Kenya: Compensation for Plane Crash Victims Favours the Rich
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This is still a time of mourning for the families of the passengers and crew who perished in the Kenya Airways plane which crashed in Cameroon 13 days ago. But sooner or later the families must confront the question of compensation for the death of their loved ones. Fortunately, the compensation regime for international aviation accidents has changed dramatically in favour of survivors (families of victims). Under the Montreal Convention which came into force on November 4, 2003, survivors can be paid up to 100,000 SDRs (nearly $149,000) without litigation. SDRs, or Special Drawing Rights, represent an artificial “basket” currency developed by the IMF for accounting purposes; its value changes over time. For that amount survivors do not have to prove anything except that their loved one was in the plane. They can get more if they can prove pecuniary or non-pecuniary damage provided the carrier is held liable for the accident. THE MONTREAL CONVENTION HAS been ratified by more than 70 countries, including Kenya and Cameroon. It supersedes the Warsaw Convention, which has been the world standard for compensation since 1929. However, the Warsaw Convention is still valid where it has not been replaced by the Montreal Convention. The benefits of the Montreal Convention include not only eliminating liability limits for death but also establishing a “fifth jurisdiction”, which allows people to sue in the courts of the passenger’s “principal and permanent residence” where the carrier has a commercial presence. This was pushed by the Americans to ensure that US citizens can sue in US courts where compensation is higher. The Montreal Convention, in fact, brings us closer to the American compensation regime. In US courts, survivors can seek unlimited compensation based on the victims’ potential lifetime income. The courts can compensate for the loss in income, support and services, love and affection, companionship, and in some states for pain and suffering as well. But American lives are still worth considerably more in the eyes of the law because of the generous awards given by the American jury system. The average compensation for an American passenger killed in a plane crash is $3-4 million and US courts typically award $250,000-$500,000 for non-pecuniary losses such as love and affection. In France, where they recognise loss of companionship damages for survivors, the awards are about one-tenth of what they are in the US. In Germany, the thinking is that it is immoral for people to get a financial benefit from someone else’s death. In Kenya, the awards are unthinkably mean. Fortunately, you too can sue in US courts under the Montreal Convention, as well as the Warsaw Convention, if you bought your ticket in the US, or if the US was the destination of your flight, or if the carrier’s is domiciled in the US or has its principal place of business in the US. The main benefit of the Montreal Convention is derived from the fact that airlines and their insurers always hire expert lawyers whose job is to avoid liability or at least minimise the payments. Under the convention claimants have an easier time. Under the Warsaw Convention, on the other hand, claimants have to contend with the fact that airlines only need to pay out what’s required by the convention. More : allafrica.com |