Because AirAsia Flight QZ 8501 was an international flight, the airline’s obligation to compensate the passengers’ families is governed by a treaty known as the Warsaw Convention. Here are some of the Convention’s important points, as they apply to Flight 8501:
Airlines Must Compensate Families for "Accidents"
AirAsia must compensate the passengers as long as the crash was caused by an "accident." The Convention defines "accident" to include any unexpected event — from an encounter with bad weather, to poor planning on the part of the pilot, to mechanical failure. It would seem the loss of Flight 8501 will qualify as an "accident." The exact cause of the accident doesn’t matter. The families do not need to prove that the airline was negligent, or that the airline did anything wrong at all. The airline is automatically required to compensate the families, unless the airline proves it took "all necessary measures" to avoid the accident — a showing which is for all practical purposes impossible.
Avoiding the Convention’s Cap
The cap on an airline’s liability under the Warsaw Convention is about US$23,000 (16,600 SDRs). But families may avoid that limitation if they can prove that the accident was caused by AirAsia’s "wilful misconduct." That means that they must prove that AirAisa or its pilots did something wrong that, at the time, they knew was wrong.
Compensation Will Be Determined By Local Courts
Assuming that the families can prove that the accident was a result of the airline’s wilful misconduct, the court system where the family sues will limit the family’s recovery, not the Warsaw Convention. For example, a US court might set fair compensation for the loss of a spouse at several million dollars. But an Indonesian court is likely to set fair compensation at far less. That makes “where to sue” a critical decision for each family. And the Warsaw Convention strictly limits where suits against airlines such AirAsia may be brought.