Lufthansa subsidiary Germanwings could face liabilities well above the typical ceiling in airline crashes for the passengers who died on Tuesday when one of its jets was flown into an Alpine mountain, some aviation lawyers said.
A lot will depend on whether the airline can defend itself against negligence claims given that prosecutors said on Thursday that a young German co-pilot locked himself alone in the cockpit of the Airbus A320 and set it on course to crash, killing all 144 passengers and six crew members.
An international agreement generally limits airline liability to around $157,400 for each passenger who dies in a crash if families do not sue, but if families want to pursue compensation for greater damages, they can file lawsuits.
Lawyers who have represented families in past airline disasters told Reuters on Thursday that potential lawsuits could focus on whether Germanwings properly screened the co-pilot before and during his employment, and on whether the airline should have had a policy requiring two or more people in cockpits at all times during a flight.
Justin Green, a partner at the law firm Kreindler & Kreindler in New York, said passengers' families would be justified in asking why Andreas Lubitz, the 28-year-old co-pilot, was allowed to be alone in the cockpit.
Pilots may temporarily leave the cockpit at certain times and in certain circumstances, such as while the aircraft is cruising, according to German aviation law.
Even if the practice was allowed, though, "this has been a known risk," Green said. He noted that some investigators believed that pilots intentionally downed a SilkAir aircraft in 1997 and an EgyptAir aircraft in 1999.
"This idea that one pilot could murder everyone on board and kill himself is something that's happened before and something that everyone knew about," Green said.
Cases rarely go to trial
Lufthansa will abide by international agreements dictating liability, its Chief Executive Carsten Spohr said.
"Honestly, it's one of my smaller worries," he told journalists on Thursday. "We will be able to meet the financial liabilities. Our first priority is to help the families where we can."
Under an international agreement known as the Montreal Convention of 1999, an airline generally cannot escape liability for a passenger death.
For each death, a carrier can be liable for up to 113,100 special drawing rights, a reserve asset created by the International Monetary Fund. On Tuesday, the amount was equal to about $157,400, or $22.7 million for 144 passengers.
The potential lawsuits for additional damages could be filed in any of several jurisdictions, including Germany where Germanwings is based and a number of different home countries of the passengers, such as Spain.
Passengers' families are limited to claiming provable damages, which vary depending on the jurisdiction but may include loss of support and pain and suffering, the lawyers said.
Bruce Ottley, co-director of the International Aviation Law Institute at DePaul University College of Law, said he was skeptical that Germanwings would need to pay above the Montreal Convention limit unless there is evidence the airline knew in advance the co-pilot was at risk.
But Ottley said airlines choose to settle legal claims in the vast majority of crashes, so the issues may never go to a judge or jury. "Very rarely do these things ever, ever go to trial," he said.
For Germanwings to limit its liability, it would have to establish that it and its employees and agents were not in any way at fault or that the accident had been caused solely by the fault of a third party, said Clive Garner, a partner at the law firm Irwin Mitchell in London. The firm has represented passengers' families in other aviation accidents, including a crash in Nepal in 2012.
"Given this scenario and what we know at the moment, Germanwings would be unlikely to be able to establish a relevant defense," Garner wrote in an email.
A $6.5 million claim for the loss of the plane itself was paid on Wednesday, insurance industry sources said.
Germany's Allianz is the lead insurer in the case, sharing the financial burden of the loss with other insurance companies.