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[from:"Commercial Lawyers", Nov. 2001]

[Date:November 2001] [back] [next]
Will the Concorde case pave the way for US-style settlements?

Some of the claims stemming from last year's Concorde crash have already reached as high as $1.5 million per passenger. The disaster has introduced a whole new `commercial' angle an recoverable liability amounts in Germany, writes Lee Dembart in The International Herald Tribune.

Traditionally, European compensation claims (especially German ones) have been much lower than those in the US. Amounts paid to the families of people killed in airplane and train crashes have been designated to cover only the cost of the burial - in contrast to other European countries such as France, where there is at least marginal recognition of `loss of companionship'. "It's the same flight, but one family gets X and the other Y, based solely an where the victims are from," says Ulrich von Jeinsen, a lawyer who represented the families of 12 victims of the Concorde crash. The German government argues it is immoral to get a financial benefit from someone else's death, that it would be "commercialising grief." However, many German litigation lawyers are currently engaged in Torum shopping' - finding the best jurisdiction to try a case.

In the Concorde case, several jurisdiction options were discussed including the nationality of the victims, the scene of the accident, and, finally, the flight's destination. Under the Warsaw Convention a claimant is free to select the place of destination as a legal venue. The latter was the deciding factor. Concorde's destination was New York and unusually, all the victims had one‑way tickets. "Negotiations resulted in a compromised settlement ranging between the possible jurisdictions a `mid-Atlantic' settlement," says von Jeinsen, "which was not as extensive as in the US, but a great deal more than if it had been tried in Germany."

The Concorde case has underlined how beneficial this option can be. Dr. Christof Wellens, another lawyer who represented 22 victim's families in the Concorde case, maintains that the German government, in continuing to block changes to its own liability laws, is seeking to protect the insurance industry. What is needed, Wellens says, is a European code. As it is, American courts can still throw cases out, even once they've accepted a case, due to the non conveniens doctrine. The courts will hold that there is a more closely related jurisdiction (France, for example, in this case) that should hear the case. Lawyers might be "parading around" with the possibilities of getting a high liability settlement by taking their German clients' cases to the US, says von Jeinsen. But they could also be "misleading already-vulnerable clients who have just lost a close relative."

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