legal developments relevant to aviation legal liability, both the interpretation in Indonesian jurisdiction of the international aviation liability conventions and domestic aviation litigation
Lately, the community, especially the legal heirs, has understood more about the rights and obligations of the legal heirs when there is a plane accident based on applicable law. This understanding includes the right for the heirs to File for Compensation in the Court even though the heir has signed the Release and Discharge and received compensation of Rp. 1,250,000,000 (one billion two hundred fifty million Rupiah) in accordance with Article 3 letter a 77 of 2011 Minister of Transportation Regulation on the Responsibilities of Air Transport Transporters (“PM 77/2011”). Provisions related to the right for heirs to File for Compensation in the Court are stated in Article 23 PM 77/2011 which among others states that:
“The amount of compensation stipulated in this regulation does not limit the opportunity for the heirs to sue the transporter to the district court within the Indonesian territory or through arbitration or other alternative dispute resolution in accordance with the provisions of legislation”
Article 23 gives the legal heirs the right to file for compensation other than those already stipulated. Considering that the legal heirs have different criteria of material loss and immaterial loss, the claim filed and the decision given by the Panel of Judges will vary according to the demands of each legal heir.
Therefore, the Airline has to be more prepared to facing compensation claims that will be filed by the legal heirs in the event of an accident in the future.
Passenger Rights and Consumer Protection Regulations/Legislation
For persons with disabilities, in the Minister of Transportation Regulation Number PM 98 of 2017 concerning Provision of Accessibility in Public Transportation Services for Users with Special Needs (“PM 98/2017”). Accessibility for service users with special needs in transportation facilities and infrastructure is like providing audio/visual information about trips that are easily accessible. The provision of information is in the form of special signs, sounds, and pictures also Braille letters at special places in all transportation facilities and infrastructure.
In addition, what has happened recently in Indonesia is the provision of free baggage removal policies by several low-cost carrier airlines that were highlighted by the Indonesian Consumers Foundation (“YLKI”). YLKI recommended the Minister of Transportation to cancel the plans of several airlines to implement a paid baggage policy, which unfortunately was not accepted by the Minister of Transportation, so that the provisions of paid baggage for a number of low-cost carrier airlines were implemented starting January 22, 2019.
Furthermore, what is most recent in Indonesia is the high price of airline tickets to all domestic airlines’ flight routes. In one of Indonesia’s news outlets namely hukumonline.com there is an article with title entitled “3 YLKI recommendations about airline ticket price” dated January 14, 2019; the article stated that the government through the Ministry of Transportation has asked all airlines to reduce their ticket prices. Airlines that are members of the Indonesia National Air Carrier Association (“INACA”) respond with new tariff adjustments since Friday, January 11, 2019. The policy of reducing ticket prices applies to 34 airlines that are members of INACA. The Chairperson of INACA said that the range of reducing the ticket prices made by each airline was varied, namely in the range of 20% – 60% according to the policies of each airline. The Director of one of the airlines incorporated in INACA said the airline’s way of reducing ticket prices was through promo ticket offers and the amount of promo ticket portions ranging from 30% -40% on each flight.
It can be seen from some news about airlines in Indonesia that although consumer protection in aviation problems will usually refer to specific regulations in the field of aviation, the role of consumer institutions in Indonesia is still in its capacity to accommodate and voice consumer protection for flight problems.
Ongoing competition and antitrust litigation
best of our knowledge and
based on our search on the
website of the Indonesian Supervisory Commission for Business
(“KPPU”) as per 10 January 2019 there
is no on-going competition and antitrust litigation in the
aviation sector in Indonesia. Furthermore, we are not sure about KPPU’s capability.
 Indonesian = Komisi Pengawas Persaingan Usaha
In addition, however, there is a cartel allegation behind the increase of domestic ticket price which currently under investigation by KPPU. KPPU is still investigating some airlines and gathering information and evidence to determine whether there is a cartel practice or any other violation of Law No 5 Year 1999 concerning Monopoly and Unfair Business Competition behind the ticket prices increase.
This ticket price increase happened since the end of December last year until January 2019. The people protested and made an online petition to reduce the ticket price. Another story behind this is that many people from Aceh who are going to Jakarta or any part of Java instead of purchasing a direct domestic flight they decided to purchase a ticket that transit in Kuala Lumpur, because such ticket price is cheaper than the direct domestic flight.
Criminalization in air accident investigations
Criminal liability in aircraft accidents can be imposed on two parties, namely pilots and airlines. In the case of a plane accident caused by a pilot’s negligence, criminal sanction is stipulated under Article 411 Aviation Law which states that anybody flying or operating an aircraft which is intentionally endangering the safety of the aircraft, passengers and goods, and/or citizens or damaging properties of other people shall be condemned with imprisonment for a maximum 2 (two) years and a fine of a maximum amount of Rp. 500,000,000.00 (five hundred million Rupiah). The activities endangering aircraft safety, among others, are flying outside specified lines, flying without safety equipment, and flying through prohibited areas. In addition to the criminal sanctions above, administrative sanctions also can be imposed in the form: a. freezing of certificate; and/or b. revocation of certificate.
Besides pilots who can be subjected to criminal sanctions, airline companies can also be charged with criminal sanctions. Pursuant to Article 441 Aviation Law, it is governed that any crime in aviation field shall be considered to be done by a corporation if the crime is done by an individual acting for and/or on behalf of the corporation or for the interests of the corporation, whether it is based on employment relationship as well as other relationships, acting within the scope of the corporation, alone or collectively with the others. In this case, the investigation, prosecution, and condemnation shall be done against the corporation and/or board of directors. In addition to imprisonment and fine against the board of directors, a penal condemnation shall also be enforced to the corporation in the forms of a fine penalty of 3 (three) times heavier than the fine penalty against an individual.
From the description above it can be concluded that the criminal sanction against pilots that cause aircraft accidents are imprisonment and fine. Meanwhile, the criminal sanction of the corporation is in the form of a fine.
Indonesian courts once granted a lawsuit by an Indonesian citizen against a foreign airline, Singapore Airlines. Sigit Suciptoyono was one of the passengers who survived the flight accident on the route Singapore – Los Angeles, but unfortunately, he became disabled due to this accident. The accident occurred when aircraft No. SQ-006 is about to take off at Chiang Kai Sek Airport (“CKS”), Taipei, Taiwan, to Los Angeles, America. On the night of October 31, 2000, under conditions of rain, the pilot of Singapore Airlines flew the planes using a closed runway. As a result of using the said runway, the plane crashed, caught fire and was cut into three parts, causing 82 people, including 4 flight crew members to die.
South Jakarta District Court Judges, through Decision No. 908/PDT.G/2007/PN.Jak.Sel sentenced Singapore Airlines to pay compensation to Sigit for Rp1 billion. The District Court decision was upheld by the Jakarta High Court but increased the amount of compensation to Rp1.5 billion. Not satisfied with the decision, Singapore Airlines filed an appeal to the Supreme Court. In Decision No. 1517K/Pdt/2009, the panel of judges who examined and adjudicated this case rejected all the appeal applications.
When the lawsuit was filed, the compensation for passengers who suffer permanent disability due to aircraft accidents is determined based on the level of permanent disability experienced to a maximum of Rp50,000,000.00 (fifty million Rupiah) (Government Regulation (“PP”) No. 3 Year 2000 concerning Amendments to PP No. 40 Year 1995 concerning Air Transport). However, the judges of the District and High Courts sentenced Singapore Airlines to provide greater compensation. According to the judge, the pilot’s actions, which were wrongly directing the plane to the runway which was being repaired and then hitting the concrete barrier and heavy machinery, had already shown the willful misconduct of Singapore Airlines.
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES