Advance Payments to Air Crash Victims' Relatives Need Revision

Air Safety Week, Nov 7, 2005

Advance payments to the families of air crash victims need to be done promptly, without delay, and to this end the United States needs to execute regulations implementing the provisions of the 1999 Montreal Convention, a passenger rights group argues.

The U.S. was the thirtieth country to ratify the Montreal Convention, in 2003, thereby becoming the nation that put the treaty into force, which updates liability and other matters that had first been established with the Warsaw Convention in 1929. As of today, 68 countries have ratified the convention. However, the treaty has yet to be implemented by the United States. By contrast, the 25 countries of the European Union (EU) implemented the new treaty in May 2004, the day they deposited their instruments of ratification.

As a bridge to implementation, the Air Transport Association (ATA), representing most U.S. carriers, recommended in a Sept. 29 submission to the Department of Transportation (DOT) a plan that would create a uniform system of liability and protection for some of its members and the traveling public. For instance, ATA associate members are not covered initially by the proposal. Thus, while United Airlines is covered initially, Star Alliance partner Air Canada (an ATA associate member) is not. The document propounded by ATA is known as IPA 2005, the abbreviation IPA standing for Implementing Provisions Agreement. At this early juncture, DOT has not yet acted on the proposal, which would mark a first step toward unifying liability rules worldwide, although not completely. Since large civil air carriers are interrelated in a maze of alliances and code- share agreements, harmonization is needed, hence the IPA 2005 proposal.

The concept is supported by the Air Crash Victims Family Group, an umbrella organization of families of victims of various high-profile air crashes (e.g., the loss of the Air France Concorde, the Pan American B747 bombed over Lockerbie, the TWA B747 that blew up from a fuel tank explosion, the Swissair MD-11 fire, and the EgyptAir B767 crash, to cite just a few). However, the Victims Family Group asserts that IPA 2005 is a limited step forward, because it only selectively harmonizes the United States' rules with the already existing EU regulations. The group argues in a submission to DOT that, "The IPA 2005 with modifications could be used as the starting point towards a more comprehensive rule that is urgently needed to restore an even playing field to include foreign carriers."

For example, the Montreal Convention calls for advance payments to families of air crash victims, which the European regulations endorse as non- returnable, but which the IPA 2005 does not. These payments are in the amount of 100,000 SDR, or special drawing rights for each victim. An SDR is roughly equivalent to $1.45. Some airlines (Swissair, Air France, EgyptAir) have already made advance payments in this amount; others have not, creating a situation of inequity. The Victims Family Group maintains that the ATA proposal and ultimately the U.S. rules should address present day practices, especially since the European legislation is coming up for review in 2007 - probably barely one year after the ATA proposal might be approved.

The Victims Family Group's discussion of advance payments is particularly instructive:

* In [the EU regulations] the air carrier must make the advance payment within 15 days after the identification of the victim.

* The Advance Payment section of the proposed IPA 2005 neither harmonizes with [the Europeans] nor does it address fully the intent, the need and the spirit of advance payments as expressed in Montreal Article 28. The ATA proposes that "the carrier shall make advance payment [only] where the carrier determines it is necessary to meet the immediate economic needs of and the hardship suffered by a passenger." In practice, the determination of this could involve a lengthy process that could defeat the expressed intent of immediate monetary assistance.

* Advance payments on future damages, as yet to be determined, are needed in the aftermath of a crash, tragedy or incident, because historically the resolution of individual total damages determination takes a long time, for reasons stated below.

* With ever larger and technically advanced planes transporting an increasing number of passengers (reaching very soon up to 850 persons per flight) traveling at greater speed and higher altitudes, the number of fatalities has substantially increased - with few survivors, at best.

* In most of those crashes there are a few bodies but a large number of body parts, which can only be identified by DNA. (In Swissair 111 a total of 21/2 million pieces of debris and body parts were recovered that had to be sorted out and identified.)

* Estates cannot be probated without a death certificate. A death certificate cannot be issued by the medical examiner without an identifiable body or one or more of its parts.