Flight PK 268

HC Deb 17 May 1995 vol 260 cc445-52

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Willetts.]

10.26 pm

Mr. Nigel Waterson (Eastbourne)

Sadly, about a thousand people a year are killed in aeroplane crashes. Each of those deaths involves a deep personal tragedy for the loved ones left behind. This is the story of one of them.

I was approached by my constituents, Michael and Nesta Peate. They are typical decent, law-abiding citizens: Mr. Peate is a respected local optician. They had a daughter, Louise. Aged 31, she had just completed six years' training and had qualified as a clinical psychologist. She went trekking in the Himalayas to celebrate her success, and also to have a break before starting a new job. She was one of the passengers on Pakistan International Airlines flight PK 268 from Karachi to Kathmandu in Nepal on 28 September 1992. The A300 Airbus carried 167 passengers and crew, including 34 Britons such as Louise. Many were also young and talented, with everything in life to look forward to.

At 14:30 hours local time, the aircraft struck a mountain during its approach to Kathmandu airport. It was flying some 1,500 ft too low when it crashed. Everyone on board was killed. As is normal in such cases, a commission was appointed by the Government of Nepal to investigate the accident. It is somewhat ironic, in view of later developments, that it was stated to be for the purpose of advancing aviation safety. The United Kingdom volunteered Mr. Gordon Matthews and Mr. Jeremy Barnett of the air accident investigation branch at Farnborough to lead the investigation. In due course, they produced a thorough and detailed report. I shall return to its main findings in a moment. It is a staggering fact, however, that the report has never been officially published—and, indeed, has been suppressed by both the Nepalese Government and the airline.

Far from being available to advance aviation safety throughout other airlines and airports, the report has officially never seen the light of day. It is not available for use by the families in any litigation. Moreover, the inquest held in London was somewhat farcical, because the report could not be officially admitted in evidence—although most people in the court had access to unofficial copies.

As my hon. Friend the Minister will know, I have pursued this aspect of the case through the Foreign and Commonwealth Office. On 24 January last year, I asked what representations had been made to the Government of Nepal concerning publication of the report. I was told in a reply that no representations had been made, but that copies of the report had been distributed to relatives of the British victims and "interested parties". That is all very well, but I have already explained why the copies of the report now circulating have no official status.

I hope that the Minister will renew pressure on the FCO to press the Nepalese for formal publication. Surely, it must be right that such a report should be published as a matter of course when there is such a tragedy. I have seen a copy of the report on the crash of flight PK 268. Essentially, it blames the pilots of the Pakistan International Airlines flight for consistently failing to follow the approach procedure". There is also criticism of air traffic control at Kathmandu because of a missed opportunity to prevent the accident when it failed to challenge the low altitude report by the pilots.

The report concluded that some of the air traffic controllers had a low self esteem and were reluctant to intervene in piloting matters. There were also criticisms of PIA's training of its crews for the difficult approach to Kathmandu, as well as the route checking and flight operations inspections procedures. There was also criticism of the ground proximity warning system that failed to warn the crew of impending flight towards high ground because of the combination of elderly equipment and rugged terrain". In all, the report makes 21 recommendations, mostly involving the airline and the Nepalese authorities.

I shall later discuss compensation, but before doing so, I should make it clear that people such as my constituents, the Peates, are not particularly concerned about monetary compensation. They simply do not wish the parents of other young people to have to go through this personal hell. I can do no better than to quote from one of their early letters to me. It stated: As deeply grieving parents of a very special talented daughter all we can hope is by our actions to prevent other families enduring similar needless destruction. We were dismayed at the Inquest when PIA were asked by a relative if they intended to implement the safety recommendations that there was no reply. The system for compensation for air crashes is based on the Warsaw convention, which was formulated as long ago as 1929. At that time, flying was rightly regarded as extremely hazardous, hence the argument for introducing a cap on the amount of liability for death or injury.

I am indebted to Mr. Nigel Taylor, a solicitor who represents the Peates, among others, and who specialises in representing air crash victims. I shall quote more than once from his excellent article in the "Journal of Personal Injury Litigation", entitled "Limitation of Liability of Air Carriers to Air Crash Victims—Has the Warsaw Convention Reached its Retirement Age?"

The limit for carriers registered in countries that have signed only the Warsaw convention would be about £7,000 at current exchange rates. Many countries have signed The Hague protocol that amends the original Warsaw convention. It came into force in 1963 and the maximum compensation can be as little as £13,633.40—and that for the loss of a human life. To its credit, the United Kingdom has signed up to the Montreal protocol, which raised the limit to about £95,000. Pakistan has not signed up to that more recent protocol. All air carriers flying into the United States of America, as well as US-registered carriers, subscribe voluntarily to a maximum limit of $75,000, including legal costs, in the event of loss of life. I understand that that limit is often waived when planes crash in the United States.

Mr. Taylor states in his excellent article: A 40 year old executive earning £75,000 a year survived by a wife and two young children, could anticipate compensation of £500,000. If killed in a road traffic accident, this would be fully recoverable. If killed on board an aircraft operated by a carrier which was not contracted for limits in excess of the Warsaw-Hague minimum, the recovery could be as little as £13,633.40, i.e. less than 3 per cent. of the full value of the claim. It has been argued that the cap on damages Is a quid pro quo for what is said to be the strict liability upon a carrier under the Warsaw system. Mr. Taylor describes that as "a common misconception" and he points out various technical defences that are available to lawyers acting for an airline. Article 25 of the convention in principle imposes unlimited liability on a carrier if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment". As a lawyer, I can see at a glance that that imposes a pretty heavy burden of proof upon a claimant. As Mr. Taylor says, in this country there are no reported cases where an injury or death claimant has successfully discharged the burden that arises". Indeed, the subjectivity of the test is such that it has been said that the pilot would almost have to leave a suicide note before unlimited liability could be sustained.

What can be done to improve that patchwork of outdated and inadequate compensation? In my correspondence with him, the former Under-Secretary of State for Transport, the noble Lord Mackay, conceded that the current limits are now very out of date". He also pointed out that unilateral action by the United Kingdom would not help families like the Peates whose daughter was lost on a flight by a non-UK registered aircraft". One solution is to obtain international agreement to increase very substantially the liability limit, certainly to its 1975 value of about 250,000 special drawing rights. In October 1992, the European Union issued a consultation paper, but progress through the European Civil Aviation Conference has been slow. The International Air Transport Association has now had approved an application for anti-trust immunity so as to permit inter-carrier discussions. It is also arguing for higher levels of compensation within the same basic framework.

I believe that something more dramatic is required—possibly scrapping the Warsaw system altogether. After all, the last time that a Government—in that case, the United States of America—threatened to denounce the convention, the airlines were put under so much pressure that they agreed a much improved regime in the shape of the 1966 Montreal inter-carrier agreement. Another brave step forward was that taken by the Japanese airlines which in 1992 abolished the artificial limits in most circumstances. It is now about time that some western airlines followed their example.

I have already made the point that this rather creaking system came in at a time when air travel was pretty dangerous. Now it is infinitely more dangerous to drive to the airport than it is to fly to most parts of the world. In Mr. Taylor's words, If it was suggested that a bus or coach company should be permitted to limit their financial liability to £13,000 when they kill people, there would be a public outcry". That is particularly true when one considers that about 1,000 fatalities a year are involved. Admittedly, some of those killed—but by no means all—would be able to claim very large damages in jurisdictions such as the USA. Even so, the amounts involved ought to be insurable in the ordinary way and must be insignificant when compared to the turnover of airlines worldwide.

Finally, there are two other issues relating to compensation. Under English law, it is still the position that if someone over 18 is killed without any dependants—as was true of many of the passengers, including Louise Peate—no substantial damages will be payable on death. Bereavement damages are allowed under English law only in respect of a spouse or a child under 18 years of age. I am aware that that is not part of my hon. Friend's responsibility. I understand that the Law Commission has been looking at this issue and I hope that we shall see some change in the future.

There is no provision to compensate families for the cost of annual trips to a distant crash site to visit the graves of their loved ones. In the case of the Peates, their daughter's body was flown back to this country. The many unidentified victims were buried in a mass grave in Kathmandu. Some of the families make regular visits to the memorial garden there and they have to pay for those visits out of their own pockets. I understand that PIA has been unprepared to commit itself to the long-term upkeep of the memorial garden. In all conscience, that is unacceptable from an airline which has regular flights out of London and Manchester and carries 50,000 or 60,000 passengers a year from the United Kingdom.

Finally, air travel has been one of the great success stories of this century. It enables millions of people to traverse the globe, either on business or for pleasure, often at modest cost and in relative safety and comfort. On the few occasions when pilot error or other circumstances cause a tragic loss of life, it is surely wrong to continue to deny proper investigation and compensation to the families of the victims, for whom it is part of the natural grieving process.

10.40 pm

The Parliamentary Under-Secretary of State for Transport (Mr. Steve Norris)

I congratulate my hon. Friend the Member for Eastbourne (Mr. Waterson) on his assiduity in pursuing the matter that he has brought to the attention of the House tonight—the tragedy of the loss of Pakistan International Airlines flight 268, which crashed in Nepal en route from Karachi to Kathmandu on 28 September 1992. It was a tragic accident, and it is quite right that my hon. Friend has once again taken the opportunity to draw attention to the decision of the Nepalese authorities not to publish the report of the investigation into the accident.

As I shall explain, the unpublished version of the report has been circulated widely, but—I agree with my hon. Friend—not in a manner that will fully satisfy the relatives of victims of the crash. That is why we are still pressing for full publication of the report.

My hon. Friend also raises the issue of compensation and the Warsaw convention. Obviously, relatives of victims of such disasters, such as Mr. and Mrs. Peate, are not primarily concerned with monetary compensation, but the issue will inevitably arise in the aftermath of such tragedies. As my hon. Friend said, the subject of compensation has added poignancy in the case of the loss of flight PK 268, as the only comfort available to many of the families is to visit the memorial garden at the site of the crash near Kathmandu.

I understand that, although Pakistan International Airlines made arrangements for many of the relatives in the United Kingdom to visit the memorial garden shortly after it was completed, the airline has not offered to fund any further visits. That obviously adds to the distress of relatives, who need the comfort and solace of visiting the graves of their loved ones. I shall go further into the issue of compensation in a moment, but first I shall deal with the investigation and the subsequent accident report.

As my hon. Friend said, the single largest group of victims in that tragic crash were British. Because of the number of British fatalities, the United Kingdom's air accident investigation branch offered assistance to the Nepalese authorities in carrying out an investigation into the causes of the crash. The Nepalese subsequently asked the International Civil Aviation Organisation for assistance, and specifically asked that the international team be led by the AAIB from Britain. The international team also included investigators from Canada and Australia.

The team was, in effect, seconded to the Nepalese Government to advise the Nepalese commission of inquiry that was convened to examine the circumstances of the accident. The findings of the investigation team formed the basis of the Nepalese commission's final report.

During that investigation, the Nepalese commission indicated that it would publish the report at the conclusion of the investigation. In accordance with its normal practice, the AAIB sought permission to publish the Nepalese report in the United Kingdom. That permission was not forthcoming.

As my hon. Friend quite correctly said, the report has not yet been formally published. We pressed the Nepalese to publish the report, and the Nepalese commission of inquiry eventually agreed to release the final report to interested parties in August 1993. The AAIB received its copy on 8 September that year.

Recognising their concern and their need for full details, the AAIB provided copies of the report to the families of those who died in the accident as soon as they had received it from the Nepalese. In addition, it arranged for the families to visit the AAIB at Farnborough to receive a briefing on the technical content of the report, and to have the opportunity to ask questions of the inspectors who participated in the investigation.

Under the provisions of annexe 13 to the Chicago convention, which lays down the safety standards for international aviation, circulation of an accident report cannot take place until the state conducting the investigation has released the final report. Although ICAO has recommended that reports should be published, there is no legal requirement on a member state to do so. Since the crash, the United Kingdom has pressed ICAO to upgrade the provision on publication, and ICAO has now agreed that publication of accident reports should be a standard practice implemented by all member states.

Despite extensive efforts, the Government have been unable to persuade the Nepalese authorities to publish the accident report more widely. However, a copy has been submitted, as required, to ICAO, which publishes quarterly summaries of all the air accident reports received from member states. Those summaries are sent to all member states—183 in total—and include details of the circumstances of the accident with causal factors and recommended action.

Although that falls short of full publication, it brings the findings of the Nepalese report to the attention of those who are best placed to help prevent similar tragedies in the future. However, I assure my hon. Friend that we are continuing to press the Nepalese authorities through diplomatic channels for full publication of the report.

A variety of recommendations were directed at Pakistan. Some pertain directly to the complex nature of the Kathmandu approach, with which I know my hon. Friend is familiar. But other recommendations showed some areas of more general airline practice where improvements were necessary—for example, improved route checking and expanded training of flight crew. The implementation of those recommendations will lead to improvements in PIA's operational practice, but it should be noted that there is nothing in the accident report which has given the Department any cause to question the airline's competence to continue to operate to airports in this country. I make that clear and put it on the record. The Civil Aviation Authority of Pakistan has confirmed that it is regulating its airline to ensure its adherence to ICAO safety standards.

Under the Chicago convention, we are expected to accept the assurances already given both to us and to ICAO, since the convention—I know that my hon. Friend is expert in these matters and he will forgive me if I narrate this for the important sake of the record—is clear that it is for each contracting state to regulate its own airlines, and that other states must accept the certificates of competence issued by contracting states.

It is true that it took a long time to obtain details from Pakistan, but it should be remembered that the United Kingdom has no locus to insist. ICAO, too, had seen the report and could have acted if it had identified serious failings. Nor have we had any indications of problems with flights to the United Kingdom. No complaints about safety or procedures have been passed to us by the Civil Aviation Authority, airport authorities or passengers.

As to the provisions of the Warsaw convention, I agree with my hon. Friend that the limits set on carriers' liability by the original convention, and the amending Hague protocol, are now obviously out of date. The United Kingdom Government thought so in 1975—my hon. Friend was kind enough to give credit to our predecessors at that time—and that is why they signed the 1975 Montreal protocols, increasing the limit, as he said, to about £93,000, or 100,000 SDRs, and have constantly urged other states to do likewise. However, the new limit and the other changes made by the protocols have never come into force because insufficient states have ratified them. My hon. Friend knows well the situation with which that presents us.

The United Kingdom adopted the higher limit for its carriers in 1979, but unfortunately only about 20 other states have followed our example and neither Pakistan nor Nepal is among that number.

By late 1992, we and other member states of the European Civil Aviation Conference concluded that, although we would continue to want the Montreal protocols to come into force, some other action would have to be taken if we wanted an improvement in the immediate future. ECAC therefore began discussions, in which the UK has been actively involved, on possible alternative ways of increasing the Warsaw convention limits.

The outcome of those discussions was a recommendation by ECAC that airlines registered in ECAC member states should be encouraged to enter into a voluntary inter-carrier arrangement similar to that which already applies to carriers flying in the United States. That agreement should, inter alia, increase those limits to at least the current equivalent value of the Montreal protocol limits. The agreement could at this stage apply only in Europe—I have to add that qualification—although the aim would be to extend it eventually throughout the international aviation community.

That is the agreement currently being considered by IATA, following the granting by the United States of an exemption from the US anti-trust laws. It is a large task for any organisation to undertake, but I am confident that IATA will be able to accomplish it.

The United Kingdom Government's opinion is that such a voluntary arrangement offers the best and most readily available means to update the Warsaw convention effectively. We believe that the convention should be retained, because it provides the essential basis for a global system for the compensation of passengers or their families when killed or injured on an international flight. Without it, carriers would not be bound to make even the present "no fault" payments.

The Warsaw convention does not and cannot absolve airlines from their liability to compensate people bereaved or injured as a result of an air crash. The limits that it sets are only on the amounts that an airline must pay regardless of the cause of the crash, and without the bereaved or injured people having to take legal action. Under the convention as at present in force, there is no limit on the amounts that a court may award if an airline is successfully sued. That is why, for example, relatives of American citizens who have died in air crashes have been awarded rather larger sums in compensation than the convention limits.

I do understand that that is all of small comfort to bereaved relatives who must, until the Montreal protocols come into force, take such legal action in the country either of registration of the aircraft or of the crash. In many cases, both countries are too distant for the relatives to be able to travel there often enough to visit graves, let alone visit in order to conduct legal action. The United Kingdom Government could, in such cases, make strong representations to the Government or Governments of the states involved to assist the passengers' families but, in the final analysis, it is for the airline involved to acknowledge its responsibilities to its passengers and make appropriate compensation payments to them or their families when due.

I echo my hon. Friend's sentiments about the especially tragic circumstances of the dreadful accident that befell the gifted daughter of Mr. and Mrs. Peate, lost to them in the prime of life. My sympathies also go out to the parents and relatives of all the other victims, many of whom have written to the Department. I want to assure them and my hon. Friend that the Department is doing all that it can to press for an amendment to update the international conventions governing the levels of available compensation, so that we may ensure that other families in future tragedies are spared similar distress.

Question put and agreed to.

Adjourned accordingly at six minutes to Eleven o'clock.