Passenger Rights Under The Montreal Convention In Ghana: Navigating Compensation Amid Confidential Aircraft Accident Investigations

INTRODUCTION

The Montreal Convention¹ establishes a global legal framework for air carrier liability for damage sustained during international air travel. This ensures a uniform set of rules among member states and guarantees passengers equitable access to compensation where the Convention applies. However, in the context of aircraft accidents, proving fault on the part of the airline can be daunting. Under the rules governing aircraft accident investigations, particularly Annex 13 to the Chicago Convention,² investigative findings are generally protected from public disclosure. Evidence that may be crucial for establishing negligence or wilful misconduct is often deemed inadmissible in court, in order to preserve the no-blame safety culture that underpins aviation investigations.

This article examines passenger rights under the Montreal Convention as applied in Ghana, focusing on the challenges of securing compensation in the context of confidential aircraft accident investigations. It explores how the Convention seeks to balance the interests of passengers, airlines, and aviation safety, without allowing procedural limitations to become insurmountable barriers for victims.

COMPENSATION UNDER THE MONTREAL CONVENTION IN GHANA

Ghana initially ratified the Montreal Convention through the Ghana Civil Aviation (Amendment) Act, 2016 (Act 906), extending its application to both international and domestic flights. Its provisions have since been incorporated and adapted under the Second and Third Schedules of the Ghana Civil Aviation Act, 2024 (Act 1120).³ These Schedules provide passengers with important rights in situations such as bodily injury or death, flight delays, damage and loss of baggage or cargo.

The Montreal Convention imposes liability on airlines in the event of injuries or deaths of passengers only if the accident causing the injury or death occurred onboard the aircraft or during embarkation or disembarkation.⁴ It does so through a two-tier liability system, which provides automatic compensation up to a certain threshold,⁵ with additional compensation available if the airline is found to be at fault.

BARRIERS TO COMPENSATION: THE ROLE OF AIRCRAFT ACCIDENT INVESTIGATIONS IN GHANA'S AVIATION LIABILITY FRAMEWORK

The international legal framework governing the investigation of civil aircraft accidents is set out in Annex 13 to the Chicago Convention. The core objective of Annex 13 is to ensure that accident investigations are conducted solely for the purpose of preventing future occurrence, and not to apportion blame or liability. This is intended to encourage full and honest disclosure of information by individuals and organisations involved in aircraft accidents. By fostering a cooperative and non-punitive environment, Annex 13 supports the identification of underlying safety deficiencies, which is essential for improving aviation safety systems and preventing similar accidents in the future.

Ghana, as a contracting state to the Chicago Convention, has domesticated the principles enshrined in Annex 13 through the enactment of the Aircraft Accident and Incident Investigation and Prevention Bureau Act, 2020 (Act 1028). This legislation establishes the Aircraft Accident and Incident Investigation and Prevention Bureau as an independent body mandated to investigate aircraft accidents and incidents.

While the no-blame culture that underpins aircraft accident investigations promotes safety in the aviation industry, it creates legal barriers for passengers seeking compensation under the Montreal Convention, particularly where negligence or wrongful act or omission of the airline must be established to claim compensation beyond the convention's strict liability threshold. Aviation, being a highly technical and specialised field, requires technical experts to accurately interpret complex operational and engineering data during aircraft accident investigations. These experts are typically employed by or engaged with state investigative authorities that are solely mandated to conduct investigations in accordance with Annex 13. In line with the no-blame safety principle that underpins such investigations, these experts are generally shielded from being compelled to testify in legal proceedings that seek to apportion fault or establish liability.⁶ Moreover, critical information or materials such as cockpit voice recorders (CVRs), flight data recorders, air traffic control recordings, analytical opinions and internal reports are generally restricted and protected from public disclosure or access.⁷ Lastly, final investigation accident reports are not admissible as evidence in legal proceedings aimed at establishing liability.⁸ This restricted access to key evidence makes it extremely difficult for claimants to establish negligence or misconduct on the part of the airline.

BRIDGING THE GAP: HOW THE MONTREAL CONVENTION ADDRESSES EVIDENTIARY BARRIERS

In the event of an aircraft accident, the Montreal Convention, as incorporated and adapted under the Ghana Civil Aviation Act, 2024 (Act 1120), establishes a two-tier liability system that modifies the traditional evidentiary rules in civil claims. Ordinarily, under the common law principle of evidence, the burden of proof rests on the claimant, who must establish the defendant's fault or negligence to succeed in a tort claim. However, under the Montreal Convention, this burden is reversed.

The airline is subject to strict liability for proven damages up to a specified threshold, and is required to compensate a passenger or claimant for bodily injury or death resulting from the accident, without the need to establish the airline's fault. In respect of damages exceeding this threshold, the Convention introduces a rebuttable presumption of liability, placing the evidential burden on the airline to prove that the damage was not caused by its negligence or wrongful act or omission, or that the damage was solely attributable to a third party.⁹

As a further safeguard for passengers or claimants, the Montreal Convention provides that airlines shall make advance payments in the event of death or injury, where such payments are required by national law. However, these payments do not constitute an admission of liability by the airline. This mechanism is designed to ensure that victims or their dependents are not left financially unsupported during the early stages following an accident.

In line with this provision, the Ghana Civil Aviation Act, 2024 (Act 1120) explicitly makes provision for the payment of advance compensation by air carriers in cases of death or serious injury resulting from aircraft accidents.

This structure reflects a deliberate policy shift from the traditional evidentiary approach, balancing the need for baseline passenger protection with the operational realities of air carriage. It establishes a mechanism designed to protect passengers from being disadvantaged by investigative rules and procedures that prioritize systemic safety over individual culpability.

CONCLUSION

The Montreal Convention, as incorporated into Ghanaian law through the Ghana Civil Aviation Act, 2024 (Act 1120), provides a structured legal framework for compensating passengers involved in aircraft accidents, balancing the need for passenger protection with the confidentiality of aircraft accident investigations. While investigative findings are generally protected to maintain a no-blame safety culture, the Convention's provisions, such as strict liability, reverse onus of proof, and mandatory advance payments, help alleviate evidentiary burdens on claimants and ensure that passengers and their families have a clear legal path to seek redress, reinforcing accountability and fairness within the aviation sector.

Footnotes

1. Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28^th May 1999, ICAO Doc 9740, entered into force on 4^th November 2003.

2. Convention on International Civil Aviation, signed at Chicago on 7^th December 1944, ICAO Doc 7300, entered into force on 4^th April 1947.

3. The Second Schedule applies to international air travel to and from Ghana, while the Third Schedule governs domestic air travel within Ghana.

4. Article 17 of the Montreal Convention as incorporated under the Second and Third Schedules of the Ghana Civil Aviation Act, 2024 (Act 1120).

5. Ibid, Article 21(1)

6. Section 31(1) of the Aircraft Accident and Incident Investigation and Prevention Bureau Act, 2020 (Act 1028)

7. Ibid, Sections 26, 27 and 30.

8. Ibid, 31(4)

9. Article 21(2) of the Montreal Convention as incorporated under the Second and Third Schedules of the Ghana Civil Aviation Act, 2024 (Act 1120).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.