Nguyen: Compensating the Victims of the Germanwings Tragedy

Wednesday, April 08, 2015

AiVi Nguyen, GoLocal Worcester MINDSETTER™

Attorney AiVi Nguyen

News surrounding the March 24, 2015 crash of Germanwings Flight 9525 that killed 144 passengers and 6 crew members just gets more and more heartbreaking. The belief is that one of the pilots, Andreas Lubitz, intentionally crashed the aircraft into the French Alps after locking his co-pilot out of the cockpit. We have now learned from the plane’s black box recordings that Lubitz’s co-pilot, Patrick Sondheimer, desperately pleaded with Lubitz to let him into the cockpit and in the minutes before the fatal crash tried to break down the cockpit door with an axe.

While more details of the crash will be revealed in the days to come, Germanwings’ parent company, Lufthansa, has already begun the grim task of determining how to compensate the families of the victims. The calculation will be dictated by the Montreal Convention of 1999, which sets forth a compensation system for passengers injured or killed on international flights.

Under the Montreal Convention, airline carriers are strictly liable for injury or death to a passenger in an accident that took place on board or during embarking and disembarking the plane. Strict liability means the airline is responsible regardless of whether or not it was at fault. The thought is that in abnormally dangerous situations, like flying, the party who controls the situation should be held responsible.

An easy example of strict liability is if you have a pet lion in your yard and it bites a kid. It doesn’t matter if your lion is the sweetest lion in the world and usually plays well with kids or that the bitten kid was kicking your lion and stealing its delicious steak dinner at the time of biting. You will be liable for the damages to the kid because, well, owning a pet lion is an abnormally dangerous activity.

While the Montreal Convention holds airlines strictly liable, there is a ceiling on the amount of damages victims may recover in situations where the airline was not at fault. There, a passenger is allowed to recover up to 113,100 “Special Drawing Rights.” An SDR is a unit of measure determined by the International Monetary Fund. Each country that is a member of the Montreal Convention has a different conversion rate for SDRs. Without getting too much in the weeds, as of April 7, 2015, the range for the passengers on board Flight 9525 is approximately $155,000 to $163,000 in U.S. dollars, depending upon what country a suit would be brought.

However, an injured passenger or the family of a passenger killed in an international flight can certainly seek more than the ceiling prescribed by the Montreal Convention. In those cases, to avoid paying more than the 113,100 SDRs, the airline has to prove that the passenger’s damages were not caused by the negligence, other wrongful act or omission of the airline or its agents.

It will be difficult for Lufthansa to meet this burden. As we know, Lubitz suffered from mental illness and many argue that it was the airline’s duty to screen for that illness and take preventative measures. Furthermore, there is a question of whether allowing a pilot to ever be alone in the cockpit is negligent. In this case though, the more important consideration for Lufthansa is public opinion and it is likely that all claims against Lufthansa by the victims’ families will be settled out of court.

How much the families are compensated depends, in large part, on where the family would bring an action. Under the Montreal Convention, their options include the airline’s home country, the country where the flight was to land, the country where the ticket was purchased (as long as the airline flies there), or the passenger’s country of residence (as long as the airline flies there).

There were at least two Americans confirmed on Flight 9525 and Lufthansa operates flights in the U.S. The settlement amount for their families will likely be higher than for other passengers because in the U.S. we typically award more in damages in airline crashes compared to Germany or Spain, where the majority of the other passengers were from. Experts have estimated that Lufthansa’s total compensation in damages to families will amount to somewhere around $350 million, which was calculated by taking into account the average settlement awards for airline disasters in the countries represented: $1.3 million in Germany, $1.4 million in Spain and $4.5 million in America.

While there seems to be a large divide between what the families of American passengers will get compared to European ones, there were passengers onboard who came from countries that are not even members of the Montreal Convention, including Kazakhstan, Venezuela and Iran, meaning it will be more difficult for their families to navigate this process, even trying to obtain the no fault $155,000 to $163,000.

The amount of each settlement will also depend on the individual passenger’s circumstances, age, occupation and earning power. While valuing someone’s life in such a way may seem macabre, it is a necessary evil in the difficult task of compensating those who lost loved ones.

It will likely take more than a year for the families to reach final settlement with Lufthansa, but a spokesman for Germanwings has announced that the airline will distribute initial payments, approximately $54,000, to cover immediate expenses.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.

Videowall courtesy of Lars Rollberg/ flickr