The investigation into the Swissair Flight 111 disaster has raised joint liability issues as to airlines that participate in partnership flights. The aircraft that crashed near Halifax had the Swissair name, but it was also a flight conducted under a sharing agreement with Delta Airlines.
Pursuant to current practices, sharing agreements have become common in international flights. Under the procedure, airlines obtain approval under U.S. Department of Transportation rules, which were approved in 1989. The system is now popular, but airlines could share liability for legal claims when a major crash occurs.
Based on initial reports, Delta Airlines sold approximately 53 tickets to its customers and they jointly participated in the Swissair flight. The efficiencies of these flights have made sharing agreements a popular way for airlines to increase profits and to expand routes without having to commit fleets and extensive new personnel to international venues. Instead, a carrier like Delta can use the planes of another aircraft and share personnel, maintenance, marketing and booking facilities to reduce costs.
The popularity of this practice has tracked the global expansion of U.S. airlines. In recent years, more Americans traveling overseas find that they have bought tickets from a U.S. carrier, only to later learn that they are flying on a foreign airline. The DOT rules require an airline to inform a customer that they will be on another airline, but the ticket will have the airline's name that sold it and that airline (Delta) will receive payment. Often, one carrier will simply buy a group of seats on another airline and then sell the tickets at the price it elects, normally for a profit. However, the agreements may have more extensive partnership provisions, including the joint use of personnel, maintenance and equipment.
In view of the enormous liability potential which results from the number of lives lost and the upstanding citizenship of victims, Swissair Flight 111 will raise numerous issues related to legal claims based on the co-partnering of flights. Some experts say that the recoveries could approach $500 million contingent on liability being established against airlines and aircraft manufacturers. Thus, it will be incumbent upon aviation experts to prosecute all claims against every party at fault to help rebuild survivors' lives through fair awards available in the American justice system. See, In re: American Airlines Crash, CA No. 96-MD-1125 (SDFL, 1997)
The analysis of claims based on the agreement between Swissair and Delta will depend on many factors, ranging from partnership law (O.C.G.A. Sec. 14-8-15) to joint enterprise and aircraft maintenance. Initial reports indicate that a faulty electrical wire may have caused a fire in the cockpit. This malfunction could interrupt flight controls and lead to liability based on a number of theories, including airline maintenance duties, defects in the manufacturing process or faulty component parts.
Under aviation law, an airline may be liable for the full extent of damages and may not use limitation laws if evidence of certain types of misconduct is proven. See, Cortes v. American Airlines, Inc. CA No. 96-727-CIV (SDFL, 1998)(Award of $565,000 for Wrongful Death). Also, defendants may try to limit awards to the pecuniary value of the loss of services and support under the Death on High Seas Act (42 U.S.C. Sec. 762. However, this restriction should not apply to wrongful acts that originated over a continental jurisdiction, which may be the case in the Swissair disaster. See, Gould v. American Eurocopter Corp., CA No. 95-43374 (280th Dist. Ct., Texas, 1997)($12 million award to survivors for death in Eurocopter AS-350 crash).
As to damage laws, Delta Airlines and Swissair are reported to have rescinded the recovery limits set forth in the Warsaw Convention ($75,000 Cap Rule), in favor of the application of compensation laws in the applicable jurisdiction. Normally, this rule applies to international carriers and not to other parties operating in a legal venue. In the Swissair disaster, limitation agreements should not restrict damages because any proven wrongful acts probably occurred in the United States. Thus, survivors should be able to recover maximum compensation in a viable liability case.
In conclusion, the law controlling aviation disasters is complex and brings into play numerous domestic and international recovery laws. A litigator must be trained to deal with multi-district rules and apply pro-claimant strategies. Fortunately, our courts have developed mass tort compensation rules which mandate that victims in an air crash have equal access to our judicial system.
FOR COMMENT OR INFORMATION, CONTACT: Author: Guerry R. Thornton, Jr. Tel - 404/467-1670 Netlaw Fax - 404/237-4148
THE AUTHOR: Guerry R. Thornton, Jr., a lawyer in Atlanta, handles Phen/Fen claims & is counsel in the Sankey action; he has prosecuted claims in the $2.5 billion Dalkon Shield plan & the $230 million Dupont Plaza Hotel disaster; he is a member of The Association of Trial Lawyers of America & has published articles on mass tort litigation in Trial Magazine & The National Law Journal; his Internet cite is: www.netlaw.net.