A Walk in the Park with Hans Smit - ARIA - Vol. 23, No. 3-4, 2012
Andreas F. Lowenfeld, Herbert and Rose Rubin Professor of International Law Emeritus at New York University School of Law.
Originally from American Review of International Arbitration - ARIA
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.1
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.