Introduction
Aerial torts and maritime torts represent two distinct realms of civil liability in the context of personal injuries and property damage, each governed by a unique set of principles and legal frameworks. Aerial torts pertain to wrongful acts or negligence committed in airspace, involving aircraft, drones, or other flying objects. These cases often involve collisions, aviation accidents, or aerial trespassing, and are typically subject to aviation regulations and international treaties.
On the other hand, maritime torts revolve around wrongful acts or negligence that occur on navigable waters, encompassing incidents like ship collisions, oil spills, or injuries aboard vessels. Admiralty law and maritime regulations govern these cases, with a focus on safeguarding maritime commerce and addressing environmental concerns.
While both aerial and maritime torts involve complex liability issues, they differ significantly in terms of legal doctrines, jurisdiction, and applicable regulations. Understanding these distinctions is crucial for legal practitioners and litigants seeking redress for harms occurring in the skies or on the high seas.
Meaning of Torts
‘TORT’ may be defined to be an injury or a wrong committed with or without force to the person or property of another. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.
The feature of tort in private international law is that if the tortuous act has been committed entirely locally, the lex loci deliciti governs it, irrespective of the fact whether it has or has not some foreign element, such as, both or one party to the suit is domiciled or president abroad or national of another country[1].
Maritime Torts
English courts until 1862 applied the ordinary British rules of navigation to collisions of any ships occurring in British waters or involving two British ships on the high seas. They followed somewhat different rules of seamanship if a collision took place between a British and a foreign, or two foreign ships, on the high seas. The latter rules were assumed to be common to seamen of all nations, a “general maritime law,” though administered in special form in England22. The duality of “British” and “general maritime” rules was abolished by the Merchant Shipping Act Amendment Act of 1862 providing that all ships, British and foreign, should be judged by British law with reference to the rule of the road and the extent of the owner’s liability. Since then, the English statutory law is the expression of the “general” law of maritime torts.
Maritime torts apply to case where injury, loss or damage is caused to a person or their interests in a maritime setting. Under maritime law, generally cases are brought against a corporation rather than an individual, as the carriage of persons or goods carries with it an element of responsibility for their safety. Damage to goods can, occur as a result of inadequately secure storage on the part of the carrier and leaves them liable to face a claim for damages.
In Canal Barge Co. vs Torco Oil Co.[2], a heavy residue was left behind by the company on the vessel while transporting a cargo of oil which was chartered by the plaintiff – shipping company. As the defendant’s negligent loading of their product was proven in court, the case was upheld and Torco were found liable for material damages.
In general, maritime torts mean torts which are committed on high seas. There are two categories under which such tortious act may fall under, they are:
- Acts which are confined to a single ship. For e.g.; assault by one crew member on another. Such acts do not fall under the ambit of private international law; rather they are governed by the law of the flag, as a ship belongs to the territory of the country of the flag which it flies. Thus, if the ship is Indian and is sailing with an Indian flag then it will be governed by Indian law. But if such a tort case is brought to an English court then the rule laid down in Phillips vs. Eyre modified by the House of Lord in Boys vs Chaplin will be applied. Difficulty arises in case of composite countries where the law of the port of registry is suggested to be followed.
- Acts which are external to the ship. Torts which do not refer to or affect the people or property on board the ship. Such acts are of following two types;
- Negligent navigation resulting in collusion with another ship.
- Negligent navigation resulting in some damages to the property of another.
It is evident that in such cases the general rule cannot be applied. It is an established rule of English law that in such cases it is general maritime law, as applied an administered by the admiralty decision of the high court, applies, whatever might be the law of the flag. But as a condition the act must amount to tort by English law and by general maritime law. Only then an action in English court could be maintained. This rule does not apply if the matter is covered by some international convention to which England, is a party. In that case, the matter will be governed by the convention’s provisions. For example, Convention on High Seas concluded at Geneva in 1958 covers matter relating to claims for damages by reason of interference with or damage done to platforms, derricks, etc., installed for exploration or exploitation on the sea-bed and sub-oil and their natural resources on the continental shelf.
In Wartaj Seafood Products Ltd vs. Ministry of Home Affairs[3], the plaintiff’s vessel was grounded in the harbor. The plaintiff asked the local police to ‘keep an eye on the vessel’ and the police agreed. The boat was stripped, and the plaintiff sought compensation claiming negligence on the part of the police for their failure to protect the vessel. The defendant applied to strike out the Statement of Claim on the grounds that it disclosed no reasonable cause of act. It was held that, it is settled law that the police owe no special duty to individual members of the public at large. The requisite special relationship of proximity does not arise to support a claim in negligence. The vessel owners should have hired a private security firm to protect their vessel. The plaintiff’s case was dismissed.
Aerial Torts
Aerial torts include torts committed on an aircraft, collusions in the air between two aircrafts, or damage caused to life or property on account of crashing of an aircrafts (aircrafts = any mechanical device capable of flight). In the absence of law of aerial torts, the law is sought to be developed either on the analogy of the ships or motor cars. Then, under international law the territorial jurisdiction of a state extends to the air space over land and territorial waters. Which means, that the place of a tort committed in and internal to an aircraft on the ground or in and internal to an aircraft in flight over land or over the territorial sea of a state is the place in or over which the aircraft was located at the relevant time and not the place of registration of the aircraft as such. Exception being when the flight is over High Seas. Thus, the place of a tort committed in and internal to a United States registered aircraft in flight at an altitude of 31,000 feet above Scotland is Scotland, not the United States.[4]
Here the choice is between the law of locus deliciti and the law of the country of aircraft’s registration. If a tort claim arises out of a collision between two aircraft over the high seas (or any other place outside the jurisdiction of any state), the lex fori is the applicable law. Kahn-Freund suggested that it should be the law of the place where the aircraft is registered, i.e. the law of the nationality of the aircraft, because “the connection of the aircraft and its passengers and crew with the territories of the countries over which it flies is fortuitous and fleeting, and in many cases it will be difficult to be prove the precise the moment at which the tort was committed and therefore, the precise location of the aircraft at the time if the tort”.
As a practical matter, in relation to both jurisdiction and choice of law, the role of private international law in the context of aerial law is limited by the Warsaw Convention on Air Transport which regulates the liability of air carriers for the death or bodily injury of passengers and has the force of law in Australia. There are other international conventions which govern the matter of aerial torts covering various extents. Some are; article 29 of the Convention on Air Transport provides that the right of damages shall be extinguished if an action is not brought within two years. The statutory provisions cover only certain aspects of the aerial torts. It is submitted that Lord Denning’s “proper law of tort” theory is most suited to the maritime and aerial torts.
In Lazarus vs. Deutsche Lufthansa[5], the plaintiff, Mr Phillip Lazarus, was a passenger on a flight from Germany to Australia operated by the defendant. In proceedings in New South Wales, the plaintiff alleged that, while the aircraft was on the ground at New Delhi airport, India he was defamed and assaulted by a member of the defendant’s crew. The court accepted without comment the parties’ agreement that the place of commission of the alleged tort was India even although the alleged tort was internal to the German registered aircraft.
Comparative analysis between Aerial Torts and Maritime Torts
Aerial torts and maritime torts, despite their distinct settings and legal frameworks, share several notable similarities. Firstly, both domains are concerned with ensuring safety and mitigating risks associated with transportation. Aerial torts focus on aviation safety, encompassing issues like aircraft collisions and drone-related incidents, while maritime torts address safety concerns in navigable waters, including ship collisions and maritime accidents. Secondly, in both cases, there is a strong emphasis on regulations and international treaties. Aerial torts are governed by international agreements such as the Montreal Convention, while maritime torts operate under a complex web of international maritime conventions, such as the International Convention on Civil Liability for Bunker Oil Pollution Damage (BUNKER Convention). Lastly, both aerial and maritime torts are vital for holding individuals and entities accountable for negligence or wrongful acts, thereby promoting responsible behavior within their respective industries and safeguarding the interests of those affected by accidents or harm in these environments.
Aerial torts and maritime torts are distinct branches of tort law with several key differences. One fundamental difference is their geographical scope and nature. Aerial torts involve events that occur in airspace, often related to aviation accidents, drones, or aerial trespassing, while maritime torts pertain to incidents on navigable waters, such as ship collisions or injuries aboard vessels. Jurisdictional complexity is another significant contrast. Aerial torts are typically governed by national and international aviation regulations, like the Montreal Convention, and have relatively well-defined jurisdictional boundaries. In contrast, maritime torts are subject to a complex interplay of national and international laws, often involving multiple jurisdictions, which can complicate liability and litigation. Additionally, maritime torts frequently involve a higher potential for widespread environmental harm, such as oil spills, leading to more extensive international regulation and attention in the maritime domain. Overall, while both types of torts share concerns for safety and liability, these differences reflect the unique challenges and regulatory frameworks associated with aviation and maritime activities.
Jurisdictional issues and international aspects play a crucial role in distinguishing aerial torts from maritime torts. Aerial torts tend to have clearer and more straightforward jurisdictional boundaries, often governed by well-established international agreements like the Montreal Convention, which sets out uniform rules for liability in the event of aviation accidents. In contrast, maritime torts operate in a significantly more complex legal landscape, involving a multitude of national and international laws and conventions, making jurisdictional determinations challenging, particularly in cases involving multinational parties and vessels sailing in international waters.
Conclusion
In conclusion, the examination of aerial torts versus maritime torts highlights the multifaceted nature of tort law in different environments. While both domains share common concerns for safety, accountability, and the prevention of harm, they diverge significantly in terms of jurisdictional complexities and international regulations. Aerial torts, focusing on aviation safety and airspace management, benefit from more defined legal frameworks and international agreements, emphasizing the need for responsible conduct in the skies. Conversely, maritime torts, set against the backdrop of global shipping and complex navigational challenges, grapple with intricate webs of national and international laws, often involving multiple jurisdictions. Furthermore, the potential for extensive environmental consequences in the maritime domain necessitates comprehensive international conventions to address transboundary incidents. In essence, the comparative analysis of aerial and maritime torts underscores the importance of tailored legal approaches to unique environments, balancing the imperative of safety with the intricacies of each domain, and ultimately, striving to uphold justice and accountability in an ever-evolving world.
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Written by- Hargunn Kaur Makhija
[1] Szalatnay-Stacho vs. Fink, (1947)1 K.B. 1
[2] Canal Barge Co. vs Torco Oil Co. No- 99-30002, Decided: July 20, 2000; US Courts of Appeals
[3] Wartaj Seafood Products Ltd vs. Ministry of Home Affairs [2000] FJHC 99;Hbc0129j.2000s (8 September 2000)
[4] Smith vs. Socialist People’s Libyan Arab Jamahiriya 113 ILR 534 (1997)
[5] Lazarus vs. Deutsche Lufthansa (1985) 1 NSWLR 188
