Author: Andreas F. Lowenfeld*
Published: August 2012
Description: Hans Smit was, of course, seriously engaged in arbitration, as arbitrator, counsel, expert witness, writer, and teacher. But Hans was above all a proceduralist: Arbitration, especially international arbitration, was for him a significant subset of international civil litigation. I want to honor Hans Smit in this symposium by imagining a dialogue with him in the course of relating the story of a recent case that, beginning with a tragedy, involves three fora, two legal systems, interpretation of a major international convention – just the kind of case drawing on his skills, just the kind of case Professor Smit would have enjoyed.
1. The Accident. On August 16, 2005, an MD-82 jetliner en route from Panama to Martinique crashed into a mountain range near Machiques, Venezuela. All 160 persons on board perished – 152 passengers and eight crew members. The flight had been operated as Flight 708 by West Caribbean Airways, a Colombian airline, under a charter arranged by a tour promoter in the United States. Like most aviation accidents, the disaster seems to have been caused by a concurrence of pilot error, mechanical failure, and poor weather.
2. A First Look at the Law. The passengers all (or all but one) were residents and citizens of Martinique, an overseas department of the French Republic. In the bad old days of the Warsaw Convention, compensation to the next of kin would either have been limited to a derisory sum – U.S. $8,300 per passenger for most of the period since the early 1930s, or a lengthy litigation would have been undertaken, looking to an improbable finding of willful misconduct (dol ou faute lourde in the authentic French text). However, a year and a quarter prior to the West Caribbean disaster, a new convention signed in Montreal had gone into effect, culminating four decades of efforts to replace Warsaw with a compensation regime corresponding to current values.
*Herbert and Rose Rubin Professor of International Law Emeritus at New York University School of Law. I acknowledge with thanks the assistance of Mirela Roznovschi and Gretchen Feltes in tracking down sources. Above all, I thank Allan Mendelsohn, who brought the case discussed herein to my attention and who continues to debate it with me, by phone and in print.