Compensation for the families of Germanwings 9525 victims
On 24 March 2015, Germanwings Flight 9525 from Barcelona, Spain to Dusseldorf, Germany crashed into the French Alps killing 144 passengers and 6 crew members. It is a tragic event that has left the aviation industry asking serious questions about both safety procedures and the sad task of determining the compensation that the families of the victims will receive.
The plane’s black box recordings have provided vital information in establishing what happened on that fateful day. It is now understood that the co-pilot, Andreas Lubitz, intentionally crashed the aircraft after locking the pilot, Patrick Sondheimer, out of the cockpit.
The Montreal Convention (the “Convention”) provides a framework for calculating an airline’s liability in the event that there is an “accident” resulting in the injury or death of a passenger. The actions of Mr Lubitz to many will not seem accidental in any way, and will to those same people appear to have been very much premeditated. However, in the case of Air France v Saks the US Supreme Court determined that “accident” means an “unexpected or unusual event or happening that is external to the passenger”. This wide definition ensures that the actions of Andreas Lubitz will be considered accidental, therefore providing the families of the victims the right to receive compensation under the Convention.
The Convention provides a maximum amount that the families of the victims are able to recover in situations where the airline has not acted negligently. Under the Convention, the victim’s family is entitled to 113,100 Special Drawing Rights (“SDR”). The SDR is “an international type of monetary reserve currency, created by the International Monetary Fund (IMF) in 1969, which operates as a supplement to the existing reserves of member countries.” Based on exchange rates on 15 June 2015 this estimated to be around £102,215.
In addition to those damages awarded under the Convention, the victims’ families will also be entitled to claim for additional damages beyond those set out in the Convention, where it can be shown that the airline has acted negligently. If the family makes such a claim, it is for the airline to show that the damage caused was not as a result of the airline’s negligence. This can be a difficult task for an airline, and given what has already been shown regarding the mental state of Mr Lubitz it is likely that the airline will struggle to show that the accident was not as a result of their negligence.
In any event, given the public scrutiny of this incident and the potential for negative publicity, the airline is likely to settle any claims out of court, as opposed to attempting to defend such claims. The very fact that Germanwings has offered the victim’s families approximately $54,000 (50,000 Euros) and has also reportedly set aside $300m (£202m) to cover potential damages claims, may be indicative of the approach that they are taking in regard to such an incomprehensible act and may show that they are not looking to defend the claims made against them.
Beyond the damages awarded under the Convention, the amount that the families may receive will, to a large extent, depend upon the jurisdiction within which they bring their claim. In terms of where the families can bring their claims, this is limited to:
- The airline’s home country – Germany
- The country where the flight was to land – Germany
- The country where the ticket was purchased (so long as the airline flies there)
- The passenger’s country of residence (so long as the airline flies there).
It is anticipated that the families of the passengers who were US nationals will receive much higher damages than those families of victims who were nationals of European countries. This is due to the US typically awarding far higher amounts in damages than European countries. Sadly, for those families who lost relatives who were resident in countries that are not a party to the Convention, the difficult task of obtaining damages will be much greater. For these families even trying to obtain the suggested maximum under the Convention may be very difficult.
As a result of such a horrendous and unthinkable act airlines and regulators have been forced to consider how to make sure that pilots are fit to fly and also to improve in-flight safety procedures.
Airlines now have a greater focus on them to consider the mental health of their pilots via mental health screening procedures, and also to move away from any reliance on pilots self-reporting on physical and mental issues that may impact on their ability to fly.
Many airlines have enhanced their flight deck security, requiring two people to be in the cockpit at all times. Going forwards, the aviation industry must learn from this tragic accident and ensure that such an incident never happens again.
For more information on aviation law or related enquiries, contact Alina Nosek, Head of Aviation.
Published: 8 Jul 2015