Ruwantissa Abeyratne

Many things happen on-board cruise liners and aircraft that can be traced to liability of the carrier. In maritime transport, there have been reports of outbreaks of food poisoning, Legionnaires’ disease, injuries, sexual assault and even murder on-board cruise ships. An accident which caught the attention of the world was when 32 people died after the Costa Concordia cruise ship ran aground with more than 4,000 passengers and crew on 13 January 2012, shortly after leaving the Italian port of Civitavecchia. Death or injury to passengers on-board ships could result in personal injury actions or wrongful death claims entitling them to substantial compensation for expenses and compensation. Cases of death and injury in air transport have been recorded in greater numbers, mainly because air transport carries more passengers across the globe. Some notable instances are the disappearance of Flight MH 370 and the shooting down of flight MH 17 in March and July 2014, respectively, both involving Boeing 777 aircraft carrying a large number of passengers. Furthermore, in air transport, there have been instances of injury caused by turbulence and other risks endemic to air travel, but there is a compensatory scheme applicable through multilateral treaties that give recourse to passengers and their dependents in the form of compensation, in a manner similar to compensation applicable to the liability regime in maritime transport. As this article discusses, the nuances of basic principles of liability and protection of the two types of carriers that exonerate them in certain circumstances are similar. But there are also glaring differences which will be highlighted in this article, which bring to bear the basic fact that for the most part, principles of liability in air law have upended the legal philosophy that applies on terra firma and to surface transport. From the fundamental principle of presumption of liability which shows a stark difference between the two modes of transport to cursus curiae which reflects that maritime law accords generally with principles of common law tort liability as against air transport law which approaches liability from a different angle, the principles of commonality and differences between these two types of transport can be attenuated.

negligence; wilful misconduct; liability of cruise lines; liability of air carriers; passenger rights; maritime law; air law; Athens Convention; Warsaw Convention; Montreal Convention
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In early 2017, the International Civil Aviation Organization (ICAO) published its figures for 2016, which indicated that the total number of passengers carried on scheduled air services reached 3.7 billion in 2016, a 6.0 per cent increase over 2015. This exponential growth pattern has been constant over the past decade. In addition, ICAO stated that over half of the world’s tourists who travel across international borders each year were transported by air over the years, as was in 2016 as well. The International Air Transport Association, a trade association of airlines, has forecast that airlines were going to make a net profit of $29.8 billion in 2017.

In 2016, Cruise Lines International Association (CLIA), in its 2016 State of the Cruise Industry Outlook, demonstrated the continuous growth in global cruise travel which is continuing to grow and evolve at a record pace. CLIA estimated that in 2016, 26 million passengers were to be carried in the 60-member cruise line companies operating.3 CLIA also states that demand for cruising has increased by 68 per cent in the last decade, and in the United States, cruising is 22 per cent more than other leisure travel.

Despite the enormous difference in numbers between the two modes of transport, the legal regimes pertaining to the two have provided similar rules and laws that are calculated to protect and compensate the passenger. There are of course some fundamental differences which are largely due to the different nature of travel involved in the two modes of transport. Despite this, one sees consistency in principles of compensatory limits, fault on the part of the carrier and negligence, along with matters of jurisdiction which bring to bear the need to examine the legal principles applicable to each mode of transport with a view to determining the similarities and differences that emerge from such a discussion.