Segala and others –v- Pakistan International Airlines
Tribunal Civile of Milan, Third Section, 3 December 2001
European decisions on the applicability of Article 25 in major air accidents are rare. We understand this to be only the third occasion on which the Italian Courts have found against an air carrier in a major air accident. We are grateful to our legal corespondants in Italy for drawing our attention to this decision concerning the payment of damages under the amended Warsaw Convention.
The Claimants sued PIA for damages arising from the death of their relatives on 28 September 1992, when a PIA A300 crashed into a hill south of Kathmandu, Nepal. The aircraft was flying an approach about 1,600 feet lower than the approach profile and collided with high ground. The event happened in daylight and in IMC. All 12 crew members and 155 passengers were killed.
The Court concluded that the captain probably made a wrong initial reading of the approach plate, but the Court could not understand how the original mistake was not detected by the other crew members and why other available instruments (DME, altimeter, etc.) were not used.
According to the Court reconstruction (based on an Annex 13 report on the accident prepared by the Nepal Government Commission, which the court allowed as admissable evidence) the flight crew advised ATC at Kathmandu that their position complied with the landing instructions, although the aircraft consistently flew lower than it should have. In particular the Court concluded that the aircraft descended below the authorised altitude and that at 16 DME ATC was told that the aircraft was flying at 11,500 feet instead of 10,500 feet. Furthermore the aircraft was also flying faster than instructed.
The Court came to the conclusion that the crew were aware of their incorrect position, altitude and speed, but did not mention it to ATC.
The Court held that the cause of the accident lay in the:
"deliberate conduct of the captain who, with the co-operation of the other crew members, followed too low a route with excessive speed, against the standard and recommended approach procedure, in order to make a faster and easier descent, trusting in his own flying capabilities and believing it to be possible to return to the correct descent profile; he acted recklessly out of his own intentional choice, and outside any safety standard."
And also,
"The reticent, malicious and false actions of the captain, accepted by the entire crew, obviously intended to hide the risk to the lives of the passengers from the control tower, and show, according to this Court, the knowledge that damage could have been caused, but that the same could have been avoided …"
According to the Court the captain must have been aware of the high likelihood that an accident would result, and was reckless. Accordingly the Court concluded that the test under Article 25 was satisfied and PIA was therefore sentenced to pay compensatory damages to the passengers’ relatives without the limitation of Article 22.
There are a few consoling factors for potential defendant airlines and their insurers.
First, the Court reasoning for the admission of the Annex 13 report is unconvincing and disregards the principle that such reports are not intended to determine criminal or civil liability but only to issue safety recommendations.
Secondly, it is difficult to avoid the conclusion that the Court was result-orientated and therefore interpreted the accident report throughout with this objective in mind.
Thirdly, the Italian Courts do not observe a doctrine of precedent so the reasoning cannot be relied on in future cases. In addition, the decision was rendered by a first instance court, so it should be of limited influence.
Finally, we understand this to be one of the few occasions on which the Italian Courts have concluded the Art. 25 test was satisfied in a major air accident case. The others of which we know include a 1967 judgment following an ITAVIA loss off Elba and a number of judgments -including a Corte di Cassazione (Italy’s highest court) decision - following an Empresa Consolidata Cubana de Aviacion loss in 1989 at Havana airport.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
