Are the passengers’ families entitled to compensation for their loss? From whom? Does it matter what caused the crash? Can the families sue in the United States?
Air France is Responsible Regardless of the Cause of the Accident.
The Montreal Convention requires Air France to compensate the families as long as the crash was caused by an accident. The Convention defines "accident" to include any unexpected event, from an encounter with severe weather, to mechanical failure, to a terrorist attack.
Air France must compensate each passenger's family:
- For all recoverable damages suffered up to $155,000; and
- For all recoverable damages suffered in excess of $155,000, unless Air France proves it was not in any way “negligent or otherwise at fault."
In addition, Air France must advance $25,000 to cover each family’s “immediate economic needs” within 15 days of identifying who the proper claimants are. The $25,000 payment is credited against Air France’s ultimate obligation to the family.
As a practical matter, Air France will be liable for all legally recoverable damages without regard to the $155,000 limit. That’s because to avoid liability, Air France has to prove a negative -- that it was not in any way “negligent or at fault.” Regardless of whether it is ultimately determined that the crash was caused by weather, equipment failure, or even terrorism, Air France will not be able to demonstrate that its own negligence did not somehow contribute to the accident. There are just too many possibilities for Air France to disprove.
The Final Amount of Compensation to Which a Family is Entitled Depends upon Where the Particular Family may Sue.
U.S. law is most favorable for the families, as the laws of other countries severely limit compensation in wrongful death cases. For example, unlike the United States, many countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society." But the Montreal Convention will permit a family to sue Air France in the U.S. only if:
- The United States was the passenger’s ultimate destination, or
- The passenger’s ticket was issued in the United States, or
- The passenger’s “principal and permanent residence” was in the United States.
The first two grounds are relatively straightforward. The passenger's travel documents will determine whether the family meets the applicable requirement. The third ground, however, might well be hotly contested in at least some of the families' cases. For example, two Flight 447 passengers were U.S. citizens from Texas who were living in Brazil. But was the U.S. their "principal and permanent" residence? That may depend upon whether they intended to return to their home in Texas and, if so, when. These details may need to be litigated.
Compensation from the Manufacturers.
If the crash was caused by a product defect – such as a problem with the Airbus' weather radar, its flight control system, or a pitot tube -- then the families would be entitled to pursue a product liability claim. Many of the Airbus' components parts are manufactured by U.S. companies. If a U.S. manufacturer was responsible for the defect, the families would be permitted to sue the manufacturer here, even if the Montreal Convention did not allow them to sue Air France here. A family that successfully sues in the United States may be compensated under U.S. law rather than the more restrictive foreign laws.
Forum Non Conveniens is an Obstacle to Suing Manufacturers in the U.S.
The doctrine of forum non conveniens allows a U.S. court to decline jurisdiction and transfer a case to a foreign country if it decides that, all things considered, the foreign court would be more convenient for all involved. U.S. courts frequently invoke the doctrine to avoid hearing cases involving foreign aviation accidents. Flight 447 may be one case, however, that a U.S. court may well decide to hear. After all, the U.S. would be most convenient for the manufacturers because their engineers, their engineering documents and test data are undoubtedly here. There are no eyewitnesses to the accident who would need to be inconvenienced by traveling to the U.S. from abroad to testify. Finally, unlike disasters occurring on foreign soil, it makes no sense to have the case heard near the crash site because there is nothing at the crash site for any judge or jury to see.