From Todays Australian Newspaper
Without certain fixes our “air safety privilege” as passengers will forever sit uneasily with our insatiable demand for lower airfares. And, for the crew and passengers of the doomed FZ981 flight from Dubai to Rostov-on-Don, those occasionally incompatible demands can and do sometimes manifest as failures in the safety systems and compensation regimes designed to protect us all.
The Flydubai crash in Russia on March 19 regrettably typifies air disasters in many respects, and inevitably will lead to an official report that makes many in the aviation industry and regulators admit “we should have heeded the warnings”.
It also exemplifies why all states must ratify the Montreal Convention of 1999 or the patchwork of liability laws that exist will continue to guarantee that those who need appropriate compensation most won’t get it.
Let’s consider one well known safety risk (or “warning”) within the aviation world, cumulative fatigue — the convergence of several realities for international aviators: shiftwork, night work, irregular work schedules, unpredictable work schedules, and time zone changes.
Fatigue management, or rather how it was addressed in rostering, was raised by Russian media as a potential contributing cause of the Flydubai crash.
There is little escape for pilots who genuinely feel unable to perform because of tiredness.
Employment ramifications for pilots who “go sick” together with continuing uncertainty over impending regulations, which some argue prefer air operators’ ability to roster pilots to the edge of the law, resonate with Australia’s pilots.
This includes concerns that commercial imperatives will outweigh safety once new Australian fatigue management rules come into force next year.
The upshot of this is that we know, and have known for years, that fatigue management is a topic that has major safety implications if handled improperly by regulators and airlines.
If the allegations are right that Flydubai has mismanaged safety to its own detriment (knowing the risks), then the legal retribution from passengers’ and crew members’ families should fairly reflect that knowledge.
And that brings us to why universal ratification of the Montreal Convention of 1999 is necessary.
This international law places a strict liability system at the heart of providing compensation to air disaster victims.
It is a system that uses a passenger’s contract of carriage to determine the available choices of jurisdiction of a legal case against an airline for injury or death, including where you live permanently, where the airline calls home, or where you were ticketed to start or conclude your journey.
Thus, the system works to ensure justice as intended only if every country accedes to it — and at last count, out of 191 sky-faring nations, only 119 had ratified Montreal.
The significance of this is in the composition of the 119 nations.
Many populous and far-reaching aviation states such as the Russian Federation and, closer to home, Indonesia do not protect their citizens with Montreal in the way Australia does.
This is important because it means that for most people on flight FZ981, and likewise on AirAsia flight QZ8501, which crashed in late 2014, the law (and courts) of Russia or Indonesia will apply for the purposes of assessing compensation for death, rather than the more forward-thinking Montreal Convention choices.
The lack of choice of jurisdiction is significant for affected families and represents the loss of a pragmatic way to ensure that those responsible for the organisational, regulatory, mechanical and human factors causing the crash face justice at a time and place that suits the surviving family members, rather than just the airline and its insurers.
Joseph Wheeler is aviation special counsel to Maurice Blackburn Lawyers and the Australian Federation of Air Pilots.