Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

1. Legal opinions of the Secretariat of the United Nations

   (issued or prepared by the Office of Legal Affairs)

   CLAIMS, COMPENSATION AND LIABILITY ISSUES

   1. INJURIES SUSTAINED BY A STAFF MEMBER IN THE CRASH OF A HELICOPTER WHICH

      WAS NOT UNDER CONTRACT WITH THE UNITED NATIONS—CHARACTER OF THE BOARD OF INQUIRY REPORTS AND THE UNITED NATIONS POLICY NOT TO RELEASE THEM TO PRIVATE INDIVIDUALS OR ANY OTHER OUTSIDE PARTIES UNLESS IT IS DEEMED WARRANTED IN AN EXCEPTIONAL CASE—CIRCUMSTANCES OF THE CASE JUSTIFYING RELEASE TO THE STAFF MEMBER IN QUESTION OF THOSE PARTS OF THE BOARD OF INQUIRY REPORTS WHICH SET FORTH A FACTUAL RECORD OF THE HELICOPTER CRASH—CLAIM FOR COMPENSATION UNDER APPENDIX D TO THE UNITED NATIONS STAFF REGULATIONS AND RULES

      Memorandum to the Director of the Field Operations Division, Office of General Services

   1. Reference is made to your notes of 9 and 18 February and 10 March 1993 in which you forwarded to this Office various letters from a United Nations staff member who was an Electoral Observer with the United Nations Angola Verification Mission in Angola (UNAVEM) and his attorney in connection with the (name of a company) helicopter crash.

   2. We understand that the helicopter which crashed and in which the staff member in question was a passenger and sustained injuries was not under contract with the United Nations. Both the staff member and his attorney have requested from the United Nations copies of the insurance policy (we assume such request relates to third-party liability insurance maintained pursuant to the contract) and the accident report of the crash, and any other information, such as the party to the contract with the company in question. The stated reason for that request is to evaluate the possibility of bringing a claim against the company in question in an American court for the personal injuries sustained by the staff member in the crash. We have been in contact with UNAVEM officials in order to obtain information on this matter and set forth our findings below.

   3. We understand that the subject helicopter was one of the helicopters under a contract between the company in question and the Government of

      Angola for air transportation services for the National Electoral Council of Angola. The funding for that contract was provided by the European Communities.

   4. Under the said contract, the company in question was obligated, inter alia, to indemnify the Government from and against all actions, claims, losses or damages arising out of the failure of the company in question to perform its obligations under the contract, subject to certain conditions, e.g., the company's liability is limited to the amount of the contract. In addition, the company was obligated to maintain, inter alia, third-party liability insurance up to the amount of the contract.

   5. In regard to the request for a copy of such insurance policy, we suggest that the staff member concerned and his attorney be informed that the party to the contract with the company in question was the Government of Angola and that the United Nations does not have a copy of the insurance policy maintained by the company in question pursuant to that contract. You may wish to suggest that the attorney contact the company directly in order to obtain a copy of the insurance policy as well as a copy of the contract.

   6. With respect to the accident report, we note that a Board of Inquiry report was prepared pursuant to the convening of such a Board on 20 September 1992 to investigate, inter alia, the circumstances of the helicopter crash. In this connection, we wish to point out that, even though the helicopter was not under contract with the United Nations, it contained the "UN" marking and was given number "UN-09". It is not completely clear to us why this occurred. However, we understand that it may be related to the coordination of air transportation in Angola which it appears was being carried out by UNDP pursuant to plans agreed to by UNAVEM and UNDP officials. We observe that UNDP seems to have authorized the particular flight in question on 19 September 1992.

   7. As you know, a Board of Inquiry report serves to assist the Organization in determining the circumstances and cause of an injury or loss and in establishing whether there is any responsibility therefor on the part of the Organization. Insofar as BOI reports are internal and confidential documents re-lating to the official functions of the Organization, it is the policy of the United Nations not to release such reports to private individuals or any other outside parties unless it is deemed warranted in an exceptional case. Furthermore, all documentation belonging to or held by the United Nations is inviolable pursuant to article II, sections 3 and 4, of the Convention on the Privileges and Immunities of the United Nations;1 therefore, outside parties cannot gain access to such documentation by subpoena or through other judicial action unless the Organization decides to provide the same on a voluntary basis.

   8. We believe that it is important to maintain the Organization's general policy of non-disclosure of Board of Inquiry reports; however, we also con-sider that, when a staff member sustains injuries while serving in a United Nations peacekeeping mission, he/she should be able to obtain a factual record of the incident for the purposes of evaluating the possibility of pursuing a claim against a third party. We note that the staff member in question and his attorney have requested the accident report for such purpose. We further note that our understanding from UNAVEM officials is that no local police report giving a factual summary of the incident seems to have been prepared.

   9. On the basis of the reasons set out in paragraph 8 above, it is our view that, in the interests of justice, the United Nations could release to the staff member in question and his attorney those parts of the Board of Inquiry report which set forth a factual record of the helicopter crash on 19 September 1992. However, the aspects of the Board of Inquiry report which present the opinions, conclusions and recommendations of the Board members, as well as the names and statements of the crew and of UNAVEM and the officials of the company in question, should not be released. We have reviewed the Board of Inquiry report and attach hereto copies of those parts which we consider could be released to the staff member in question and his attorney to provide a factual account of the crash without compromising the interests of the Organization. We would highlight, however, that the Organization in so acting would be exceptionally releasing the information on account of the particular circumstances of this case, and thus the release does not constitute a waiver of the privileges and immunities of the United Nations—a matter that should be emphasized in any communication with the staff member in question.

   10. We understand that the staff member in question has submitted a claim for compensation under appendix D to the Staff Regulations and Rules and that, in connection with that claim, the Advisory Board on Compensation Claims has been investigating the circumstances under which the staff member in question was on the helicopter under contract with the Government. Since the staff member is contemplating bringing a claim against the company in question, we would advise that he and his attorney be informed that, in the event the staff member is awarded compensation under appendix D, the award will be subject to, inter alia, the provisions of section II, article 6, of appendix D. That article reads:

       "Article 6. Claims against third parties

       "(a) If a death, injury or illness for which compensation may be awarded under these rules is caused in circumstances which, in the opinion of the Secretary-General, create a legal liability in a third person to pay damages therefor, either to the staff member or to another person who is entitled to compensation under these rules in respect of the death, injury or illness, the Secretary-General may, as a condition to granting such compensation, require the member of the staff or such person to assign to the United Nations any right of action to enforce such liability, or to participate with the United Nations in prosecuting such action;

       "(b) The staff member or such person shall furnish the United Nations with such data and evidence as may be available to him for prosecuting such action and render the United Nations all other assistance which may be required for prosecuting such action. The staff member or such person shall not settle any claim or action against such third person without the consent of the United Nations, but the United Nations shall be en-titled to settle or require the staff member or such person to settle any claim or action against such third person upon such terms as seem reasonable to the United Nations;

       (c) If the staff member or such person, or the staff member or such person and the United Nations prosecute to judgement or settle any claim against such third person or make any settlement of such claim, the proceeds derived therefrom shall be used (i) to defray the costs of the suit or settlement, including reasonable attorney fees, and (ii) to reimburse the

       United Nations for any compensation including expenses of medical services provided under these rules with respect to the death, injury or illness. The balance, if any, shall be paid over to the staff member or such person and the United Nations liability under these rules shall to that extent be reduced.

       23 April 1993

   2. REQUEST FOR ADVICE ON CLAIM BY A MEMBER STATE TO THE UNITED NATIONS

      FOR REIMBURSEMENT OF THE COSTS OF ATTENDING THE UNITED NATIONS COMPENSATION COMMISSION MEETINGS—SECRETARY-GENERAL'S BULLETIN STY SGB/107/REV. 6

      Memorandum to the Assistant Secretary-General, Department of Political Affairs

   1. This is with reference to your memorandum of 23 July 1993, by which you requested our...