Cuba fails to compensate for civil aviation victims as required by law
August 22, 2019
112 deceased in the May 2018 disaster when a Cubana de Aviación Boeing 737,
operated by the Mexican company Global Air, went down near Havana
Cuba is obligated by the Montreal Convention to compensate all victims no matter what caused it or who is responsible.
Cuba’s failure to compensate the families of victims of a May 2018 air disaster has come to light in recent press reports. Irregularities regarding the cause of the incident and persecution by Cuban authorities of international lawyers representing relatives of the deceased have also been reported.
Cuban airlines are some of the worst-ranked in the world for security and service. Cuba Archive has documented at least 18 civil aviation accidents of Cuban airlines since 1959 with a toll of 673 fatalities, including 112 killed May 18, 2018, when a Cubana de Aviación Boeing 737, operated by the Mexican company Global Air, went down near Havana en route to Holguín. That is a very high accident rate compared to the number of flights.
A report published by Cuba Archive on June 29, 2018 details the problems of civil aviation in Cuba, including the issue of liability. Everything seems to indicate that the Cuban State is still not fulfilling its international commitments.
Until 1999, Cuba's airlines were bound by the Warsaw Convention and the Hague Protocol to compensate victims of civil aviation accidents. But the 1999 Montreal Convention is even more specific on the issue of compensation. Signed by Cuba on May 28, 1999 and ratified on October 14, 2005, it entered into force on December 13, 2005. Article 21 of said Agreement establishes that the carrier is liable for up to 113,100 Special Drawing Rights (SDRs) for each passenger for which it “shall not be able to exclude or limit its liability.” (The Special Drawing Right (SDR) is an international reserve asset, created by the IMF in 1969 to supplement its member countries' official reserves whose value is based on a basket of five currencies: the U.S. dollar, the euro, the Chinese renminbi, the Japanese yen, and the British pound sterling.) Additional liability is possible based on proven damages above that amount for carrier negligence or other wrongful act or omission of the carrier or its servants or agents. That is, no matter what the cause was or who was responsible for any civil aviation accident, the relatives of all fatalities must be compensated (compensation is also stipulated for the injured).
Generally, claims must be submitted within two years after the incident. Likewise, the Convention requires that the airlines of the signatory States have adequate liability insurance.
Cuba is, therefore, obliged to compensate the families of at least 180 fatalities since the Montreal Convention entered into force in December 2005. From the known accidents since then, these include 112 deceased in the May 2018 disaster plus 68 passengers (40 Cubans and 28 foreigners of ten nationalities) of an Aerocaribbean flight from Santiago de Cuba to Havana that went down over the city of Guasimal, Sancti Spíritus, on November 4, 2010. On that occasion, Cuba reported that ice on the wings and a pilot error had caused the accident.
Aside from grave security concerns regarding civil aviation operations by and in Cuba, the digital news site CiberCuba has reported of damages to luggage belonging to a Cuban LGBT activist that was checked to American Airlines at Havana’s international airport but returned shortly after the activist was not allowed to travel. This would imply complicity on the part of a US company in abusing Cuban dissidents.
Communist Cuba, however, is well known to skirt its international commitments even in treaties it has ratified. Article 11 of its Communist Constitution makes their implementation subject to wide interpretation, as it "repudiates and considers illegal and null treaties, pacts or concessions concluded in conditions of inequality or that ignore or diminish their sovereignty and territorial integrity."
Cuba Archive asks:
1. world governments, to sanction Cuba until it pays the required compensation for the victims of all civil aviation accidents occurred after the Montreal Convention entered into force, to issue urgent travel alerts to warn its citizens traveling to Cuba of the security problems and lack of compliance by Cuban air carriers of their obligations, and to prohibit airlines under their flags to participate in abuses against passengers of any nationality for political reasons;
2. the international community, to demand by all possible means that the Cuban State fulfill its international commitments;
3. the International Civil Aviation Organization, to carry out a thorough, independent and comprehensive investigation into the civil aviation practices by Cuba and its compliance with the agreements it has signed, including compensation for victims of air disasters, and to report the results to the world with complete transparency.