Since the pilot intentionally caused the crash, according to the French prosecutor, relatives could also seek greater compensation from the airline, aviation lawyers said.
The extraordinary circumstances that led to last week’s crash of the Germanwings jet, where a pilot seemingly brought down an airplane, killing everyone aboard, means that the airline’s insurers could end up paying hundreds of millions of dollars to the victims’ families, according to legal experts.
But while the airline is responsible for the actions of its pilot, not all relatives will be entitled to the same payout. The families of the three American victims, for instance, are likely to get a larger payment from the airline than other passengers because courts in the United States usually award larger compensation than European courts.
Under the 1999 Montreal Convention, an international treaty that governs airplane liability, airlines are responsible in cases of accidental death or injury on international flights, and must pay families up to about $170,000 per victim. The definition of an accident is broad and includes any unusual or unexpected event that causes a deadly crash. But because the pilot intentionally caused the crash, according to the French prosecutor, relatives also could seek greater compensation from the airline, aviation lawyers said.
The authorities have said that Andreas Lubitz, the co-pilot at the controls of the Airbus A320 jetliner that crashed in the French Alps on Tuesday, had a mental illness but kept the diagnosis hidden from his employer. He and the other 149 people on board the plane died when it slammed into a mountain.
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James Healy-Pratt, a partner and head of the aviation department at Stewarts Law in London, estimated the airline’s total liability would be about $350 million to the families of the passengers.
Hans Joachim Schöttes, a spokesman for Germanwings, said over the weekend that the victims’ families would start receiving initial payments in the coming days. Germanwings, owned by Lufthansa, said it had set aside 50,000 euros, or about $54,000, for each family to cover immediate expenses. Lufthansa said it would honor its responsibilities to the families. The families of passengers with children or dependents would be entitled to a larger payment than those of elderly passengers or passengers with no dependent relatives.
As to where families can seek compensation, there are several options: the airline’s home country; the country where the flight was to land; the country in which the ticket was bought; the country of final destination; or the passenger’s country of residence.
Passengers aboard the Germanwings plane, which was flying from Barcelona, Spain, to Duesseldorf, Germany, came from more than 16 countries, including 71 passengers from Germany and 48 from Spain.
The Montreal Convention places no limits on compensation, instead leaving it to national courts to decide how much money is appropriate for the loss of a relative.
An airline can avoid paying families more than a minimal sum if it can prove it was in no way at fault for a crash. In practice, the standard is nearly impossible to meet in an accident. “In this case, of course, it will be impossible for the airline to prove it was completely free of fault,” said Mike Danko, a plaintiff’s aviation lawyer in California.
In the United States, families could expect payouts of more than $10 million, depending on a person’s specific circumstances, age, occupation and earning power, according to Danko, who has represented families of victims of the Air France Concorde crash in 2000, and American Airlines Flight 587, which crashed in New York in November 2001.
But a federal court in California, after the crash of Air France Flight 447, sent the case of two American families back to France, where most cases were being heard, Danko said.
Still, most cases are settled out of court. For that reason, airlines usually look at where passengers might be able to sue, and offer them compensation that is commensurate with what a court there might award them, Danko said.
This explains why Europeans would get less, says Kenneth Feinberg, a lawyer and victim-compensation expert, since “the idea you’ll get hundreds of thousands, or millions, of dollars is alien to the way Europe compensates.”