On August 4, 2018 around 16:50 CEST an old-timer airplane JU-52 (HB-HOT) owned by the Association of the Friends of the Swiss Air Force (VFL) crashed in the Swiss mountains, in the area of Flims in the canton of Graubünden. The plane was on a flight from Locarno to Dübendorf. None of the 20 people on board survived this tragic accident. The cause of the crash is not yet known. At present, however, it is assumed that neither a collision with another flying object, a cable or a mast nor a terrorist attack led to the crash. Due to the age of the aircraft and its technical equipment, no flight recorder was on board.
The relatives of the victims and their insurance companies are faced with the question as to which extent they are entitled to claims against VFL and how they can enforce such claims if no settlement may be found. This article provides an overview of the relevant legal provisions and regulations in this context.
The LTrV as governing law
Domestic air transports of passengers are governed by the Ordinance on Air Transport of August 17, 2005 (LTrV, SR 748.411). The Montreal Convention (MC, SR 0.748.411), which is relevant for international air carriage and passenger flights, does not apply in the present case, as the place of departure (Locarno) and destination (Dübendorf) of the JU-52 were within Switzerland (cf. Art. 1 para. 2 MC). However, it may be noted that LTrV was drafted based on the MC – the two laws are therefore in terms of content very similar. The LTrV does not regulate the amount of damages in Swiss francs, but, like the MC, in Special Drawing Rights (SDRs). SDR is a currency artificially introduced by the International Monetary Fund, which is used in international trade as a value unit, calculation unit or even as a means of payment. 1 SDR has a value of CHF 1.36 as per September 14, 2018.
Two levels of liability
Pursuant to Art. 7 al. 1 LTrV, the air carrier is liable for the death of passengers in the event of an accident on board the aircraft or while boarding or disembarking. The air carrier’s liability is thereby regulated on two different levels:
- For damages up to 113'100 SDR (approx. 153'816 CHF) per passenger, a strict (causal) liability applies. This means that the air carrier is liable regardless of fault, i.e. cannot exonerate itself, even if the damage was caused by force majeure or exclusively by a third party (cf. Art. 7 al. 2 LTrV).
- For damages exceeding 113,100 SDR per passenger, the air carrier may exonerate itself from his liability if he can prove having acted without fault (no breach of contractual obligations, no unlawful act or omission by the air carrier or its employees, cf. Art. 7 al. 2 lit. a LTrV) or that only a third party is responsible for the damage (Art. 7 al. 2 lit. b LTrV).
Title to sue, scope of liability and burden of proof
If a passenger is dies in a crash of an air plane, his claims against the air carrier pass to the heirs. They can assert these claims in their own name (Art. 560 para. 2 Swiss Civil Code, CC).
In principle, the injured party or the heirs are entitled to both damages and satisfaction. Art. 11 al. 1 LTrV refers to the rules of the Swiss Code of Obligations (CO) for the determination of the type of damages and satisfaction. In the present case, the heirs are most likely entitled to the following claims:
- According to Art. 45 al. 1 CO, the heirs are to be reimbursed for funeral expenses and the costs of transfer in the event of the decease of a person.
- According to Art. 45 al. 3 CO the loss of the source of (financial) support as a result of the decease of a passenger is a damage a heir or a third party may claim against the liable air carrier (Versorgerschaden).
- Finally, in the event of the decease of a passenger, the court may award the relatives a reasonable sum of money in accordance with Art. CO as satisfaction for the psychological distress that has arisen.
In order to be able to enforce respective claims, a claimant must prove that the passenger deceased during carriage (on board or when boarding or disembarking), that this was due to the realisation of a risk typical to an air carriage and that damage was suffered as a result.
It should be noted that according to Art. 14 LTrV an action for damages must be brought within two years of the accident. It should be noted that this period is a forfeiture period and cannot be interrupted by a payment order but can only be observed by filing a claim in ordinary court proceedings.
The claim to satisfaction, on the other hand, is based on Art. 60 para. 1 OR and is subject to a relative limitation period (interruptible by a payment order) or ten years (absolute limitation period).