Old Treaty Limits TWA Crash Damages
The families of those who died on Trans World Airlines Flight 800 will be able to recover no more than $75,000 in damages from the airline for each victim--only about 5% of the average compensation awarded in domestic air crashes--because of an outdated treaty governing international air travel.
The liability limit, established under the 1929 Warsaw Convention, was last revised in 1966. It has been widely criticized by lawyers, aggrieved families and even the airlines themselves.
On Wednesday, a coalition of 56 carriers proposed to waive the limit in the future. The U.S. Department of Transportation is expected to approve the change.
“It’s outrageous and totally unfair, and Congress should have pulled out of [the treaty] a long time ago,” said Joseph T. Cook, an aviation attorney from Irvine, Calif.
If the crash is determined to have occurred on the “high seas,” even that compensation could be erased. A Supreme Court ruling in January further tightened the damage limits for some kinds of crashes.
Ruling in a case that grew out of the 1983 shooting down of a Korean Air Lines jet by a Soviet fighter plane, the justices said that Americans can recover damages only for the family’s economic losses, not for the emotional loss of a child or grandparent, for example.
“If they [deceased passengers] are not supporting you, you are out of luck. It means if your child dies, you suffered no loss,” said Boston attorney W. Paul Needham, who represented KAL survivors in the losing effort before the high court. “It means for the children from the high school French club [from Montoursville, Pa.], there could be no compensation.”
But three key legal questions involving the TWA crash still must be answered before the damage awards--or lack of them--are determined.
First, did the crash take place on the high seas?
The Death on the High Seas Act of 1920, the law cited by the Supreme Court, says it applies to accidents that are “one marine league,” or about 3 miles, from shore.
However, President Reagan in 1987 said that the United States was declaring a 12-mile limit for its territorial waters. The TWA plane burst into flames about 9 miles off Long Island.
“It will be interesting to see how this issue is resolved,” said George Tompkins Jr., an aviation expert from White Plains, N.Y.
Second, did TWA’s “willful misconduct” cause the crash?
The Warsaw Convention protects the carriers from unlimited liability, except in cases where they engaged in “willful misconduct.”
“It is a very hard standard to meet” for plaintiffs, said Lee S. Kreindler, a New York attorney who represented families from the 1988 Pan American Airways crash at Lockerbie, Scotland.
Nonetheless, sympathetic juries have ruled for the plaintiffs and against the airlines in both the KAL and Pan Am cases. In the KAL case, the jury said that the pilots’ unwitting move to fly 300 miles off course and over Soviet territory amounted to willful misconduct. In the Pan Am case, a jury said that the carrier failed to properly screen baggage in Frankfurt, Germany, despite repeated warnings.
Because investigators have yet to pinpoint a cause for the TWA crash, it is far too early to say whether that airline can be held fully liable because of misconduct.
Efforts to recover debris that will help determine the reason for the explosion aboard Flight 800 two weeks ago have been slow. The work was hampered again Wednesday by heavy seas off Long Island, but 13 more bodies were retrieved, raising the total to 184.
The National Transportation Safety Board official heading the effort told families still awaiting word about their relatives to prepare for the possibility that the bodies may not be found.
“In honesty, they’ve got to realize there’s a point at which it starts to tail off, that it’s not realistic to feel that we’re going to recover every single person on that airplane,” said Robert Francis of the NTSB.
The third question on the liability issue is whether TWA will waive its damage limit.
Last year, the major U.S. airlines, encouraged by the White House, met to discuss changes in the treaty. On Wednesday, the Air Transport Assn. of America submitted a proposed agreement to the U.S. Department of Transportation that will void the Warsaw Convention limits on Nov. 1. It is signed by 56 airlines, including American, Continental, Delta, Northwest, TWA, United and USAir, as well as the major foreign carriers that fly to this country.
“This will remove the cap and give passengers the protections that are in line with the modern world,” said David Fuscus, a spokesman for the Air Transport Assn. “We are also hoping to get rid of a lot of unnecessary litigation,” he added.
The move to void the treaty began in Japan. In 1992, its airlines agreed to waive the limits in the Warsaw treaty and several European airlines have followed suit.
“We now have the lowest limit in the United States” for victims on international flights, Tompkins said. He noted that in recent years, compensation awards involving deaths in domestic air crashes have been about $1.5 million per person on average.
The Warsaw Convention limits are determined by the route on a passenger’s ticket, not the location of an accident. Suppose, for example, that a plane was scheduled to fly from Los Angeles to Honolulu and on to Tokyo, but crashed on takeoff. The families of a deceased passenger destined for Honolulu could seek an unlimited recovery, possibly reaching several million dollars. However, the families of a passenger on the same flight who was traveling to Tokyo could recover only $75,000.
The proposal to lift the liability limit after Nov. 1 may not help the families of the TWA crash victims. A TWA spokesman said the proposal is not retroactive.
“We have signed on to that agreement [submitted Wednesday] but it does not pertain to the Flight 800 disaster,” said Mark Abels, a TWA spokesman in St. Louis.
The airline could waive the limit, but has not made a decision, he said. “We haven’t said ‘yes’ and we haven’t said ‘no’ and we probably won’t comment for a while yet,” he said.
Times staff writer Eric Malnic on Long Island contributed to this story.
