New Jersey Lawyer
SWISSAIR CRASH: LOWER STANDARD OF PROOF ANTICIPATED FOR PLAINTIFFSEvelyn Apgar Hoboken attorney Gerald H. Baker pointed out the International Air Transport Association in 1995 established an inter-carrier agreement whereby airlines would be held strictly liable for injuries or death to passengers. That amount of damages, he said, is equivalent to $137,000. In addition, Baker noted, airlines now are responsible for full compensatory damages unless they can show they took all reasonable measures to avoid the accident. "That's the only defense available to the airlines," he said, adding the amount of damages awarded must be determined by the laws of each passenger's country. Previously, under the 1929 Warsaw Convention, airlines were strictly liable for a maximum $75,000 for death or injury to a passenger unless willful misconduct could be proved. Baker, who represents families of victims of the Korean Air Lines 007 and TWA 800 crashes, now is conferring with local lawyers contacted by some of the dozen New Jersey families who lost a relative when Swissair Flight 111 crashed Sept. 2 off Nova Scotia. He said he is awaiting notice to proceed with the claims. Baker said the lawsuits probably will be heard in the U.S. District Court for the Southern District of New York in Manhattan because the doomed plane took off from Kennedy International Airport in New York and the federal court there has experience in handling such aviation litigation. If he proceeds with the cases, Baker said he'll name as defendants the manufacturer of the plane, the manufacturer of the aircraft's insulation, and Swissair and Delta airlines, which have a sharing relationship. He forecast the strict product liability case against the manufacturer of Mylar insulation would be easiest to argue because, he contended, it was defective and not sufficiently fire-resistant. He noted that in 1997 McDonnell Douglas, which manufactured Swissair 111, recommended that all airlines replace Mylar insulation with more fire-resistant material. Under the latest international regulations on the standard of proof for damages, Baker said, "We don't have to prove anything except that there was an accident. Swissair must mount an affirmative defense and must prove they took all affirmative measures." Delta and Swissair were signatories to the 1995 agreement on damages. |
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