1. Germanwings Airbus A320 plane crash: Pilot’s actions may add to liability in mountain crash

Germanwings Airbus A320 plane crash: Pilot’s actions may add to liability in mountain crash

Lufthansa subsidiary Germanwings could face liabilities well above the typical ceiling in airline crashes for the passengers who died...

By: | New York/berlin | Published: March 27, 2015 10:40 AM
Germanwings, Germanwings plane crash, Airbus crash, airbus plane crash, Airbus A320 crash, Andreas Lubitz, France, France plane crash, world news

Seyne-les-Alpes : A rescue worker is lifted into an helicopter near the crash site near Seyne-les-Alpes, France. (AP/PTI)

Lufthansa  subsidiary Germanwings could face liabilities well above the typical ceiling in airline crashes for the passengers who died on Tuesday when one of its jets was flown into an Alpine mountain, some aviation lawyers said.

A lot will depend on whether the airline can defend itself against negligence claims given that prosecutors said on Thursday that a young German co-pilot locked himself alone in the cockpit of the Airbus A320 and set it on course to crash, killing all 144 passengers and six crew members.

An international agreement generally limits airline liability to around $157,400 for each passenger who dies in a crash if families do not sue, but if families want to pursue compensation for greater damages, they can file lawsuits.

Lawyers who have represented families in past airline disasters told Reuters on Thursday that potential lawsuits could focus on whether Germanwings properly screened the co-pilot before and during his employment, and on whether the airline should have had a policy requiring two or more people in cockpits at all times during a flight.

Justin Green, a partner at the law firm Kreindler & Kreindler in New York, said passengers’ families would be justified in asking why Andreas Lubitz, the 28-year-old co-pilot, was allowed to be alone in the cockpit.

Pilots may temporarily leave the cockpit at certain times and in certain circumstances, such as while the aircraft is cruising, according to German aviation law.

Even if the practice was allowed, though, “this has been a known risk,” Green said. He noted that some investigators believed that pilots intentionally downed a SilkAir aircraft in 1997 and an EgyptAir aircraft in 1999.

“This idea that one pilot could murder everyone on board and kill himself is something that’s happened before and something that everyone knew about,” Green said.

CASES RARELY GO TO TRIAL

Lufthansa will abide by international agreements dictating liability, its Chief Executive Carsten Spohr said.

“Honestly, it’s one of my smaller worries,” he told journalists on Thursday. “We will be able to meet the financial liabilities. Our first priority is to help the families where we can.”

Under an international agreement known as the Montreal Convention of 1999, an airline generally cannot escape liability for a passenger death.
For each death, a carrier can be liable for up to 113,100 special drawing rights, a reserve asset created by the International Monetary Fund. On Tuesday, the amount was equal to about $157,400, or $22.7 million for 144 passengers.

The potential lawsuits for additional damages could be filed in any of several jurisdictions, including Germany where Germanwings is based and a number of different home countries of the passengers, such as Spain.

Passengers’ families are limited to claiming provable damages, which vary depending on the jurisdiction but may include loss of support and pain and suffering, the lawyers said.

Bruce Ottley, co-director of the International Aviation Law Institute at DePaul University College of Law, said he was skeptical that Germanwings would need to pay above the Montreal Convention limit unless there is evidence the airline knew in advance the co-pilot was at risk.

But Ottley said airlines choose to settle legal claims in the vast majority of crashes, so the issues may never go to a judge or jury. “Very rarely do these things ever, ever go to trial,” he said.

For Germanwings to limit its liability, it would have to establish that it and its employees and agents were not in any way at fault or that the accident had been caused solely by the fault of a third party, said Clive Garner, a partner at the law firm Irwin Mitchell in London. The firm has represented passengers’ families in other aviation accidents, including a crash in Nepal in 2012.

“Given this scenario and what we know at the moment, Germanwings would be unlikely to be able to establish a relevant defense,” Garner wrote in an email.

A $6.5 million claim for the loss of the plane itself was paid on Wednesday, insurance industry sources said.

Germany’s Allianz is the lead insurer in the case, sharing the financial burden of the loss with other insurance companies.

  1. L
    LawProf John
    Mar 27, 2015 at 7:34 pm
    One Cause of Germanwings Crash Was Negligent Switch Design This Could Make French Airbus Group Aircraft Maker Liable for Huge Damages While the immediate cause of the crash of a Germanwings jetliner appears to be the criminal act of the co-pilot, plaintiffs' attorneys seeking enies likely to be able to pay the huge resulting damages seem to be focusing on the carrier's allegedly deficient pit-occupancy policy and/or its pilot screening, but it appears that negligence in the design of the 3-position cabin door lock switch of the A320 could make the French company Airbus Group liable. To establish negligence, plaintiffs would have to show that the event was reasonable foreseeable, and that it could have been prevented easily without great cost or inconvenience in operation, says public interest law professor John Banzhaf, an expert in civil tort liability. The first is very easy, he says, because incidents where one aviator deliberately crashed an airplane are well known. Indeed, the U.S. rule requiring that one person can never be left alone in the pit is designed to prevent exactly what apparently happened over France. Even if that rule had been followed by Germanwings - and Airbus was certainly on notice that this carrier and many of the other users of its planes did not follow it - it might not have prevented a determined co-pilot from taking over the plane if the pilot was outside the pit. Although, under the American rule, a flight attendant must take the pilot's place in the pit if he leaves, it is certainly reasonably foreseeable that a flight attendant - especially a small female one - would not be able to stop a typical much larger and stronger male co-pilot from crashing a plane one way or another. The A320 is designed so that the crew can unlock the pit door from outside by entering a code on a pad nearby. But a co-pilot alone in the pit can easily defeat any attempt to thwart his suicidal plans by pushing a switch in the pit to a third position which locks out the code-unlocking mechanism. However, although there may be times when it is appropriate or even necessary for the pilot and co-pilot together to lock out or override the crew’s code-unlocking mechanism, there seems to be little purpose in permitting a solo occupant of the pit to do so all by himself. Thus, if there were a simple and well-known mechanism to permit two aviators to jointly securely lock the cabin, but which would not let a single aviator do so on his own, it would appear that the A320 manufacturers would be negligent as a matter of law for deliberately choosing not to use it. Fortunately, such a mechanism is well known, and is used in somewhat similar cirstances - to prevent one deranged individual from launching a nuclear or other deadly missile. Launching a missile, notes Banzhaf, usually requires having two individuals take the same action almost simultaneously in such a way that one person could not do it by himself. Typically, two or more senior officers on a nuclear submarine or land-based missile-launch facility must each turn a key at the same time to permit a launch to take place. The same principle - and the same protection against a single rogue wrongdoer - could easily be have been incorporated into the A320 pit design, so that defeating the crew’s code-unlocking mechanism could be done only if two switches on opposite sides of the pit control panel were activated at the same time - something impossible for one person to do. That’s the analysis under American law, and it appears that at least some of the cases will be tried in American courts. On the other hand, says Banzhaf, many countries apply the same simple definition and analysis to determine if an eny was negligent because they could have easily prevented a tragedy. JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW Washington, DC 20052, USA @profbanzhaf
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