End of commercial flights with vintage aircraft
Liability in the event of death of the passenger and criminal liability
Investigators from the Swiss Transport Safety Investigation Board (STSB) recently published a report on the accident of a former Junkers Ju 52 aircraft, operated by Ju-Air.(1)
On August 4, 2018, the aircraft took off from Locarno Airport for a commercial sightseeing flight through the Swiss Alps. After 40 minutes, the aircraft plunged almost vertically into the ground near Piz Segnas in the mountains of eastern Switzerland. None of the 20 passengers or crew survived.
The report said the plane stalled after pilots navigated it in a high-risk manner through a narrow valley at low altitude and dangerously low speed with its center of gravity out of bounds.
The pilots intended to exit the valley via the Col de Segnas. No alternate flight path existed. The STSB found that the aircraft was momentarily disrupted by updrafts and downdrafts which the pilots should have expected and taken into account when flying the aircraft on the lee side of the mountain range. The pilots had lost control when the aircraft veered left and entered a spin.
The SEST determined that the pilots’ risky behavior was not new. The pilots, originally trained in the Air Force, were used to ignoring recognized operating safety rules and taking high risks. They and other Ju-Air pilots had been flying dangerous flight paths for years and this incident was not the airline’s only serious problem.
The investigation detailed a flawed safety culture that permeated all aspects of Ju-Air, from shoddy maintenance to inadequate flight training and failure to report serious incidents to authorities.
Unsurprisingly, following the accident, the Swiss Federal Office of Civil Aviation (FOCA) banned Ju-Air from operating any further commercial passenger flights with its vintage fleet, including its two remaining Ju 52s. In March 2019, OFAC revoked Ju-Air’s air operator certificate and fined it.
The FOCA also announced the end of commercial flights of vintage aircraft in Switzerland. Operators can no longer offer such flights for profit or carry paying passengers.
Historical aircraft will nevertheless continue to fly in Switzerland. Operators can still carry passengers in vintage aircraft, but those passengers must have been members of a dedicated club for at least 30 days. Operators should educate passengers about the increased risks of flying in vintage aircraft.
It is not known whether Ju-Air’s two remaining Ju 52s will fly again. They are based on technical findings revealed in the accident probe.
Although the CSTS accident investigation report was not intended to address questions of blame or liability, it will no doubt be used as primary evidence in future civil litigation and criminal prosecutions. .
Ju-Air’s liability in the event of the death of a passenger will be established on the basis of Regulation EC 2027/97 on the liability of air carriers in the event of an accident, as amended by Regulation EC 889/2002, and Air Transport Ordinance.
Compensatory damages, including funeral expenses, loss of income and support, and moral damages for pain and suffering, will be available to relatives of deceased passengers. No limit exists on compensatory damages for the death of a passenger under EC Regulation 2027/97 or the Air Carriage Ordinance.
Additionally, Ju-Air executives could face criminal charges.
For more information on this subject, please contact Andreas Fankhauser to Proton Legal LLC by telephone (+41 44 214 69 97) or by e-mail ([email protected]). The Proton Legal LLC website can be accessed at www.proton-legal.com.