The Airblue Crash

Anam Wahid

Airblue_P1050431

Pakistan is a nation that excels in moving on. We don’t have a choice. Every week we are bombarded with traumas such as suicide bombing, murders, abductions, kidnapping and extortion on a grand scale. The nation hardly gets a chance to breathe before the next crisis occurs and we move on.

The Peshawar High Court recently announced its verdict on the Airblue crash case and it seems that the Court has resigned itself from the crash. After months of strongly opposing the Civil Aviation Authority and Airblue, it abruptly dispensed with the proceedings by simply determining the crash to be the pilot’s fault.

A brief history of the timeline of the proceedings would be desirable to assess the changes, if any, have occurred because of the biggest aviation disaster in the history of Pakistan.

The primary aviation legislation in Pakistan is the Civil Aviation Ordinance, 1960 supplemented by the Civil Aviation Rules, 1994 being a secondary legislation. Furthermore, Pakistan ratified the Convention on International Civil Aviation on 11/6/1947, thus requiring it to be in compliance with the State’s obligations under the Convention.

There have been 31 aircraft accidents since the establishment of Pakistan and the National Disaster Management Authority, responsible for conducting, search and rescue operations at the crash site, has been unable to form standard operating protocols with respect to plane crashes as yet.

The Civil Aviation Authority (“CAA”) continues to be in contravention of Circular 285 of the International Civil Aviation Organization pertaining to aircraft accident victims and their families. There has been no update on the utilization of resources to form command centers to provide immediate assistance to the families and counseling to the families of the victims. The families have suffered significant trauma because of the inefficiency of the government, from the then interior minister, Rehman Malik, falsely claiming there to be survivors, the lack of assistance to reach the crash site, from searching with their bare hands to identify body parts of their loved ones kept in boxes and sacks and from no contact or assistance from the government or the Airblue team for a significant number of days.

The investigator appointed by the Director-General of the CAA with the approval of the government was in contravention of Paragraph 1.3 of the Attachment F of Annexure 13 of the Convention which requires the State to ensure the independence of the accident investigation organization from other State aviation organizations. The investigator appointed was under the direct administrative control of the DG and therefore not independent for the purposes of the Convention. Moreover, the Board of Accidents (“BOA”) appointed by the Ministry also consisted only of members belonging to the CAA and the Airblue management.

It is distressing to see that the victims had to seek judicial intervention to petition the courts to pressurize the CAA and the government to release the report almost two years after the crash. Luckily, the report was immediately rejected by the Peshawar High Court and the International Civil Aviation Organization as un-comprehensive and the accident investigation authority as not being independent. An amended report was submitted to the Court a few months later highlighting faults on the part of the Air Traffic System at the airport but it is highly unlikely that the CAA would release the report now that the Peshawar High Court has concluded the case.

It is ironic that the case was concluded 3 years after the crash when the limitation period for the right to damages, under Section 33 of the Fifth Schedule of the Carriage by Air Act 2012 being two years from the date on which the carriage stopped, had ended. Since the case was filed by Pakistan Muslim League-Nawaz’s MarviMemon against the Airblue administration, the victims’ families in reliance of their faith in the Court did not file a separate lawsuit seeking damages.

Furthermore, under Section 21 of the Fifth Schedule of the Carriage by Air Act 2012, Airblue would have been unable to cap its liability on damages to PKR 50,00,000/- since it has been stated in the report that the crash was caused by gross negligence on part of the carrier or its servants or agents.

It is with shame to note that no lawyer would have advised such a course of action to the victims’ families as the recovery of damages in air crash litigation has been unprecedented in Pakistan’s legal history. The lawsuit filed by the families of the victims in the Fokker plane crash in Multan in 2006 are still waiting for the lawsuit to be decided by the court.

It seems that one can never achieve closure in Pakistan.