Liability to Passengers in Military Aircraft

Extract

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Liability to Passengers in Military Aircraft

This article discusses the rights and remedies for sur-vivors of disasters ihvobing aircraft owned 07 chartcred by the wilitory. Recovery through the Federel Tort Claims Act, and other judicial and administrative pro-cedures, along with limitations, svch w the Warsaw Con-vention, the Pre-flight Waicer, and the "incident to service" doctrine. are conridered bu the author. Concluding that the remedies in general are adequate, the aethor hope8 that some of the concepts behind the limitn. tions tcill be elucidated, in order not to frustrate legis-lative inteat.

I. INTRODUCTION

Air travel has became commonpiace in the twentieth century. Huge jet planes carry scores of passengers across the United States in six to eight hours and span the oceans in a slightly longer time. The cammercd air transportation industry is mammoth, but the largest of the corporate giants constituting that industry is rivaled by the aviation activities of the Federal Gov-ernment through its Armed Forces.

Tragedies are as much a part of military aviation as they are of the commercial industry, and when a military plane falls into the ocean, crashes into a mountain, or cracks up on take-off, a host of complex and entangled legal questions arise. The basic question spawned by B military aircraft disaster is the Same as that arising from the fall of a commercial aircraft, to wit: What are the legal rights of injured parties? The right8 of injured parties in the latter case is, of course, governed, for the most part, by local law. In the farmer case, where the defendant 1s the Knited States, the question is more difficult to answer.

Therefore, this article examines Some of the legal issues flowing from a military aviation disaster with a view, toward determining the rights and remedies of passengers an military aircraft for personal injury and desth. The inquiry extends beyond purely

'This article WBP adapted from a thesis presented to The Judge Advocate General's School. U.S. Army, Chariotteauiile. Virpinia, while the author

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B member of the Fifteenth Advanced Course. The apimoni and eonelu-s i m Presented herein m e those of the author and do not neceanarily represent the view of The Judge Advocate General.. School or any other governments1 agency.

**JAGC, US. Army:

AGO 58aB 101

"military flights" because the .4rmed Services mwe significant numbers of service members, employees, and their dependents by charter Rights. Since the purposes of the charter flights are either military or have a military connection, a discussion of certain aspects of liability to passengers thereon is warranted. As used herein. the term "military flight" refers to those flights performed by the Armed Forces. The term "military charter flight" refers to flights by commercial airlines under contract wvith the military establishment.

Military planes operate around the world. Accordingly, the scope of this article extends to accidents on the high ~easand in

foreign countries. Since aviation cases involve B determination of the applicable Ian by which the substantive rights of the parties will be measured. it is necessary to consider the choice of iaw rules in aviation cam where the United States is the defendant, In the case of certain classes of passengers, the Armed Services generally require, as a condition of passage, that a pre-flight waiver af liability be executed. This practice is examined against the background of the Federal Tart Claims Act and case law. Further, in view af the world-vide operation of military aircraft and the charter flight activity of the Armed Forces, it 1s

also appropriate to discuss some aspects of the Warsaw Convention,? an internatlanai agreement concerning international transportation by air, to which the United States is a party. Finally, since there are situations wherein no judicial remedy exists on behalf of a person injured or killed on a military aircraft, mention will be made of other possible avenues through which redress may be obtained.

There is no dearth of scholarly articles dealing with aviation accident law generally. However, no writer to the knowledge of this author, has devoted specific attention to the field of military aviation and the particular legal requirements which must be met before the Federal Government will be held liable for negligence. To illuminate this narrow area, then, is the purpose of this article. In many areas the law is still developing; in others the courts are in conflict; in still others, there has been no significant case experience. Thus, more questions may be raised herein than are answered. It is hoped, nevertheless, that this article will serve as a source of answers to threshold questions on the present state of the lau- in the areas discussed and further, as a direction

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-18 Us.c. gg 134601, 2611-80 (1864) [hereafter called FTCAI.

s Convention for the Unification of Certain Rules Relatlng to Interna.

tional Tranrprtatian by Air, 49 Stat. 3000 (1934) [herea...

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