6 LEGAL COLUMN
GROUND HANDLING INTERNATIONAL FEBRUARY 2013
A question of liability To start off the new year, Len Kirsch examines the extent of handler liability - and what an operation can do to protect itself.
s contractors to air carriers, sometimes handlers become the prime target of government agencies during investigations into practices, when all the handling company has done is supply the air carrier with manpower and follow its directions. This is because it’s often the handling company employee who conducts an air cargo inspection, loads baggage and cargo on board an aircraft, or boards an aircraft. Handling company employees are sometimes trained by air carrier personnel, follow air carrier manuals, and are often the brunt of air carrier pressure to get flights off on time, or load cargo on board flights so flights can leave on time. However, to the government agency,
it’s the handling company employee who violates a regulation or other government order, or commits some other sanctioned conduct. So what is a handling company to do? Unfortunately, sometimes there is little a handling company can do to defend itself in the government investigation, but it can protect itself from sanctions and penalties in other ways. Let’s explore this in further detail. In regard to government
investigations, fines and penalties, the 2008 IATA Standard Ground Handling Agreement (the SGHA) provides as follows: 1.1 General The services will be made available within the limits of possibilities of the Handling Company and in accordance with the applicable IATA and/or ICAO and/or other governing rules, regulations and procedures.
5.1 (second paragraph) In the case of absence of instructions by the Carrier, the Handling Company shall follow its own standard practices and procedures provided they comply with the applicable IATA and/or ICAO and/or other governing rules, regulations and procedures. 5.6 In the provision of the services as a whole, due regard shall be paid to safety, security, local and international regulations, applicable IATA and/or ICAO and/or other governing rules, regulations and procedures and the aforementioned request(s) of the Carrier in such a
manner that delays and damage to the Carrier’s Aircraft and load are avoided and the general public is given the best impression of air transport.
Thus, under the SGHA, the handling company is liable for complying with all government regulations during the handling of aircraft, passengers and cargo. The SGHA is silent on the issue of liability in the event that a violation of a government regulation occurs when the handling company employee is simply following the air carrier’s instructions or manual, or if a violation is the result of a handling company employee responding to pressure exerted by an air carrier customer’s staff. To the government entity, usually it will not matter why a handling company or its employee violated a regulation; the fact that a violation occurred is sufficient to impose the obligation to pay a penalty or subject the handling company to another sanction, such as a loss of a permit or licence. However, the fact that the handling company’s employee was simply following a carrier’s instructions or was subject to a carrier’s pressure may mitigate the amount of damages or the severity of the sanction. With the SGHA in mind, let’s revisit the question of what a handling company can do to protect itself from government sanctions and penalties. First, a handling company can seek the insertion of a specific clause in its Annex B on the issue of government fines or penalties. My advice is not to mention compliance with governmental regulations, since it is an accepted fact that a handling company is obligated and should be responsible for complying with all applicable government rules and regulations. However, the ability to seek contribution from an air carrier or other customer to pay governmental fines or penalties is an appropriate area of negotiation. For example, a handling company could seek the insertion of the following language:
The Carrier shall reimburse the Handling Company for the payment of any fines or penalties imposed on the Handling Company which resulted from any act or omission in compliance with the Carrier’s written or verbal instructions. Any action or omission
which is the result of pressure imposed on handling company employees by carrier management can be said to have been caused by the Carrier’s verbal instructions. Now, what if the rôles are reversed and fines and penalties are imposed on a carrier because of the handling company’s acts or omissions, which cannot be said to have been the result of a carrier’s written or verbal instructions? In this case it is likely that the carrier will seek reimbursement. While carriers are likely to be unwilling to allow a handling company to handle an investigation and prepare a response to a government investigation, a carrier is likely to allow a handling company to review a submission before it is finalised, with the understanding that if the handling company was at fault, it will be responsible for paying any fine or penalty imposed.
McBreen & Kopko 500 North Broadway Suite 129 Jericho, New York 11753 Tel. (516) 364-1095 Fax (516) 364-0612
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