Firstly we express our deepest condolences for the accident that took the lives of 189 passengers on the JT-610 Flight on 29th October 2018. The flight was operated by Lion Air using aircraft type 737 Max 8 produced by Boeing which headquarter is located in the state of Illinois, United States of America.
As practitioners of aviation law, we hereby provide a thorough view regarding the liabilities of the airline and aircraft producer in regards to this accident.
Liability of Air Carrier in Indonesia
Pursuant to Article 141 of Law Number 1 of 2009 regarding Aviation (“Aviation Law”), Lion Air as Commercial Air Carrier is held liable for damages suffered by passenger death. The liability is implicit
(strict liability) without regards to the presence or absence of fault or neglect in the operation of aircraft. Strict liability of Rp 1.250.000.000 (one billion two hundred fifty million Rupiah) for every passenger death (“Indemnity”) is regulated in The Minister of Transportation Regulation Number 77 of 2011 regarding Air Carrier Liability (“MoT Reg 77/2011”). In the instance where fault and neglect is found, the Air Carrier shall be held liable for damages incurred and the provisions under Aviation Law cannot be used to limit its liability. In addition to indemnity, next of kin/beneficiary may (i) file claim to the court (Article 141 paragraph 3 or Aviation Law) or (ii) initiate direct negotiations with the Air Carrier (Article 16 of Aviation Law) to receive a larger and unlimited sum of liability. This is further supported by Article 180 of Aviation Law and Article 23 of MoT Reg 77/2011, which stated the sum of indemnity provided for in this regulation does not cover the possibility for next of kin/beneficiary to file claim against the air carrier at any court within the area of the Republic of Indonesia or through arbitration or other alternative dispute resolution in accordance to applicable laws and regulations (“Additional Compensation”).
Furthermore, next of kin/beneficiary shall also receive benefit from the Government Insurance Institution in the sum of Rp 50.000.000 (fifty million Rupiah), in accordance to provisions of (i) Law Number 33 of 1964 regarding Compulsory Passenger Liability Fund, (ii) Article 62 jo. Article 179 of Aviation Law, and (iii) Article 3 paragraph 2(a) of Minister of Finance Regulation Number 15/PMK.010/2017 regarding The Sum of Benefit and Compulsory Passenger Accident Liability Cover for Public Transportation on Land, River/Lake, Ferries/Crossings, Sea, and Air (“MoF Reg 15/PMK.010/2017”) (“Benefit”). It is important to note that the Benefit originates from Compulsory Liability Cover which premium is included in the ticket price components which cost is borne by the passengers themselves, as required in Article 118 paragraph 1(d) jo. Article 126 paragraph 3(c) of Aviation Law.
In practice, the payment of Indemnity, a requirement guaranteed by the Aviation Law, is often given with the following conditions: (i) next of kin/beneficiary relinquish their rights to file claim for Additional Compensation, and (ii) sign agreement to not file claims in Indonesia and abroad against other related parties, such as aircraft producer (in this case Boeing).
In this accident, the Benefit has been paid by the Government Insurance Institution, however the Indemnity has not been paid and neither the Aviation Law nor the MoT Reg 77/2011 has set a time limit for payment.
Liability of Aircraft Producer
JT-610 Flight is a scheduled Commercial Flight which took off from Soekarno-Hatta International Airport for its destination Depati Amir Pangkal Pinang Airport. The aircraft fell 13 minutes after takeoff, where eye witnesses reported seeing the aircraft nosedived into the Java Sea. It has been discovered that 4 previous flights have experienced problems with its Angle of Attack (“AoA”) censor. On 6th November 2018, the Federal Aviation Administration (“FAA”} and Boeing as producer of 737 Max 8 aircraft issued an emergency safety warning with regards to the potential malfunctioning of the AoA which may trigger the Maneuvering Characteristic Augmentation System (“MCAS”) to automatically perform a nosedive which in this case has proven to have fatal consequences. Instructions on how to resolve this malfunction is not available in the aircraft operating manual or training. This is a strong indicator that the Boeing 737 Max 8 aircraft contains a dangerous product flaw.
American Aviation Law subscribes to the concept of strict liability and does not limit the sum of indemnity. In practice, the sum of indemnity or compensation awarded is larger than the Indemnity and Benefit regulated in Indonesia.
Please note that in the litigation process according to the state of Illinois law (location of Boeing headquarter), applies the Rules of Discovery and Duty of Candor which allows the claimant to pursue evidence in the domicile of the defendant, and requires the defendant to give true statements. This shall provide ease in the process of facts gathering for the cause of accident. Therefore the families of victims can obtain comprehensive information and safety measures can be taken to avoid similar accidents.
Many of the victims are breadwinners for their families and thus leave behind next of kin/beneficiaries who require large sums of expenses. Currently, we have partnered up with legal offices in all related jurisdictions to represent some of the victims’ next of kin/beneficiaries in obtaining better compensation other than the compulsory Indemnity and Benefit.
We are open for further inquiries and consultation in regards to this matter through our email [email protected]