Recent publicity over flight disasters concerning Malaysia Airlines, Air Asia and Germanwings (the low cost carrier of the Lufthanser Group) can cause our minds to dwell on the unthinkable.
It is important to remember that plane travel is safer than ever.
However, in the event of the death or injury of a loved one in a plane crash, it is best to know what to do.
This information is intended to help. We will start with some practical tips before moving to a few legal pointers.
Airlines have crisis plans in place in the event of disaster. Malaysia Airlines activated staff members to become family liaisons, and one assumes other airlines do likewise.
Spare a thought for these employees. Their day-to-day role may be something else entirely within the airline. One example concerned a very experienced employee with a background in sales.
Thrust into the role of family liaison, which the staff member likely never expected would happen in real life, he or she will find this a challenging experience too. For useful context, it is worth conducting a LinkedIn or Google search to find out their ‘day job’ before engaging with them fully.
If the airline employee suggests a meeting, by all means attend. Please take along a representative. Ideally, it should be someone less engaged with the process who can think clearly for you, act as your trusted advisor, and take notes of any important points discussed. It does not need to be a lawyer. A family friend would be good.
A reason to be careful is that you and the airline are in an awkward, unusual relationship. This is because you may be reliant on the airline for information, the parties are mutually devastated by what has happened, but there are legal consequences too.
For example, you will receive correspondence from the airline which offers money but also reserves legal rights. You have to work out how to respond. In other words, you are both required to operate at this dual level of ‘human’ and ‘legal’.
In particular, you may not yet have worked out whether to pursue the airline for additional compensation under the ‘fault’ provisions (see legal discussion below). This means you have to be careful to accept what is offered, but not to give up your rights.
That is why it is important for someone to be able to examine carefully any documents the family is asked to sign, to act as an objective witness, to step in if necessary, and to review any correspondence you might send in return.
1.1999 Montreal Convention applies
The 1999 Montreal Convention (which came into force in 2003 and took over from the Warsaw Convention) has consolidated the procedures for compensation arising from aviation disasters
There are 111 parties to the Convention. A list of the parties to the Convention can be found here.
That Russia is not a signatory to the Convention had some bearing on questions concerning flight MH17, and whether some passengers could claim damages from Russia should the country be found to have contributed to the disaster. That said, whilst Russia was not a party to the Convention, this did not affect the compensation process for passengers of Australian nationality.
2. Australian legislation gives Montreal Convention teeth
International instruments cannot have legal effect in Australia without domestic legislation. In Australia, the Montreal Convention is in force courtesy of amendments to the Civil Aviation (Carriers’ Liability) Act 1959.
Under the Civil Aviation Act (which brings into play the Convention), there is a two-tier liability process for death or injury. The first tier requires payment to be made irrespective of fault (called ‘strict liability’). The second tier contemplates an additional payout if the airline is at fault.
(a) Strict (no-fault) liability –
The airline must pay 100,000 SDRs (Special Drawing Rights are a unit issued by the International Monetary Fund). This roughly translates to AUD $180K to $200K at the moment.
Airlines will offer an initial ex gratia payout likely to be deducted from this amount.
For example, it is reported that, in the aftermath of the Greenwings crash in the French Alps, Lufthansa has already offered to pay up to 50,000 euros per passenger, for immediate financial assistance.
See Article 28 of the Convention states: “Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.” Therefore, expect to see this kind of language in the letter from the airline offering money.
It is important to understand the basis on which money is offered to you by the airline. Make sure you are clear whether the money is an ex gratia payment separate from what the airline must pay under the Montreal Convention, or whether it is money deducted from the overall amount it must pay you.
Malaysia Airlines offered USD $5,000 for family assistance in the immediate period after MH370 was lost. This was an advance ex gratia payment initially made to families and not to be offset against any amount subsequently paid by the airline. Then, Malaysia Airlines made a uniform offer of USD $50,000 per family / next of kin to meet their immediate economic needs. This WAS offset against any amounts subsequently paid by the airline, and so had greater legal significance.
That said, do not be put off from accepting the money offered. However, respond in a way protecting your position.
“Dear [Airline representative],
Thank you for your [email or letter]. We do appreciate [name of airline’s] assistance following these tragic events and during this difficult time.
I appreciate that the payment of [insert sum] proposed by the airline is on an ex gratia basis not to be offset against any later compensation, and that the airline states it is made without admission of liability.
Likewise, our acceptance of this goodwill gesture is on the basis that the family’s rights are maintained in respect of compensation entitlements, and do not constitute a waiver of those rights.
I appreciate [whatever else they have offered to do]. [Then deal with any housekeeping issues].
(b) Unlimited fault based sum payable by airline –
In addition to the no fault payment above, the airline can be liable to pay additional compensation if it is at fault.
Proving someone is to blame can be very hard to do.
Helpfully, there is a reversed onus under the Act. The plaintiff need not prove fault. The airline must show it was NOT to blame.
If you decide to pursue this course, you will enter a new world where you must find a trusted lawyer to represent you. There are some law firms in Australia experienced in this area. Some operate on a no win / no fee basis, particularly if there is a class action. Note that such a class action might begin in another jurisdiction, given that people from other countries might be affected. You should be understandably cautious before taking this step.
Do not expect the airline to roll over if this avenue is pursued, although for public relations reasons, it is reasonable to expect an eventual settlement. A good article examining Germanwings’ possible financial liability is here. In the case of the Germanwings crash apparently caused by the co-pilot, likely questions include:
- Was Lufthansa’s policy reasonable in not requiring two people to be in the cockpit at all times?
This would require, amongst other things, an analysis of policies from other airlines around the world, as well as statistical analysis of similar accident causes. Hindsight might be a wonderful thing, but it is limited help in judging fault.
- What did Lufthansa know of the co-pilot’s health record?
This is distinct from any information concealed from it.
3. Who can apply for compensation?
Under the Act, the liability is enforced for the benefit of family members. The concept of family member is construed broadly, covering extended family relationships such as step-children, foster children, adopted children, step-siblings and so on.
An action to enforce the liability may be brought by the personal representative of the passenger; or by a person for whose benefit the liability is, under this section, enforceable.
Only one action may be brought in Australia for the death of any one passenger.
4. The carrier’s liability under 1999 Montreal Convention is in lieu of civil liability under any law.
This is good, because proving damage when a loved one has died in a typical negligence situation can be extremely stressful. No one wants to discuss the earning capacity of a person based on their age, the extent to which they financially support others (or not), the relevance (or not) of hurt and distress, and so on. It is much better to have these sums fixed in advance, and to avoid this sort of difficult conversation with lawyers or a court.
Note: This does not preclude any civil claims against, say, governments.
5. Certain things not counted in damages calculation
Section 9G of Civil Aviation (Carriers’ Liability) Act 1959: Damages not to be reduced because a claimant has received, or may receive, an amount of money from other sources including life insurance, superannuation, social services benefits or inheritance
7. Statute of limitations
Any court action must be taken two years under the Montreal Convention from the due date of arrival of plane: Article 35
It is important to diarise this date when considering whether or not to pursue additional additional compensation under the ‘fault’ provisions. Fortunately, this two year period offers time to think about whether it is worthwhile submitting oneself to the stress of potential litigation.
This information is for Australians. Please obtain independent legal advice if this affects you.