Slightly weird

Settlements to the families of 346 people who died in the two catastrophic Boeing Max plane crashes will be calculated, in part, by how long the victims knew they were doomed.

Lawyers handling claims against the US aerospace company said the longer the passengers and crew were aware of their desperate fate, the larger the likely payout.

“There’s a better chance of (financial) recovery if it took minutes rather than seconds for the plane to crash,’’ Joe Power, a personal-injury lawyer representing some Ethiopian victims, told Bloomberg this weekend.

Sure, there’s a difference between straight financial damages – how much would they have earned for their families if they hadn’t died, to make those families financially whole – and pain and suffering ones. But I thought that it was the Warsaw Convention which determined airplane accident damages? Which have strict limits on payouts, especially for pain and suffering?

Or has the American tort bar found ways around that? Or, indeed, am I just wrong?

9 comments on “Slightly weird

  1. Good question. The Warsaw Convention has largely been replaced by the Montreal Convention, but to answer your question it looks like there are negligence exceptions:

    “Montreal Convention article 21 no negligence defence

    US courts apply traditional negligence principles. For a defendant airline to demonstrate that it was not negligent, it can show that it had no duty to the plaintiff, that it did not breach any duty that did exist, or that the injury suffered by the plaintiff was not proximately caused by any breach made by the defendant. Most significant is that the carrier bears the burden of proof on this issue.

    Wilful misconduct

    The burden of proof establishing wilful misconduct is on the claimant and the standard is high. Negligence will not suffice, nor even gross negligence or recklessness judged objectively. Rather, the claimant must show that the carrier either intended to cause the damage or acted recklessly with subjective knowledge that the damage would probably result. Moreover, the US courts apply a subjective, rather than objective standard. ‘[W]hile an objective test asks whether an actor “should have known” of an obvious risk, the subjective test requires, at a minimum, showing that the actor “must have known” of the risk’ (Bayer Corp v British Airways, LLC, 210 F 3d 236, 238-39 (4th Cir 2000)).”

    https://www.lexology.com/gtdt/tool/workareas/report/aviation-liability/chapter/usa

    Also see: https://www.tripsavvy.com/importance-of-warsaw-and-montreal-conventions-3260017

  2. Because it’s cheaper to pay out than have years of bad publicity (evil megacorp refuses payouts to families of people killed in its plane crash) in the courts?

  3. Sure, there’s a difference between straight financial damages – how much would they have earned for their families if they hadn’t died, to make those families financially whole – and pain and suffering ones.

    As an aside, Kenneth Feinberg had the job of sorting out compensation after 9/11 and distributing the funds set aside by Congress. He decided that he wasn’t going to go for straight for making them whole because he considered that would be unfair on lower paid janitors. He persuaded the families of the wealthy to accept less so he could pay more to the lower paid families. He go some push back but was mostly successful.

    Amongst all the tragic cases there was one that really brings a tear to the eye. He was approached by the widow of a fireman as she couldn’t wait for the money. It turned out she had terminal cancer and needed to set up a trust fund for their two small children. She died 3 months later. Life really can be shit.

    Feinberg became the go-to man for all sorts of cases. Fascinating career and he’s a good story teller.

  4. ‘to make those families financially whole’

    U.S. government tends to make survivors RICH, not just whole.

    They could make them whole with a 20-year annuity. Instead, the government awards immediate payment of all they could have been earned over their remaining lifetime. Probably 5X what they should be getting. The geniuses at the United States no nothing of present value.

  5. As DocBud says – “Boeing isn’t an airline”. The Warsaw and Montreal Conventions cover the relationship between passangers and airlines: the defendent here will be the aircraft manufacturer.

  6. “I’d like to die peacefully in my sleep, like my grandfather did. I wouldn’t want to die screaming in terror, like my grandfather’s passengers did” Bob Monkhouse

  7. You are of course correct, Recusant. The airlines would then sue Boeing.

    But U.S. courts get goofy sometimes. Mob rule takes over. People died; Boeing has money; give ’em some.

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