Gaunty,
I would suggest that it really comes back to the operator/carrier as the final stop in the liability process. Book a seat from Sydney to Chicago with Qantas. Change carriers at KLAX and travel on with a non-code share carrier for instance. Any grief along the way will fall to the relevant carrier even though the ticket is issued by Qantas. Any legal action against Qantas for an error by American carriers would simply be passed on. Viz.
http://www.qantas.com.au/flights/essentials/insur.html
Comprehensive passenger liability insurance is in place for passengers on all flights operated by Qantas or flights operated by our codeshare partners which have a QF flight number.
If Qantas or a travel agent on its behalf has issued a ticket for another carrier's flight (ie with a flight number other than QF), Qantas has done so only as agent for that carrier and does not represent or warrant that the carrier has appropriate insurance coverage. Inquiries concerning insurance coverage on these carriers should be directed to the applicable carrier.
Duty of care is the responsibility of the carrier, not the agency responsible for organizing the travel whether that agent be another charter company, a travel agent or some government clerk responsible for booking a fellow employee onto a charter flight. Unless of course, the agent was knowingly aware of an impediment detrimental to the safety of the others operation – then he has a duty of care to report to the authorities accordingly and not use their services. Agents would make the booking in good faith knowing that the carrier was CASA approved and operating in compliance with the regulations.
As for a difference between FAR 23 and SFAR 23, I wouldn’t like my life to be hanging on the improvements of the latter. Surprisingly many aircraft operating in Australia today were certified under CAR 3 (C402, PA31-350, C90). CAR3 was replaced by FAR23 in the mid-sixties and has been progressively amended since. SFAR 23 was an interim stopgap in 1969 foreshadowing commuter operations (ten or more passengers) and survived until FAR 135 Appendix A was ratified in 1970. The DHC6 in 20pax configuration is a SFAR23 aircraft.
Interestingly a SFAR23 aircraft need only demonstrate a first segment climb performance capability to ‘maintain flight at or above V1 in ground effect’. I don’t find that reassuring. At least in a CAR3 aircraft below blue line I can close the throttle and take my chances ahead – just like a single; not drift for another few miles with crossed fingers and indecision until I take out a power line!
Present commuter category aircraft certified to FAR 23 amdt 34 (B350, B1900D) provide more stringent compliance with engine out performance criteria. As I understand CAO 20.7.1b relies upon ICAO Annex 8 to the Chicago Convention. Some aircraft certified under FAR 23 + FAR 135 Appendix A + SFAR 41 do not comply with ICAO Annex 8 when operated above 5700 kg hence the limitation endorsed on the CofA. But I digress.
The issue of duty of care really comes back to the person with the influence to alter or improve a particular situation. If such a decision was tested in a civil court then one may expect that the onus of proof would be on the ‘balance of probabilities’. Since common law would prevail arguments would be based upon precedence and not any statutory rule. The liability of the carrier goes back to early maritime law and old case histories could lead anywhere.
(Edited to correct reference to FAR 135)
[ 03 December 2001: Message edited by: dragchute ]