Advance payments to the families of air crash victims need to be done promptly, without delay, and to this end the United States needs to execute regulations implementing the provisions of the 1999 Montreal Convention, a passenger rights group argues.
The U.S. was the thirtieth country to ratify the Montreal Convention, in 2003, thereby becoming the nation that put the treaty into force, which updates liability and other matters that had first been established with the Warsaw Convention in 1929. As of today, 68 countries have ratified the convention. However, the treaty has yet to be implemented by the United States. By contrast, the 25 countries of the European Union (EU) implemented the new treaty in May 2004, the day they deposited their instruments of ratification.
As a bridge to implementation, the Air Transport Association (ATA), representing most U.S. carriers, recommended in a Sept. 29 submission to the Department of Transportation (DOT) a plan that would create a uniform system of liability and protection for some of its members and the traveling public. For instance, ATA associate members are not covered initially by the proposal. Thus, while United Airlines is covered initially, Star Alliance partner Air Canada (an ATA associate member) is not. The document propounded by ATA is known as IPA 2005, the abbreviation IPA standing for Implementing Provisions Agreement. At this early juncture, DOT has not yet acted on the proposal, which would mark a first step toward unifying liability rules worldwide, although not completely. Since large civil air carriers are interrelated in a maze of alliances and code-share agreements, harmonization is needed, hence the IPA 2005 proposal.
The concept is supported by the Air Crash Victims Family Group, an umbrella organization of families of victims of various high-profile air crashes (e.g., the loss of the Air France Concorde, the Pan American B747 bombed over Lockerbie, the TWA B747 that blew up from a fuel tank explosion, the Swissair MD-11 fire, and the EgyptAir B767 crash, to cite just a few). However, the Victims Family Group asserts that IPA 2005 is a limited step forward, because it only selectively harmonizes the United States’ rules with the already existing EU regulations. The group argues in a submission to DOT that, “The IPA 2005 with modifications could be used as the starting point towards a more comprehensive rule that is urgently needed to restore an even playing field to include foreign carriers.”
For example, the Montreal Convention calls for advance payments to families of air crash victims, which the European regulations endorse as non-returnable, but which the IPA 2005 does not. These payments are in the amount of 100,000 SDR, or special drawing rights for each victim. An SDR is roughly equivalent to $1.45. Some airlines (Swissair, Air France, EgyptAir) have already made advance payments in this amount; others have not, creating a situation of inequity. The Victims Family Group maintains that the ATA proposal and ultimately the U.S. rules should address present day practices, especially since the European legislation is coming up for review in 2007 – probably barely one year after the ATA proposal might be approved.
The Victims Family Group’s discussion of advance payments is particularly instructive:
- In [the EU regulations] the air carrier must make the advance payment within 15 days after the identification of the victim.
- The Advance Payment section of the proposed IPA 2005 neither harmonizes with [the Europeans] nor does it address fully the intent, the need and the spirit of advance payments as expressed in Montreal Article 28. The ATA proposes that “the carrier shall make advance payment [only] where the carrier determines it is necessary to meet the immediate economic needs of and the hardship suffered by a passenger.” In practice, the determination of this could involve a lengthy process that could defeat the expressed intent of immediate monetary assistance.
- Advance payments on future damages, as yet to be determined, are needed in the aftermath of a crash, tragedy or incident, because historically the resolution of individual total damages determination takes a long time, for reasons stated below.
- With ever larger and technically advanced planes transporting an increasing number of passengers (reaching very soon up to 850 persons per flight) traveling at greater speed and higher altitudes, the number of fatalities has substantially increased – with few survivors, at best.
- In most of those crashes there are a few bodies but a large number of body parts, which can only be identified by DNA. (In Swissair 111 a total of 21/2 million pieces of debris and body parts were recovered that had to be sorted out and identified.)
- Estates cannot be probated without a death certificate. A death certificate cannot be issued by the medical examiner without an identifiable body or one or more of its parts.
- In some cases, no body is recovered. In others, none of the body parts can be attributed to a victim, or DNA is not sophisticated enough yet to conduct successful matches. (In Swissair 111, 27 caskets of unidentifiable body parts have been interred; so have thousands of body parts of victims of the 9/11 World Trade Center terrorist attacks, etc.)
- While there are various mechanisms to overcome the absence of death certificates, the procedures are long, expensive and time-consuming.
- Yet surviving families have to take care of their daily needs and obligations (mortgage payments, installment loans, credit card payments, education of their children, daily maintenance, etc.). Unable to do so, they are burdened with penalties, fees, letters and calls, tarnished credit, etc.
- Today, the resolution of damages takes from 11 months, in the case of the AF4590 Concorde crash, to five years and longer, in the Singapore Airlines SQ006 tragedy in Taipei (which remains in the courts of Singapore). Both tragedies occurred within three months of one another. They are covered by the Warsaw/Hague/IIA-MIA Treaty, Protocol and Intercarrier agreement (since then incorporated into the Montreal Convention).
- The underlying problem affecting advance payments lies in the differing attitudes by the carriers and their insurers.
- Victims families find out that early after a tragedy occurs, while the carrier might have a meaningful crisis management system in place, being apologetic and even making a token initial advance payment, once the damage process starts to unfold, it is the carrier’s insurers that control the process. They hold the “power of the purse” and, as prudent businessmen, they try to control, as well as limit their exposure, even if it means to delay or defeat the damages process.
- In Swissair 111, a strong airline management decided to make initial immediate advance payments at the Halifax, Nova Scotia, crisis center, followed by remitting the full remainder of the SDR 100,000 strict liability, over the objection of their insurers. In Singapore Airlines SQ006, the carrier apologized, made a small advance payment, paid for lost luggage at the Treaty upper limit and reimbursed burial expenses – and then the insurers invoked the Article 20 innocence defense, litigated third-party liability first before finally admitting liability in the court of one country but not in another – dragging out the process over five years. “Those families would have direly [sic] needed the full SDR 100,000 prepayment, but did not get it,” the group says. [Singapore, by the way, is not a signatory to the Montreal Convention, but Singapore Airlines is a member of the “Star Alliance” and will be the first airline to operate the new Airbus A380 double-deck superjumbo].
- While advance payments – as their name indicates – are made as part of total settlement, in EU regulations they are not refundable (with exception) because the payments are made within the parameter of the first step, “strict liability.”
The Victims Family Group believes IPA 2005 represents a starting point for the necessary harmonization, not the end point, and that the U.S. government needs to implement the Montreal Convention with binding rules as a matter of the highest priority. (Air Crash Victims Family Group, email: [email protected])