Luxembourg Court of Appeals renders judgment on LUXAIR case

   The Court of Appeals of Luxembourg for criminal cases delivered on 21 Jan. 2014 its judgment on the LUXAIR accident case. The judgment concerned also civil claims brought before the criminal court for damages (mainly mental injuries and loss of beloved ones) resulted from the defendants’ criminal behavior (violation of the rules of the air and involuntary manslaughter). The Court awarded damages between 11.500 € and 130.500 € plus interest and judicial expenses.

    The case regarded the accident that took place in Luxembourg on 6 Nov. 2002, during reduced visibility conditions, when a Fokker F50 of the LUXAIR airline arriving from Berlin crashed during landing. Except from the pilot and a passenger everyone on board died (20 persons – 18 passengers and 2 crewmembers). The main cause of the accident was navigation error of the pilot, who failed to follow the standard operating procedures. However, one important contributing factor was also LUXAIR ’s failure to establish a safety culture by insisting on the strict abidance of its personnel by the operating rules. After the accident investigation report was published, LUXAIR dismissed six persons, i.e. the captain of the flight, the two former Operations Managers, the former Flight Safety Officer, the former Quality Manager / Flight Standards Manager, and the Chiefpilot of its Fokker Fleet. You can find more information on the accident and its causes here and here.

  The Court’s present judgment concerned civil claims of the victims against LUXAIR’s employees (servants), who were accused of violating the rules of the air and committing involuntary manslaughter. In the law of many Continental European countries it is a common ground to present such claims during a criminal trial (action civile, Zivilklage).

   From the view of aviation law, the accident was governed by the 1929 Warsaw Convention (WC) as amended by the 1955 Hague Protocol (HP), as these were applied in intra-European-Community flights through Regulation (EC) No 2027/1997. This means that LUXAIR entailed strict liability up to 100.000 SDR and unlimited liability for presumed fault for claims above this limit. According to Art. 25A WC/HP, the air carrier’s servants and agents are also subject to the Convention’s limits and conditions, if they acted in the scope of their employment. 

   One of the most interesting features of the judgment is that the Court applied Art. 24 WC also to civil claims presented at a criminal trial. Pursuant to Art. 24 WC, all claims of the cases covered by the Convention, however founded, must be brought subject to the conditions and limits laid down in the Convention. It is noteworthy that French courts do not share such view in general, because they find that the WC rules on presumed fault are inconsistent with the rules on criminal liability. However, courts in Germany do not see any problem in this regard, as they separate the issue of the defendants’ criminal liability from the issue of their civil liability - despite both issues being judged at the same trial, each of them is subject to different rules.

   Furthermore, the Court ruled that the admissibility as such of civil claims during the criminal proceedings is unconnected to Art. 28 WC, which enumerates exhaustively the courts competent to hear civil claims. In other words, the fact that the criminal court seized may not have territorial competence for civil claims according to Art. 28 WC, does not render such claims inadmissible to all other criminal trials.

   Note also that the Luxembourg Supreme Court, in the framework of the civil trial against the airline, had made a reference for a preliminary ruling to the European Court of Justice (ECJ) on the interpretation of the WC. However, the ECJ had denied jurisdiction on the case, because the WC was not part of the European Community law (judgment of 22 Oct. 2009 on the case C-301/08).