(Please note, this matter is not currently being litigated in Australia)On Friday 19 September, the Shine Lawyers Aviation Law department spoke at the American Bar Association (ABA) Forum on Air and Space Law in Montréal. They joined an expert panel who discussed passenger accident litigation cases under the Warsaw and Montreal Conventions, including the recent MH370 and MH17 disasters and how such claims could best be handled for the various nationalities of passenger families. The Moderator was Professor Paul Dempsey (McGill University) and panellists included Andrew Harakas (Clyde & Co US LLP, New York), Urban Olson (Advokatfirman Urban Olson, Stockholm), and Mark Glynn (Fernandes Hearn LLP, Toronto).
The forum provided an opportunity for panellists to clarify some misconceptions in relation to how compensation in these cases could be awarded for family members. In front of an audience which included several American and international airline counsel and aircraft manufacturer lawyers, they touched on some of the myths that certain groups, as well as media sources, seem to hold in relation to compensation in such cases.
In order to clear up these misconceptions, we summarise the essential law as follows:
In international air accident or disaster cases, compensation is not automatically available as a lump sum in the amount of the first “tier” cap on damages set out in the Montreal Convention (approximately AUD$190,000). Plaintiffs must prove their damages according to the relevant law applicable to their claims. Panellists on both the Plaintiff and Defendant side agreed with this appraisal of the operation of the Convention.
Accepting advanced payments from airlines will not remove the family's ability to claim further and final compensation under the relevant law subject to there being close scrutiny of relevant release documents families may be asked to sign.
There is no urgency in relation to claiming compensation from the airline except in relation to the two year limit within which a court claim must be made or the right to compensation will be extinguished.
Some families fear that the airline was withholding compensation for undisclosed reasons, including whether the airline was in financial trouble. Families should be reassured that mandatory insurance confirmed families’ ability to access compensation under the Montreal Convention.
Another commonly held misconception is that the Montreal Convention provided all the legal substance in relation to assessing and awarding compensation. This is not true. Compensation is available in the amount of proven losses as assessed under the relevant law of the jurisdiction in which a claim is informally made, or formally, made in court.
Furthermore, in the context of the panel discussion, the Aviation department brought to the attention of the Forum the need to enforce or tighten ethical restrictions on plaintiff lawyers whose actions to sign up clients following the Malaysia Airlines disasters were of questionable merit and value.
Finally, during the course of the ABA conference, they took the opportunity to meet the CEO and Director-General of the International Air Transport Association (IATA), Tony Tyler. Mr Tyler gave the keynote address on the first day of the conference, and during informal discussions, the panel encouraged the continuation of IATA’s best efforts through its various industry task forces to pursue what little could be done throughout the airline industry to prevent such disasters of the magnitude of MH370 and MH17 happening again.
Written by Shine Lawyers. Last modified: January 7, 2020.