| 17th IFTTA Conference on Travel and Tourism Law, Vienna2nd Session (August 28, 2005)Victims’ Counsels – Legal and Ethical Issues
By Prof. Dr. Ronald Schmid[1] „Ach, ihr Nachahmer, wie hat eurer lärmendes Gebaren oft mir die Galle erregt.“ Horaz (Epistulae) I. IntroductionWhenever a spectacular accident or incident happens in Germany, a handful of attorneys-at-law appear in the public providing legal advice in the media. One is pretty much surprised that within few hours only these colleagues obviously have already all facts at hand and are able to name the people responsible for the disaster. The media, at least the yellow press, is impressed and reports without any critical reflection every statement of such selfish lawyers. In Germany, this has not happened this way in the past. Therefore, we have to ask: Why does this work nowadays? In today’s world is unfortunately more important how often one appears in the pubic than the message itself. Therefore, one motive of such selfish lawyers may be to get media coverage, the other is to collect clients at early as possible. Only a few have a motivation which is (in my opinion) the only honourable one: To establish and develop a reasonable compensation scheme in Germany. My American colleagues might be surprised to learn that in Germany an Austria we have relatively low compensation schemes in the case of death and personal injuries. Our courts usually are reluctant to award 5.000 to 20.000 EUR on average and are ready to jump over this “fence in their mind” in extraordinary circumstances only. The Concorde crash in July 2000 near Paris where 131 people were killed seem to be considered as a certain “breaking through” by some German lawyers: Some survivors in this air disaster case recovered damages unknown in German by then: The newspapers published figures from 250.000 USD up to 1 Million USD![2] Since then, many German lawyers involved in accident damage cases take these settlements as a rule or “new standard” for damage claims in Germany not realizing (or: not knowing!?) that this very special case could be settled as done only because Art. 28 Warsaw Convention provided a forum in the United States of America and allowed to bring the case before U.S. courts: New York was the place of destination of the flight. On this basis the lawyers were able to discuss compensations under the U.S. law system. It is beyond any doubt that this would not have worked if the Concorde were to fly to any other destination outside the USA. I am not tired to point out in the public that Concorde was, and is, not a pioneer case in Germany or in Europe. Nevertheless, after every spectacular accident you can hear and read over and over again lawyers claiming “compensation as in the Concorde case”. Today, I want to demonstrate by some examples what lawyers claimed and what they achieved in personal injury cases which occurred in Europe.
II. Some brief examples[3] 1. The midair collision during the Ramstein Air Show (28 August 1988) On August 28, 1988, at an air show at U.S. Ramstein Air Base in Germany, two jets of the Italian Air Force aerobatic team (Frecce Tricolori) collided during their performance. One fell directly into the crowd of more than 200,000 people along Ramstein's flight line, killing 70 and injuring over 500 more. Ten years after, two German lawyers, allegedly representing 84 injured and survivors, announced to bring the United States of America as organizer of the air show before the U.S. courts. For the immaterial (psychic) damages and the posttraumatic injuries (e.g. nightmares) they publicly seeked recovery of 50 million DM and more. Only 6 month later, one could read in the newspapers, that the lawyers had brought a claim against the Federal Republic of Germany. In only five precedent actions (not class actions!) they sued (solely) for the recovery of a damage in the amount of 100.000 DM each, although it was obvious that they were statute-barred. The argument that the nightmares and other posttraumatic injuries did not come up earlier did not convince the judges. Therefore, it was not surprising that the court dismissed the claims in 2003. The appeal lodged in the Higher Regional Court (Oberlandesgericht) in Germany was withdrawn. Nevertheless, claimants’ lawyers stated: ”We will check how promising a claim in the United States will be.” Late, but not too late, the lawyers learnt that there was no real chance to successfully put the claim on trial in the U.S.A. The only question is: Why did the “inspiration” or cognition come that late? 2. The Intercity Express train accident near Eschede (3 June 1998) The high-speed train disaster of 1998 was the worst train accident in German railway history. It happened on 3 June 1998, near the village of Eschede and caused the death of 101 people and injured another 105. The cause of the disaster was a broken wheel. When passing a switch at over 200 km/h, the damaged wheel jumped off the rail. The first four carriages made it through the road bridge that crossed the tracks at Eschede, but the fifth carriage drove against the pier. The bridge collapsed and buried two carriages, the rear carriages crashed into the wreckage and were totally torn apart. A German lawyer, unknown up to then, announced to bring actions in an U.S. Court. “Assisted” (or better: dominated) by an U.S. attorney at law from New York he furthermore claimed “millions of U.S. Dollars” if the German Railway Company would not accept at least 1.8 to 3.7 million EUR as recovery. This claim was upheld after a German Court of First Instance (Landgericht Berlin) dismissed the actions of six survivors claiming 125,000 EUR each, arguing that the payment of 15,000 EUR the German Railway Company has paid as compensations was considered to be satisfying. The American lawyer declared his clients will join an action in the United States of America filed by a female American injured during that train ride. In late June 2003 he asked the German Government to create a fund to assist victims what the Government did not. After this the victims never heard of him – according to a victim’s statement in the media.
3. The ski train disaster at Kaprun (11 November 2000)
The so-called Kaprun disaster was the result of a fire that occurred in an ascending railway car in the tunnel of a funicular train in the Austrian Alpin ski resort of Kaprun November 11, 2000. Most of the people who died were were skiers on their way to the Kitzsteinhorn Glacier. The cause was a faulty heater in the train and highly flammable hydraulic brake oil. The disaster claimed the lives of 155 people. Three people in the Alpine Centre at the top of the mountain were asphyxiated by the thick smoke that travelled up the tunnel and into the Alpine Centre, located at the end of the track 2500 metres away. The railway's second train was descending the mountain and above the burning carriage at the time of the fire. In it the conductor and its sole occupant died of asphyxiation. Twelve passengers from the train survived by climbing out a smashed window and running downhill past the fire which had broken out in the rear of the train. The train driver quickly realised a fire had broken out and opened the train doors. The remaining passengers from the train ran uphill away from the flames but were all were smothered by the smoke. The tunnel acted like a giant chimney, sucking oxygen in from the bottom and sending toxic smoke billowing upwards. The train driver also died. And again: The before-mentioned American lawyer offered his services to families and friends of the victims, stating that he sees the possibility of charging the builder or the operators of the train in connection with any proven negligence or mechanical failure and would bring the case to an U.S. court. This seemed reasonable as some of the killed tourists were U.S. citizens. Several civil trials were under way in New York, where lawyers for American and German victims are seeking billions of Euros in compensation. The U.S. District Court (S.D. N.Y.) took the case under the aspect that that the sued company Siemens, who had produced the heater, runs wholly-owned subsidiaries in the United States of America. Nevertheless, the District Judge made clear that she would award damages under Austrian law only. On September 22, 2000, the Appellate Court dismissed the case. Some months later, the U.S. Court of Appeals (2d Cir.) refused the foreign claimants any right to join the class action of six American victims. 4. The Cross Air cash near Bassersdorf (23 November 2001) On November 23, 2001, an aircraft of the Swiss company Cross Air flew close to the village of Bassersdorf (Switzerland) into terrain while approaching Zurich airport. It is said that the pilot used an old navigation chart which did not show the ridge of the hills of Bassersdorf. All people on board of Flight CRX 3597 died. And again: Only five days later a German lawyer appeared on the media stating that he is checking how promising a claim in the United States will be. Some days later he announced to claim “millions of USD” as compensation. I do know that this sum was not achieved; the survivors were compensated for loss of society according to Swiss compensation standards which are a bit higher than the one in Germany. 5. The terror attack on Djerba island (11 April 2002) On April 11, 2002, a truck carrying containers of natural gas ran into the wall of the ancient synagogue of Ghriba, a much visited tourist attraction on the Tunisian holiday resort island of Djerba. This was as we know not an accident but a terror attack which caused the deaths of three German tourists, a local policeman and the driver. Several tourists were heavily injured.
Within few days after the terrifying attack a team of German lawyers made known in the yellow press that they were seeking adequate recovery from the Tunisian Government including immaterial damages in the millions of Euros. After some reflection, they must have realized that the Tunisian Government would not be willing to pay such a compensation and never ever in the requested amount. Therefore, some days later one could read in the newspapers that they preferred compensation by the German tour operator Touristik Union International (TUI). TUI adjusted the material damages but refused to pay any compensation for pain and suffering as they felt not to be liable for this good’s act. Finally, only on of the victims brought his case to court. But before doing this, he changed his lawyers two times. The Court of First Instance (Landgericht Hanover) dismissed the case as the terror attack was considered as good’s act. The case is still under appeal; a judgement of the court will come soon. Even if the Court of Appeal will decide in favour of the victim, it is for sure that the judges will never entitle him to a compensation in the amount of “millions of Euros”. The mere sum of 100.000 EUR would be a success under German law.
6. The Midair collision over Lake Konstanz (1 July 2002) On July 1, 2002, in the airspace above Lake Konstanz on the German-Swiss border a midair collision happened with a B 757-200 of DHL and a TU 154 of Bashkirian Airlines. The Tupolev was heading from east to west while the 757 flew south to north on the same flight level 360 (~12,000 metres). Although the DHL aircraft made a rapid descend as advised by TCAS while the Russian crew has received the Radio Advisory to urgently climb up both aircraft descended because the Russian pilot became confused by an additional order of Radar Control to descend and decided to follow this instruction instead the TCAS command. The collision took place at flight level 354. All 71 people onboard of both planes, including 44 Russian children have died.
Lots of (German and American) lawyers (guess who?) travelled to Ufa, the capital of the Republic of Bashkortostan, a sovereign republic within the Russian Federation. I know from reliable sources, that the lawyers proposed the parents minimum compensations of 400.000 USD for each deceased. Once the parents were clients, they had to learn from their lawyers that the amount of 100.000 USD as minimum would be more reasonable and 900.000 USD would be considered as “good fortune”. This is interesting, isn’t it? Only seven month later, the media reported that the families received compensations of 123.000 EUR on average for each child. A lot of money for people living in Bashkortostan, but only a fraction of the sum promised. III. Conclusions What do we learn from that? A lot of clients were left behind disappointed and frustrated. This is not acceptable. We do know that some German and Austrian attorneys try to copy their American colleagues, disregarding the fact, that (i) they come from a different legal approach, (ii) they work in different legal systems and (iii) they work under another philosophy. What German lawyers can, and should, learn: It is easy to announce an action in the United States of America. But it is a long and hard way to do it with success.
In my opinion it is improper, if a lawyer promises damage compensations under U.S. law if he knows, or should know, that there is only a slight chance to put the case on trial before a court in the United States of America. Usually, the claimants get no information that the case could be dismissed under the forum-non-convenience doctrine. And if not, there is still the risk that the judge might decide to award damages alongside the European standards only. My petition goes to the German parliament and the German civil courts : The German compensation scheme for pain and suffering must be improved – not necessarily up to the U.S. level, because we in Germany, in Austria and in most of the other European Member States have an acceptable social system. But compensations should be at reach a level which is equal or at least similar to that in other European Member States. That is what I am fighting for. But an improper behaviour of lawyers like the ones criticized here does not support this battle.
[1] Attorney-at-law, Frankfurt; Honorary Professor of Law at the Universities of Darmstadt and Dresden (Aviation Law and Travel Law). [2] Please accept that as member of the steering group of lawyers in that case I am not allowed to disclose the real figures. [3] For more details see the article which will be published in the “Anwaltsblatt” (the German Trial Lawyers Journal) 2005, issue 12 (December 2005). | 
