Germanwings Crash Settlements Are Likely to Vary by Passenger Nationality
|
Version 0 of 1. The extraordinary circumstances that led to last week’s crash of the Germanwings jet, where a pilot seemingly brought down an airplane, killing everyone aboard, means that the airline’s insurers could end up paying hundreds of millions of dollars to the victims’ families, according to legal experts. But while the airline is responsible for the actions of its pilot, not all relatives will be entitled to the same payout. The families of the three American victims, for instance, are likely to get a larger payment from the airline than other passengers because courts in the United States usually award larger compensation than European courts. Under the 1999 Montreal Convention, an international treaty that governs airplane liability, airlines are responsible in cases of accidental death or injury on international flights, and must pay families up to about $170,000 per victim. The definition of an accident is broad and includes any unusual or unexpected event that causes a deadly crash. But since the pilot intentionally caused the crash, according to the French prosecutor, relatives could also seek greater compensation from the airline, aviation lawyers said. “It is sad, it is tragic, but it is extremely straightforward,” said Robert Alpert Sr., a veteran aviation lawyer who has handled cases involving more than 40 crashes. “The airline and its insurer should quickly handle the payments to the families. Particularly in light of the fact that they apparently dropped the ball in monitoring this pilot’s physical and mental well-being.” The authorities have said that Andreas Lubitz, the co-pilot at the controls of the Airbus A320 jetliner that crashed in the French Alps on Tuesday, had a mental illness but kept the diagnosis hidden from his employer. He and the other 149 people on board the plane died when it slammed into a mountain. James Healy-Pratt, a partner and head of the aviation department at Stewarts Law in London, estimated the airline’s total liability would be about $350 million to the families of the passengers. “It would be commercial suicide for Germanwings to try and dispute responsibility to the families,” Mr. Healy-Pratt said. “I am surprised that Lufthansa have been so defensive so far. I would expect that common sense will prevail soon.” Hans Joachim Schöttes, a spokesman for Germanwings, said over the weekend that the victims’ families would start receiving initial payments in the coming days. Germanwings, owned by Lufthansa, said it had set aside 50,000 euros, or about $54,000, for each family to cover immediate expenses. Lufthansa said it would honor its responsibilities to the families. How much each family gets in the end will vary. The families of passengers with children or dependents would be entitled to a larger payment than those of elderly passengers or passengers with no dependent relatives. As to where families can seek compensation, there are several options: the airline’s home country; the country where the flight was to land; the country in which the ticket was bought; the country of final destination; or the passenger’s country of residence. Passengers aboard the Germanwings plane, which was flying from Barcelona, Spain, to Düsseldorf, Germany, came from more than 16 countries, including 71 passenger from Germany and 48 from Spain. The Montreal Convention places no limits on compensation, instead leaving it to national courts to decide how much money is appropriate for the loss of a relative. (The convention, however, does not permit punitive damages to be awarded.) The national approaches vary widely. Some countries do not allow compensation for wrongful-death cases. Courts in the United States, on the other hand, are generally highly favorable to families. An airline can avoid paying families more than a minimal sum if it can prove it was in no way at fault for a crash. In practice, the standard is nearly impossible to meet in an accident. “In this case, of course, it will be impossible for the airline to prove it was completely free of fault,” said Mike Danko, a plaintiff’s aviation lawyer in California. Regulators in the United States require airlines to always have two crew members in the cockpit at any time, something that was not required in Europe until now. On Friday, the European Aviation Safety Agency, based in Cologne, Germany, formally advised airlines across the region to adopt a rule that two people must be in a cockpit. It said the recommendation was temporary, pending the outcome of the French investigation into the crash. “The airline is liable to pay unlimited full compensation because they failed to do everything to prevent this tragedy,” said Mr. Healy-Pratt. Lufthansa’s top executive has said that Mr. Lubitz was fit to fly. However, the authorities in Germany found that he did not disclose his full medical records despite a company policy requiring notification of conditions that could affect flying or a pilot’s license. He also sought treatment for vision problems that may have jeopardized his ability to continue working as a pilot, two officials with knowledge of the investigation said on Saturday. “There is no requirement they should have known more about him, but he was their agent, and the airline is responsible for his actions,” said Kevin P. Durkin, a partner at Clifford Law Offices in Chicago and former chairman of the American Bar Association’s aviation section. In the United States, families could expect payouts of more than $10 million, depending on a person’s specific circumstances, age, occupation and earning power, according to Mr. Danko, who has represented families of victims of the Air France Concorde crash in 2000, and American Airlines Flight 587, which crashed in Queens in November 2001. But a federal court in California, after the crash of Air France Flight 447, sent the case of two American families back to France, where most cases were being heard, Mr. Danko said. Still, most cases are settled out of court. For that reason, airlines usually look at where passengers might be able to sue, and offer them compensation that is commensurate with what a court there might award them, Mr. Danko said. This explains why Europeans would get less, says Kenneth R. Feinberg, a lawyer and victim compensation expert, since “the idea you’ll get hundreds of thousands, or millions, of dollars is alien to the way Europe compensates.” German courts, for instance, approve payouts that cover the cost of burial for the victims or psychological help for their relatives, as well as alimony or child support. But the total payments are usually a small fraction of what families in America might get. Mr. Healy-Pratt, said settlements in air disasters average $4.5 million for an American case, $1.6 million for a British case, $1.4 million for a Spanish case, and $1.3 million for a German case. Experts say that whatever the findings in last week’s crash, the insurance coverage should easily cover its potential liabilities. Germanwings is insured by a pool of insurers led by Allianz. “One of the hardest parts of my job is explaining to British families that their claims are worth much less than American families’, and to German families that theirs are worth less than Spanish families’,” Mr. Healy-Pratt said. “After all, most passengers will have endured similar experiences during the final long minutes of Flight 9525.” |