Paul Lewis/WASHINGTON DC
Aviation lawyers are raising concerns over the International Air Transport Association (IATA) Intercarrier agreement on liability in the wake of the Swissair MD-11 crash, regarded as potentially the most expensive accident in civil aviation history.
The crash of Swissair flight 111 on 2 September is the first major fatal accident involving an airline signatory to the 1996 IATA agreement. Lawyers representing relatives of the 229 passengers and crew killed in the crash are beginning to files claims, which could set major precedents for future payouts and accident accountability.
Under the revised terms of the intercarrier agreement, airlines have effectively agreed to waive the earlier Warsaw Convention limiting liability to SDR100,000 ($135,000) per individual. Claims in the Swissair case are being conservatively projected to reach $600 million, which compares to a total compensation payout of $1.8 billion in 1998, the second highest year on record.
Airlines reserve the right to contest claims in excess of the earlier Warsaw limit, but the onus is on defendants proving not negligent, which "is probably impossible", in the view of aviation lawyer Thomas Whalen. "At the end of the day, carriers may be held totally responsible although they may only be marginally, if at all, at fault. I think that is unfair," he adds.
While lawyers for families filing claims have generally welcomed the agreement's provision for increased compensation, there is an acknowledgment this may come at the expense of accountability. They contend the agreement could result in attention being drawn away from issues of manufacturer product liability and airlines having to instead assume a much bigger responsibility for meeting compensation claims.
"If we remove fault analysis from the process, we may in the long run affect safety. Arriving at a monetary value is primarily not the issue with families, they want to ascertain fault and help prevent tragedies in the future. I don't know that this agreement is going to mollify their concerns," says Chicago-based aviation lawyer Donald Nolan, who is representing some of the plaintiffs in the Swissair crash.
Meanwhile, the US Federal Aviation Administration is fast tracking development of rule-making actions to address Boeing MD-11 wiring concerns, following US National Transportation Safety Board recommendations to expedite inspections of cockpit overhead and avionics circuit breaker panels. Airlines are being asked to look for loose wire connections, inconsistent wire routings and broken, chafed or cracked wires. Examination of the MD-11 wreckage has revealed evidence of an electrical fire, with considerable heat damage to the forward and aft cockpit bulkhead ceiling.
Source: Flight International
