By Sheri Qualters, From The National Law Journal
Deutsche Lufthansa A.G. could face wrongful death claims in the United States by the families of the three Americans reported killed in the Germanwings jetliner crash in the French Alps on Tuesday, according to aviation attorneys tracking developments.
French authorities reported that voice recorder evidence indicates co-pilot Andreas Lubitz locked the captain out of the cockpit and deliberately crashed the plane. The disaster killed all 150 people on board.
The families of the Americans can almost certainly file claims in U.S. courts under the controlling international air transport treaty, said Mary Schiavo, a leader of the aviation team at Mount Pleasant, S.C.-based Motley Rice. Schiavo has represented passengers and crew in major U.S. air crashes.
“They can bring a case in the U.S. and they should. The U.S. is a much better forum than France or Germany,” Schiavo said.
She cited the Montreal Convention, an international treaty that governs air passengers, baggage, cargo and disasters. The treaty allows passengers to bring claims in various forums—where they bought their tickets, their planned final destination and the airline’s headquarters, Schiavo said.
Airlines defending cases in different countries following a crash will often try to get the claims consolidated, and “they’re successful at least half of the time,” Schiavo said.
If claims survive that round, the next question is whether the crash falls under the Montreal Convention’s caps on liability for accidents. At least in the United States, the definition of an accident under the convention has been interpreted “to mean any unexpected or unusual event,” said Justin Green, a New York partner at Kreindler & Kreindler. He represented families of passengers and crew and people inside the World Trade Center towers during the Sept. 11, 2001, attack.
“In order to enjoy that limit, the airline has to prove that it was without fault,” Green said.
Ultimately, Lufthansa, which owns Germanwings, would have to show it was not negligent in hiring or screening Lubitz or allowing him to be alone in the cockpit, Green said. U.S. airlines, for example, have rules against leaving one person in a cockpit. “That leads me to think the airline is not going to meet its burden of proving that it was without fault,” Green said.
According to news accounts, Lubitz interrupted his pilot training because of depression. If true, that could play into any court case, Schiavo said. “That’s going to be an issue that people are going to want to know the answer to,” she said.
The facts, once they’re clear, could support wrongful death or negligence claims but a settlement is the most likely outcome, said Daniel Suleiman, special counsel to Washington’s Covington & Burling. Suleiman was Asiana Airlines Inc.’s lead litigator in the National Transportation Safety Board’s investigation of that airline’s July 2013 crash at San Francisco International Airport.
Suleiman said the latest crash is a horrible tragedy for all involved, including Lufthansa.
“It’s hard to imagine what type of claim that could be brought that the airline would feel the need to defend in court,” Suleiman said.
IMAGE: Rescue workers work on debris of the Germanwings jet at the crash site near Seyne-les-Alpes, France, Thursday, March 26, 2015. Photo: Laurent Cipriani/AP
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Related story:
Germanwings crash puts spotlight on pilot screening
By Amanda Bronstad, From The National Law Journal
The crash of a Germanwings Flight 9525 at the hands of a pilot who may have deliberately downed the plane raises questions about the effectiveness of pilot screening for mental illness and the liability that airlines may face.
Andreas Lubitz was the co-pilot of the airplane that crashed on Tuesday in the French Alps on a flight from Barcelona to Dusseldorf, Germany. All 150 people on board the plane are believed to be dead.
French and German authorities said the cockpit voice recorder indicated that Lubitz, 27, locked the captain out the cockpit before putting the Airbus A320 into a rapid descent from 38,000 feet. German authorities also found discarded notes at Lubitz’s apartment that indicate he was hiding an unspecified illness from his employers and had been declared “unfit to work” by a doctor. Carsten Spohr, chief executive of Lufthansa AG, which owns Germanwings, said the airline had no knowledge of Lubitz’s medical problems and that he passed medical and psychological tests in 2013, when he was hired.
The facts pertaining to the pilot’s mental health will have “some bearing” on the defense and the prosecution of the case, said Michel “Mitch” Baumeister, of Baumeister & Samuels, a firm in New York that represents victims of air disasters.
That said, damages are capped under the Montreal Convention, since the case involves a foreign carrier that crashed in a foreign country. It would not be the case if the crash had occurred in the United States, where victims and their families have access to greater damages in U.S. courts, said Justin Green, a partner at Kreindler & Kriendler, another New York firm that represents victims of air disasters.
“If an airline allows an unfit pilot—a pilot the airline knows is not fit—to fly, not only will they be violating the FAA but subject to certainly significant lawsuits and possibly punitive claims by plaintiffs lawyers like me,” he said. But following Federal Aviation Administration regulations can also protect airlines from lawsuits. “Defendants will argue if they comply with the regulations, the minimum standards, they are immune from any liability,” he said.
The FAA requires that pilots of commercial airlines have medical screenings every six to 12 months, depending on their seniority, said Sarah Wimberly, head of the employment side of the airline practice group at Ford & Harrison in Atlanta. A specialized doctor called an “aviation medical examiner,” or AME, signs off on medical certificates that deem a pilot fit to fly, she said.
But it isn’t fool proof. Pilots might not tell the AME about the other doctors they’re seeing, or what prescriptions they’re taking, and the exams aren’t comprehensive, Wimberly said.
In 2010, the FAA, hoping to discourage them from lying about their medical condition, cleared pilots with mild to moderate depression to fly who had been taking certain prescriptions for at least 12 months. One of the concerns at the time was suicide by airplane.
But carriers often take additional measures, Wimberly said. They can require a pilot get checked if another pilot or flight attendant notices any abnormal behavior or conditions. The most common complaints deal with mental issues, including drug and alcohol abuse, severe depression or bipolar disorder, she said.
And airlines train pilots to notice the signs. In 2012, for example, the co-pilot of a JetBlue flight from New York to Las Vegas was forced to lock the captain out of the cockpit after he began screaming about a bomb on board.
Such a reporting system, however, also means airlines face potential lawsuits from pilots who believe they are being singled out, or discriminated against, over their perceived medical disability, she said.
“There’s a much greater likelihood that a carrier would be sued by an individual pilot who feels that his privacy’s been evaded, or rights discriminated against, and that he’s being perceived as being disabled and being treated more harshly and unfairly,” she said. “A carrier always has to walk this line.”
Photo: Lars Lindblad/iStockphoto.com
For more on this story go to: http://www.nationallawjournal.com/id=1202721945134/Germanwings-Crash-Puts-Spotlight-on-Pilot-Screening#ixzz3VtXjejlG