It looks as though the Germanwings first officer intentionally crashed the aircraft, killing all aboard.  Reporters are asking about the airline’s obligation to provide the passengers’ families monetary compensation.  Here are some answers:

The airline must compensate the families for any "accident."  Because Flight 9525 was angermanwings international flight, all the families’ claims are governed by a treaty called the Montreal Convention.  The treaty makes the airline automatically liable to the families for any "accident."  It doesn’t matter whether the airline was negligent or did anything wrong.

The crash was the result of an "accident."  Even if, as it appears, the first officer intentionally crashed the plane, it was still an "accident."  Most courts define "accident" for the purposes of the Montreal Convention to be any "unexpected or unusual event or happening that was external to the passenger."  The pilot’s decision to crash the plane would certainly qualify.

The Montreal Convention’s limits of liability will not apply.  An airline can avoid paying to the families of those lost in an accident any amount over 113,100 Special Drawing Rights (a sum equal to about US$160,000) if it can prove that it was in no way at fault for the crash.  Generally, it’s very difficult for an airline to make that showing.  It’s the problem of proving a negative.  In this case, of course, it will be impossible for the airline to prove it was completely free of fault.  So the Convention will impose no limit on the airline’s obligation to compensate the families for their loss.

The Airline is off the hook for punitive damages.  Though the airline will have to compensate the families for their losses, even if it turns out that the airline knew or should have known that the first officer presented a danger, the Montreal Convention prohibits a court from awarding punitive damages, or money designed to punish the airline rather than compensate the families.

The amounts that the families will receive depends upon where they sue.  The Montreal Convention leaves it to the courts of the country in which the passenger sues to decide how much money is appropriate compensation for the loss of a loved one.   Every country is different.  In the United States, certain families of those lost could expect payouts to exceed $10 million, depending on the circumstances.  In France and Germany, the payouts would be much, much lower.

Few passengers, if any, will be able to sue in the US.  The Montreal Convention allows families to sue in the United States only in certain limited circumstances.  For example, a family might be able to sue in the US if the passenger happened to purchase his tickets in the US, or if he was planning to continue on after landing to a destination in the United States, or perhaps if the passenger was US resident.

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.

 

Let’s get it out of the way: there is little in common between the apparent loss of AirAsia Flight QZ 8501 and the disappearance of Malaysia Airlines Flight MH 370.  

But Flight 8501’s disappearance does have at least some resemblance to the 2007 loss of Adam AirAirAsia A320 Flight 547.  Both Indonesian airliners disappeared shortly after contact was lost in bad weather. Both disappeared in Indonesian airspace — the AirAsia flight over the Java Sea; the Adam Air Flight over the Makassar Strait.

Bad Weather vs. Pilot Inputs

The speculation after the Adam Air crash was that the flight was brought down by severe weather — weather that the crew had been warned about.  But that turned out to be wrong. Adam Air Flight 547 went down because the crew fixated on troubleshooting a problem with the aircraft’s navigation system, not because of weather.  The crew became so preoccupied withthe navigation system that they allowed the aircraft to slowly roll into a steep bank.  They allowed the nose to point down and the aircraft to build too much speed.  When the pilot figured out was going on and tried to recover, his control inputs broke the wings.

But the AirAsia Crew Had Requested a Deviation for Bad Weather

Unlike the Adam Air crew, the AirAsia pilots had requested from Air Traffic Control a clearance to climb to a higher altitude but didn’t immediately get it.  A short time later, all contact with the airliner was lost. Isn’t that a strong indication that rough weather may have been a factor?  

First, while small aircraft are often brought down by rough weather, it’s extremely rare for an airliner to be.  Airliners avoid rough weather largely for comfort rather than for safety.  Second, although Air Traffic Control delayed in giving the AirAsia flight a clearance to climb, the pilots were free to do so immediately in the unlikely event the weather posed a risk to the aircraft’s safety.

But while it’s rare for an airliner to be brought down by turbulence, it’s quite possible for an airliner to be brought down by a pilot’s reaction to that turbulence.  

Airbus Rudder System

That’s exactly what happened to American Airlines Flight 587 in 2001.  The aircraft encountered turbulence climbing out of JFK.  The co-pilot tried to correct by pushing on the rudder with his foot. He pushed too hard and the aerodynamic forces caused structural failure.  The airliner crashed and killed all 260 aboard and 5 on the ground.

American Airlines 587 was an Airbus A300. More then 10 years after that crash, the FAA required all 300 series aircraft to be modified to warn the pilot to "stop rudder inputs" when structural damage becomes a risk, a modification that I felt was inadequate.  Flight 8501 was an Airbus A320.  That’s the same model which the NTSB called flawed because its rudder system was too sensitive:

The Airbus A320 family is . . .susceptible to potentially hazardous rudder pedal inputs at higher airpeeds. 

The Illinois Attorney Ethics Committee has filed a complaint against Monica Ribbeck Kelly, the Chicago lawyer who started legal proceedings on behalf of a passenger’s family shortly after Malaysia Airlines Flight 370 went missing.  One of the problems for Kelly is that the missing passenger’s parents denied that they ever authorized Kelly to represent them.  

According to an ABC news story, the Illinois Attorney Registration and Disciplinary Committee also claimed in its complaint that Kelly has engaged in… conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute…”

According to the complaint, Kelly’s allegations were frivolous:

[Kelly alleged] that Siregar had been a passenger on Malaysia Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed. .[Kelly’s] allegations… had no basis in fact and were frivolous, because [Kelly] knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysia Airlines Flight 370.”

The ethics commission also criticizes Kelly for suggesting that a mechanical malfunction had contributed to the tragedy when committee said there was “no evidence” suggesting such a malfunction.

Full story and video at ABC News.

US Airways Flight 735 from Philadelphia to Orlando encountered turbulence as it passed through 17,000 feet. Three passengers and two flight attendants were injured so badly that they were hospitalized when the plane returned for landing in Philadelphia.

What is the Airline’s obligation to compensate the injured?  The answer varies.

Passengers who were traveling on Flight 735 as part of an international flight:

If a passenger originated outside the US, or was ticketed to continue on from Orlando to a foreign destination, the Montreal Convention applies to that particular passenger’s claim. The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident." The definition of "accident" includes an encounter with severe turbulence. The passenger need not prove that the airline was at fault for the accident. Under the Convention, the airline is automatically liable.

As discussed here, the Convention also entitles the passengers who suffered a physical injury to be compensated for the emotional distress they suffered as well.

Passengers who were traveling domestically:

To obtain compensation for his injuries, the domestic passenger needs to prove that his injuries were due to the airline’s negligence.  For example, the domestic passengers might need to prove that the flight crew could have reasonably avoided the turbulence but didn’t.  That will be difficult — apparently nothing more than light turbulence was reported in the area.

Cabin Crew:

The injured cabin crew cannot sue their employer due to workers compensation laws. They may be able to proceed against others responsible for the encounter, such as the weather reporting agency used by the airline.  In appropriate circumstances, the crew members can also sue the United States government if Air Traffic Control should have advised the flight of the upcoming turbulence.  Again, however, reports are that there is no reason to believe the turbulence could have been foreseen.

Shortly after the crash of Malaysia Flight MH 370, Monica Kelly of the Ribbeck Law Firm announced that her firm was filing litigation in Chicago seeking to preserve evidence and identify other possible defendants who might be involved in the missing Boeing’s manufacture and upkeep.  The filingMonica Kelly, Ribbeck Law generated quite a bit of fanfare and media coverage for the Ribbeck Law Firm and, at the time, the firm said that it expected to represent families of more than 50 percent of the passengers on board.

But the filing hasn’t turned out so well.  The judge has now tossed it out of court, ruling that it was improper and should never have been brought.  Further, she noted that she has tossed out previous petitions improperly filed by Ribbeck, so the firm should know better.  According to the Chicago Tribune, the judge was not amused:

Ribbeck Law had filed virtually identical petitions last year after separate fatal airplane crashes in San Francisco and Laos, and [Judge Flanagan] had dismissed both for the same reason.

“Despite these orders, the same law firm has proceeded, yet again, with the filing of the (Malaysia crash) petition, knowing full well there is no basis to do so,” Flanagan wrote.

The judge said she “will impose sanctions” if Ribbeck Law continues to make such filings.

According to another article in the Tribune, Ribbeck and Kelly have been in trouble before:

Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash. . .

In 2008, Kelly’s brother and partner in the firm, Manuel von Ribbeck, was cited while working for another firm he allegedly posed as a Red Cross worker when he approached a man who’d lost his wife and daughter in a plane crash in the Bahamas. . .

Kelly was recommended for censure last month for allegedly continuing to try to represent a survivor of a 2009 Turkish Airlines crash in the Netherlands that killed nine passengers and crew. The survivor had sent a letter terminating the relationship, records show.  

It seems Ribbeck’s problems are not limited to aviation cases:

On March 20, von Ribbeck was found in civil contempt of court after he failed to set up an escrow account for child support as ordered by the judge overseeing a 2009 paternity suit filed against him in Cook County, court records show.

In the order, Judge Lionel Jean Baptiste said von Ribbeck must show up in court April 14 and pay $17,000, or a warrant could be issued for his arrest. . .

April 16 Update:  For more, see Christine Negroni’s post "Flim Flam and Shenanigans"

A passenger suffered from lung disease.  The airline denied him the use of his supplemental oxygen.  As a result, six months later, the passenger died. 

The family sued the airline within two years of the passenger’s death.  Normally, that’s within the statute of limitations.  But because the flight was an international flight, the Montreal Convention applied.  And the Montreal Convention requires suits to be brought within two years of the aircraft’s arrival at the destination, not two years from the injury or death.  Because the family’s claim was filed two years and three months after the plane landed, the trial court dismissed the suit as being brought too late.  The Ninth Circuit Court of Appeals agreed. 

The Convention is rooted in a one-sided deal struck many years ago to protect a fledgling aviation industry.  From the Convention’s venue restrictions, to its limitation on recovery for emotional distress, the Convention leads to results that offend any sense of basic justice or fair play.  

The Convention’s time limit for bringing suit is just one more unfair provision.  Let’s say that a passenger is badly injured in an accident and dies from complications three years later.  It would have been impossible for the passenger’s family to bring a lawsuit within two years from the aircraft’s arrival, because the family’s claim would not have accrued by then.  In that situation, even though the airline caused the death, the family would have no recourse at all.

One justice, Justice Pregerson, dissented noting the Convention was unjust.

Because of the unfair and unconscionable result in this case and perhaps others, I hope that the Montreal Convention will be revisited and revised to protect families like the Narayanans.

That won’t happen any time soon.  Even if there was widespread international support for amending the Convention – and there isn’t – the process would take many, many years.   

The case is Narayanan v. British Airways.   

Someone changed the course of Flight MH370 and turned off the aircraft’s transponder.  Turning off an aircraft’s transponder makes it more difficult for the plane to be tracked by radar.  A hijacker with even minimal flight training would have known that. 

But there is one wrinkle.  The transponder was reportedly turned off when air traffic control was in the process of a “handoff” from Malaysian Air Traffic Control to Ho Chi Minh City Control in Vietnam.  At that moment, the aircraft was in the shadows: on the outskirts of Malaysian radar coverage and just entering Vietnam radar coverage.  The crew had said goodbye to Malaysian air traffic control, but hadn’t yet established contact with Ho Chi Minh City Control.  If a crew wanted to disappear, that would be an ideal time to pull it off.  Only the most sophisticated hijacker would know that.

Airline’s Obligation to Compensate Family Members

An airline’s obligation to compensate the families of those lost in the crash of an international airliner is governed by an international treaty known as the Montreal Convention.  The Montreal Convention requires the airline to compensate the families of those lost whenever the crash was the result of an “accident.” An “accident”  is defined as “an unexpected or unusual event or happening that is external to the passenger.”  Whether the crash was caused by a pilot’s wilful misconduct, a hijacking, or even a terrorist attack — it doesn’t matter.  The crash counts as an accident and the airline is liable.   

Cap on Airline Liability

An airline is strictly liable for a family’s loss up to 113,100 “Special Drawing Rights,” an amount equal to about $175,000. The airline can avoid liability for sums exceeding that amount only if it can prove it was totally “free from fault.” That is usually an impossible task for an airline, even if the crash was caused by a terrorist.  The air carrier can seldom show that there was nothing it could have done to avoid the accident.  It’s the problem of proving a negative.  Thus, if in fact flight 370 was lost in a crash, it’s unlikely the Convention’s “cap” on liability will come into play. 

More in my interview appearing in the Malaysian press