German Wings: The Passengers: Who Gets What?

The recent revelation being made regarding this crash have sparked lots of speculation about why a 28 year old co-pilot who, by all accounts, loved flying and loved his job would plunge an Airbus 320, with 150 onboard, into a mountain.

One area that is getting some attention is the extent, assuming a criminal act occurred; the passengers may recover damages against German Wings or its parent, Lufthansa.  The short answer is that, criminal act or no criminal act, it has no effect.  Sure, the emotional landscape may change as we all struggle to accept the fact, assuming it’s true, that anyone could do such a monstrous thing.  However, emotions aside, the scope and magnitude of monetary recovery is unaffected.

As Plane-ly Spoken discussed in the context of MH 370 [Link] the Boeing 777 which, mysteriously, remains missing, the rights of the passengers and their families is controlled by their tickets, which are contracts.  Those tickets/contracts are, since they involved international air transportation between Spain and Germany, controlled by international agreement, specifically The Montreal Convention of 1999, to which all of the involved countries are signatories.

Under the Convention, the airline issuing the ticket is liable, apart from some exception unlikely to be involved here, for 100 percent of the compensatory damages which can be established based upon the law of the applicable country.  This is, for all intents and purposes an “absolute” liability.  In other words, no fault on the part of the airline has to be proven.

The tradeoff for this absolute liability is that the airline has no liability for punitive damages or, explained another way, damages meant to be punishing the airline.

There is no reason to believe that Lufthansa or its subsidiary German Wings did anything wrong, Lufthansa is one of the best airlines in the world.  But, if we assume that the co-pilot, their employee, for whom they are responsible, did what is being suggested, punishment is a thought which comes to mind and, under the law that equates to punitive damages.

However, under the Montreal Convention, there are no punitive damages.  So, even assuming there was a basis to punish the airline (and there isn’t), the sole recourse of the families is under the Montreal Convention and compensatory damages.

While some plaintiff’s lawyers may not like it, an understanding of these facts by the families, as early as possible, is guaranteed to avoid a great deal of frustration later on.  Plane-ly Spoken hopes that the lawyers working with the families are upfront with them so as to not make an impossible situation even more impossible.

(Originally posted April 2, 2015)

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