The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why carriage of cargo was excluded in the provisions.
– Iyizoba, JCA. Emirate v. Aforka (2014) – CA/L/285/2011
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Indeed in all other cases spelt out in the Convention the limits on liability must be followed but where there is breach of contract of such a magnitude that it amounts to a willful act, a willful misconduct the limits are no longer applicable.
– Rhodes-Vivour, JSC. Cameroon v. Otutuizu (2011) – SC.217/2004
Horabin V. British Airways Corpn. (1952) 2 ALL ER 1016 @ 1020 B – D, the term ‘wilful misconduct’ was explained thus: “In order to establish wilful misconduct, the plaintiff must satisfy you that the person who did the act knew at the time that he was doing something wrong, and yet did it, notwithstanding, or alternatively, that he did it quite recklessly, not caring whether he was doing the right thing or the wrong thing, quite regardless of the effects of what he was doing on the safety of the aircraft and of the passengers for which and for whom he was responsible… The element of wilfulness is essential in the present case if the plaintiff is to recover more than the E3,000 odd to which he is admittedly entitled.”
In the case of HARKA AIR SERVICE (NIG) LTD V. EMEKA KEAZOR Esq (2011) 13 NWLR Part 1264 p. 320 at p. 364, the Supreme Court, per Rhodes-Vivour JSC gave the following view on what constitutes willful misconduct: “Willful misconduct is a deliberate wrongful act by a pilot, airline staff or its agent, which gives rise to a claim for damages by passengers. When a staff of an airline acts with reckless indifference, such unacceptable behavior especially by a professional person amounts to willful misconduct.”
Horabin v. BOAC (1952) 2 All ER (1006) as follows – “Misconduct is misconduct which the will is a party and it is wholly different from mere negligence or carelessness, however gross that negligence or carelessness may be… To be guilty of willful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be, all the problems must be evidence in the light of that definition.”
Willful misconduct is a deliberate wrongly acts by a pilot, airline staff, or its agent which gives rise to a claim for damages by passengers. When staff of an airline act with reckless indifference, such unacceptable behaviour especially by a professional person amounts to willful misconduct. A Pilot that lands his plane without clearance from the control tower to my mind is guilty of willful misconduct, and both courts below were correct to so find. The position of the law is that concurrent findings of fact by the courts below would not be upset by this court except they are perverse or cannot be supported from the evidence before the court or there is/was miscarriage of justice, or violation of some principle of law or procedure.
– Rhodes-Vivour JSC. Harka v. Keazor (2011) – SC.262/2005
Horabin v BOAC (1952) 2 All ER 1016 at 1020 as follows: “Wilful misconduct is misconduct to which the will is a party and it is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be… To be guilty of wilful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be; all the problems… must be considered in the light of that definition.”
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