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The International and American Law Implications of the Bijlmer Air Disaster
Published online by Cambridge University Press: 21 July 2009
Extract
Air crashes usually attract a lot of attention. One of the reasons lies in the fact that, if an accident occurs, the damage is substantial. This damage may involve loss of life, bodily injury, mental distress and material damage.
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- Copyright © Foundation of the Leiden Journal of International Law 1993
References
1 See Sakamoto, T., Aircraft Accidents in Japan: Legal Aspects, XIII Annals of Air and Space Law 175–181 (1988).Google Scholar
2 The aircraft was a fuil cargo plane with only crew members on board.
3 Convention for the Unification of Certain Rules Relating to International Transportation by Air, 137 L.N.T.S. 11. The Convention is amended by the Hague Protocol of 1955 (478 U.N.T.S. 371) and by the Montreal Agreement of 1966 (Agreement CAB 18900, approved by order E 23680, May 13, 1966, Docket 17325). Formally, the last mentioned agreement is not part of the ‘Warsaw System’, that is, the Warsaw Convention as amended by subsequent instruments. Nevertheless, the liability limits as established by the said Montreal Agreement are applied to passenger's injury claims. The amount offered by airlines to injured passengers on the basis of this Agreement is at least US $75,000.-.
4 Supra, note 3.
5 E.g., by virtue of Article 22 Par. 2(a) of the Warsaw Convention as amended by the Hague Protocol.
6 Full title: Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface, 310 U.N.T.S. 181.
7 See, however, the recent move of Japanese airlines to waive entirely the Warsaw Convention and Hague Protocol limitations of liability on passenger injury or death, 11(22) Lloyd's Aviation Law 1–5 (1992).
8 Art. 11 (1) of the Convention. This amount is designed to cover both personal and material damage.
9 Art. 23(1) of the Convention.
10 Art. 18 of Vienna Convention on the Law of Treaties, 8 I.L.M. 679.
11 Preamble to the Convention.
12 Article 20(1) of the Convention. The Convention has been amended the Montreal Protocol of 1978, which substantially raised the liability limits but maintained the ‘single forum’ provision. The Protocol is not in force; it has been ratified by only two states. See also H.A. Wassenbergh, Syllabus Private Air Law, Leiden University 33–59 (1992).
13 See Sasseville, H., Air Traffic Control Agencies: Fault Liability v. Strict Liability, X Annals of Air and Space Law 239–248 (1985)Google Scholar and Kim, Doo Hwan, Liability of Governmental Bodies in International Civil Aviation, in Chia Jui Cheng and P.M.J. Mendes de Leon (eds.), The Highways of Air and Outer Space over Asia 177–194(1992).Google Scholar
14 American lawyers sometimes work on a ‘contingency fee’ basis in personal injury suits, entitling them to a 25 to 30 percent share of the amount awarded. This contingency fee arrangement allows plaintiffs who could not normally pay for legal services to “have theirday in court”, because they will not pay the attorneys anything if they are not victorious in their claim. Due to the intricacies of American law, and due to generous damage awards of American courts, employment of American attorneys could result in significantly higher compensation to the victims of the El Al crash than if the suit were brought in a Dutch court.
15 Piper Aircraft v. Reyno, 454 US 235 (1981).
16 The interim report of the Dutch investigators of the crash states that these fittings may in fact be the cause of the disaster. Flight International, October 28, 1992, headline “El Al crash centered on ‘engine-pylon fittings’”.
17 Time Magazine, October 19.1992. at 52, headline “Are 747s safe to fly?”.
18 Id..
19 Supra, note 16.
20 In the US, the policy for imposing strict liability in tort is based on three main reasons. Firstly, manufacturers can more efficiently bear the risk for dangerous products than the end users, because the cost of the risk can be spread out over a large number of purchasers, by charging higher prices for the finished products. Secondly, manufacturers will be more careful in production and testing of goods, if plaintiffs do not have the burden of proving actual fault. Finally, because manufacturers often have exclusive control over documents, records, and all necessary evidence in a case, it could be very difficult for plaintiffs to carry their burden of proving legal fault. Moreover, in a case such as an airplane disaster when the evidence of the flaw might disappear or be destroyed in the crash, the plaintiff could find it impossible to prove the flaw was a cause of the accident, with the absence of the key evidence. The plaintiff is however sometimes assisted in proving his case through the doctrine of res ipsa loquitur. Although the general rule in the US is that negligence must be proved and may not be presumed, this doctrine states that since it is impossible to prove negligence in certain instances, but these occurrences generally do not occur in the absence of negligence, then negligence could generally be presumed in this case. Res ipsa is used to prove breach of a duty to the plaintiff, but the plaintiff must still prove causation and damages. The doctrine is often applied to airplane crash cases as a method of proving the operator was negligent.
21 Although Boeing offered a settlement to the victims of the air disaster, the Federal Rules of Evidence, used in all federal courts of the US, prohibit admission of a settlement offer as evidence of liability. This serves the public policy of encouraging settlements, because a party need not worry that, through offering to assist an injured party, it would be interpreted in future litigation as an admission of liability. Boeing and El Al jointly established a compensation pool for anyone injured in the air disaster. Valid damage claims will be paid even before the exact causes of the crash have been established. This pool is separate from the emergency fund established by El Al immediately following the disaster, which has paid some f 500,000 to over 300 claimants. Nuffic Newsletter, October 29, 1992, at 3, published by the Netherlands Organization for International Cooperation in Higher Education (NUFFIC).
22 Relieving or reducing liability depends on whether the suit is brought in a jurisdiction which uses contributory or comparative negligence to determine a defendant's liability. The different ways a court could determine liability of joint tortfeasors is explained below.
23 There is support for the assertion that El Al was negligent in using the product with knowledge of the defect. One report by the National Transportation Safety Board stated that in a 1979 service bulletin and a 1986 air worthiness directive it was explained that the “old bolts were found to be susceptible to fatigue cracking”. Aviation Week and Space Technology, November 9, 1992, at 16.
24 This would be the case if the pins were used beyond their normal life expectancy. In both the El Al crash and the China airlines crash 10 months earlier on very similar facts, the engines were used over45,000 flight hours and survived over 10,000 and 9,000 flight cycles each. Flight International, October 14, 1992, headline “Amsterdam accident echoes Taipei.”
25 The Second Restatement of Torts, Para. 395 states that the manufacturer of a product is liable to “those whom he should expect to be endangered by its probable use”, and therefore, vis-à-vis Bijlmer, any crew member on the aircraft, the consignors of the cargo, and certainly any party on the ground are all within the realm of foreseeable plaintiffs.
26 Thus, whether Boeing and P & W are liable in a ratio of 50% – 50%, or 99% – 1 %, both defendants are liable for 100% of the judgment. This is the most fair rule for the plaintiff, for it does not matter to him who compensates him for his injuries, as long as he is compensated. This rule is not unfair to the defendants, because after one satisfies the judgment, she may seek the proportionate share of damages from her codefendant in an action for indemnity or contribution. Indemnity is what a defendant seeks, when her codefendant is fully responsible for the judgment, but this defendant satisfied the judgment of the plaintiff. Contribution is what a defendant seeks, when her co-defendant is partially responsible for the judgment, but this defendant satisfied the entire judgment of the plaintiff.
27 Dillon v. Legg, 69 Cal. Rptr. 72, 441 P.2d 912 (1968).
28 To recover compensation for emotional distress out of fear of harm to another, the plaintiff must prove: (1) physical proximity: the bystander was located close to the scene of the accident; and (2) temporal proximity: the bystander must personally witness the accident with her own eyes or ears (arriving immediately after, or being told of the accident is insufficient); and (3) relational proximity: the bystander was closely related to the victim; (again, differs from state to state; i.e. homosexual couples have been denied recovery as well as heterosexual fiancees). Some courts clearly follow the Dillon rule: Rhode Island, Michigan, Connecticut, Texas, New Hampshire, and Iowa; while others clearly reject this rule: New York, Illinois, Minnesota, Tennessee, and Louisiana. It is submitted that it will be quite a long time before there is any uniformity among the states regarding this rule. It is also interesting to note that the states of California and New York, where American law most rapidly changes, have diametrically opposite views on the subject.
29 A good discussion of this point can be found in Problems in Assessing Punitive Damages against Mamtfacturers of Defective Products, 49 U. Chi. L. Rev. 1 (1982).
30 Punitive damages have been criticized as allowing undue compensation to the plaintiff. It has further been suggested that a criminal fine payable to the state is a better remedy. Lastly, commentators have stated that often, punitive damages have no correlation to the injury suffered by the plaintiff.
31 Punitive damages have been supported as discouraging wanton, reckless conduct; as a method of paying the legal fees of the victorious party (because in the American system each party pays his own costs); and a valid way to make an example of the defendant, i.e. as a punishment so the defendant does not repeal his conduct, and so others would similarly be deterred.
32 Should the defendant or his insurance company pay the punitive damages? Courts generally examine two issues to solve this question: (1) the words of the contract of insurance sometimes provide for this; and (2) regardless of the answer to the first inquiry, the purposes of punitive damages are for penalty and deterrence; these purposes are defeated and frustrated if the insurer pays the damages. Thus, in theory, the defendant personally should be held responsible. However, the majority of American cases have allowed the defendant to pass on the responsibility of payment to his insurer.
33 See also Boer, Th.M. de, Ambulance-chasing in Nederland: hoe verdienen we het meesl aan de vliegramp in de Bijlmer?, 42 Nederlands Juristenblad 1423–1424 (1992).Google Scholar
34 Art. XIV of the Guatemala City Protocol (1971) and Art. 22(1) of the Warsaw Convention as amended by the Hague Protocol.