• Pay for the victims is guaranteed, but it could be an intricate process, legal expert says
•This type of plane crash compensation currently equals approximately $170,000 per passenger
Based on the Montreal Convention, each of the families of the Ethiopian Airline crash victims could receive as much as Sh17 million.
The treaty, adopted by the International Civil Aviation Organisation, stipulates that "if an airline is found at fault for an accident, each affected passenger is to get a minimum value equal to 113,100 special drawing rights".
This type of plane crash compensation currently equals approximately $170,000 per passenger.
In the past, however, there have been limitations placed on victims for what they can recover from an airline under the international treaties and laws. But f it can be proven that an airline did not take all required precautions for a flight, there will be no limit to what a victim can recover.
In the case of the KQ crash in Douala Cameroon in 2007, for which the investigation report was released in 2010, most of the compensations was based on out of court settlements between the families' advocates and the airline.
In another crash involving a KQ plane in Abidjan, Cote d'Ivoire, in 2000 the airline paid out at least $135,000 (Sh9.72 million) in compensation to each family that lost a relative.
For the 169 fatalities, the airline's minimum liability totalled to nearly $23 million (Sh1.65 billion) or more.
Noella Mutanda, the head of corporate communications at Insurance Regulatory Authority, yesterday told the Star that a cover for the plane and the passengers is standard practice required by law.
“Airlines procure insurance and, therefore, compensation should follow,” Mutanda said.
Airlines are required to have comprehensive insurance policies to protect the plane and passengers. “It is like having an air-bound matatu,” Mutanda said.
This consequently means the families of those who perished will be required to start pursuing their compensation.
“The victims will definitely receive compensation from the Ethiopian Airlines,” Mutanda said.
In case a member of the families, including the 32 Kenyans, wonders how to pursue this, Mutanda says the process is "fairly straightforward as the accident is widely publicised and the airline is well-known."
But Okalle Makanda, a commercial law expert who has extensive experience on compensation issues, says while compensation for the families is guaranteed, “it is a complex process that claimants may not effectively manage to wade through without an advocate.”
Makanda yesterday told the Star that as a standard practice, investigations will have to be completed to determine the cause of the accidents and subsequently assign liability.
“Compensation, it is guaranteed. The only question is from who?” he said.
He added that the obligation to compensate victims is on the carrier, who may in turn claim compensation from the airline manufacturer, in this case Boeing. Prior to reaching the stage of considering compensation, the first stage is to declare the accident formally.
In the present case, this has happened and is at the investigations stage.
“Investigations must then be done to unearth the real cause of the accident. The error that precipitated the crash could have been pilots’, mechanical, weather, traffic controller or a defect in the plane design,” Okalle said. The plane manufacturer becomes liable if the probe on the cause of the tragedy lays the blame on its door step.
Their is a global uproar on the safety of Boeing 737 MAX plane fleets, the very design that crashed in Ethiopia, with a number of countries banning planes in this design from flying in their airspace.
The Sunday crash came after a crash of plane of the same design in Indonesia in October last year.
“This means that Ethiopian Airline may seek compensation from Boeing. Even then, the intricacy in it could be that the plane is insured by a company in a different continent and as it is, the crash is also in a different country,” he said.
Okalle says the complexity of the compensation is also because even after assigning liability, “it will most likely turn into an issue for litigation because the claimant’s lawyer will have to negotiate with the compensating entity,the Ethiopian airline, on the figure.”
The planes have a manifest, that is, the list of occupants and so there will be no need to produce a proof of death by the family members when claiming compensation.”