General Overview on Legal Liability of Commercial Aircraft Crash in Indonesia

2. Convention for the unification of certain rules for international carriage by air ("Montreal Convention 1999")

Indonesia ratified Montreal Convention 1999 on 21 November 2016 which was implemented into Indonesian national law through Presidential Decree number 95 of 2016 and came into force on 23 November 2016. Montreal Convention 1999 is a new, separate and independent instrument (not an amendment of the Warsaw Convention) that provides better preservation for passengers, facilitated operations for air cargo loaders and increased reliability for airlines. Likewise, Montreal Convention 1999 applies to all international carriage of persons, luggage or goods by aircraft.

According to Montreal Convention 1999, the airline is liable for damage sustained in case of death or bodily injury of passengers upon condition only that the accident which caused the death or injury took place on board the aircraft or during the course of embarking or disembarking. The Montreal Convention raises compensation for damages up to 100,000 Special Drawing Rights (SDR) or approximately equivalent to IDR 2 billion for each passenger and the airline cannot exclude or limit its liability. However, in case the damages of death or injury of passengers exceed 100,000 SDR for each passenger, the carrier is not liable for such damages if they can prove that (i) such damages did not arise from negligence or other wrongful acts or omissions of the carrier or its servants or agents; (ii) such damages were solely due to the negligence or other wrongful acts or omissions of a third party. Similar to the Warsaw Convention, the Montreal Convention also provides that the rights to the damages will be extinguished if the passenger is silent for a period of two years, from the date of arrival to the destination, from the date the aircraft should have arrived or from the date the carriage stopped.

Moreover, Montreal Convention 1999 provides wider choices of jurisdiction than Warsaw Convention by establishing the fifth jurisdiction as an option for the passenger to claim for damages, which is before the court at the passenger's principal and permanent residence during the time of the accident. Another development provided by the Montreal Convention 1999 is the parties may choose arbitration to resolve the dispute. However, with regard to its implementation in Indonesia,  there has not been any court decision that interprets the provisions of the Montreal Convention 1999 considering Indonesia just ratified the Montreal Convention 1999 in 2016.

Relevant Domestic Laws

In Indonesia, civil aviation is regulated primarily by Law Number 1 of 2009 regarding Aviation ("Aviation Law"). Aviation Law provides that an airline shall be liable for damages resulting in the death of passengers and indemnity of the death of passengers, permanent disability or injuries caused by incidents on board the aircraft and/or while getting on or off the aircraft, including the intentional action or fault of the airline or any of its employees.

Ministry of Transportation Regulation Number 77 of 2011 regarding the liability of air carriers ("MOTR 2011") further regulates compensation in the amount of IDR 1.25 billion per person for death of a passenger or total permanent injuries and IDR 500 million for death of passenger boarding or disembarking an aircraft at the airport. Regardless, Aviation Law and MOTR 2011 provides the passengers or their beneficiaries with legal rights to seek additional compensation other than amounts stipulated in MORT 2011 to the civil court within the territory of Indonesia by using Indonesian law. However, the maximum time limit to file the lawsuit shall be declared expired after a time period of 2 years from the date of arrival at the destination.

Aviation Law and MOTR 2011 are silent on liability of aircraft manufacturers toward passengers. The laws only recognize the liability of the carrier or the airline towards their passengers. However, in practice, the manufacturer of the aircraft and component parts is frequently included in lawsuits, as a party potentially liable for the crash, if mechanical failure or a product defect contributed to the crash on the basis of tort or unlawful act under Article 1365 of the Indonesian Civil Code.

Lastly, the laws and regulations above hopefully ensure that rights of passengers do not fall behind, which can offer peace of mind while traveling.

The writer is an associate lawyer of an Indonesian law firm in Jakarta. No part of this article should be taken as legal advice.