Nepal Retains Jurisdiction to Adjudicate US-Bangla Air Crash Case

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Kathmandu, March 10, 2020. In its notable order rendered by the High Court, Patan in an application filed by the US-Bangla Airlines seeking to repeal the lower court’s order on exercising jurisdiction and to stay seven sets of lawsuits filed by the parents of the deceased Nepali victims of air crash, the High Court found Nepal as the ”convenient forum” to litigate the case on wrongful death torts and damages.

In an order issued on March 5, 2020 just few days ahead of two years commemoration of the deadliest accident that occurred on March 12, 2018; the High Court, Patan recognizes the jurisdiction of the Kathmandu District Court ̶ whereby the family members of the seven victims seized with their claims on the monetary and non monetary damages ̶ as appropriate, legal and based on the established principle of private international law and tort law, among others.

In the preliminary hearing of the cases on December 05, 2019, Kathmandu District Court held its jurisdiction over the subject matter and the parties of the disputes based on the jurisdictional provisions in Warsaw Convention 1929 as amended by the Hague Protocol, Montreal Convention, 1999 and the prevailing Nepali law on torts.

US Bangla Airlines, its insurer Sena Kalyan Insurance and the reinsurance company, Sadharan Beema Corporation had challenged at the High Court seeking the quash of the previous order of the Kathmandu District Court. However, following the hearing of the both sides, the High Court, Patan found the District Court in Kathmandu as the competent court to trial the case and denied accordingly to quash the order of the latter.

The division bench of Chief Judge of the High Court, Nahakul Subedi and Judge Tek Prasad Dhungana affirms the jurisdiction of the Kathmandu District Court to carry on the trial proceedings on the basis of the several grounds of territorial, personal and subject-matter jurisdiction.

The landmark order by the High Court stated that since the victims and their claimant parents both are the Nepali citizens; since arrangements were made to have several agreements in place between the Airlines and Civil Aviation Authority of Nepal prior to the operation of the Dhaka-KTM flights; as the scheduled flight of UBG-211 was deemed to be landed at Kathmandu Airport; and above all, the overall investigation of the air accident was concluded on the basis of Nepali laws, it is clearly visible that Nepal is competent enough to dispense justice by means of adjudication.

Likewise, High Court stipulated in its order, that the issues raised in the seven lawsuits filed by the parents of the victims are subject to the principle of private international law, principle of torts and established principle of justice, the Kathmandu District Court is competent to handle the disputes as per the existing provisions in the Article 151(1) of the Constitution of Nepal, Sec. 7(1) of the Justice Administration Act and Sec. 11 and 25 of the Civil Procedure Code.

According to the Sec. 134 of the Civil Procedure Code, the jurisdictional matters once settled by the High Court, cannot be raised at any further stage of litigation.

”This order has opened up the doors to Nepali citizens to seize court situated in their domicile at their own convenience whenever they are victimized in any kinds of accidents during their travel through international carriage,” said Advocate Amrit Kharel, the chief legal counsel to the victims, ”in addition, the aviation accident occurred in Nepali territory is now treated as justiciable matter by the judiciary here, which would possibly have a positive impact in the area of aviation law and jurisprudence of private international law.”

Families of the US-Bangla Airlines crash victims, who were all pursuing MBBS in Bangladesh, had filed separate lawsuits against the Bangladeshi carrier in Kathmandu District Court on the basis of unlimited liability provision of Montreal Convention, Warsaw Convention and wrongful death torts. Victims have been demanding total compensation worth Rs. 2.10 billion after the Bangladeshi Airlines and its insurer and reinsurers failed to provide with the appropriate compensation.

Copyright@Juris Nepal Law Associates