Ukraine International Airlines has lost an appeal against a legal ruling that it failed to prove it was not negligent in allowing a Boeing 737-800 to depart Tehran before the aircraft was shot down.

The aircraft took off from Tehran Imam Khomeini airport about 4h after Iranian forces had launched missiles at two Iraqi bases on 8 January 2020. Eight other aircraft had also taken off, and 15 had arrived, prior to the 737’s departure.

Shortly after take-off the aircraft was attacked by two surface-to-air missiles, causing it to crash with no survivors among those on board.

If the carrier had been absolved of negligence, its damage liabilities would have been limited under the Montreal Convention to around $235,000 per passenger.

A trial judge previously ruled that Ukraine International had “failed to prove, on a balance of probabilities, that it was not negligent” in allowing the flight, PS752, to take off – meaning that its liability exposure was unlimited.

Ukraine International appealed to the Court of Appeal for Ontario, during which consideration was paid to the question of whether the carrier breached the standard of care it owed to the passengers and crew.

The airline argued that the Tehran flight information region was not a conflict zone, as defined by ICAO, and that it had discretion as to whether to permit the 737’s departure irrespective of the outcome of a risk assessment.

It also maintained that the original trial judge erred by failing to give weight to the fact that other airlines were flying out of the same airport at around the same time.

While the carrier took the position that ICAO’s risk-assessment manual for conflict zones only applied to flights at altitude – rather than departures and arrivals – the appeal ruling says this “makes no sense”, and underscores that Tehran was a “textbook example” of a conflict zone.

The appeal ruling also supports the original trial conclusions that Ukraine International’s director of aviation security made questionable assumptions and failed to consult sufficient information sources when assessing the potential risk to PS752.

It states that there is “no error” in the original assessment that the performance of the risk assessment “fell below the standard of care”.

With regard to other flights taking off from Tehran at around the same time, Ukraine International provided no evidence as to whether these airlines had conducted security risk assessments – and whether their decisions to depart were supportable.

That other flights departed before PS752 does not establish that those airlines met the standard of care required while operating from conflict zone, says the appeal ruling, and “does not support” Ukraine International’s argument that it met this standard. The extent of damages will be established separately.