This article is written by the iPleaders team and reviewed by Adv Shashank Singh. He is specialised in aviation law with extensive experience advising on aircraft leasing, MRO agreements, and cross-border aviation contracts. He practices before the Supreme Court of India, Delhi High Court, and key tribunals, combining expertise in complex commercial disputes, white-collar crime, IBC and international arbitration with a strong focus on regulatory clarity and strategic outcomes.

Introduction

In the present-day digital schemes, the act of purchasing an airline ticket never stops at choosing a particular seat; one must always click “I agree” to a long list of terms and conditions. These often-underrated digital contracts are commonly loaded with complex legal jargon, having within their ambit clauses that exempt them from liability and any possible claims, having a requirement for mandatory arbitration, and placing strict limitations on claims grounded in negligence. The deliberately complicated provisions, lodged somewhere deep within the layers of fine print, have the ostensible intention of making easy-going corporate life, but in reality, most travellers are unaware of them.

In this cruel hypothetical air crash scenario of Air India Flight AI-171, families discovered that their rights to compensation were tied not to statutory protections but to the fine print of ticket contracts. This gloomy setting surely presents questions with bane: How aware are consumers of such types of situations? 

Had you indeed unknowingly waived the right to full compensation in case of a crash when clicking “I agree” to airline terms? In the more complex aftermath of such an incident, what truly are the legal boundaries on the enforceability of such digital agreements, and how will the evolution of case law affect the rights of victims going forward? How it plays into clauses of Aviation contracting will be delved into further. 

After all, “Clicking ‘I Agree’ should never mean surrendering the right to justice. The law cannot allow fine print to reduce human life to a clause.”

The anatomy of airline contracts: what do ticket T&Cs typically include?

When the passenger clicks on the “I agree” icon while booking flights online, one essentially accepts airline contracts that the Supreme Court has recognised as binding in law. The T&Cs form the civil basis for the passenger-carrier relationship, and yet only about 12% of consumers bother to read them. Hence, ticket agreements become a contractual black box full of complicated legal commitments.

The terms and conditions of airlines usually have a few standard clauses that are very much in favour of the carrier. Limitation of liability is a prominent clause. Airlines provide nominal compensation for lost baggage, limited under international conventions, like the Montreal Convention, 1999, of the order of roughly $8.33 per kilogram. 

Another important clause is one relating to mandatory arbitration. Instead of allowing passengers their day in court in local jurisdictions, airlines may insist on arbitration in a specific locale, often under Singaporean law or that of the U.S. This limits consumer access to convenient legal remedies and tilts the scales in the airline’s favour.

Force majeure clauses act to relieve airlines of liability by excluding responsibility for events out of the control of an airline: natural disasters or a pandemic. Consequential damages are usually excluded, meaning airlines do not pay for indirect losses, like missed wedding parties, interviews, or bookings for hotels, unless they are clearly at fault.

Adding on to the unfairness, many contracts also contain class action waivers. Such provisions block passengers from bundling efforts in challenging unfair practices; each alleged wronged traveller must proceed single-handedly on claims commonly too minor to justify pursuing.

Post-accident enforceability of waiver: balancing act in the law

After air crashes, passengers or their families are often confronted with airline waivers limiting their ability to proceed legally. Whether such waivers are enforceable depends on whether they survive judicial scrutiny employing principles of contract law fairness, transparency, and absence of unconscionability.

Courts have undertaken various legal tests in assessing waiver validity. One of the foundational principles under the law of contracts is that an agreement to be binding must be entered into voluntarily with free consent and must, therefore, not be oppressive to one party to the contract. Thus, unfair or hidden conditions, especially those limiting liability or imposing arbitration in very distant forums, can be declared unconscionable.

The Nandram case stressed the point about unconscionable contract terms, especially if they are foisted upon the weaker party without negotiations; they are subject to being declared void. The judgment stressed that freedom to contract cannot be absolute; it has to be weighed against the demands arising from justice and equity.

The Montreal Convention provides the basis for airline liability in international carriage, giving passengers minimum protection under Articles 17 to 21. They set strict liability depending on certain thresholds (i.e. bodily injury or death for 128,821 SDRs). While airlines cannot limit the passengers’ claims up to these limits, attempts to lower them through waivers are usually voidable. The courts have determined that waivers contrary to statutory protections cannot be enforced, thereby superseding mandatory international obligations.

The litigator challenging these post-crash waivers is well-advised to consider several basic factors:

• Conspicuousness: Was the waiver clearly disclosed, or hidden in fine print?
• Consent: Did the passenger agree thereto knowingly or did conscience object?
• Bargaining Power: Could anything have been negotiated, or was it take it or leave it?
• Unconscionable: Has conscience itself been shocked by the ultra-one-sided bargain?

A good strategy points to the procedural unfairness and inequality of bargaining power and” in derogation of statutory or treaty protection.” Courts are much more likely to strike down the clauses that appear exploitative, particularly in the hyper-emotional context of aviation disasters.

In short, while waivers from airlines are common, their enforceability is not absolute. Courts weigh the liberty to contract with considerations of justice, especially when lives are involved.

Case spotlight: Air India flight AI-171 & digital ticket terms

The tragic Air India Flight AI-171 crash raised not only concerns about aviation safety but also the legal complexities concerning the terms of digital tickets. This accident during descent into Ahmedabad had many casualties and injuries. While the cause is still under active investigation, the families of the victims find themselves in legal battles surrounding the enforceability of ticket terms and conditions (T&Cs).

Arguably, the most contentious clause in the AI-171 ticket contract concerns arbitration being held in Bangalore with compensation capped at ₹50,000. Such conditions were set in the digital booking platforms and were “agreed” to when passengers or their representatives clicked through the booking process. After the crash, several grieving families were shocked at the thought that there existed such limiting provisions.

When the Bombay High Court was approached by several victim families, the legal wrangling began. The Court issued interim injunctions restraining Air India from acting on the arbitration clause. It was held that enforcement of such a clause perhaps would amount to a denial of substantive justice, especially in the aftermath of a fatal mishap. The public interest petition filed in conjunction with the case described this arbitration agreement as a “blanket denial of justice” in that the families simply did not have a real opportunity to negotiate or review these terms.

The ticket contract would be characterised as an adhesion contract. Such contracts, more so within the consumer context, do open themselves up for judicial scrutiny under the doctrines of unconscionability and unfair surprise. Basically, the courts look at whether the party who is the weaker one really had a choice and whether the terms were laid out before him in a conspicuous manner.

Here, the families argue that the clause for arbitration and the cap for compensation were not just unfairly buried from consideration but were, in reality, unremunerative of the anguish suffered. 

In practice, litigators can show families procedural unfairness, consider the lack of consent, and the fact that an undue burden has been placed on victims in pleading cases against enforcement. The important thing that weighs against enforcing such stiff clauses is the toll of the tragedy itself.

To flash around some of the points considered, the AI-171 matter clarifies the requirement for putting digital consent under the microscope in high-stakes contracts. It brings to the fore questions relating to justice, empathy, and the ethical limits within which an aircraft contract may be enforced.

Other aircraft disasters & how contractual issues intervened

An examination of major airline disasters reveals that ticket terms and conditions have constantly been a source of legal tussle, especially clauses relating to arbitration and limits of liability. Such contractual stipulations have, in many instances, been embedded in digital booking processes and have drawn judicial scrutiny in more than one jurisdiction.

In the MH 370 case of Malaysia Airlines, families were asked to agree to an arbitration in Hong Kong as a condition to partial compensation. This condition has received much negative criticism, and several families have legally defended this issue.

Similarly, in the aftermath of Lion Air Flight JT610 (2018) and Ethiopian Airlines Flight 302 (2019), the families of the victims filed their actions in the United States and in other jurisdictions.

Restrictive contractual provisions were bypassed by counsel for the plaintiffs, invoking elements considered in the Montreal Convention, chiefly Articles 17 and 21 relative to airline liability. This strategy thus allows for outward representation within public judicial systems instead of private arbitration forums.

As this happens in various tragedies, an express pattern appears: digital acceptance mechanisms are increasingly being challenged by passengers and their lawyers. In India, for instance, pleadings under the Consumer Protection Act, 2019 highlight the absence of real consent and the one-sided nature of airline contracts. Families contend that consumers are not meaningfully informed about dispute resolution clauses, let alone allowed to negotiate them.

The slow but discernible shift now tends toward consumer protection from unfair contractual waivers.

Human life cannot be trivialised by contract

There is a need to draw a clear line between contracts for the carriage of goods and those for the carriage of passengers. Under Indian contract law, a carrier dealing with goods may, by agreement, limit liability for loss or damage. Courts have respected such waivers in cases involving cargo, recognising that both parties entered into the arrangement with a full understanding of the risks. But this principle has no place when it comes to passengers. Here, statutory protections step in and override any contractual attempt to curtail rights

The Carriage by Air Act, 1972, which incorporates the Montreal Convention, makes airlines strictly liable for death or bodily injury. Clauses that seek to cap compensation at token amounts or compel grieving families into distant arbitration forums have repeatedly been tested against public policy, fairness, and the doctrine of unconscionability. Recent case law brings this out sharply, in Vinay Shankar Tiwari v. IndiGo Airlines, 2013, the Ld. Uttar Pradesh State Consumer Disputes Redressal Commission held that airlines cannot rely on digital ‘I Agree’ booking systems to contract away their duty of care or basic fairness. The Commission observed: 

…“There is no doubt that a passenger is bound by the terms and contract of carriage, but… the Airlines Authority should help the passengers so that they can board the scheduled aircraft after completion of the security measures in time.”… 

Domestic consumer law vs privity and digital contracts

In the evolving legal landscape of airline disputes, Indian consumer law is now being used to challenge restrictive terms in digital contracts. The typical doctrines of contracts, privity or consent are set aside in favour of an alternate framework focusing on the fairness and welfare of the consumer under the Consumer Protection Act 2019.

On these lines, the CP Act protects consumers against unfair trade practices, including digital contracts with unilateral disclaimers and terms restricting legal remedies contained in hidden clauses. This Act recognises the imbalance of power prevailing in form contracts and allows consumer forums to knock down such terms when they go against public interest. Specifically, if an arbitration clause or a force majeure clause is an instrument that denies consumers access to justice, the forums may declare such provisions void.

International conventions & global consumer protection

Cross-border air travel places the passenger in the midst of international treaties and municipal laws. This regime is led by the Montreal Convention, 1999, which standardises airline liability for injury, delay, and baggage loss. The Convention expressly forbids carriers from contracting out of the minimum liability thresholds set by it, thus providing a baseline of protection to the passengers.

In the European Union, Regulation (EC) No 261/2004 (EU261) imposes further obligations on airlines so that compensation is to be paid in cases of cancellations, long delays, and denied boarding. Airlines have attempted to circumvent these obligations in the past through private agreements erga omnes, but the courts have, ever since the 2015 Paris terror attacks (Carnet case), stood resolutely against such attempts, thus declaring these rights under EU261 cannot be waived by contract. Consumer rights were neither suspended nor waived even in an act of terror.

Therein lies the jurisdictional challenge in India. While the Montreal Convention is binding as per international law, the enforcement under domestic jurisdiction has been specified by the Carriage by Air Act, 1972, Consumer Protection Act, 2019, and the Aircraft Rules, 1937. 

This complex interaction shows how treaty-based rights and national consumer protections together fortify passenger claims, despite aggressive contracting by airlines.

Negotiating the fine print: practical advice for passengers & lawyers

In the high-speed world of online airline bookings, passengers and their legal representatives must remain vigilant about the contract terms they are bound by. Most ticketing platforms embed extensive terms and conditions (T&Cs) that include arbitration clauses, governing law, and liability waivers, all of which can have serious legal consequences.

An arbitration clause and governing law clause would be something to watch out for-they’re usually so deeply buried in a digital scroll box. A clause setting forth a foreign jurisdiction or a seat of arbitration can really deprive passengers of recourse before their local laws.

Such clauses can be contested against the principles of consumer protection and public policy, especially under the Consumer Protection Act, 2019, and the statutory Passenger Charter.

Maintain documentation: take screenshots, list timestamps, and describe where disclaimers appeared on screen during booking processes. Such digital evidence may assist an aggrieved party in proving that the terms were not fairly disclosed.

Ultimately, passengers should approach local consumer forums instead of international arbitration centres. These forums allow for cost-effective, rights-based remedies and are increasingly assertive in refusing to enforce unfair airline contracts.

Reform is possible: policy, courts, and airline self-regulation

Looking forward to a progressive path in airline contracting involves a combination of regulatory directives, judicial disciplining, and industry self-regulation. The DGCA can start out by promulgating directions requiring airline booking platforms to display arbitration clauses, liability waivers, and governing law terms plainly upfront. Presenting those clauses to passengers before payment would be one step in countering the practice of burying them in hyperlink text.

ICAO can be pressed internationally to lay down model directives on digital contract fairness, including disclosure standards and passenger consent mechanisms. These would help cross-fertilise consumer protection mechanisms across jurisdictions.

On the legislative side, India would do well to introduce a Consumer Protection (Digital Contracts) Bill 2024 that explicitly deals with standard-form digital contracts to maintain fairness, transparency, and true consent in aviation services. The present law can even go further and prohibit pre-dispute arbitration in consumer matters.

Another role courts can continue to act out is invoking public policy to strike down terms that are oppressive to passengers, who may have no negotiating power whatsoever.

Way ahead 

It is also important to recognise that aviation is not casual about safety. Organisations such as Air India Engineering Services Limited (AIESL) operate under one of the most rigorous regulatory frameworks in the world. Before a flight takes off, the number of inspections, certifications, and compliance checks is formidable, spanning airworthiness directives to routine and non-routine maintenance. These multiple layers exist precisely to make sure that the catastrophic scenarios discussed in the article remain rare exceptions.

Looking ahead, there are broader perspectives that could further strengthen law and policy in this field:

Uniform liability 

Extending Montreal-style compensation standards to domestic flights would prevent disparity between international and domestic passengers.

Advance compensation

Mandating transparent advance payment mechanisms would provide families with immediate relief after an accident, avoiding unnecessary hardship and litigation delays.

Digital contracting fairness

Passenger contracts should highlight statutory rights upfront in plain language, making aviation a benchmark for consumer protection in the digital space. Re-thinking consent: Regulations should clarify what cannot be tucked away in digital contracts, ensuring statutory protections remain untouchable.

Insurance enforcement

Compliance with mandatory liability insurance must be strictly monitored, so remedies remain real and enforceable.

Awareness campaigns

Periodic efforts by airlines and regulators to educate passengers about their rights, especially in digital ticketing contexts, would go a long way in reinforcing trust.

The real debate is not about airlines shirking responsibility, but about how law and regulation can continue to strike a balance. Transparency at the time of contracting, together with the formidable technical safeguards already woven into aviation practice, serves to protect both passengers and the industry. Clicking ‘I Agree’ must never mean giving up fundamental rights, and it should also remind us of the immense responsibility carriers and MROs shoulder in keeping every flight safe.

Conclusion

Airline ticket contracts often brush aside unfair terms with digital gloss, leaving passengers with nowhere to turn. This discussion outlines the methods by which courts, regulators, and consumers may oppose such unfair terms. The working definition of consent seems to require a real understanding and not just a click-induced, forced recognition. I therefore recommend the strengthening of disclosure requirements, judicial vigilance, and statutory safeguards, such as those envisaged by the Digital Contracts Bill. Industry players should also promote transparency and fairness. Passengers must insist on reading the key terms and document everything well, then enforce their rights in consumer forums. It is time to rebalance the skies; contracts should be for people, not against them. We should all rally for reform based on justice and transparency.

Frequently asked questions (FAQs)

1. Can airlines impose terms and conditions even if the person does not read them?

Yes, when the person clicks “I Agree”, then under contract law, it is generally considered a valid consent even if the person has not read the terms and conditions. On the other hand, the Court can also strike down the clauses that are unfair or violate any statutory protection. 

2. Do airlines have the right to completely avoid any liability related to crashes through contracts?

No, airlines cannot completely avoid the liability related to a crash through contracts. Domestic laws such as the Carriage by Air Act, 1972, and International conventions such as the Montreal Convention set a minimum standard related to the liability and cannot be waived off through the contracts. 

3. Do Indian passengers have different protection as compared to international passengers?

Yes, Indian passengers have different protection as compared to international passengers. The international passengers are protected under the Montreal Convention, and this also sets uniform global liability standards. On the other hand, the Indian passengers usually rely on the Carriage by Air Act, 1972, and the Consumer Protection Act, 2019. 

References

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