In-flight safety and security has, since the beginning of aviation, been a major concern in both legal and regulatory efforts, ensuring that every air journey not only meets the highest standards of protection, but also continues to evolve to meet the challenges of the future.
One of the most safety-critical, and often underestimated, elements is the use of seat belts by passengers. The recent incidents on Singapore Airlines flight SQ321 and Air Europa flight UX045, where severe clear air turbulence (CAT) resulted in multiple injuries, underline the importance of this safety measure.
This article will briefly analyse the evolution of seatbelt regulations and airline liability in the context of CAT turbulence, highlighting the urgent need for greater passenger awareness and compliance with safety measures in an environment of increasing incidents of this type, and will pose the big question: can airlines be held liable when their passengers are injured because they do not wear their seatbelts?
THE SQ321 CRASH AND CAT TURBULENCE
Leaving aside flight UX045 of 1st July 2024, the incident of which occurred only a few hours before the end of this article and for which there is still not much information, we will focus on Singapore Airlines flight SQ321, which was operated by a Boeing 777-300 (9V-SWM) and departed London for Singapore on 21st May 2024.
The aircraft encountered, at an altitude of FL370, approximately 350 nautical miles west-northwest of Bangkok, severe CAT-type turbulence, which caused extreme fluctuations in G-forces, varying between (+)1.57G and (-)1.5G over a 19-second period.
Despite the fact that the seatbelt sign was activated, multiple injuries were reported due to passengers not wearing their seatbelts: one fatality from a heart attack, seven critically injured and thirty passengers with injuries of varying severity, including fractured skulls and various bones, caused by the violence of the impacts against the interior and roof of the passenger cabin¹.
Clear air turbulence is a type of atmospheric turbulence that occurs in clear skies, with no visible clouds to warn of its existence. This phenomenon usually occurs at high altitudes, generally above 20,000 feet (6,000 metres), and is associated with jet streams, areas where cold and warm air masses meet and generate strong wind gradients.
CAT turbulence is particularly dangerous because it cannot be detected by aircraft weather radar, as radar waves do not bounce off clear air, but rather water droplets present in clouds and precipitation. As a result, CAT turbulence can appear suddenly and without warning, posing a significant challenge to pilots and aviation safety.
There are also studies, such as that of Paul D. Williams of the University of Reading, which indicate that rising air temperatures and changes in wind patterns in the upper atmosphere due to climate change have increased the frequency of CAT events by 55% since 1979.
Given this reality, the recommendation to wear a seatbelt properly fastened throughout the flight is not only a precautionary measure, but an imperative need for the (self-)protection of passengers, so in the following section we will briefly analyse its origin and regulations.
HISTORY AND REGULATION OF SEAT BELTS
It is Benjamin Foulois who is credited with designing the seatbelt in 1911 on aircraft purchased from the Wright brothers, although, if one looks at photographs of those flying machines, one could easily conclude that Mr. Foulois cannot be considered a great revolutionary – certainly not for this invention – as devising a seatbelt system seemed more an exercise in pure survival than a disruptive and innovative decision.
Despite the above, in the 1920s and 1930s, the installation of seat belts in aircraft was limited and their use was not mandatory, depending on the airline and aircraft design. During the 1940s and 1950s, with the increase in air traffic and the development of larger and faster aircraft, greater safety was demanded and regulations began to tighten to require the use of seat belts.
However, since the 1980s seat belts have been compulsory during take-off and landing, and whenever the safety sign is on.
At the European level, the design, layout and use of safety belts are regulated by Regulation (EU) No. 965/2012², which (i) contains an obligation on the commander to ensure that all passengers wear their safety belts correctly before take-off, landing and whenever he/she considers it necessary (CAT.OP.MPA.225); (ii) requires airplanes to be equipped with a seat and seatbelt for each passenger (CAT.IDE.A.205); or (iii) that airplanes must have clear signs to indicate when passengers must fasten their seatbelts.
In addition, seats typically have an inscription informing passengers that they must fasten their seat belts when seated in their seats, and the Master Minimum Equipment Listings (MMEL) indicate that seats that do not have operational seat belts cannot be used by passengers and must be rendered inoperable.
WHO IS LIABLE FOR DAMAGE CAUSED BY NOT WEARING A SEATBELT?
When analysing liability for damage suffered in this type of event, it is worth starting by recalling the regime of the 1999 Montreal Convention for personal injuries suffered on board aircraft, by first mentioning article 17, which under the heading «Death and injury of passengers. Damage to baggage», provides that «The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking».
As is well known, this Article is complemented by Articles 20 and 21 of the Convention, which deal with exemption and limitation of liability respectively.
Although the most common debate normally arises in relation to the interpretation of Article 22 and the two-tier liability regime, the fact is that in relation to this analysis we should actually focus on Article 21, which regulates the exoneration as follows:
If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. (…)
In other words, the quasi-strict liability regime of the Montreal Convention is limited in those cases where it is the negligence or wrongful act or omission of the passenger that caused the damage for which compensation is claimed. Is it therefore possible to argue that a passenger who does not wear his seatbelt properly fastened cannot claim for damage he suffers when sitting in his aircraft in CAT turbulence, since he is the person who caused or contributed to the damage?
Before answering this question, we must point out that there is no case law that can help us to resolve this issue, since the cases analysed by our courts have not really resolved analogous situations of mass damage caused by CAT-type turbulence, and even less so in an era like the present where the number of events is increasing drastically.
Moreover, it might be thought that airlines and their insurers have traditionally compensated for injuries occurring in these circumstances, since there was no such clear recurrence and causation.
It must therefore be examined whether, in an environment where these episodes will occur more and more frequently, such compensation should continue to be paid or whether, on the contrary, airlines can argue that the damage suffered by passengers is self-inflicted and therefore, in application of Article 20 of the Montreal Convention, be exonerated.
And this is where it seems reasonable to argue that it makes no sense to require airlines to pay compensation to their passengers when, while sitting in their seats, they unilaterally decide – since the crew cannot be expected to be constantly monitoring when it is used and when it is not used by all passengers – not to wear their seat belts, or to wear them improperly fastened (without being minimally fastened).
It should also be noted that all passengers receive an information briefing on each flight before take-off, that a reminder to wear seat belts when seated is written on their seats, and that the information cards on board also contain warnings.
Some airlines also provide clear and straightforward information about such risks to their passengers on their websites and through the e-mails that are part of the booking. All these materials and strategies should certainly help to enable airlines to absolve themselves of responsibility for their passengers who deliberately ignore safety recommendations.
Before concluding, we should note two factors which inevitably affect the liability analysis here and which may limit, in some cases, the exoneration of airlines from liability.
Firstly, it should be noted that passengers who do not wear their seat belts in this type of situation, in addition to causing severe damage to themselves (skull fractures, broken bones, etc.), usually become projectiles that fly freely around the cabin hitting and injuring other passengers as well.
Thus, exoneration of the airline from damages claimed by a passenger who was wearing his seatbelt, but was injured by another passenger who was not wearing his seatbelt and was ejected, would appear to be more difficult under the content of Articles 20 and 21 of the Montreal Convention cited above.
Secondly, we must point out that there are situations where it will inevitably be difficult, especially on long journeys, to exonerate from responsibility for all the situations that may arise. This is because it is unrealistic to think that passengers must remain seated in their seats for the entire flight, since there are movements that will inevitably have to be made during the journey, such as using the toilets, stretching the legs to avoid numbness (especially important for the elderly) or serving food and drink, among others.
However, even though zero risk cannot be achieved for the reasons stated above, it seems reasonable that airlines should be allowed to exonerate in cases where passengers, while seated in their seats, refuse to wear their seat belts, causing injury to themselves and even to other individuals.
CONCLUSION
In summary, the increase in CAT turbulence, characterised by its unpredictability and dangerousness, highlights the urgent need for greater passenger awareness and compliance with safety measures.
The case of Singapore Airlines flight SQ321 dramatically illustrates the consequences of not wearing seat belts at all times. Clear air turbulence, undetectable by radar, represents a significant challenge that is intensifying with climate change. The current rules, backed by Regulation (EU) No 965/2012 and the 1999 Montreal Convention, clearly establish the liability of airlines, but also provide for exemptions when passenger negligence contributes to the damage suffered.
It is therefore reasonable to argue that airlines should not be held liable for injuries to passengers who deliberately choose not to wear their seatbelts when seated, despite repeated warnings and safety recommendations. However, it is important to recognise that there are unavoidable situations where passengers cannot always be secured, and in such cases, airlines should continue to implement all possible measures to minimise risks.
In conclusion, collaboration between airlines and passengers is essential to meet the growing challenge of CAT turbulence. Only through a joint and continuous commitment to safety standards can the protection and well-being of all on board be ensured.
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1 Other recent flights causing injuries include EK421 operated by an Emirates Airbus 380 on 6th December 2023 which injured 14 people, DT652 by an Angola Airlines Airbus 330 on 23rd March 2023 which injured 10 people, LH469 by a Lufthansa Airbus 330 on 2nd March 2023 where 7 people were injured, Aerolineas Argentinas AR1133 of 20th October 2022 on an Airbus 330 and Aerolineas Argentinas AR1303 of 18th October 2018 which resulted in 15 passengers injured (8 of them seriously), Turkish Airlines flight TK001 on 9th March 2019 which left 29 injured; and Evelop Airlines (Iberojet) flight I9927 on 20th August 2019 (MAD – SID), which encountered severe turbulence over Ethiopia, injuring 16 passengers.
2 Commission Regulation (EU) No 965/2012 of 5th October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council Other similar regulation includes rules established by the Federal Aviation Administration (FAA) in Title 14, Part 91, Section 1007 of the Code of Federal Regulations, the International Civil Aviation Organization (ICAO) in Annex VI of the Convention on International Civil Aviation and the International Airlines Transport Association (IATA) through the IATA Operational Safety Audit (IOSA).
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