https://www.channelnewsasia.com/singapore/sq321-compensation-singapore-airlines-turbulence-cna-explains-4404701
CNA Explains: Is Singapore Airlines obliged to compensate SQ321 passengers?
Passengers should consider their legal options before accepting the compensation offers, said lawyers.
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SINGAPORE: Singapore Airlines (SIA) on Tuesday (June 11) announced compensation offers to the 211 passengers on the turbulence-hit SQ321 flight.
The plane was flying from London to Singapore when it was forced into an emergency landing in Bangkok on May 21, with one dead and dozens injured, some seriously.
Passengers with “minor injuries” have been offered US$10,000 (S$13,500). Those who sustained more serious injuries have been invited by SIA to further discuss compensation to meet their specific circumstances, while they will also be offered an advance payment of US$25,000 for immediate needs.
CNA spoke to civil and aviation lawyers, some of whom represent the SQ321 passengers, to answer questions raised by the incident.
What are passengers' rights after an accident?
When it comes to establishing the extent an airline is liable to passengers, the legal framework most jurisdictions follow is the Montreal Convention.
Under the Convention, in the event of an accident resulting in injury or death, airlines are “strictly liable” for the first 128,821 "Special Drawing Rights".
This refers to an international reserve asset created by the International Monetary Fund, that is contested in a legal claim, said lawyer Robert Hedrick from Aviation Law Group in Seattle.
Special Drawing Rights of 128,821 converts to approximately US$170,000.
“For damages in excess of that amount, if the air carrier proves that it was not at fault, it is not liable for more,” said Mr Hedrick.
Over 130 countries or jurisdictions have agreed to abide by the rules and regulations set forth by the Convention. These include the United Kingdom where SQ321 departed; the plane's original destination Singapore; and Thailand where it made an emergency landing.
Under the convention, passengers can file legal claims either in the country which is the principal business of the air carrier; the country where the ticket was issued; or a country where the passenger resides and the carrier operates.
Disputes lawyer Chooi Jing Yen from Singapore firm Eugene Thuraisingam said it would make the most sense for passengers to file legal claims in Singapore, rather than in Thailand or the UK.
“A UK passenger could take matters to a UK court, but if SIA doesn’t have any assets in the UK, they still have to bring the judgment to Singapore,” he said. “Thailand is just the emergency landing place, and you may not want to litigate in Thai court, as they are run by a set of rules that (passengers) may not be familiar with."
But aviation compensation lawyer Peter Carter, who said he was advising up to 13 Australian and Singaporean passengers of SQ321, believes the choice of jurisdiction depends on the claims being brought forth.
For instance, one country might calculate compensation for permanent impairment differently from another, said the director of Carter Capner Law, a Brisbane-based law firm.
Is SIA obliged to dole out compensation?
In general, no – not in the immediate wake of an accident, and especially not when full investigation results have not been released, according to experts.
Mr Hedrick from Seattle said that in offering compensation "promptly" – three weeks after the incident – SIA was taking the right step towards caring for customers.
"The airline has the option of doing nothing and leaving it up to the passengers to make claims,” he said.
Mr Carter said the US$25,000 interim offer was “very welcome” and a good move by SIA's insurer.
“We advise people to accept that as an advance, because that doesn't compromise their rights, they’re still entitled to recover their full compensation, that's just an advance,” he said.
Other lawyers have noted however that it remains unclear if "full compensation" could come with conditions.
What are the passengers' other options?
Some lawyers CNA spoke to advised passengers to consider their legal options before accepting the compensation.
Aviation lawyer Sarah Stewart, who said she was representing passengers injured in SQ321, noted that in the wake of accidents, airlines and their insurers would look to resolve legal proceedings “for the minimum amount of compensation”.
“Particularly for more serious injuries it is vital that passengers speak to aviation lawyers and obtain medical expert reports in order to evaluate the severity, effect and prognosis of their injuries,” she added.
“Lawyers acting for passengers will then be able to ensure that the claims are fully evaluated and a calculation of their financial losses - which for those with truly life-changing injuries will likely run into the millions - is put to (the airline),” she added.
Aviation lawyer James Healy-Pratt, who also said he was representing SQ321 passengers, pointed to how others in the past have received more compensation after seeking legal representation.
This happened in the aftermath of the SQ006 crash in Taipei in 2000, which claimed 83 lives onboard. SIA had offered to pay US$400,000 for every passenger and crew member killed, and US$20,000 to those who survived.
“That tactic did not work particularly well,” said Mr Healy-Pratt, who is with the UK-based Keystone Law firm.
However, Singapore-based lawyer Chooi said passengers with minor injuries might have different considerations.
“With any personal injury claim against a big company, there will be insurers involved, so the legal road is always going to be very long, very costly and very uncertain,” he said.
He said passengers would have to document their physical recovery “every step of the way” to prove in court that they have grounds for their claims.
So in some cases, it would be advisable to accept SIA's compensation offer, said Mr Chooi.
“For those who don’t have the means to go through the hassle (of legal proceedings), they can get something pretty quickly, and it’s a form of closure.”
What are SIA's considerations?
Some online commenters have lauded SIA's compensation offers as generous, saying that the flag carrier had taken the initiative to dole them out even before investigations were complete.
Experts said it was good public relations.
“The SIA compensation package looks like a goodwill gesture from SIA, as there has been no known investigation findings or conclusions on the incident,” said Ms Nicole Evangeline Poh, associate director at Singapore law firm Covenant Chambers.
Since investigations take time, SIA needs to show the public that it's taking tangible steps; that it's committed to supporting affected passengers - and "not just saying it without any action or cost to them", she added.
Ms Poh noted that given investigations are not yet complete, the compensation offered also cannot be taken as “an acknowledgement of liability or assumption of responsibility for the incident”.
Other lawyers suggested that the compensation offers could possibly come with conditions, should passengers accept them.
Mr Chooi, for one, expects there to be a clause limiting SIA’s legal obligations towards passengers once they take up the offers. “Otherwise, there is no reason why SIA would want to do it."
CNA has reached out to SIA to ask if this is the case. SIA did not comment nor provide details on the number of passengers who have accepted the compensation offers so far.
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