Cyprus-Forum.com

[Paphitis]

I do not think the airline can deny the families compensation as under the Montreal convention they are strictly liable for proven damages up to 113,100 special drawing rights (SDR) and this includes legal liability for the acts of their employees, for whom they are vicariously liable.

See artice 17 of the Montreal Convention.

Article 17 - Death and injury of passengers - damage to baggage
75
1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Note: no need for negligence only that takes place on the aircraft.

It is possible to beat the SDR 113000 cap . See article 21

Article 21 - Compensation in case of death or injury of passengers
93
1. For damages arising under paragraph 1 of Article 17 not exceeding 113,100 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
94
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 113,100 Special Drawing Rights if the carrier proves that:
95
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
96
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

Whether or not the airline were negligent in allowing Lubitz to fly is a matter still to be determined, however for liability purposes under art 21 they will most likely be liable for proven losses in excess of the limit bearing in mind that they are probably legally responsible for the wrongful act of Lubitz in allegedly willfully flying the plane into the ground, who as an employee was their "servant". It is however up the families to show what losses are suffered.

Lufthansa does actually have a strong case if they wanted to argue the point.

There is no evidence so far of willful or wrongful neglect by the airline, and I wouldn't expect there to be either.

The legislation actually refers to negligence and wrongful act of the carrier, and the argument there is that the pilot acted illegally on his own accord.

It wouldn't be worth it for them to try it though.

The points that you conveniently overlook are
(a) that up to the first layer there need not be any negligence: see article 17.
(b) the phrase

wrongful act or omission of the carrier

or its servants

or agents

These are part of German law under eg § 45 LuftVG
Apart from the problems caused to Lufthansa/GermanWings by article 21/ § 45 LuftVG, whether or not Lubitz was on a frolick of his own may not matter - under English law at least where the acts are closely related to the performance of his duties the an employer may well be responsible for the illegal acts of their employee - see eg Lister v Hesley Hall Ltd [2001] UKHL 22, and under German law it may fall within the scope of § 831 (1) BVG

BTW I am not a lawyer but Transport law has been my area for 40 years.

I am not a Lawyer by any means but I have seen a couple in action on my behalf mind you, and they are real crafty and sometimes they can come up with real interest arguments and representations sometimes purely based on technicalities.

Basically, I am wondering whether a crafty lawyer is able to argue that Lunitz was not acting as a servant and that the company can not be deemed to be negligent if they were compliant with the Aviation Regulations.

Which means that the only certainty for me, is the SDR.

Would they even consider arguing this and taking on the families? I don't believe it is in their interest to do such a thing and probably even the Lawyers will advise Lufthansa to try and negotiation a settlement with the victim's families.

[supporttheunderdog]

I do not think the airline can deny the families compensation as under the Montreal convention they are strictly liable for proven damages up to 113,100 special drawing rights (SDR) and this includes legal liability for the acts of their employees, for whom they are vicariously liable.

See artice 17 of the Montreal Convention.

Article 17 - Death and injury of passengers - damage to baggage
75
1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Note: no need for negligence only that takes place on the aircraft.

It is possible to beat the SDR 113000 cap . See article 21

Article 21 - Compensation in case of death or injury of passengers
93
1. For damages arising under paragraph 1 of Article 17 not exceeding 113,100 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
94
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 113,100 Special Drawing Rights if the carrier proves that:
95
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
96
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

Whether or not the airline were negligent in allowing Lubitz to fly is a matter still to be determined, however for liability purposes under art 21 they will most likely be liable for proven losses in excess of the limit bearing in mind that they are probably legally responsible for the wrongful act of Lubitz in allegedly willfully flying the plane into the ground, who as an employee was their "servant". It is however up the families to show what losses are suffered.

Lufthansa does actually have a strong case if they wanted to argue the point.

There is no evidence so far of willful or wrongful neglect by the airline, and I wouldn't expect there to be either.

The legislation actually refers to negligence and wrongful act of the carrier, and the argument there is that the pilot acted illegally on his own accord.

It wouldn't be worth it for them to try it though.

The points that you conveniently overlook are
(a) that up to the first layer there need not be any negligence: see article 17.
(b) the phrase

wrongful act or omission of the carrier

or its servants

or agents

These are part of German law under eg § 45 LuftVG
Apart from the problems caused to Lufthansa/GermanWings by article 21/ § 45 LuftVG, whether or not Lubitz was on a frolick of his own may not matter - under English law at least where the acts are closely related to the performance of his duties the an employer may well be responsible for the illegal acts of their employee - see eg Lister v Hesley Hall Ltd [2001] UKHL 22, and under German law it may fall within the scope of § 831 (1) BVG

BTW I am not a lawyer but Transport law has been my area for 40 years.

I am not a Lawyer by any means but I have seen a couple in action on my behalf mind you, and they are real crafty and sometimes they can come up with real interest arguments and representations sometimes purely based on technicalities.

Basically, I am wondering whether a crafty lawyer is able to argue that Lunitz was not acting as a servant and that the company can not be deemed to be negligent if they were compliant with the Aviation Regulations.

Which means that the only certainty for me, is the SDR.

Would they even consider arguing this and taking on the families? I don't believe it is in their interest to do such a thing and probably even the Lawyers will advise Lufthansa to try and negotiation a settlement with the victim's families.

You do not need tell me about tricksy lawyers. I deal with them most days of the week. For the lawyers I utilise, and I can be behind spending a million dollars a year on lawyers, (which our insurers pay for) I often tell them what to say. I can also tell you that simple compliance with regulation is not enough to escape liability.

You are probably right that Lufthansa, or rather their liability insurers, will probably want to settle quickly and quietly. I think they will probably pay over the 113100 SDR limit where losses can be proven. EU case law increasingly points to making employers liable for the acts of employees, if they are connected with the job. Here Lubitz was acting within the normal course of his employment i.e. in flying the plane.

Don't be surprised also if the Insurers have something to say on safety related matters. Ours do.