate the report and findings in the matter to that State. Therefore, the responsibility of investigating the accident devolves upon Colombia while Bolivia can appoint observers to participate in the inquiry.

Bolivia ratified in 2015 the Montreal Convention of 1999 which prescribes unified rules for the carriage of persons and freight by air, which Colombia had also ratified in 2003, making the principles contained in the Convention applicable to issues of liability of Lamia for death or injury caused to the passengers on board the aircraft which crashed. Article 17 of the Montreal Convention states that 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. The fact that the Lamia crash was an accident and that death or injury took place on board or in line with legal interpretations given to “embarking or disembarking” is not in question.

Article 20 addresses the issue of liability by stating that if the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier would be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier is likewise wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that

Article 21 addresses the issue of compensation by providing that for damages arising under Article 17 (text given above) not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. This means that the carrier would be strictly liable (no questions asked) up to an amount of 100,000 SDRs. If the carrier is able to prove that: either such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or such damage was solely due to the negligence or other wrongful act or omission of a third party, the carrier can avoid liability in excess of the strict liability amount of 100,000 SDRs.

Article 28 stipulates that in the case of aircraft accidents resulting in death or injury of passengers, the carrier is bound, if required by its national law, to make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments would not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier. The right to damages would be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

Lamia can avoid damages in excess of SDR 100,000 only if it proves (and the onus of proving is on the carrier) that the accident did not involve any negligence or wrongful conduct, or omission of the carrier or its servants (the pilot in this case), or that the accident occurred due to the negligence of a third party not linked to the carrier (such as a passenger). If therefore a wrongful or erroneous decision was taken by the pilot where the pilot knew or ought to have known that the aircraft could not safely make to its ultimate destination without being refueled, the airline would be effectively precluded from proving its innocence that would entitle it to be limited to the upper limit of SDR 100,000.

There are two key factors which govern the civil liability of airlines. They are, the presumption of liability that is imposed upon the airline and the liability limits that apply to protect the airline from claims over the strict liability limit. In the 1967 case of Emery and others v. SABENA the court held that, in the consideration of the pilot’s negligence, an objective test would apply, and the normal behaviour of a good pilot would be the applicable criterion. The court held that: “whereas the plaintiffs need not prove, apart from the wrongful act, that the pilot of the aircraft personally had knowledge that damage would probably result from it; it is sufficient that they prove that a reasonably prudent pilot ought to have had this knowledge”. The court rationalised that a good pilot ought in the circumstances to have known the existence of a risk and no pilot of an aircraft engaged in air transport ought to take any risk needlessly.

Arguably the watershed decision on the notion of wilful misconduct in recent times was contained in the case In re Korean Airlines Disaster of September 1, 1983 where the trial court considered wilful misconduct to be: “The performance of an act with knowledge that the act will probably result in an injury or damage, or in some manner as to imply reckless disregard for the consequences of its performance”

It would be interesting to see what comes out of the litigation process. The deceased soccerites had the potential to achieve great heights in their professional status and demand high incomes. The claims and awards could be high if the airline cannot prove absence of negligence on its part.


The author is former Senior Legal Officer at The International Civil Aviation Organization. He now heads his aviation consultancy firm in Montreal


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