Treaty Sets $75,000 As Top Award For Families Of Twa-Crash Victims

WASHINGTON - The families of those who died on TWA Flight 800 will be able to recover no more than $75,000 in damages per victim from the airline - only about 5 percent of the average compensation awarded in domestic air crashes - because of an outdated treaty governing air travel between international destinations.

The liability limit for international travel, established under the 1929 Warsaw Convention, was last revised in 1966.

It has been widely criticized by lawyers, aggrieved families and even the airlines themselves.

On Wednesday, a coalition of 56 carriers proposed to waive the limit in the future. The U.S. Department of Transportation is expected to approve the change.

"It's outrageous and totally unfair, and Congress should have pulled out of (the treaty) a long time ago," said Joseph Cook, an aviation attorney from Irvine, Calif.

If the crash is determined to have occurred on the "high seas," even that compensation could be erased. A Supreme Court ruling in January further tightened the damage limits for some kinds of crashes.

Ruling in a case that grew out of the 1983 shooting down of a Korean Airlines jet by a Soviet fighter plane, the justices said Americans can recover damages only for the family's economic losses, not for the emotional loss of a child or grandparent, for example.

"If they (deceased passengers) are not supporting you, you are out of luck. It means if your child dies, you suffered no loss," said Boston attorney W. Paul Needham, who represented KAL survivors in the losing effort before the high court. "It means for the children from the high-school French club (from Montoursville, Pa.), there could be no compensation."

Questions key to damages

But three key legal questions involving the TWA crash still must be answered before the damage awards - or lack of them - are determined.

First, did the crash take place on the high seas?

The Death on the High Seas Act of 1920, the law cited by the Supreme Court, says it applies to accidents that are "one marine league," or about three miles, from shore.

However, President Reagan in 1987 said the United States was declaring a 12-mile limit for its territorial waters. The TWA plane burst into flames about nine miles off Long Island, N.Y.

Second, did TWA's "willful misconduct" cause the crash?

The Warsaw Convention protects the carriers from unlimited liability except in cases where they engaged in "willful misconduct."

"It is a very hard standard to meet" for plaintiffs, said Lee Kreindler, a New York attorney who represented the families from the 1988 Pan Am crash at Lockerbie, Scotland.

Nonetheless, sympathetic juries have ruled for the plaintiffs and against the airlines in both the KAL and Pan Am cases.

In the KAL case, the jury said the pilots' unwitting move to fly 300 miles off course and over Soviet territory amounted to willful misconduct.

In the Pan Am case, a jury said the carrier failed to properly screen baggage in Frankfort, Germany, despite repeated warnings.

Since investigators have yet to pinpoint a cause for the TWA crash, it is too early to say whether that airline can be held fully liable because of any misconduct.

The third question on the liability issue is whether TWA will waive its damage limit.

Last year, the major U.S. airlines, encouraged by the White House, met to discuss changes in the treaty.

On Wednesday, the Air Transport Association of America submitted a proposed agreement to the Department of Transportation that will void the Warsaw Convention limits on Nov. 1.

Signed by 55 airlines

It is signed by 56 airlines, including American, Continental, Delta, Northwest, TWA, United and USAir, as well as the major foreign carriers that fly here.

The move to void the treaty began in Japan. In 1992, its airlines agreed to waive the limits in the Warsaw treaty, and several European airlines have followed suit.

The Warsaw Convention limits are determined by the route on a passenger's ticket, not the location of an accident.

Suppose, for example, a plane was scheduled to fly from Los Angeles to Honolulu and on to Tokyo but crashed upon takeoff.

The families of a deceased passenger destined for Honolulu could seek an unlimited recovery, possibly reaching several million dollars. However, the families of a passenger on the same flight who was traveling to Tokyo could recover only $75,000.

Proposal is not retroactive

The proposal to lift the liability limit after Nov. 1 may not help the families of the TWA crash, however. A TWA spokesman said the proposal is not retroactive.

"We have signed on to that agreement (submitted Wednesday), but it does not pertain to the Flight 800 disaster," said Mark Abels, a TWA spokesman in St. Louis.

The airline could waive the limit but has not made a decision, he said. "We haven't said yes and we haven't said no, and we probably won't comment for a while yet," he said.