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Kerala High Court Reverses on Mangalore Crash

In George’s Point of View


The Kerala High Court ruled that the Air India need not pay the compensation amount of Rs 75 lakhs each to the victims of the Mangalore plane crash. The Division Bench gave the order in the appeal given by the Air India against the earlier Single Bench rule to pay the amount. The order references the Montreal Treaty.

I am not surprised. When I first heard the original judgement, it was my layperson opinion that the high court would not let stand the order of the lower court to pass out 75 lakhs to each passenger.

In my personal opinion the Judge who made that order didn’t read the Montreal treaty very well. In order for the family to collect the equivalent of 100,000 SDRS (about $160,000 U.S.), they must present provable damages and if they do, under the treaty, Tier I, the operator (Air India) cannot dispute or contest paying that amount. The Judge must have overlooked that the 100,000 SDRS is not the minimum required under the treaty, it is the maximum. So when the Judge ordered 75 lakhs to be paid, his order basically was overruling the treaty requirement of proving the damages.

No, I was not surprised and neither were the attorneys I consult with. If no treaty existed limiting the liability of the operator, then the order from a Judge would have probably stayed in place.

But that was not the case.

The Montreal Treaty has two tiers. The above discussion explains tier one. The Tier II provision almost certainly removes the cap entirely, because of where the burden of proof lies.

As long as the Montreal Treaty is being held as a rule, families should know that in most cases as per the treaty, the value of the case could be much higher than 75 lakhs, pursuant to Tier II of the Montreal Treaty. I know, I know….I’m not a lawyer but I know how it works from experience over the many years I have been working with wrongful death cases, and based on the experience my aviation experts have graciously passed on to me.

Here is the explanation, as simply as I can explain it:

If you can prove provable damages, then Tier II (referred to in Article 21(2) of the Montreal Convention) Air India Express is liable to families/passengers for all personal injury or wrongful death damages exceeding 100,000 Special Drawing Rights (SDRs), unless the carrier(s) can prove that the injuries or deaths were not due to the negligence or other wrongful act or omission of the carrier or it servants or agents. OR the injuries or deaths were solely due to the negligence or other wrongful act or omission of a third party.

The carrier will never prove this and the burden of proof is on them. If I am correct, and know the experts who have taught me, are correct…

Air India Express is liable to the victims families for all damages under the applicable law, including but not limited to, pain & suffering of loved ones prior to death.

Air India Express is liable for pain and suffering of the survivors and heirs of the victims.

Air India Express is liable for the loss of support, i.e., money.

Air India is liable for the loss and enjoyment of life of the victim.

I could go on but I will stop here, and caution the families to please be very careful. The families should not give up all that there may be coming in return for even a payment of the 75 lakhs that this new ruling states the company no longer has to pay. If they actually get around to offering it, to get it, it means the families have to give up all rights to future claims.

I would tell the families this:

Put up a fight. Your loved one is never coming back, no matter how much they pay you, but, I’m sure he/she would want you to collect the absolute maximum possible. As a passenger, your loved one paid a fare, and no matter what caused that crash, your loved one is FAULT FREE. Legally, the operator must pay.

Consult a lawyer, an expert in aviation, I beg you to please do not try to do it yourself.

I fly over 250,000 miles a year, and I wouldn’t want my family to try and do it alone if I were a victim.

* I am not a lawyer, and this is not legal advice.

http://twocircles.net

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    Always the Last to Know

    In spite of reports to the contrary, Qatar Airways and Ethiopian Airlines deny emergencies that occurred during Sunday’s power outage at the Lagos airport. The rest of the world knew about the power outage even before power was restored. Apparently however, no one told Qatar Airways or Ethiopian Airlines.

    Even the brand-spanking new radar system installed at Murtala Mohammed International Airport will not function without power. And neither can communications.

    Of course, how do you communicate while in denial?

    Pilots coped by flying in a holding pattern or rerouting to other airports when they stopped receiving input from ATC during the power outage.

    Officials of Ethiopian Airlines and Qatar Airways can play all the semantic games of denial that they want. The game is up. Everyone knows. Newspapers got wind of the power outage forcing up to a dozen planes into holding patterns, some of them until they experienced a fuel crisis and had to land without official clearance. There’s nothing like a little journalism to clear the air.

    With enforcement bodies like IATA and EASA empowering the airline passenger and providing oversight, and the aviation industry taking advantage of the (practically) instantaneous communication the world enjoys, legitimate airlines have made it universal policy to be as “transparent” and honest as possible regarding the unavoidable multitude of mini-disasters that constantly creep up in the course of making the world safe for aviation. It is that kind of wide-awake, constant open trouble-shooting and problem-solving which makes flying as safe as it is. No one wants to be “caught with their pants down”– but when it happens, you can be sure most airlines do their best to be wearing shiny clean underwear when it happens.

    Except in countries where denial reigns over truth. Countries that have certain airlines on a banned list.

    Qatar Airways and Ethiopian Airlines say “none of their pilots complained about an enforced landing prompted by depleted fuel.” Maybe their pilots are scared to open their mouths, especially if they’re familiar with that policy of denial.

    One wonders if their pilots–or air traffic control, for that matter–had cell phones. Surely SOMEone in ATC called the main office and said, “Excuse me boss, but we have 12 planes circling, and no electricity. What do we do? What is the policy on that?” Surely SOME pilot used a cell phone, and told somebody somewhere, “Dude, we gotta land, we’re running out of fuel.”

    What did they say at headquarters? Pretend it’s not happening?

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    You don’t pretend it didn’t happen. You’re not a seven year old who broke Mama’s favorite cup or tracked mud on the carpet.

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    Trigana Air Flight 267 Crash: Black Box to be Sent to France after Unsuccessful Data Retrieval Attempts

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    Selling Safety Classes for Sitting Ducks


    In George’s Point of View


    When I get on a plane, I plan on being safe. I don’t fly “unsafe” airways.

    If I didn’t believe I was going to be safe on a plane, I wouldn’t get on it. It should go without saying. Most people probably feel that way, except for the ones stuck in countries whose airlines are on the EU banned list.

    But apparently, British Airways isn’t so confident. They are offering a four hour class in how to crash. That is, they are going to charge passengers to teach them how they want passengers to behave in a crash, to increase their likelihood of survival.

    Excuse me? This is not like a Drunk Driving class where the driver, the one in control of the vehicle, is being taught something. These are passengers, stuck in a flying sardine can, strapped into their seats. There’s not a whole lot passengers can do but sit there. Beyond that little sideshow performance by the attendants before every flight, other than avoiding hysteria, what else can passengers do? Flap their wings?

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    Pray.

    Maybe flight attendants just get tired of answering that question, “What can we really do to survive, if we crash?” They probably hear it frequently. Maybe someone asked Sully, and Sully said, “Be calm.”

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    So in that imaginary planning meeting I referenced before, the British Airways guy with the calculator says “And charge them for it!”

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    Does this mean they are withholding information that would make passengers safer?

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    The whole scheme of this class seems problematic to me. We passengers are already buying your tickets. Charging us to make us safer on your flight…that seems not only hypocritical, it seems like the ultimate in avariciousness.

    What are you going to do next if a plane crashes? Make the people who didn’t take the class leave the plane last? Do they get to die first?

    The announcement indicates that this program was developed for BP staff who regularly end up on EU banned list flights on planes that skydivers wouldn’t touch with a ten foot parachute. Maybe the class really just scares people off of those banned airlines, and onto British Airways planes, which are more expensive but a heck of a lot more likely to get you there intact than an airline that doesn’t pass the EU safety criteria.

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    Record the class. Give it out as a DVD with the tickets. Sometimes you have to put away the calculator.

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