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Monday, Oct. 08, 2001

Since my last article on the Air Transportation Safety and System Stabilization Act, I have received a number of email requests for advice about what victims and the families of victims should do to protect their legal right to compensation. This site is not designed to give legal advice, and I am not really qualified to comment on any specific victim's case. Still, since the Airline Act is a unique step by the federal government to deal with the aftermath of a unique crisis, in this article I want to reflect on how the legal landscape has been changed by the bill.

The bill, which I described two weeks ago, was designed to help the airline industry. As a by-product of that goal, the bill also created a potentially very generous alternative compensation system for the victims of the World Trade Center and Pentagon attacks.

Practical Help for Victims' Families

The federal government did not prohibit suits against the airlines (although it did cap their liability at a sum equal to their insurance coverage). Instead, it has offered the families of the victims a deal: if they elect not to sue the airlines, the government—meaning the U.S. taxpayer—will pay for the tort damages that the families would have otherwise attempted to win through litigation.

Already, and understandably, families are beginning to wonder about whether they should take the government's offer. On a practical level, if a family member is looking for advice, he or she might want to take advantage of the Bar Association of the City of New York's emergency pro bono service relating to the attacks.

The service was set up to help families of the victims of the attacks with legal questions on topics ranging from estate law to the airline bill. I am proud to report that last week 100 lawyers — currently reachable through a pro bono website — appeared at a meeting held by the Bar Association to help organize this pro bono effort.

A Difference In Punitive Damages

Certainly no victim's family should proceed without consulting an attorney, especially since these pro bono services are available. Still, some general remarks on the alternative compensation offer are worth making — with the caveat that victims should not rely on this assessment, but should discuss all aspects of their case with their attorney.

First, the alternative compensation route does not, in theory, force those who choose it to give up very much. That is because the bill passed by Congress does not cap the damages that a claimant may receive as a result of taking the alternative route. Thus, the only apparent difference between what the bill offers and what, in theory, one might be able to win from the airlines concern punitive damages.

An action concerning the World Trade Center attacks must (pursuant to the statute) be brought in the federal court for the Southern District of New York. And there, New York State's law would most likely be applied. Under New York law, a plaintiff could request punitive damages if they could prove that the airlines acted with "conscious indifference" by failing to prevent the hijackings' damage.

In contrast, under the alternative compensation system, the U.S. taxpayer does not give a claimant the equivalent of the punitive damages, if any, that they would have won.

The Airlines May Not Be Negligent — Let Alone "Consciously Indifferent"

If a victim were to go to court, rather than taking the alternative compensation route, would it be easy or difficult to prove "conscious indifference" on the part of the airlines? Without looking at specific evidence on airline security, one can only speculate. But it is worth asking why it has been assumed so readily (at least in Congress) that if someone was negligent prior to or during September 11, it had to be the airlines.

Suppose one credits the claim that security could have been improved before the attacks to achieve the new level of protection we see in airports today, and believes that level of protection would have prevented the terrorist attacks. Even so, it is not clear to me why people believe it is the airlines — not the airports, or the government, or all three together — who were responsible for not improving security.

My best understanding of the operation of airports is that it is the airports — not the airlines — who hire and manage the individuals who run the machines that inspect carry-on luggage. (It is interesting that I have not seen any indication that anyone is thinking of suing the Massachusetts Port Authority or the private security firms in its employ).

Moreover, even if the airlines had wanted to introduce air marshals prior to September 11, it would have been up to the government to decide whether to deploy them, and on which flights and with which weapons. (I can only imagine what lawyers would have said if the airlines has hired their own secretly armed guards before September 11).

Finally, if the theory is that the airlines should have discovered the terrorists when they checked in at the desk, I wonder whether any jury, even in current state of heightened grief, would credit that theory. Reports seem to suggest that while hijacker Mohammed Atta was under government suspicion, he still did not appear on lists given to the airlines of passengers to detain.

What Will "Full" Compensation Mean?

Getting punitive damages against the airlines, then, may not be as easy as it looks. Accordingly, despite the fact that it does not offer punitive damages, the alternative compensation route may still be attractive for some families.

Yet there are still risks inherent in the alternative compensation system. One risk is that no one knows yet how much the "full" compensation promised to the families really will mean in the hands of the administrators who will implement the system.

While Congress has placed no ceiling on what the administrators may award per person, it has not placed a floor on how low the awards can go, either. Moreover, once a claimant accepts the authority of the alternative compensation system they are limited to a single appeal, and that appeal is not reviewable by any court.

Thus, until the administrators appointed to run the system tell more about what sort of awards they envision, agreeing to forego litigation is a leap in the dark.

Advantages to the Alternative Compensation Route

The advantages to the alternative compensation system are easy to see. First, it promises to be faster than litigation against the airlines. This is especially true since, at the last minute, a provision was added to the airline bill that requires that all litigation against the airlines must be brought in federal court in Manhattan — an understandable requirement to allow for cases to be consolidated, but also a potential inconvenience and expense for out-of-state and foreign families.

Second, since the airline bill also caps the airlines' liability so that it cannot exceed their insurance coverage, even a victim's family who gets a judgment against an airline probably will not be able to collect the amount in its entirety. Together, the families' judgments alone might well exceed the airlines' coverage. And the claims of the myriad of property owners whose property was destroyed when the planes went down must also be taken into account. If everyone sued, the total liability would easily exceed the airlines' coverage.

Third, the alternative system is envisioned to be accessible to laypeople without the assistance of lawyers, which means that a successful claimant would not have to use a lawyer (or pay a lawyer a portion of her award). This "advantage," however, is a double-edged sword.

While I am skeptical of the American tort system—I am sure that we waste far too much money on litigation, and spend too little on either prevention or compensation—I am also skeptical of any system designed to steer people away from consulting with a lawyer before they decide to accept any sort of benefit. Indeed, the only certain piece of advice that I can offer to anyone who is looking at their legal options in light of the Airline bill is that they should at least consult an attorney before they decide they don't need the help of an attorney.

In addition to the pro bono resources at the Bar Association of the City of New York, the American Trial Lawyers Association, ATLA, has declared that it believes that 100% of the funds awarded through the alternative compensation system should go to the claimants. This seems to be a recommendation to its members that they should handle any claim by a client that goes into the alternative system for free. If the ATLA membership sticks to this promise, then going to a lawyer to get a preliminary evaluation of the advantages and disadvantages of the alternative litigation system should be relatively cost-free.

Suing the Terrorists Themselves?

The final advantage of the system is that it leaves open the possibility that one can still sue persons or entities other than the airlines if one feels that there are other responsible parties whom can be reached through tort litigation.

Needless to say, it is a fantasy to dream of suing the terrorists responsible. At least 19 are dead. Their remaining compatriots will be hard to find, and, if found, will have other things to worry about than defending a tort suit.

But it should not be forgotten that, since 1996, Americans can now sue foreign governments in U.S. courts if (and only if) they engage or sponsor terrorism. After more evidence is collected and made available, suits against certain foreign nations for their role in the September 11 attacks may be appropriate. Whether a victim's family has chosen to go to court against the airlines, or to take advantage of the alternative compensation system, this type of suit would remain a possibility.

All of these considerations only illustrate why it is of paramount paramount that anyone considering the government's offer should speak to a lawyer before giving up their right to sue the airlines in exchange for an as-yet-undefined benefit package. It may be that, on reflection, they are not giving up very much at all — but that is something families must decide for themselves, with an attorney's help.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects. Professor Sebok has written several columns on mass tort litigation for FindLaw; they can be located in the archive of his columns on the site.

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