The Directorate General of Civil Aviation (DGCA) is the entity in charge of the civil aviation sector in Lebanon. It is established within the Ministry of Public Works and Transport by Decree No. 938 of 14 April 1971. The DGCA is regulated by Regulatory Decree No. 1610 of 26 July 1971 and has the power to supervise air transport, safety of air navigation, securing communications related to civil aviation, promulgating regulations related to the technical exploitation of aircraft and monitoring their implementation, managing civil airports, paying fees, and other issues related to civil aviation.2 The DGCA comprises the following bodies: Directorate of Technical Exploitation; Directorate of Airports; Department of Meteorology; Department of Flight Safety; Department of Research and Study; Department of Air Transport; and Diwan.3
On 12 December 2002, Law No. 481 was introduced with the aim of reforming the sector and replacing the DGCA and the Centre of Civil Aviation Safety with the General Authority of Civil Aviation (GACA), entrusted with the task of modernising the management, investment and supervision of the civil aviation sector.4 The introduction of the GACA would also separate the regulatory power of the authority from the operational power of the private sector in airport operations.5 However, as the decree appointing the board of directors of the GACA has not been issued, this legislation has not been implemented.
The main legal instruments for civil aviation in Lebanon are the Aviation Law of 11 January 1949 (the Aviation Law), the Civil Aviation Safety Act No. 663 of 4 February 2005 (the 2005 Act) and the Lebanese Aviation Regulations (LAR) issued by the DGCA. By virtue of the 2005 Act, the provisions of the Aviation Law that are inconsistent with those of the 2005 Act are repealed. The 2005 Act was enacted in accordance with the provisions of the International Civil Aviation Agreement of Chicago of 1944, and its amendments, as well as with the standard rules and working methods recommended and set by the International Civil Aviation Organization (ICAO). The 2005 Act deals with aspects such as the classification of aircraft, the requisites for air operators, permits and prohibitions, investigation of incidents and accidents. The LAR cover topics such as the aircraft identification, registration and leasing, aerodrome licensing (in particular regulating allocation of slots or 'movement area', which is handled by the slot coordination committee), airworthiness, aeronautical communications and safety management. The LAR also provide for a general reporting system that will be discussed further below.
Lebanon has ratified a number of international air law instruments, most importantly the Convention on International Civil Aviation as well as the International Air Services Transit Agreement of Chicago of 7 December 1944, and the Convention on the International Recognition of Rights in Aircraft of Geneva of 19 June 1948, and the Convention for the Unification of Certain Rules for International Carriage by Air of Montreal of 28 May 1999. Lebanon did not ratify the Convention on International Interests in Mobile Equipment of Cape Town of 16 November 2001.
The DGCA manages and operates Beirut Rafic Hariri International Airport (BRHIA) and its air traffic control unit. BRHIA is the only operating commercial airport in Lebanon and the hub for the national carrier Middle East Airlines (MEA), which is a member of SkyTeam Alliance. Despite the size of Lebanon's territory and the economic turmoil caused by the civil war of 1975 and its repercussions on the sector, MEA arranges direct flights to 32 destinations, mainly to Europe, Africa and the Gulf.
In terms of market access, Lebanon implemented an open skies policy in 2001. The country implemented the visa-at-arrival procedure, which made access to the country easier for foreign citizens.6 Such liberalisation had a positive impact on the national carrier and the sector as a whole. In fact, the years following saw significant growth in passenger and cargo movement at BRHIA and higher financial returns. This has also resulted in a fair market competition and a reduction of airport charges.7 At the regional level, in 2005 Lebanon entered into multilateral agreements with the states of the Arab Civil Aviation Commission for the liberalisation of the freedom traffic rights.8
II LEGAL FRAMEWORK FOR LIABILITY
The Aviation Law provides a framework for air carriers' liability towards cargo and passengers. The law also covers compensation for damage. Subsidiarily, the general framework for liability is the Code of Obligations and Contracts, which provides in Articles 122 and 123 that any action by a person resulting in unlawful harm to the interests of others obliges the person, if he or she was discerning, to compensate; and that a person is not only liable for the damage caused by his or her own actions, but also for the damage caused by his or her negligence or imprudence.
However, regardless of any domestic framework for air liability, in light of Article 2 of the Code of Civil Procedure that establishes the supremacy of ratified international treaties over domestic legal instruments, the legal framework for air liability in Lebanon is the Montreal Convention of 1999, which was ratified by virtue of Law No. 599 dated 20 November 2004.
i International carriage
Lebanon has ratified the following treaties and conventions:
- Convention for the Unification of Certain Rules relating to International Carriage by Air of Warsaw dated 12 October 1929;9
- Convention on International Civil Aviation Chicago dated 7 December 1944;10
- International Air Services Transit Agreement Chicago dated 7 December 1944;11
- Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface of Rome dated 7 October 1952;12
- Convention for the Unification of Certain Rules relating to International Carriage by Air performed by a Person Other than the Contracting Carrier of Guadalajara dated 18 September 1961;13
- Convention on Offences and Certain Other Acts committed on Board Aircraft of Tokyo dated 14 September 1963;14 and
- Convention for the Unification of Certain Rules for International Carriage by Air of Montreal dated 28 May 1999.15
ii Internal and other non-convention carriage
Lebanon has no domestic flights as it is considered a small country with a surface area of 10,452 km2, having only one operating commercial airport for international carriage.
iii General aviation regulation
Article 66 et seq. of the Aviation Law provides that the carrier shall be liable for the loss or damage of the goods carried except in the event of force majeure or a defect inherent to the goods. Moreover, any clause exempting the carrier from liability with regard to the carriage of goods, and in particular resulting from personal error, is considered null and void.
Article 73 of the Aviation Law provides that the carrier may not be exonerated from liability with regard to passengers, and any clause in this context is considered null and void.
Moreover, Article 76 of the Aviation Law provides that liability may not be alleviated or repealed except when the fault of the victim is demonstrated.
iv Passenger rights
There is no domestic legislation governing passengers' rights and compensation for delay, cancellation of flights or carriage of disabled passengers.
Liability for delay is mainly governed by Article 19 of the Montreal Convention that deals with the carrier's liability for delay, and Article 22 that limits such liability.
A consumer's rights in relation to goods or services are preserved by the Consumer Protection Act No. 659 of 4 February 2005. Article 3 of this Act provides that the consumer has the right to 'full and adequate compensation for damages resulting from the consumption of a good or the use of a service when used properly' and with the right to 'litigate directly or collectively through consumer associations, in order to safeguard his rights or claim compensation for damages that he may have incurred'.
v Other legislation
According to Article 51 of the 2005 Act,16 the carrier must take into consideration the Environment Protection Act No. 444 of 29 July 2002, which is among the laws containing provisions on carriers' liability. For instance, Article 25 of this Act provides that fuel emissions of any type shall remain within the maximum permitted limits.
In addition, the Lebanese Penal Code contains provisions that govern liability in relation to civil aviation. Principally, Article 643 punishes offences committed against the security of aerial navigation, such as unlawful seizure, intentional harm to the aircraft or aerodrome, acts of vandalism that endanger the aircraft itself or any of the passengers on board, with temporary hard labour. The charge may be aggravated to hard labour for life or even the death penalty if the offences exposed the aircraft to the risk of crash or destruction, or resulted in the death of any passenger.
III LICENSING OF OPERATIONS
i Licensed activities
The licensing of air operations and aircraft registration in Lebanon are governed by the stipulations of the Aviation Law read in conjunction with the 2005 Act, as well as the LAR.
Aviation Law and the 2005 Act
Article 50 of the Aviation Law prohibits the licensing of any aircraft to fly over Lebanese territory unless it is duly registered and holds a certificate of airworthiness given in accordance with Annex 10 of the Chicago Convention.
Article 51 of the Aviation Law provides that licensing is given subject to the following conditions:
- the markings of nationality and registration shall be made visible on the aircraft;
- all the apparatus and machines necessary for the navigation of the aircraft shall be made available on board; and
- the aircraft crew shall have the necessary attributes specified in the rules, laws and international treaties. The crew shall also carry a proficiency certificate issued by the competent authority that has registered the aircraft.
Article 12 of the 2005 Act provides that no aircraft may fly over, land on or take-off from Lebanese territory, unless duly registered in the register in accordance with the provisions of this law17 or registered in a contracting state or any other foreign country, pursuant to a special agreement between the latter and Lebanon.
Articles 38 to 42 of the 2005 Act deal with the licensing of the aviation personnel. For instance, in cases where the law or regulations require a license to perform any work on board a Lebanese aircraft, no person may work on board the aircraft in any capacity unless he or she holds a valid Lebanese license to operate. Moreover, an air traffic controller also requires a licence allowing him or her to undertake the activity assigned. The establishment of aviation clubs and training institutes for air operators is also subject to licensing issued by the competent authorities, upon approval of the DGCA.
Part II of the LAR, dealing with aircraft identification, registration and leasing, covers the aircraft registration, types and requirements of registration, and the revoking of licensing. Clause 202.09 of Part II provides that no person shall operate an aircraft in Lebanon unless it is registered in Lebanon, in a contracting state to the ICAO convention or in a foreign state that has an agreement in force with Lebanon that allows an aircraft that is registered in that foreign state to be operated in Lebanon. In addition, no person shall operate an aircraft under a Lebanese air operator certificate if the aircraft is more than 15 years old.
ii Ownership rules
Article 14 of the 2005 Act limits the parties having competency to register aircraft in the Lebanese register to the following:
- the Lebanese government;
- a Lebanese citizen;
- a Lebanese aviation club;
- a Lebanese institute for the training of air operators;
- a joint liability company formed exclusively by Lebanese partners;
- a limited partnership company, provided that all the partners in charge are Lebanese;
- a Lebanese joint-stock company, provided that the chairman of its board of directors and the majority of its board members are Lebanese;
- a foreign national resident in Lebanon for five years at least, taking into account that he or she will lose his or her right to registration in case he or she disrupts his or her residence in Lebanon on a continuous basis for a year; and
- a foreign legal entity practising its business in Lebanon and having Lebanese employees. In this case, the use of the aircraft is limited exclusively to the objectives of its business. The legal entity should have its workplace in Lebanon.
In addition, Article 25 of the 2005 Act provides that any natural person or legal entity that becomes an owner of a Lebanese registered aircraft for any reason, must inform the DGCA in writing within a maximum of 14 days as of the date of ownership.
The LAR provide that the DGCA, on receipt of an acceptable application in accordance with aircraft marking and registration standards requirements, may register an aircraft where its owner is qualified to be the registered owner of a Lebanese aircraft pursuant to the 2005 Act.
iii Foreign carriers
Article 56 of the 2005 Act provides that:
no foreign air operator may operate air service to Lebanon unless it has obtained a foreign air operator certificate issued in accordance with the provisions of this law and the international agreements in force in Lebanon and the regulations issued by the DGCA. The foreign air operator certificate shall remain in force subject to compliance with the conditions, definitions, operating specifications and statements contained in the certificate, and those provided for in the provisions of this law and the international conventions in force in Lebanon and the regulations issued by the DGCA.
Part VII, subpart I of the LAR is dedicated to foreign operations. Principally, it sets forth the general conditions for the foreign air operation certificate as follows:
- the foreign air operator shall have a valid air operator certificate or equivalent document issued by the state of the foreign air operator;
- the foreign air operator shall make no change in its air transport service in Lebanon, except in the case of an emergency, without notifying the Minister of Public Works and Transport;
- the foreign air operator shall notify the Minister of Public Works and Transport within 10 working days after any change in its legal name or trade name;
- the foreign air operator shall conduct flight operations in accordance with the ICAO Standards;
- the foreign air operator shall maintain its aircraft in accordance with the ICAO Standards;
- the foreign air operator shall comply with the applicable provisions of these Regulations; and
- the foreign air operator shall conduct a safe operation.
Lebanon is party to the Chicago Convention on International Civil Aviation of 7 December 1944 and is a member of the ICAO. As such, it must comply with the international safety standards set forth by the ICAO. Moreover, Lebanon has ratified18 the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of Montreal of 23 September 1971 as well as its protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation of Montreal of 24 February 1988.
According to the 2005 Act, a Lebanese aircraft may not fly unless it has a valid airworthiness certificate or a flight authorisation in special cases. The conditions for the issuance of a certificate of airworthiness and flight authorisation shall be determined by decisions issued by the DGCA.19
Moreover, Part IX of the LAR is dedicated to safety management, and, as of October 2011, requires that all aviation services providers shall have in place a safety management system acceptable to the DGCA. The safety management system shall be appropriate to the size, nature and complexity of the operations authorised to be conducted under its operation certificate and shall comply with at least the following requirements:
- identify safety hazards, and assess and mitigate risks;
- ensure that remedial action necessary to maintain an acceptable level of safety is implemented;
- provide for continuous monitoring and regular assessment of the safety level achieved; and
- aim to make continuous improvement to the overall level of safety.
Concerning maintenance, the air operator should (1) appoint a senior manager of its staff to be responsible for its maintenance control system; (2) ensure that the person who is responsible for its maintenance control system demonstrates competence by complying with the Commercial Air Service Standards; and (3) authorise the person who is responsible for its maintenance control system to remove aircraft from operation because of non-compliance with the requirements of the LAR or because the operation of the aircraft could have an adverse effect on the safety of the aircraft, other aircraft, persons, animals or property.20
In terms of accident reporting, when an accident or serious incident occurs, the pilot in command of the aircraft, involved at the time of the accident, or if he or she is killed or incapacitated, then the operator of the aircraft and, in the case of an accident occurring in or adjacent to a Lebanese airport, the airport authority shall give notice to the DGCA immediately and by the quickest means of communication available. If a reportable accident occurs in or over Lebanon, the local police authorities must also be notified of the details, if practicable, of the place where the accident occurred.21
Article 50 of the Montreal Convention provides that the parties shall require their carriers to maintain adequate insurance covering their liability under the convention.
The LAR cover the liability insurance for aircraft. In particular Article 606.02 provides that an air operator shall not operate an aircraft unless, in respect of every incident related to the operation of the aircraft, the owner has purchased liability insurance covering risks of injury to or death of passengers in an amount that is not less than the amount determined by multiplying US$300,000 by the number of passengers on board the aircraft.
In the absence of competition legislation in Lebanon, the main restraint against unfair competition is the general rules of liability set forth in the Code of Obligations and Contracts. Unfair competition in Lebanon is assessed on the basis of commercial customs and principles of honesty and fair dealing; it is kept to the discretion of the judges to decide on each case.
In addition to this, the Law on Trading in Commodities, Materials And Crops No. 73 of 9 September 1983 deals with monopoly and unfair competition. For example, it explicitly prohibits restrictive agreements.
MEA, the national carrier, is majority owned by the Central Bank, and is the only exclusive airline allowed to be registered as a Lebanese commercial carrier. In 2012, the Council of Ministers extended MEA's exclusivity deal for another 12 years.
VII WRONGFUL DEATH
The ratification of the Montreal Convention, in particular Articles 17 and 21, allows for compensation claims for wrongful death in air carriage in Lebanon.
An example of the approach taken by Lebanese courts in terms of compensation assessment is the decisions issued by the Beirut Criminal Court in the 2003 Cotonou air crash, which resulted in the death of at least 140 passengers. The aircraft's pilot and owners were found guilty on the charge of deliberate murder and negligence as a result of overload, which caused the accident. The court charged the pilots with 20 years' imprisonment. The court also found the general manager and operational manager of the privately owned Lebanese–Guinean airline UTA guilty of manslaughter, and charged them with imprisonment and levied fines upon them. The compensation awarded ranged from 50 million Lebanese pounds to 400 million Lebanese pounds.
viiI ESTABLISHING LIABILITY AND SETTLEMENT
There is no specific mechanism for court procedure relating to claims arising out of air carriage. The time limitation for a passenger to bring a claim against the air carrier is, as provided by Article 35 of the Montreal Convention, two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
A compensation claim can be brought against the carriers and other liable parties and their insurers, and if all defendants are found liable, the court could allocate a share of liability to each or some of them, or consider them jointly and severally liable.
The action for damages for cargo or baggage must be brought, at the option of the plaintiff, either before the court of the domicile of the carrier or of its principal place of business, or before the court at the place of destination.
In respect of damages resulting from the death or injury of a passenger, an action may be brought before one of the above-mentioned courts, or in the territory of a party to the Montreal Convention in which, at the time of the accident, the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.22
ii Carriers' liability towards passengers and third parties
In claims brought by passengers against air carriers, Lebanese courts assess the latter's liability pursuant to the provisions of the Montreal Convention. According to Article 17.2, the carrier is liable for damages in case of destruction, loss of or damage to checked baggage on the condition that the event that caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage.
Further, pursuant to Article 22.2 (and the second review by ICAO in 2014 for the increase of the limits of liability according to Article 24 of the Convention), the carrier would be entitled to limit its liability as follows:
- for the loss of the passengers' baggage: up to 1,131 special drawing rights (SDR);
- for destruction, loss, damage or delay of cargo: 19 SDR per kilogram;
- for damage caused by delay: 4,694 SDR; and
- for bodily injury or death for proven damage: 113,100 SDR.
In case of death or injury of a passenger, the carrier is liable for damages of up to 113,100 SDR. For damages exceeding 113,100 SDR, an air carrier is liable for the damage only if it cannot prove that (1) the damage was caused by the negligence, unlawful act or omission of a carrier, its employee or agent or (2) the damage was caused by the negligence, unlawful act or omission of a third party.
iii Product liability
The product liability is governed by Article 657 et seq. of the Code of Obligations and Contracts. According to Article 664 of this Code the manufacturer is bound to guarantee in all cases the defects of the products resulting from his or her labour. The victim has to prove the existence of a defect and to establish the causal link between the defect and the damage incurred.
Generally, the damages allocated to a claimant for personal injury are determined according to Article 134 of the Code of Obligations and Contracts, which stipulates as the following:
Compensation due to a victim of an offence or a quasi-offence must correspond, in principle, to the entire damage the victim has sustained. Moral damage as well as material damage is taken into account. The judge may take into account sentimental interest where this stands on the ground of legitimate kinship or relation by marriage. Incidental damages are to be taken into consideration, but provided they are obviously linked up with the delictual or quasi-delictual fact. In principle, solely existing damage, as soon as it has occurred, is to be taken into account in the assessment of compensation. Exceptionally, the judge may take into consideration future damage, if, on the one hand, its occurrence is ascertainable and if, on the other, he has the means to assess its exact importance in advance.
The Code of Obligations and Contracts also provides some guidelines for the assessment of compensation, in particular the following:
- compensation awarded to the victim or his or her successors should be exactly equal to the damage incurred or the unrealised profit;23
- indirect damage is also taken into consideration provided the causal link is demonstrated;24
- compensation, where there is a contractual relationship, includes only the damage that could have been foreseen at the conclusion of the agreement, except if the debtor has committed fraud25 (Lebanese courts consider that the gross fault is assimilated to fraud); and
- moral damage is taken into consideration as well as material damage provided that it is reasonably possible to estimate its monetary equivalent.26
Lebanese courts usually take into consideration different criteria to determine the amount of damages to be awarded to the claimant. These would include the age of the claimant, his or her income, marital status, the extent of his or her injury and the effects of the injury. For damages arising out of injury, for example, courts consider the pain and suffering, the loss of earning capacity, the loss of amenities of life, the loss of expectation of life, etc. As for the assessment of damages arising out of death, the courts consider pain and suffering, material damages, funeral expenses, etc.
Lebanon has not ratified the Convention on Compensation for Damage caused by Aircraft to Third Parties or the Convention on Compensation for Damage to Third Parties resulting from Acts of Unlawful Interference involving Aircraft, signed in Montreal on 2 May 2009.
IX VOLUNTARY REPORTING
The LAR, under Article 15.2 of Part IX, provide for a mechanism of general reporting whereby 'the organisation27 shall document, develop and maintain formal means of collecting, recording, acting on and generating feedback about hazards in operations, which combine reactive, proactive and predictive methods of safety data collection. This includes mandatory, voluntary and confidential reporting systems.'
X THE YEAR IN REVIEW
In 2017, MEA opened its training and conferences centre. The centre is open to all Arab and international airline companies, economic entities, and private and public institutions in Lebanon and abroad that wish to contribute to Beirut's pioneering regional role in culture and education.28
MEA also founded its eco-building for the purpose of sustainability, including waste minimisation, water and energy conservation, material recycling and resource efficiency, as well as indoor environmental quality.29
There has been no recent enactment of any major aviation legislation.
There is a need for the modernisation and expansion of BRHIA. Lebanon must also reconsider certain aspects of its open skies policy to ensure fair competition between foreign airlines and MEA. There is a growing need for the enactment of a law regulating anticompetitive practices that could help create a balance between MEA's calls for a more strict application of the open skies policy and many foreign airlines' requests for liberalisation of the market.
Most importantly, as outlined in Section I, Lebanese authorities must allow for the implementation of Law No. 481 of 12 December 2002 by virtue of which the GACA, which will replace the DGCA, was formed.
1 Jean Baroudi is the managing partner and Nadine Allam is an associate at Baroudi & Associates.
2 Article 1 of Regulatory Decree No. 1610 of 26 July 1971.
3 Article 7 of Regulatory Decree No. 1610 of 26 July 1971.
4 Created by virtue of Decree No. 3677 of 23 August 1963 and its Regulatory Decision No. 54 of 18 July 1980.
5 Hamdi Chaouk, Director General of Civil Aviation Lebanon – 'Lebanon's experience in air transport, Liberalization in the Middle East' (presentation during seminar prior to the ICAO worldwide air transport conference) 2003.
6 Ibid, 6.
8 ICAO Secretariat – Lebanon's open skies policy, 2007.
9 Ratified on 20 April 1962.
10 Ratified on 19 September 1949.
11 Ratified on 5 June 1974.
12 Ratified on 27 February 2007.
13 Ratified on 21 February 1967.
14 Ratified on 11 June 1974.
15 Ratified on 20 November 2004.
16 'No aircraft may fly over Lebanon unless it is compliant to the regulations of the DGCA relating to noise, engine emissions, fuel ventilation and other matters related to the protection of the environment from the operation of aircrafts.'
17 The register is maintained by the DGCA pursuant to Article 13 of the 2005 Act.
18 Convention ratified on 23 December 1977, and protocol ratified on 27 May 1996.
19 Article 36 of the 2005 Act.
20 Article 706.03 of the LAR.
21 Article 4.2 of the LAR.
22 Article 33 the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal 28 May 1999.
23 Article 260 of the code of obligations and contracts.
24 Article 261 of the code of obligations and contracts.
25 Article 262 of the code of obligations and contracts.
26 Article 263 of the code of obligations and contracts.
27 Within the context of LAR, 'organisation' means any organisation certified to provide aviation-related services. The term encompasses aircraft operators, maintenance organisations involved in approved maintenance of aircraft, air traffic organisations, meteorology services, aerodrome operators, flight training organisations and ground-handling organisations (and aircraft caterers).
28 https://www.mea.com.lb/english/about-us/History-and-Network, accessed on 30 May 2018.