Please note, this matter is not currently being litigated in Australia.
Shine Lawyers Aviation Department will manage litigation and any legal and quasi-legal efforts which may be required to access justice on behalf of those affected by the tragic loss of Indonesia Air Asia (“Air Asia”) flight QZ8501.
This page explains claims for compensation against Air Asia under both the Warsaw and Montreal Conventions, which are the primary sources of rights for families who have lost loved ones.
This information is provided to assist families of flight QZ8501 understand their legal rights and the sources of assistance and compensation they may be entitled to.
To view this page in Indonesian, click here
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Common questions about Air Asia flight QZ8501 Compensation
Thomas Janson, the Travel and Transport Law National Manager, specialises in representing those injured in aviation and aeronautical matters, having practised exclusively in this field since 2013. As National Manager, Thomas has been instrumental in growing Shine Lawyers’ aviation law services and introducing their maritime and travel law practices.
Thomas’ tenacity and clout as a solicitor have proven incomparable in the litigation of cornerstone aviation matters. He was instrumental in representing families of the victims of the 2014 Malaysia Airline crashes, the Air Vanuatu Flight NF crash, and the Air Bagan Flight 11 crash. His litigious proficiency extends further to aviation criminal and regulatory actions, and non-aviation cases such as criminal convictions for drug possession and sexual offences.
- Airfast Services DC3 crash Pekanbaru, Indonesia, 28.04.81
- Garuda Indonesia Airlines Airbus 300 Flight 152 crash near Medan, Indonesia, 26.09.97
- SilkAir Boeing 737 Flight 185 crash Sumatra, Indonesia, 19.12.97
- Garuda Indonesia Airlines Boeing 737 Flight GA 421 crash Central Java, Indonesia, 10.01.02
- Lion Air McDonald Douglas MD-82 Flight 538 crash Adisumarmo Airport, Solo, Indonesia, 30.11.04
- Adam Air Boeing 737 Flight 574 crash near Sulawesi, Indonesia, 01.01.07
- Garuda Indonesia Airlines Boeing 737 Flight GA 200 crash Yogyakarta Airport, Indonesia, 07.03. 07
Our initial report published on 29 December 2014 set out the essential information about the route, aircraft type, and nationalities of the passengers. Since that time, the location of debris and parts of the aircraft and some of the fatally injured passengers were located. A recovery effort is underway in the Java Sea west of Indonesian Borneo to recover the remaining victims and the aircraft, together with its “black boxes” (cockpit voice recorder and flight data recorder).
The diagram below sets out in summary the path of the aircraft although it should be noted that the Indonesian Komite Nasional Kelematan Transportasi (National Transportation Safety Committee “NTSC”) has not confirmed this information in a Preliminary Report yet. When published, that document will provide the authoritative description of events.
The liability of Air Asia is summarised below. You should seek specific advice from us as it is not possible to generalise all elements without specific information from each passenger’s family:
The law which applies to any particular passenger’s family and the jurisdiction where we can or will commence action on behalf of passenger families can only be determined by examining each passenger’s specific itinerary of travel. The law which applies and determines the levels of compensation mostly depends on the origin, destination and stopping places in the passengers’ travel. The potential conventions (international treaties) which apply are the Warsaw Convention of 1929 and the Montreal Convention of 1999.
These laws are not “fault” based – meaning that (some) compensation is available from Air Asia whether or not the particular causes of the crash are found to be the weather, the airline or its employees itself, or some other party or Government entity (whether wilfully or otherwise). Under international aviation law, the airline is responsible in the first instance to compensate for the loss of loved ones.
Separate international laws and policies dealing with family assistance for aircraft accident victims and their families also apply, and are distinct from aviation compensation laws internationally.
How do you work out which compensation law applies?
The compensation law which applies depends on where a family chooses to bring its claim and thus the law of the country where the claim is started is applicable. Where the claim can be brought depends in turn on which international treaty applies, and that in turn is determined by each particular passenger’s contract of carriage (ie, travel itinerary/ticket).
The relevant international convention provides choices of jurisdiction which should be considered with the assistance of an aviation lawyer who has analysed the particular itinerary and background of your loved one.
The reality is, families will have a complex web of liability laws potentially applying to their compensation claims based on the individual characteristics of their loved ones’ travel and residential background.
Example determination of compensation laws applicable to QZ8501 families
- If the passenger was returning to Singapore on flight QZ8501 and had booked a Singapore-Indonesia-Singapore round trip or “return” ticket, then the Montreal Convention of 1999 would apply.
- If the passenger was travelling to Singapore on flight QZ8501 and had booked an Indonesia-Singapore-Indonesia round trip or “return” ticket, then the Warsaw Convention of 1929 would apply.
- If the passenger was travelling to Singapore on flight QZ8501 and had booked an Indonesia-Singapore one way ticket, then the Warsaw Convention of 1929 would apply.
- If the passenger was travelling to Singapore on flight QZ8501 as part of a more complex multi-city itinerary which ended in a country which has ratified the Montreal Convention of 1999 (eg, Australia-Indonesia-Singapore-Australia) then the Montreal Convention of 1999 would apply.
Several other possibilities exist and can only be determined by examining the travel plans of each passenger and noting the relevant laws which would apply to such itineraries.
General features of aviation conventions as relevant to QZ8501 passengers and crew
The various international treaties only apply to passengers and their families, not flight and cabin crew, nor stowaways.
The various conventions (both Warsaw and Montreal) provide (in summary) that the airline is liable to the next of kin or financial dependents of those lost in the accident for proven damages up to a certain limit (depending on the Convention).
Under the Montreal Convention of 1999 damages/compensation are effectively unlimited subject to certain legal criteria being met. Warsaw Convention of 1929 claims are severely restricted (to approximately $8,300 USD per passenger) but that limit can be waived by the airline and its insurer through negotiations or legally ignored if it is accepted that the accident was caused by some “wilful misconduct” on the part of the airline.
We can assist the families of crew members and indeed encourage them to seek early legal assistance to understand their particular rights, in conjunction with our Indonesian legal partners. In conversations with family members of crew lost in previous South East Asian cases, we determined that the compensation available to crew families was typically low, but note it may be possible to negotiate higher sums with the airline’s insurers.
Inexpertly handled cases could mean families may not be adequately nor fairly financially compensated and thus, even if you feel your family’s claim may fall under the Warsaw Convention of 1929, you should seek competent advice to ensure that all avenues of compensation are properly explored on your behalf.
The families of passengers will have 2 years to make a claim – i.e., until 28 December 2016.
If families wait months or years to seek advice on the legal ramifications of the crash then they may lose their right to compensation which is available from the airline. The 2 year period is not extendable under any country’s domestic law nor at international law.
The 2 year limit applies to each passenger family claim. This time limit information does not mean you must accept an offer presented to you by the airline or its insurer (see below for more information on offers made by the airline/its insurers).
The power of deciding what/how much to accept in relation to aviation compensation is always with families, not airline/insurer, nor claimant/plaintiff lawyers.
Air Asia is strictly liable for the “accident” (this is a legal term, not a judgment on what has happened).
- the airline must pay compensation for proven financial losses as a result of the death of a loved one, without anyone having to prove the airline was at fault, limited to 113,100 “Special Drawing Rights” (in other currencies this means approx. $195,000 AUD; $175,000 USD; Rp 2bn IDR); and,
- if the airline cannot prove that the “accident” wasn’t at least in part due to something it or its servants/agents did or failed to do then families can receive compensation for proven losses above the 113,100 SDR limit.
- alternatively, if the airline can’t prove to a court that the loss occurred solely due to the negligence or other wrongful act or omission of someone other than the airline, then families can also receive compensation for proven losses above the 113,100 SDR limit.
- an airline must make advance payments of compensation to the next of kin of each passenger, which amount is later offset against any further or final compensation which is recovered by the family.
The Warsaw Convention of 1929 is an antiquated treaty which has, since it came into force, been subsequently amended (and those amendments accepted by) many countries some six times before the newer Montreal Convention of 1999 came into force in 2003.
However, none of the amendments have been accepted by Indonesia meaning that if this Convention applies for a family’s claim, only prudent negotiation with the airline/its insurer will ensure adequate or realistic international standards in relation to compensation will be paid OR litigation would need to be pursued to receive that (modern) level of compensation (if/when evidence in the investigation notes that some “wilful misconduct” on the part of the airline contributed to the crash).
In general compensation is available as follows:
- the airline must pay compensation for proven financial losses as a result of the death of a loved one, without anyone having to prove the airline was at fault, limited to 125,000 Poincare francs (ie the French franc which, in 1929 was equivalent to “65.5 milligrams of gold of millesimal fineness 900”
- This currency (“Poincare franc”) is difficult to convert to modern currencies as it is no longer used and courts around the world make the conversion differently. It is accepted that the amount is equivalent to around $10,000 USD;
- if the airline or any agent of the airline acting within the scope of their employment caused the deaths of the passenger by “wilful misconduct” then the airline cannot restrict its liability to 125,000 Poincare francs and must pay whatever actual compensation can be proved and calculated above that figure; and
- there is no requirement to provide advance payments of compensation to families for immediate economic needs (though present practice ensures that some money is in fact provided to families/next of kin almost immediately to deal with immediate economic needs following passenger deaths).
No. Families may not sue Air Asia under any countries’ local law (eg, Indonesian or Australian local law eg “for negligence”) as both the Warsaw and Montreal Conventions are considered the exclusive source of legal rights for the families of injured or deceased passengers.
Depending on the outcome of official investigations and private parallel investigations which may be undertaken on behalf of victims’ families there may be other entities who could be liable to families for compensation.
At this stage speculation on who those entities might be would be unsupported by evidence and thus official investigations following recovery of the black box recorders will be important in determining who may be liable in addition to the airline. However, given the specific kind of aircraft involved in the crash, there are some early indications that certain aspects of the aircraft’s systems (in conjunction with the particularly serious weather conditions encountered and potentially the pilots’ reactions to those conditions) could have contributed to the accident.
There is Indonesian legislation which dictates that higher levels of compensation (1.25 billion IDR or about $98,830 USD) is available for each passenger.
This amount is still well below international standards and actually reflects a level of compensation which was even, two decades ago, considered “unfair”.
Indonesia’s legislation reflects liability limits that the international community thought were inadequate even back in the late 1990s. In 1996, many major airlines themselves unilaterally chose to waive Warsaw limits of liability and permit compensation of 100,000 SDRs (approx. $146,000 USD per passenger in the case of accidents). This was done in the IATA Intercarrier Agreement of 1996.
In 1999, the International Civil Aviation Organisation (ICAO) brought the international community together to say that even the amount of $146,000 USD was insufficient and thus the Montreal Convention was created. The Montreal Convention originally guaranteed up to 100,000 SDRs without proof of fault like the 1996 agreement, but also goes further and makes compensation effectively unlimited if the airline can’t prove the crash occurred due to the fault of some other entity.
In addition, the liability limits are subject to an “escalator clause” which means the money amount (i.e. maximum compensation available without a family having to prove the airline is at fault) is updated regularly by ICAO. The limit is now 113,100 SDRs or about $160,000 USD.
So, the Indonesian families now suffering due to the loss of their loved ones on flight QZ8501 are, in actual fact, no better off than they would have been if this crash happened two decades ago, even with the relatively recent Indonesian legislation in place.
The situation is clear – families deserve to be treated better.
We will work with families who retain us to convince Air Asia’s insurers to formally announce that it will handle the families’ claims in line with modern (Montreal Convention) standards, or attempt to negotiate a reasonable settlement in line with international aviation standards. Litigation is a last resort.
An important point to note is that if a family accepts money (approximately $98,000 amount) from Air Asia before the investigation is complete, it will be unable to recoup further compensation if it becomes available later on (e.g. if litigation or investigation finds that Air Asia engaged in wilful misconduct causing the damage, in which case there is no limit on compensation except for what each family can prove are its financial losses).
It remains vitally important that families seek assistance from a suitably experienced and competent aviation lawyer.
Mr Fernandes, responding to media questions on 30 December 2014, said his airline would not “hide behind Conventions” which we take to mean that compensation will be calculated and offered to passengers’ families without regard to the strict limits in the Warsaw Convention. If that is indeed the case then it is a compassionate and welcome step for the families.
However, the insurer of the airline (Allianz) is responsible for compensating families, and is not legally bound by the CEO’s comments. They can rely on the Warsaw Convention limits on compensation if they choose to. Certainly it is the case that the Air Asia Indonesia “Terms and conditions of carriage for QZ flights” do not waive the Warsaw Convention liability limits.
The terms state:
… and (at Article 11.3):
Article 11 – Liability Limitations
Furthermore, given the explicit wording of the Terms and Conditions, it is of significant doubt whether Mr Fernandes’ comments have any legal effect whatsoever.
Article 13 of the Terms and Conditions provides (in full):
Article 13 – Modification and Waiver
Shine Lawyers will advocate free of charge for QZ8501 family members to ensure they receive their full entitlements under the law. We will openly advise families of their family assistance rights under international aviation law, as we feel this is our duty as regional experts in this field.
This means we will demand families receive timely information and that all their entitlements and needs at this time are met by Air Asia pursuant to its obligations under international aviation law. We will likewise demand on behalf of families, up to date information from other international organisations who have been tasked with, or are seeking to task themselves with, contributing to the investigation operation.
Our expertise in relation to Air Asia flight QZ8501 claims has been sought by:
- Australian ABC TV News Breakfast (31 December 2014)
- Australian ABC Radio (31 December 2014)
- Wall Street Journal (30 December 2014)
and many others including Indonesia’s Liputan6, and Malaysia’s Free Malaysia Today, and MalayMail Online.
We will assist the families of QZ8501 to right wrong in all international aviation compensation claims we may pursue on a “no win no fee basis”. If we recover no compensation, then no legal fees or expenses are payable.
We can manage the complex web of international and foreign laws applicable to claims from all jurisdictions with the assistance of key expert international legal partners and associations, including in Indonesia and Europe, and on behalf of both passengers and crew.
In major air disaster cases, it is normal practice for airline insurers to try and settle claims with passenger families quite early on. While this is not unlawful, it’s important for families to be aware that it is in the airline and its insurers’ interest to pay the lowest amount a family may be legally entitled to under the relevant Convention.
You are under no obligation to accept an offer given to you by an airline or its insurer, even if it is expressed to only be open for a limited time.
Nor do you have to sign any document without receiving independent advice about what it means and what you might be giving away in return for a small or moderate offer of compensation.
You have the right to get your own legal advice about any offer made to you by the airline and its insurer.
Where you are located isn’t necessarily a barrier when it comes to obtaining the services of a lawyer. We’re experts when it comes to Aviation related claims and we can help you get the compensation you deserve.
It doesn’t matter if you are located close or far away from a Shine Lawyers office – we will always provide the same, expert advice and manage your claim with the same level of quality and commitment.
Our compensation experts are in the following locations:
New South Wales
- Gold Coast
- Hervey Bay
- North Lakes
- Stones Corner
- Sunshine Coast
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