Authors: International law requires the airline to pay a set amount of damages for the crash
They say damages could be unlimited if airline was negligent for allowing co-pilot to fly
Editor’s Note: The authors are military-trained pilots and partners practicing aviation law at Kreindler & Kreindler LLP. Justin Green is president of the International Air & Transportation Safety Bar Association. Brian Alexander is the former chairman of the Aviation Section of the American Trial Lawyers Association and vice chairman of the American Bar Association Air and Space Law Committee. The opinions expressed in this commentary are theirs.
Virtually all the facts that have come out of the preliminary investigation into the Germanwings Flight 9525 disaster point to an intentional act by the airplane’s co-pilot, Andreas Lubitz, who apparently locked the captain out of the cockpit and then methodically descended the airplane until it crashed in the French Alps.
Although such a horrific and evil act seems unthinkable, this is not the first time that a pilot committed a mass killing by crashing an airplane. For example, in 1999 the National Transportation Safety Board concluded that the first officer of EgyptAir Flight 990 purposely crashed the aircraft into the ocean off the coast of Massachusetts, killing all 217 people aboard.
Indeed, although there is currently insufficient evidence to support the theory, since Malaysia Airlines Flight 370 disappeared on March 8, 2014, there has been speculation that perhaps one of the flight’s pilots purposely took the airplane off course after locking the other pilot out of the cockpit.
The Germanwings crash investigation will undoubtedly focus on several key issues, including the warning signs pointing to the co-pilot’s mental instability. Investigators will examine whether the airline could or should have identified him as not mentally fit to fly passengers, especially since, according to news reports, he had to take a break from training for mental health issues.
They will study pilot mental health screening procedures, flight deck security and the use by some airlines of a rule requiring two people to be in the cockpit at all times. But what should not be overlooked is the fact that the victims’ families have suffered terrible losses and must understand their legal rights.
So who is liable when an airplane is brought down because of a homicidal act?
Typically, when an airliner crashes on a domestic flight in the U.S., liability is determined by domestic law. In such a case, the plaintiffs bear the burden of proving that the airline was negligent and that the airline’s negligence caused the crash. If plaintiffs are not able to meet their burden, the airline will escape liability and the plaintiffs will receive nothing unless they can hold another defendant liable (for example, the airplane’s manufacturer).
This is not the case, however, under international law, which is very different and applies in this case to any claims against Germanwings because the mass killing occurred on an international flight.
The families’ rights against Germanwings are governed by the Montreal Convention, which is a multilateral treaty that came into force in 2003. The Montreal Convention provides certain legal protections to airlines engaged in international transportation and provides rights to passengers’ families after an “accident.”
While the term “accident” may not seem appropriate for what appears to be a case of mass homicide, the U.S. Supreme Court defined it as an “unexpected or unusual event or happening that is external to the passenger” in the 1985 case of Air France v. Saks. Under that interpretation of “accident,” the Germanwings tragedy will be considered an accident, thus making the airline liable. For example, after Soviet Union fighters intentionally shot down Korean Air Lines Flight 007 in 1983, the event was considered an “accident” under the Warsaw Convention, the international law that preceded the Montreal Convention.
International law renders Germanwings responsible for compensatory damages, which, depending on the applicable damages law, may include loss of support (commonly called economic damages) and loss of familial relationships (consisting of care, comfort, love, affection and guidance, also known as noneconomic damages) up to approximately $156,919 per victim.
Germanwings can limit its liability to this amount only if it proves that it was not negligent or otherwise at fault. If Germanwings does not meet its burden of proof, the passenger families will be entitled to full compensatory damages for their provable losses, without limitation. (The Montreal Convention, however, renders Germanwings immune from punitive damages claims.)
The Montreal Convention does not have its own damages law and the court overseeing any cases arising from the disaster will decide what damages law governs. Most often the court will apply the law of the victim’s home country to the question of what damages may be claimed.
One major issue likely to be faced in any future litigation arising from the Germanwings tragedy is whether the airline can limit its liability by claiming that it is not legally responsible for the co-pilot’s wrongful actions – even though the Montreal Convention specifically provides that the airline is liable for the “wrongful act” of an employee.
Generally employers are liable for their employees’ wrongful acts under a legal doctrine known as “respondeat superior” liability. But in certain countries, including the United States, the law permits an employer to escape from liability if the wrongful act was outside the scope of the employee’s duties.
If Germanwings attempts to meet its burden of proof as to whether it was negligent, it may argue that it performed the legally required pre-hire screening of the co-pilot, that the co-pilot passed his medical examinations, and that there were no other indications concerning the co-pilot’s dangerous mental condition.
However, according to a recent statement by Lufthansa, in 2009 co-pilot Lubitz told representatives at the Lufthansa flight school in Arizona that he had experienced an “episode of severe depression.”
As it has already said to the press, in court Germanwings will likely say that the pilot completed all his technical requirements and, as far as the airline knew, was in physically and mentally fit to fly its planes. The families may counter that the airline was responsible for hiring, training and placing this reportedly unstable co-pilot in the cockpit and that it should not be able to limit its responsibility.
The families will likely also say that this co-pilot should not have been left in the cockpit and that if Germanwings had implemented a procedure to require a second person in the cockpit at all times – a rule that many other airlines followed – he would not have been able to lock the pilot out.
Germanwings has offered an advance of approximately $54,000 (50,000 euros) to each victim’s family, and its insurers have set aside $300 million to cover potential liabilities. These positive steps may indicate that the airline will not mount a liability defense and may therefore avoid a court battle over its decisions that put Lubitz in the cockpit of Flight 9525.
In the coming days, the investigation will shed more light both on Germanwings’ policies and procedures regarding pilot screening and on the details of the co-pilot’s life. European airlines have already begun requiring a second person inside the cockpit at all times.
It is vital to learn from this unimaginable tragedy by compelling the regulators and airlines to evaluate and determine the best ways to ensure that pilots are fit to fly. We believe that there must be more robust pre-hire mental health screening and less reliance on pilot self-reporting of mental and physical health problems.
Thankfully, suicidal or homicidal pilots are rare, but this tragedy should give airlines and regulators incentive to find more effective means of ensuring the physical and mental health of the pilots we entrust to fly the traveling public.