Interactive Map: Asia
Aerospace

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

The Korean courts do generally apply and enforce the international aviation conventions such as Montreal Convention 1999. Limits of liability are generally upheld, for example in a 2006 Supreme Court Judgment.

Nevertheless, it is worth noting that there are recent lower court judgments in which the handling judge awarded emotional damages to passengers in case of a flight delay, which is not recoverable under the Montreal Convention 1999, by applying Korean law.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED, 2 MINOR CHILDREN

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

(KRW1,608,479,741)
^c.US$1.35 ^million

Principles of tort would be applicable upon the calculation of damages in an aviation accident. In this respect, the damages will mainly be consisted of three parts: (i) direct economic loss (i.e. medical costs, funeral expenses); (ii) indirect economic loss (i.e. loss of earnings) and; (iii) emotional damages.

Breakdown:

(assuming retirement at 65 and no contributory negligence)

(i) Direct economic loss

Assume an estimated funeral cost of KRW 5,000,000 (c. USD 4,200) to be the only direct economic loss of this case.

(ii) Indirect economic loss

The estimated future loss of earning amounts to KRW1,453,479,741 (c. USD1,220,000), after applying the Hoffman coefficient* and the deduction of the cost of living (i.e. one-third of the future loss of earnings).

*to allow for the interest benefit of receiving the damages as a lump sum

(iii) Emotional damages

The amount of emotional damages awarded in each case will vary according to the specific facts of the case and the handling judge’s discretion thereof. In the case regarding Air China accident at Busan in April 2002, the Supreme Court ruled that the claimants should be awarded emotional damages in the amount of KRW150,000,000 (c. USD125,000) per person.

An estimated amount of emotional damages in this scenario would be KRW100,000,000 to 150,000,000 (c. USD83,333 to 125,000). For convenience of discussion, assume KRW150,000,000 (USD125,000).

(iv) Allocation of the damages

The Civil Act provides that the share inherited by the spouse of a deceased should be 50% higher than that of the deceased’s children. In this regard, it is likely that the wife would receive about KRW689,348,460 (c. USD 580,000) whereas 2 children would inherit KRW459,565,640 (c. USD 385,000) each.

A general note on loss of earnings (indirect economic loss)

If the deceased was being employed at the time of the accident, the actual income would be applied upon calculating the loss of earnings.

The Supreme Court of Korea recently ruled that the legal maximum age for physical work should be extended from 60 to 65 but this ruling is not reflected in most of the company regulations in Korea and the retirement remains at 60 years old or younger, in many cases.

Accordingly, if the deceased's employer's company regulations provide the retirement age is 60, the loss of earnings from the day after the retirement (i.e. the date the person reaches 60 years old) until the date in which the person reaches 65 years old would be calculated based on the daily worker’s earnings [as of 2018, the daily worker’s earnings is about KRW 120,000 (c. USD100) per day].

If the deceased was unemployed at the time of the accident, the aforementioned daily worker’s earnings would be applied. If the deceased was a minor at the time of the accident, then the daily worker’s earnings from the date the person becomes 20 years old until the date the person becomes 65 years old will be applied.

PUNITIVE DAMAGES

Generally, no, with limited exceptions pursuant to legislation in the fields of Product Liability, Patents and Data Protection (capped at triple the sum of damages awarded).

The Private International Law Act of Korea restricts the application of punitive damages that are not recognised under Korean law, even if the governing law is not Korean law. In this regard, it is possible that punitive damages under foreign law may not be recognised and/or enforced by the Korean court.

LITIGATION COSTS

In principle, the losing party pays the legal fees and court costs. However, the handling judge is given the discretion to determine the legal costs and therefore may order the parties to share the legal fees despite the outcome of the case.

Although the Civil Procedure Act provides that the lawyers’ fees are recoverable, this expense may not be fully retrieved by the winning party in many cases.

This is because the maximum amount of lawyers’ fees recoverable is capped by the Regulation on the Inclusion of Lawyers’ Fees in Litigation Costs which provides a set of formula to calculate the lawyers’ fees recoverable. For example, in case the claim amount is KRW 100,000,000 (c. USD 84,000) the maximum amount of lawyers’ fee recoverable under this regulation is KRW7,400,000 (c. USD 6,200).

INTEREST

In accident and injury claims, interest of 5% per annum will apply, accruing from the date of the accident.

Where legal proceedings brought, interest of 12% per annum will be applied from the day after the date of the delivery of the judgment

In principle, the court will determine an appropriate amount of damages according to specific facts of an individual case and does not suppose a certain amount of ‘fixed amount’ of compensation to be provided to passengers.

However, the Korean court may consider the Criteria for the Settlement of Consumer Disputes (“Criteria”) as one of the factors in adjudicating passenger claims against airlines. This came into force on 17 October 2007 and went through a number of revisions thereafter. It is deemed the standard for facilitating amicable settlement between a consumer and a business entity, but is not considered to be legally binding.

A summary of the relevant provisions as set forth in the Criteria.

Delay

(i) 2-4 hours: 10% of air fare for the delayed part of the carriage;

(ii) 4-12 hours: 20% of air fare for the delayed part of the carriage and;

(iii) 12+ hours: 30% of air fare for the delayed part of the carriage and the costs for an appropriate accommodation, if required.

Cancellation

Refund of the air fare plus 10%

Denied Boarding

(i) if a substitute flight was provided within 2-4 hours : USD 200 as compensation (if the length of flight exceeds 4 hours, then USD 300 as compensation);

(ii) if a substitute flight was provided after 2-4 hours : USD 400 as compensation (if the length of flight exceeds 4 hours, then USD 600 as compensation);

(iii) if a substitute flight was not provided : refund of the air fare and USD 600 as compensation and;

(iv) if a passenger denies to board the substitute flight: refund of the air fare and additional compensation as per the above (i).

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

The cases have shown that the courts have upheld the limits of liability set out in statute. For example, in a 2001 Singapore Airlines cargo damage case the Court of Appeal enforced the limitation of liability laid down by the Warsaw Convention, as amended by the Hague Protocol.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000 A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

^c.US$1,032,000

Breakdown:

The Court will use the multiplier-multiplicand approach.

• For the multiplier (i.e. the number of years which the wife and children would have received the pecuniary benefit), the Court will take into the account the working life of the deceased. In the present case, the multiplier for the wife (assuming that she is a homemaker and did not work previously) would be estimated to be 16 years. The multiplier would be about 16 years (for the 5 year old child) and 13 years (for the 8 year old child) assuming that they would need support until the age of 21 years old.
• For the multiplicand (i.e. the amount of pecuniary benefit received), the wife and children would need to provide documentary evidence of the pecuniary benefit which they received from the deceased. Where there is difficulty in doing so, the Court may apply a percentage – see for example the 2004 case of Chan Tak Man where the Court awarded the wife 40% of the deceased husband’s salary and each of the child 15% of the deceased husband’s salary.
• Applying the above, calculation as follows:
  Wife (40% x USD8,000 x 12 x 16 years) + Children (15% x USD8,000 x 12 x 16 years + 15% x USD8,000 x 12 x 13 years)
  = US$ 614,400 + 230,400 + 187,200
  = US$1,032,000.
  

PUNITIVE DAMAGES

No

LITIGATION COSTS

The general rule is that the “losing” party would have to pay the winning party their legal costs (which would include court hearing fees and disbursements). This is known as “party and party” costs. The Court has provided certain guidelines as to the amount payable for “party and party” costs.

Lawyers’ fees are generally not recoverable 100% in most cases. The winning party can expect to recover about up to 60% of its lawyers’ fees.

INTEREST

The applicable interest rate applied to awards of damages in accident and injury claims is 5.33% per annum. It starts to accrue from the date of the writ.

No legislation giving passengers the rights to claim fixed compensation. Claims governed by the policy of each individual airline.

Montreal Convention 1999

In force since October 2017

Although the Thai courts do not directly apply Montreal Convention 1999, they uphold the limits of liability set out in the International Carriage by Air Act B.E. 2558 (“the ICAA”), which follows the same principles as the Montreal Convention 1999.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

(THB 7,020,000 – 7,220,000)
US$220,000 to US$230,000

Breakdown

(i) Funeral and other necessary expenses: considering from the deceased’s income, we estimate that these expenses should be in the range of THB 300,000 – 500,000.

(ii) Loss of legal support:

Spouse: THB 10,000 (USD330) per month. Based on the Supreme Court Judgments, the deceased’s spouse should be entitled to this loss until the retirement age of the deceased (60 years of age in Thailand). Given the age of the deceased (33 years old), his spouse should be entitled to this loss at the maximum of 27 years. Therefore, this estimated loss is THB 3,240,000 (THB 10,000 x 12 x 27).

Children: the amount appropriate for computation of this loss should also be THB 10,000 (USD330) per month per person. In Thailand, the children can obtain the legal support from their parents until 20 years of age. Therefore, the children aged 8 and 5 should be entitled to this loss for 12 years and 15 years, respectively. Accordingly, the estimated loss for the children aged 8 is THB 1,440,000 (THB 10,000 x 12 x 12) while the estimated loss for the children aged 5 is THB 1,800,000 (THB 10,000 x 12 x 15).

PUNITIVE DAMAGES

Not available in aviation cases

LITIGATION COSTS

The Thai courts have the power to order the losing party to pay the court fees and lawyer fees on behalf of the winning party. However, the court shall have the power, irrespective of the total or partial success of a party, to order each party to bear his own court fees and lawyer fees.

The Thai courts have the power to order the losing party to pay the court fees and lawyer fees on behalf of the winning party. However, the court shall have the power, irrespective of the total or partial success of a party, to order each party to bear his own court fees and lawyer fees.

INTEREST

7.5% per annum accruing from the date of the accident

Announcement of the Ministry of Transport on Protection of Passenger Rights Using Thai Air Carriers’ Services for Domestic Scheduled Air Services 2010 (B.E. 2553) came into force on 6 November 2010

Delay:

More than 5 hours but not exceeding 6 hours: fixed compensation of THB 600 (USD 20) per passenger

6 hours plus: fixed compensation of THB 1,200 (USD40) per passenger Cancellation and denied boarding: Fixed compensation of THB 1,200 (USD40) per passenger.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

International Conventions are given priority of application by the Article 3.3 of the Vietnam Civil Aviation Law, therefore, legally speaking, the courts must apply and enforce them and uphold the limits of liability.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

NOT POSSIBLE TO ESTIMATE

The laws of Vietnam do not set out the principles for determination of damages for death and injury of the passenger of an airline. This is at the discretion of the court. Any award is subject to a limit of SDR 100,000 pursuant to Article 166.1 of the Vietnam Civil Aviation Law.

PUNITIVE DAMAGES

No

LITIGATION COSTS

Layers' fees are not recoverable.

Court costs:

(i) First instance court: Pursuant to Article 147 of Vietnam Civil Procedure Code 2015, the “losing” party shall pay the court costs.

(ii) Appeal court: Pursuant to Article 148 of Vietnam Civil Procedure Code 2015,

• Appellant shall pay the court costs in the case where the appeal court upholds the award of the first instance court;
• Appellant shall not pay the court costs in the case where the appeal court amends or rescinds the award of the first instance court.

INTEREST

Overdue interest rate of 10% per annum of a party fails to pay an amount awarded within the time limit specified in the award.

Yes. Circular 14/2015/TT-BGTVT took effect on 1 July 2015 providing fixed compensation for delay, cancellation and denied boarding as follows:

(i) Compensation amount for a domestic flight paid to each passenger:

• A flight of less than 500 km in distance: VND 200,000;
• A flight of 500 km or greater but less than 1,000 km in distance: VND 300,000; and
• A flight of 1,000 km or greater in distance: VND 400,000.

(ii) Compensation amount for an international flight paid to each passenger:

• A flight of less than 1,000 km in distance: 25 USD;
• A flight of 1,000 km or greater but less than 2,500 km in distance: 50 USD;
• A flight of 2,500 km or greater but less than 5,000 km in distance: 80 USD; and
• A flight of 5,000 km or greater: 150 USD.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

No case law in which the question of enforceability of international aviation conventions has been considered so court's attitude to this is untested.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

NOT POSSIBLE TO ESTIMATE

Nepal lacks a definite legal framework to compute damages in case of fatal accidents and has yet to enact a consolidated legislation to govern the dependency claim in fatal accidents. As such, discretion of judges in each case may play a vital role in awarding of damages.

Under Section 266 (2) of the Country Civil Procedural Code 2074 (2017) (“Civil Procedure Code”), except for otherwise provided in the law, a court shall consider the following factors while determining the quantum of damages:

a) actual loss;

b) loss in income;

c) additional loss suffered as a result of damage.

Further, under Section 266(3) of the Civil Procedure Code, damages shall be calculated only on the basis of actual loss suffered or upon determination of actual loss which the person may suffer and not on the basis of imaginary factors.

Section 52 (1) of the Consumer Protection Act provides that a court shall consider the following factors while determining damages:

a) physical or mental suffering of the victim and seriousness of the matter;

b) in case the harm suffered by the victim is curable, then estimated medical cost;

c) effect on earning capacity of the victim as a result of the physical or mental damage suffered;

d) in case of incurable physical or mental harm suffered by the victim, then age of the victim and his/her familial obligations;

e) in case of death of the victim, number of family members dependent on the her income and the minimum living expense required for such members;

f) other reasonable and appropriate claims made by the victim or the heirs; and

g) financial and business condition of the wrongdoer (manufacturer, seller or the service provider).

Nepal adopted the concept of law of torts through the Civil Code in 2017. Section 672 (1) of the Civil Code provides that a loss or damage caused to another person’s body, life, property or legal right by a mistake, negligence or recklessness arising from an act or omission of a person shall be considered to be a tort. Section 682 (1) of the Civil Code provides that a person committing a tort shall compensate the victim for the tort committed by him/ her. Section 682 (3) further provides that the compensation shall be limited to actual loss and imaginary losses need not be compensated to the victim.

PUNITIVE DAMAGES

No

LITIGATION COSTS

The unsuccessful party shall reimburse the court fee paid by the successful party.

Generally, each party pays its own lawyers' fees. However courts have discretionary powers to determine other expenses (including lawyer’s fee) incurred by the successful party. The unsuccessful party has an obligation to pay such amount to the successful party.

It was not a common practice to recover lawyers' fees under the previous Country Code. With the enactment of the new Civil Procedure Code, there has not yet been any case in which the court has ordered the losing party to pay the successful party's lawyers fees. Lawyers’ fees will probably be recoverable 100% in frivolous litigation only.

INTEREST

Section 478 (2) of the Civil Code, which relates to general transactions, provides that a creditor may claim general interest at the rate of 10% per annum from a debtor. Although this section applies to transactional matters and not for accident and injury claims, the current practice is for the courts to follow this provision as guidance in relation to interest applied to awards of damages, both under contractual as well as other injury claims.

Accrues from the date of judgment.

There is no specific passenger rights law in force

However, in Yeti Airlines Pvt. Ltd. v. Ghamraj Luitel, the Claimant claimed compensation for the loss incurred by him due to delay of domestic flight for two hours under the Consumer Protection Act 2054 (1998) then in force. In that case, the Supreme Court ruled that the Claimant was entitled to compensation of an amount equal to his salary of that particular day, i.e. NPR 1,000 (approx. USD 8.80).

A new Consumer Protection Act (CPA) came into force on 18 September 2018. In domestic flights, a passenger may claim compensation under Section 50 of the CPA for delay, cancellation or denied boarding.

Though the CPA does not provide for a fixed compensation in relation to delay, cancellation or denied boarding specifically, Section 52 of the CPA provides for standards to be considered while determining compensation (see "Quantification of damages" above).

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

There has been no judicial dispute to date that has given rise to the need to apply the international aviation conventions. However it is likely that they would be upheld.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED, 2 MINOR CHILDREN

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

FIXED SUM of (Rp. 1,250,000,000)
^c.US$89,000

plus potential claim for
US$2.1 ^million

PUNITIVE DAMAGES

LITIGATION COSTS

INTEREST

Taiwan is not a party to any of the international aviation liability conventions. As such, the courts in Taiwan have held clearly that said conventions could not apply to general practices in Taiwan. However, if the parties in dispute have entered into a contract or agreement agreeing to follow said conventions, the courts in Taiwan may, on a case-by-case basis, hold the conventions applicable in view of the parties’ choice of law.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000 A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 MINOR CHILDREN AGED 5 AND 8.

^c.US$500,000 to US$640,000

Comprising:

The spouse:
US$300,000 to US$350,000

The 2 children:
US$196,000 to US$290,000

Calculated as follows:

Funeral expenses (Range of USD 6,600-USD 17,000).

Medical expenses (If any)

Increased living expenses eg paid child carer

Loss of support from deceased:

• Generally, damages for loss of support are calculated by first estimating how many years and how much the deceased was supposed to be obliged to afford to those who are entitled to claim right of support yearly, and calculating the total amount if such supportive payment is made one time at present pursuant to the “Hoffman theorem”. Under current practice, the supportive period for a minor is deemed completed when he reaches his adulthood (which is 20 years old under current Civil Code). Assuming that the deceased was living in Taipei, Taiwan, where the Average Consumption Expenditure Per Month in Taipei is around USD 920, the amount this child can claim is illustrated as follows:
  • The obliged period of support: 15 and 12 years, respectively.
  • The supportive payment per month: USD 920
  • The number of person who is obliged to support the child: 2 (i.e. the deceased and his wife)
  • Formula:[(USD 920 x 12 months x 9.59011077 (being the Hoffman coefficient for 12 years)) +( USD 920 x 15 months x 11.40940667)]/2= (USD 105,874+USD 157,450)/2=USD 131,662
• If the wife is unable to support herself after her husband’s death and is the same age as her husband. According to the calculation of the remaining year from our government, she may have 48.31 years to live. Thus, the loss of support that the wife may claim is USD 920x 12 months x 24.92343188= USD275,155
• Emotional distress: Average damages for emotional distress caused by death of close relatives such as parents, children, spouse, ranges from NT$ 1 million to 2.5 million per person (around USD 32,258 to USD 78,125).

PUNITIVE DAMAGES

If the lawsuit was filed based on Consumer Protection Law, then the plaintiff may claim for punitive damage. Under the Consumer Protection Law, the plaintiff may be entitled to punitive damages up to five times of the actual damages when the defendant is found to have acted wilfully, up to three times the actual damages when the defendant is found grossly negligent, and up to one time the actual damages when the defendant is found negligent. In case of breach of contract, the plaintiff may claim for punitive damages if they are provided for in the contract.

LITIGATION COSTS

LITIGATION COSTS According to Article 78 of the Taiwan Code of Civil Procedure, the losing party shall bear the litigation expenses. In the event of a partial victory or a partial defeat, the court may, at its discretion, order the litigation expenses to be split and borne by both parties in a certain proportion; or by a particular party alone, or order both parties to bear their respective litigation expenses.

In general, lawyers' fees are not recoverable. However, when the case is appealed to the Supreme Court, the lawyer’s fees will be counted as part of the litigation expenses, and the losing party shall pay for the lawyer’s fees incurred by the prevailing party.

INTEREST

Five percent (5%) per annum unless otherwise agreed by contract. Per paragraph 2 of Article 229 of Civil Code, the interest will accrue when the debtor does not make the payment within the time period as requested by the creditor. In practice, the interest statues to accrue from the next day that the defendant receives the complaint from court.

No provision for fixed amounts of compensation.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8.

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

To be confirmed.

PUNITIVE DAMAGES

There are payments made in the Bangladeshi jurisdiction which might resemble “punitive damages” in other jurisdictions, however, they are not specifically identified as “punitive damages”, rather as compensatory damages in Bangladesh. This varies on a case to case basis.

LITIGATION COSTS

Generally, each party pays their own legal fees & costs. However, as per Section 35 of the Code of Civil Procedure, the Courts have the discretion to levy the costs and legal fees on any party it deems fit. "Losing party pays" is a very rare scenario in Bangladesh.

INTEREST

At discretion of the Court. It may, in the decree, order interest at such rate as it deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree. Interest can also be ordered for any period prior to the institution of the suit. If the Court thinks fit, it can also order interest to be paid on the judgment sum from the date of the decree to the date of payment.

No legislation providing for payment of fixed compensation.

Warsaw Convention 1929

In force and generally upheld

Hague Protocol 1955

In force and generally upheld

Montreal Convention 1999

Not in force

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

Not possible to estimate.

As the judgments of the courts in Cambodia are not published and publicly available, and general principles may be applied differently from jurisdiction to another, it is not possible in practice to anticipate how much compensation would be granted to the spouse and the children in such situation.

There is no specific law or regulation governing aviation accidents and in the context of general tortious claims. Damages are assessed and calculated based on statistics and other materials to the greatest extent possible, and by taking into account factors such as the degree of culpability, the type and degree of harm and the tortious actor’s conduct after committing the tortious act. The type of losses that are compensated include economic harm, emotional distress, medical expenses, expenditures, loss of income, funeral expenses and such other expected financial benefits or reimbursements.

PUNITIVE DAMAGES

No

LITIGATION COSTS

The losing party usually pays for the court expenses and the winning party’s legal costs, subject to the competent court’s decision.

INTEREST

5% per annum. Period of interest/date of accrual at court's discretion.

Law on Civil Aviation of the Kingdom of Cambodia, in force from 2008, provides for compensation for delay but not cancellation or denied boarding.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

The international aviation conventions are incorporated into the substantive laws of India so the Courts will apply and enforce them and do tend to uphold their limits.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

US$1.5 ^million
+ interest at 6-9% per annum.

Breakdown:

Loss of Life / Dependency (which is calculated after considering future loss of income and future prospects – see below) = US$ 1,536,000

Loss of love and affection = ~ US$ 1,000

Loss of estate = ~US$ 250

Loss of consortium = ~US$ 570

Loss of parental consortium = ~1,200

Compensation towards obsequies = ~US$ 250

Medical treatment of deceased before death (if incurred) = ~ US$ 1000

Costs of Litigation = ~ US$ 1,000

The Loss of Life / Dependency figure is calculated using guidance derived from reported fatal motor accident claims and is reached as follows:

• Established Income of the deceased is Total Income minus Tax Payable – US$96,000
• (For this test for the sake of convenience, US$ 96,000 is considered as the established income)
• Actual Income (to be calculated by adding 50% of the established income as Future Prospects as the deceased was below the age of 40 years and assuming the deceased had a permanent job) - US$ 144,000
• Deduction towards personal and living expenses is 1/3 of the Actual Income since dependents are between 2 to 3 (Wife and 2 children) = US$ 48,000
• Balance is considered to be annual contribution to the family (Multiplicand) = US$96,000
• Multiplicand multiplied by Multiplier of 16 (since the deceased was aged between 31 and 35 years) provides for loss of dependency = US$ 96,000 x 16 = US$ 1,536,000

PUNITIVE DAMAGES

In Consumer Claims, the Consumer Fora (Adjudicating authority) is empowered to award punitive damages under the head of ‘mental agony’, ‘deficiency of service’ and ‘unfair trade practice’.

In Civil Claims, if punitive damages are sought by the Claimant, then it vests with the discretion of the Court to adjudicate such a claim and award punitive damages. However, the frequency of such punitive damages being awarded in civil claims is uncommon.

LITIGATION COSTS

The Claimant at the time of initiating the claim has to pay the court costs and the Claimant has to bear his own legal fees during the entirety of the proceedings.

If the Claimant wins, the Courts have the discretion to direct the recovery of lawyer’s fees from the Defendant. However, it is highly unlikely that 100% of the lawyer’s fees are recovered in the case of success.

Further, the laws in relation to recovery of the lawyer’s fee differs from state to state in India, accordingly, there is no uniformity across courts in various states in awarding costs.

INTEREST

Court practice across India is not uniform but 6 to 9% seems to be the average award based on a review of a range of decisons. It can therefore be safely assumed that Courts would not generally interfere / modify the interest if it is between the ranges of 6% to 9%.

The interest generally starts to accrue from the date of the accident till realization thereof. However, there are instances of courts granting interest from the date of lodging the claim.

The civil aviation regulator, the DGCA, introduced rules in August 2010 concerning ‘Facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delays in flights’. These are continually revised, most recently in February 2019.

They provide as follows:

• Delay in Flight:

  a) When a domestic flight is expected to be delayed for more than 6 hrs from the published scheduled time of departure or previously revised departure time (communicated more than 24 hours prior to original scheduled departure time), airlines shall offer an option of either an alternate flight within a period of 6 hours or full refund of ticket to the passenger.

• Cancellation of Flight:

  a) In case the passengers are informed of the cancellation less than two weeks before and up to 24 hours of the scheduled time of departure, the airline shall offer an alternate flight or refund the ticket, as acceptable to the passenger.

  b) Passengers who have not been informed as per the provisions or missed the connecting flight booked on the same ticket number of an airline, the airlines shall either provide an alternate flight as acceptable to the passenger or provide compensation in addition to the full refund of air ticket in accordance with the following provisions:

  • INR 5,000 (USD70) or booked one-way basic fare plus airline fuel charge, whichever is less for flights having a block time of up to and including 01 hour
  • INR 7,500 (USD105) or booked one-way basic fare plus airline fuel charge, whichever is less for flights having block time of more than 01 hour and up to and including 02 hours.
  • INR 10,000 (USD140) or booked one-way basic fare plus airline fuel charge, whichever is less for flights having a block time of more than 02 hours.

  c) No compensation shall be payable to any of the affected passengers if the cancellations occur due to extraordinary circumstances beyond the control of the airline even if all reasonable measures have been taken by the airline.

• Denied Boarding:

  Volunteers must be sought before any passenger is denied boarding due to overbooking. In the case of involuntary denied boarding no compensation is payable if an alternate flight departs within an hour. Otherwise compensation is payable as per the following provisions:

  • Alternate flight departing within 24 hours - 200% of booked one-way basic fare plus airline fuel charge, subject to a maximum of INR 10,000 (USD140)
  • Alteratie flight departing more than 24 hours after scheduled - 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000 (USD280)
  • Passenger rejects offer of alternate flight - refund of full value of ticket plus compensation equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000 (USD280).
• Compensation by Foreign Carriers:

  In the case of foreign carriers, the amount of compensation paid to the passengers shall be as contained in the regulations of their country of origin or as given above for ‘Denied Boarding’.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

There are decisions upholding Convention limits of liabiity but in some cases the Philippine Supreme Court has not recognised the principle of exclusivity, and has held that the application of these international conventions does not prevent the application of local laws

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

^c.US$1.5 ^million
plus moral and exemplary damages at the discretion of the court, fees and interest and the local statutory indemnity of PHP100,00 (USD2,000)

USD1,500,000 (for loss of earning capcity) plus moral and exemplary damages at the discretion of the court, fees and interest and the local statutory indemnity of PHP100,00 (USD2,000)

For death, the indemnity may include actual or compensatory damages, loss of earning capacity, moral damages, exemplary damages, support in certain instances, attorney’s fees, litigation expenses and interest.

The formula for calculating net earning capacity is Life Expectancy (derived from actuarial tables) multiplied by (Gross Annual Income minus Living Expenses). Living expenses are set by caselaw at 50% of income.

The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

Exemplary or corrective damages – see below under PUNITIVE DAMAGES

PUNITIVE DAMAGES

Yes. Locally, they are called exemplary or corrective damages and are are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damage. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a "wanton, fraudulent, reckless, oppressive or malevolent manner” Award is at the Court's discretion; if moral damages are awarded, exemplary damages will usually follow.

LITIGATION COSTS

Legal fees and Court costs are not shared by the parties. If awarded, they are adjudged against the losing party. Lawyer’s fees are not recoverable 100% in case of success.

INTEREST

6% per annum at the discretion of the court from the date of breach to judgment. 6% on judgment sums until paid.

The “Air Passenger Bill of Rights” (APBR) took effect on December 21, 2012.

There is the right to compensation in case of Cancellation, delay, delayed, lost and damaged baggage and death or bodily injury of a passenger.

The amounts recoverable are:

a) Cancellation of flight – Reimbursement of the value of the fare, including taxes and surcharges, of the sector cancelled, or both/all sectors, in case the passenger decides not to fly the ticket or all the routes/sectors.

b) Flight delay – same as (a) above. In addition, compensation equivalent to at least the value of the sector delayed or deemed cancelled to be paid in the form of cash or voucher, at the discretion of the air carrier.

c) Delayed, lost and damaged baggage – For every twenty-four (24) hours of delay in such delivery, the air carrier shall tender an amount of Two Thousand Pesos (Php2,000)(c.USD40) to the passenger, as compensation for the inconvenience the latter experienced. A fraction of a day shall be considered as one day for purposes of calculating the compensation.

d) Death or bodily injury of a passenger – For international flights, in case of death or bodily injury sustained by a passenger, the relevant Convention and inter-carrier agreement shall apply.

For domestic flights, the compensation shall be based on the stipulated amount in the relevant convention which govern international flights, the same to be given in Peso denomination.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

There has been no judicial dispute to date that has given rise to the need to apply the international aviation conventions. However it is likely that they would be upheld.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

Material damages:
^c.US$300,000-350,000

Moral damages:
^c.US$20,000-50,000

Total:
US$320,000-400,000
on current currency rates.

Damages for death comprise:

Funeral expenses based on the average monthly income of the employees in the previous year in the city or province where the court is located.

Living expenses of the dependents, being minors to whom the victim is legally obliged to support and adult close relatives who have lost the ability to work and has no other source of income.

Death compensation based on the average annual disposable income of the urban residents or net income of the rural residents in the previous year city or province where the court is located.

PUNITIVE DAMAGES

Not for air transport claims.

LITIGATION COSTS

The court fee shall be paid by the losing party or shared by the claimant and defendant in proportion.

The court does not usually make any order as to who should pay the lawyers' fees.

INTEREST

Approximately 0. 0175% per day at present. Starts to accrue from the date of expiry of the performance period set in the effective legal judgement.

No legislation providing for payment of fixed compensation.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

In theory, the Myanmar courts, by virtue of being a signatory to these conventions should uphold their limits. However, since court records are not public and there is no systematic procedure to access case laws, it is not possible to comment on the practice.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

Not possible to estimate

The amount of damages to be paid by the carrier is ascertained by the court. There are no fixed standards for determination and the court would consider actual losses suffered. The court may also take into consideration the international conventions to provide for damages. It is not possible to estimate the recoverable damages as these are entirely at the discretion of the court.

PUNITIVE DAMAGES

Yes

LITIGATION COSTS

Legal fees are shared between parties while court costs may have to be paid by the losing party as provided in the order/decree.

Lawyers' fees are not recoverable.

INTEREST

Ascertained by the court at its own discretion. No fixed rate provided statutorily.

Two possibilities for the date on which interest starts to accrue – either the date of institution of suit to date of judgment or the date of judgment to date of payment (separate or same interest rates may be ascertained by the court).

None

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

The Malaysian Courts tend to recognise and apply the international air law conventions and there is legal precedent recognising the concept of Convention exclusivity.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

US$1.1 ^million
plus reasonable funeral expenses

a) Bereavement ^c. USD 2,395 (RM10,000) - Section 7(3A) of the Civil Law Act 1976

b) Dependency claim for loss of support pursuant to Section 7 (3) of the Civil Law Act 1956.

Calculation of Earning Method for loss of earning = Multiplicand x Multiplier For a deceased who was in between the range of 31-54 years, the multiplier is calculated by using the figure 55 to minus the age of the person at the time of his death and dividing the remainder by the figure 2

Multiplicand = Deceased’s monthly earning x 12
= US$8,000 x 12
= US$96,000
Multiplier (Number of year’s purchase) = 55-33 / 2
= 11
Total Loss of earnings = US$96,000 x 11 = US$1,056,000

PUNITIVE DAMAGES

Not recoverable

LITIGATION COSTS

The general rule is “costs to follow the event”, that is the loser pays the winner’s costs, and the loser is left to bear his own costs.

However, in particular circumstances, the court may:

• award the winner only a proportion of his costs or his costs from or up to a specified stage of the proceedings; or
• make no order as to costs and each party will be left to bear his costs; or
• order the winner to pay the loser’s costs of certain matters.

The award of costs is always at the discretion of the court. Lawyers' fees are not 100% recoverable.

INTEREST

The Court may also, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.

Further, every judgment debt shall carry interest from the date of judgment until the claim is satisfied. The current prescribed rate is 5% per annum.

The Malaysian Aviation Consumer Protection Code 2016 came into force on 1 July 2016.

It does not prescribe fixed sums of compensation for delay, cancellation and denied boarding but it does impose obligations on the carrier as to reimbursement, re-routing and the provision of food and accommodation.

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

There has been no judicial dispute to date that has given rise to the need to apply the international aviation conventions. However it is likely that they would be upheld.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000 A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

Compensation in the range of (MOP$2million) to (MOP$4million)
US$250,000 to US$500,000

Plus a statutory Advance Payment, payable within 15 days, of (MOP$150,000)
US$18,750

There is no case law in which damages have been awarded for an aviation accident. The general principle of the obligation to indemnity, as defined in Article 556 of the Civil Code, states that whoever is obliged to repair damage inflicted to a third party must reconstruct the situation that would exist, if the event requiring the repair had not occurred. As such, any patrimonial or moral damages must be repaired through compensation.

Thus, the court would calculate compensation through equity-based criteria which may include case-by-case analysis of the situation, in particular the age of the injured party, the financial situation of both injurer and injured, as well as the consequences of the damage caused.

PUNITIVE DAMAGES

No

LITIGATION COSTS

Losing party usually pays winning party’s costs. However Even though the court may order the losing party to pay amounts due as attorney's fees, the fact is that such awards are uncommon or, where they exist, not significant.

The Macau Court Fees Regulation does stipulate that there will always be an amount to be paid by the losing party to the winning party as legal representation fees. However, the said amount is usually significantly lower when compared with the whole lawyer´s fees eventually spent with the case.

INTEREST

Legal interest rate of 9.75% per annum, accruing from the date of the court decision fixing the amount of compensation.

None

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

The Hong Kong Courts recognise and uphold Convention liability limits.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000 A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

(HKD9,375,040) to (HKD12,375,040)
^c.US$1.2 ^million to US$1.6 ^million

Heads of losses in fatal cases

• Bereavement
  • Currently fixed at HK$220,000 (c.USD 28,000)
• Pre-trial loss of dependency
  • On the part of dependents
  • Awarded for loss of financial support which the deceased would have provided to the dependent but for the accident
  • Monthly earnings x dependent's dependency % x no. of months before trial
• Post-trial loss of dependency
• Loss of accumulation of wealth
• Special damages
• Interest

PUNITIVE DAMAGES

No

LITIGATION COSTS

Losing party pays. If the parties cannot agree on the amount of those costs, there will be a taxation of costs by a taxing master to determine the amount. Unless the court has ordered taxation on some other basis, costs will be taxed on a “party and party” basis. This means that the costs allowed will be all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.

INTEREST

Interest on PSLA – 2% per annum, from date of service of Writ to date of judgment or notional trial

Interest on past losses (e.g. special damages or pre-trial loss of earnings) – half of prevailing judgment rate (currently at 8.125%), i.e. approximately 4.06% from date of accident to date of judgment or notional trial

No provision for fixed compensation

Warsaw Convention 1929

In force

Hague Protocol 1955

In force

Montreal Convention 1999

In force

The courts basically tend to uphold the limits of liability set out in the relevant Conventions, but the courts may exclude application of the limits of liability depending on cases.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000 A MONTH, MARRIED (SPOUSE HAS NO INCOME), 2 CHILDREN AGED 5 AND 8

Total amount: (149.2 million yen)
US$1.4 ^million

Breakdown

Lost profits of the victim: (157 million yen)
US$1.1 ^million

[$96,000 (yearly income) × 0.7 (deduction for living expenses) × 16.193 (Leibniz coefficient* corresponding to the workable period until age 67) = $1,088,169.6]

Damages for pain and suffering for the deceased victim: (28 million yen)
US$263,000

for his spouse: (2 million yen)
US$18,800

for each child: (1 million yen)
US$9,400

Funeral expenses: (1.5 million yen)
US$14,100

In addition to the above, other damages including property damages are claimable according to circumstances.

*“Leibniz coefficient” means a number used to perform a calculation taking into account future interest, as the amount of future reduced income is received in a lump-sum payment.

PUNITIVE DAMAGES

No

LITIGATION COSTS

The court decides who pays for court costs (excluding attorneys’ fees), but basically the defeated party bears the costs. However, the court may have the winning party bear part of the costs at its discretion.

With respect to damages based on liability for tort, legal fees in the amount of approximately 10 percent of the amount of damage are generally awarded and made recoverable. On the other hand, with respect to claims for damages based on liability for default, no legal fees are awarded in compensation for such damages. There is a judicial precedent in Japan which awarded attorneys’ fees (10 percent of the amount of damage) by applying the laws of tort where the damages were awarded under the Montreal Convention.

INTEREST

5% per annum

Following the amendment to the Civil Code of Japan on April 1, 2020 the interest rate will be 3% per annum and will thereafter change every three years. Changes in interest rates will not, however, affect claims where interest has already begun to accrue.

None

Indonesia ratified the 1929 Warsaw Convention only and is not a party to any other Warsaw instruments.

The Montreal Convention came into force in May 2017.

The local courts apply Law No 1 of 2009 on Aviation (“Aviation Law”) and Ministry of Transportation Regulation No. 77 of 2011 related to Liability of Air Transportation (“PM 77”). The courts tend to uphold the limits of liability set out in Aviation Law and PM 77.

E.G. DEATH OF A 33 Y.O. MALE, EARNING US$8,000* A MONTH, MARRIED, 2 MINOR CHILDREN

* generally, this is considered a high figure for monthly earnings in this jurisdiction, but is used for comparison purposes.

FIXED SUM of (Rp. 1,250,000,000)
^c.US$89,000

plus potential claim for
US$2.1 ^million

The fixed sum payable for death in an air transportation incident is stipulated in PM 77. This amount is the airline’s obligation to the deceased family. Either the airline pays the sum without the family filing a lawsuit or is ordered to pay by the court.

However, the Aviation Law also provides alternatives for the family, besides obtaining the amount as described in the PM 77 above. Article 141 paragraph (3) of the Aviation Law states as follows:

“The heir(s) or the victim of an air transport incident as referred to the paragraph (2) may make a lawsuit to the court to demand additional compensation other than the stipulated compensation”

Therefore, a family can claim additional damages in excess of the fixed payment of US$89,000 under PM 77. Claims can be based in breach of contract or for damages arising out of an "unlawful act". In "unlawful act" claims the compensation is for "immaterial loss". Immaterial loss is hard to determine, and there is no legislation or legal precedent as to its quantification. In practice the family will name the figure sought and the judge will use his/her discretion to either award the sum sought or a lower amount.

In this scenario, based on a pension age of 55 to 60 the victim might have the possibility of 22 more years of working. His earnings to retirement might be around US$2.1 million (not counting any salary raise). The family would probably seek around US$2.1 million for immaterial loss, but the judge could reduce this depending on the evidence.

Given the difficulties in determining the exact amount of immaterial loss, Judges tend to stick to the stipulated amount in the PM 77 only.

PUNITIVE DAMAGES

The basic principle is that no damages in excess of the amount claimed by the plaintiff can be awarded. However some Supreme Court decisions have made an exception to this principle, which may open up the possibility of punitive damages being awarded in the Indonesian court process.

LITIGATION COSTS

The losing party pays the court fees. Parties pay their own lawyers' fees and cannot transfer the burden of these to another party.

INTEREST

Interest is only recoverable in breach of contract claims. This is stipulated in State Gazette No. 22 of 1948 as 6 % per annum calculated from the date of the breach of contract.

No interest is payable on sums awarded in Unlawful Act claims but the immaterial losses claimed by the plaintiff usually include any profits that the plaintiff might receive in the future.

Ministry of Transportation Regulation No. 77 of 2011 related to Liability of Air Transportation (PM77) came into force in August 2011 and sets out a framework for payment of fixed compensation as follows:

Delay of more than 4 hours:

cUS$21 (Rp. 300,000) per passenger; reduced by 50% if the carrier offers appropriate re-routing (which must be at no extra charge/fare difference refunded if cheaper ticket).

Cancellation:

Full refund

Denied boarding:

Free transfer to an alternative flight, food and drink, accommodation and ground transport costs of no other flights.