The Spanair Tragedy and the Latest Developments in the Case: A Brief Insight into Claiming Compensation for Aviation Accidents in Spain
31/01/2012
On the 15th December 2011, the Spanish Union of Commercial Airline Pilots (SEPLA) lodged an appeal against the judge’s decision to close the investigations into the circumstances of the Spanair accident arguing that the investigations carried out to date are insufficient to establish the liability for the same.
This follows the judge’s decision, after 3 and half years of investigations and more than 11,000 pages in the court file, to point out at the two flight maintenance operators as responsible parties for the accident dismissing the charges against 3 other persons, Spanair’s Maintenance Manager, Spanair’s General Maintenance Manager for the airline and the Manager of the Quality Division for Spanair, as well as the other agents involved such as the manufacturer of the aircraft, Boeing, and the Spanish and North American Air Authorities.
As a consequence, the two flight maintenance operators face criminal charges for 154 cases of involuntary manslaughter and 18 charges for injuries as a result of this accident.
This appeal follows the one lodged by the Association of Victims on the 13th December based on similar arguments and the fact that the Association considers that there would be a great prejudice for the air sector if no representative of Spanair faces charges for this accident as this would allow airlines to delegate the safety of their flights solely on the maintenance operators and the pilots.
In this sense, the report prepared by the expert appointed by the Association of Victims of the accident appeared to link the cause of the accident to a technical failure in the relay and more specifically in one of its pieces, the solenoid.
The relay which failed in accordance with the expert’s report lodged by the Association of Victims, was in charge of delivering electricity to the TOWS (Take off warning system).
This mechanical failure in the TOWS was also established in the preliminary report from the Spanish Commission for the Investigation of Civil Aviation Accidents and Incidents (CIAIAC) of 17 August 2009 which confirmed that the airplane took off with the wing flaps and slats still in, and the TOWS failed to alert the pilots.
Furthermore, the CIAIAC had also confirmed that, in their opinion, the pilots followed the procedures, but that the fact that the initial take-off was interrupted and the plane had to return to the hangar, upset the chain of safety procedures, which, combined with pressure to take off quickly and make up for lost time led to the crew overlooking important safety issues.
The investigation also showed that the warning system, which should have detected the incorrectly positioned wing flaps, failed to alert the crew to the problem.
In the aftermath of the accident, both Spanair and the aircraft manufacturer, McDonnell Douglas (Boeing), revised their safety procedures and Spanair now requires the TOWS system to be checked before every single flight.
The CIAIAC has also issued recommendations to be taken on an international level, by all airlines, to make the checking of the TOWS system on Boeing DC-9, MD-80, MD-90 and B717 models obligatory before every flight.
As a result of this investigation, the independency of the members of the CIAIAC has been strengthened and the pilots’ number of working hours regulated. There are also further regulations being considered at European level to prevent civil aviation accidents.
Many of us understand the idea of claiming compensation as a result of a road traffic accident. However, do we know how to claim for personal injury or death in the unlikely event of an aviation accident in Spain?
Preliminary Court Investigations
When an airplane accident happens within the Spanish territory, the authorities and the Criminal Court open what is called “Diligencias Previas de Investigación” or the preliminary investigations stage. This is the first step in the investigations where all the relevant information linked to the accident is collected. This should therefore include information about the victims, extent of the damage, details of the airplane’s owner, carrier, pilot, crew, conditions of the area where the accident occurs and many other aspects crucial to draw the full picture surrounding the accident.
The aircraft will then be sealed and examined by the technical experts. If possible, the “black box” is also retrieved as it usually contains vital evidence to help determine the cause of the accident.
In Spain, the CIAIAC will prepare a technical report for the Court. This report will deal with issues exclusively from a technical point of view and does not have the purpose of establishing the liability for the accident.
During the involvement of the CIAIAC, usually the investigations will not be made public until the report is finalised and presented in Court. The Spanair case, due to the dimensions of the tragedy, has therefore been exceptional in the sense that the CIAIAC has issued preliminary reports prior to their final conclusions.
It is, therefore, extremely important that the victims are correctly represented in Court from the outset in order to ensure that all the necessary steps are taken to establish the cause of the accident and whether fault or negligence was involved.
The Spanish “Carriage by Air Act”
The Convention for the Unification of Certain Rules for International Carriage by Air (The Montreal Convention), establishes the “Responsabilidad Objetiva”, a strict liability system, for air disasters claimants. Under this convention, the carrier will be liable for any damage caused to the passengers including death or injury within the limits set below. This is upon the condition that the accident which caused the death or injury took place on board of the aircraft or in the course of embarking or disembarking.
The Montreal Convention of 1999 therefore introduced a uniform legal framework to govern air carrier liability in the event of damage caused to passengers, baggage or goods during international journeys.
At European Community level, and to ensure a uniform system, Regulation (EC) No 2027/97 imposed unlimited liability on European air carriers in the event of death or injury to passengers. This Regulation was further amended by Regulation (EC) No 889/2002, which applies the rules of the Montreal Convention to all flights, whether domestic or international, operated by European air carriers.
Regulation (CE) n° 889/2002 therefore establishes that the distinction between domestic and international transport will be eliminated establishing the same level of liability in both international and domestic transport within the European Community.
The provisions of the Montreal Convention regarding compensation are inverted into the Spanish legal system by the ‘Ley de la Navegación Aerea’, the Spanish Carriage by Air Act, which articles 116 and 120, introduce the strict liability system for aviation accidents during internal flights.
In this line, the Spanish Carriage by Air Act establishes that the carrier shall be responsible for any damage caused during the flight including death or injury to the passenger. This applies up to the limits set in the Act, based on the strict liability of the carrier, even in the case of a fortuitous accident and even when the carrier has proven that he has acted with all the due diligence.
The compensations based on strict liability set in this law are as follows:
• Death or absolute permanent incapacity: up to 100.000 Special Drawing Rights, approx. 135,000 Euros.
• Partial permanent incapacity: up to 58.000 Special Drawing Rights
• Temporary partial incapacity: up to 29.000 Special Drawing Rights
The strict liability set above is combined with a liability for fault or negligence set in article 121 of the Spanish Carriage by Air Act.
According to article 121 of the Spanish Carriage by Air Act, the carrier will not be subject to the limits set in the above points if it is found that the damage was due to the negligence or other wrongful acts of the carrier or its employees. Where this occurs the carrier could be liable for higher unlimited compensation payments.
In this sense, the diligence and care expected from the carrier are such that complying with the applicable regulations would not be sufficient to avoid liability as ruled by the Spanish Supreme Court on 10 June 1988.
When the wrongful act, negligence or omission of a third party is established, those responsible for the crash should then reimburse the carrier for the compensation paid ‘up front’ to the victims. Furthermore, the victims could then claim higher amounts against the third party responsible for the accident.
For claims resulting from aviation accidents where the place of departure and the place of destination of the carriage are the same, such as short touristic or photographic flights in helicopters and small airplanes, and do not involve the transport of passengers between two different places, carriers of these flights will be liable for any damage caused to the passengers. This includes death or injury, upon the condition that the accident which caused the death or injury took place on board of the aircraft or in the course of any of the operations of embarking or disembarking. Compensation is calculated in the same way as described for internal flights.
If any of your clients has been affected by any of the issues discussed in this article our team can provide full advice and guidance on the specific circumstances affecting their case. Please contact us on 952 209 860 or email imabogados@irwinmitchell.es.
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