FIGHT THE NECESSARY FIGHT – Comments on Unprecedented Times and Inadequate Responses
If you’ve lost a family member to an air disaster, you’ve known devastation and loss on an enormous scale.
And you’re probably more than a little confounded by promises made by recalcitrant airlines, panicked insurers and case brokers who will say all manner of things because of the money involved.
Life has a greater value and the law is clear, the facts may not be fully known yet, but your family is worth the battle to honour the dignity of those lost.
In the years to the end of the millennium that followed the Lockerbie disaster of 1988, there were significant problems with commercial air transport corridors both east and west across the North Atlantic between Europe and the US east coast. In that time¹ jumbo jets with almost one thousand passengers were lost flying the transcontinental route across the North Atlantic.
I worked on all four of those tragic accident cases as a member of each litigation steering committee. Other victim’s families in those cases were also represented by some of the best aviation law firms in the world. The fight for full and fair damages was intense. The plaintiff’s lawyers never conceded any client’s rights for the full damages value of their cases. Ultimately, the insurers of each of the airlines were fair and generous, in most instances. The liberality in damages brought on by the drafting and adoption of the Montreal Agreement of 1999 by most nation states with national air carriers had not yet influenced the outcomes of commercial air cases. The Warsaw Convention of 1929 still determined damages. But the victim’s families and the lawyers acting for them insisted on fair damages being paid for these terrible events. The dignity of those lost was honoured.
That was a long time ago in the aviation world. Today, Malaysia Airlines, AirAsia and certain purported expert aviation lawyers have recently suggested that life is now worth a lot less: Perhaps US$50,000 or $30,000, or maybe, if your family is from Indonesia, only $10,000.
These figures do not relate to any figure found in the current scheme of compensation for deaths and injuries, which occur on commercial carriers flying international routes. They are not representative of actual damage amounts for economic or non-economic losses. They do not represent an average for the payments of funeral expenses or family expenses related to the accident or body recovery. They are arbitrary, pulled out of thin boardroom air. While they may be substantial as “Advance Payments” they are very poor as a measure of the lives lost.
Why, then, are they so low, so long after the first event?
Recent history is enlightening. The public and media attention was first captured by Malaysia Airlines misfortunes and mistakes.²
So far, Malaysia Airlines and it’s insurers have offered and paid in some cases US$50,000 for each family member for both MH 370 and MH 17. They call it an “Advance Payment” under Article 28 of the Montréal Agreement of 1999. These same parties will not even talk about the specific applicable law or the payment of the full strict liability payment of special drawing rights, which cannot be limited according to Articles 17 and 21 of the Montréal Agreement, which approximates US$180,000 without proof of fault.
Some plaintiff aviation lawyers have spoken approvingly of the Montréal Agreement amounts as the equivalent of fair compensation. Please, let’s remember as we consider that justice is the goal, one aircraft is still missing, one was foolishly flown into a war zone and destroyed by a missile. Over the next few days the same airline flew twice over a different active conflict zone without harm. But, someone has not learned the lesson and wants the families of those who lost loved ones to be grateful for the offer of US$50,000, now, almost 10 months later. That is unacceptable.
And now we have AirAsia, in its many forms, iterations, affiliates and associates, which leaves the flying public with many questions about who is in charge and what is happening. Nothing should be conceded to AirAsia in any corporate form without a thorough investigation into this low-cost Asian carrier. Because this carrier had a runway incursion at Brunei on 7 July 2014 with AirAsia Flight AK 278, AirAsia Flight QZ8501 disappeared off radar and crashed into the Java Sea near Indonesia on 28 December 2014 with all 166 passengers and crew lost and AirAsia Flight Z2272 overran and experienced a runway incursion at Kalibo in the Philippines two days later on 30 December 2014.
Now, AirAsia has stepped up to it’s responsibility and offered US $30,000 per victim, but with some approval might offer only US $10,000 to families of Indonesian victims, which is totally unacceptable. Clearly, both Malaysia Airlines and Air Asia have provided manifestly inadequate responses to these unprecedented losses.
That three fatal events and the four dangerous incidents have occurred in just nine months in one region of the world, South Asia, the Pacific and the Indian oceans is unprecedented.
The response should be nothing short of a total commitment to seeking justice for those lost. Anything less is unacceptable.
1. Pan Am Flight Flight 103 bombed over Lockerbie, Scotland on 21 December 1988. 270 passengers, crew and residents of Lockerbie were lost.
TWA Flight 800, which exploded over East Moriches, NY on 16 July 1996. 230 passengers and crew were lost.
SwissAir Flight 111, which crashed after an electrical fire, near Peggy’s Cove, Nova Scotia on 2 September 1998. 229 passengers and crew were lost.
EgyptAirR Flight 990, which crashed off of Narragansett, MA as a result of an apparent pilot suicide on 31 October, 1999. 217 passengers and crew were lost.
2. MH 370 disappeared on 8 March 2014 shortly after departure from Kuala Lumpur. It has not yet been found. 239 persons on board are unaccounted for.
MH 17 was shot down over Ukraine on 17 July 2014 by a surface to air missile originating out of the Russian – Ukrainian separatist conflict. 298 passengers and crew were murdered.
MH 4 flew over Syria and Iraq during the ISIS conflict on 20 July 2014. It was not fired upon.
MH 4 flew, once again over Iraq during the ISIS conflict on 21 July 2014, avoiding the hotter combat zone over Syria.
This article was written by Jerome Skinner, one of the worlds most renowned Aviation Litigation experts. LHD have partnered with Jerome on the MH17 case to help Australians affected by the tragedy.
Jerry Skinner is a skilled aviation litigator handling domestic and international cases. He handles all types of aviation accident cases in which catastrophic loss of life or personal injury has occurred as a result of negligence. Jerry has over 35 years of multi-district commercial airline litigation, complex tort, product liability and class action experience.