Dutch Aviation Council Acted Negligently and Unlawfully in 1992 Faro Plane Crash

The Faro Air Disaster

Martinair Flight 495 was a McDonnell Douglas DC-10 operated by Dutch airline Martinair, that crash-landed in severe weather conditions at Faro Airport, Portugal, on 21 December 1992. The aircraft carried 13 crew members and 327 passengers, mainly holidaymakers from the Netherlands. 54 passengers and 2 crew members died and 106 of the other occupants were badly injured.

Departure

On the morning of the accident, the plane was delayed at Amsterdam Airport Schiphol because of a faulty thrust-reverser. This was not fixed. Nevertheless, the plane took off to Faro at 7:30 am. According to Martinair, the faulty thrust-reverser was not a contributing factor in the accident.

Crash

A

large thunderstorm lay in the immediate vicinity of Faro airport, accompanied by heavy rain, windshear and low cloud. The control tower informed the crew of the thunderstorm activity, in addition stating that there was water on the runway. Following one unsuccessful attempt to land, the crew was executing a VOR/DME procedure approach to runway 11 (now runway 10) when the aircraft flew through at least two microbursts. According to the Portuguese final accident report, firefighters saw an explosion coming from the aircraft 22 seconds before it crashed.

The aircraft landed with a vertical speed exceeding the manufacturer's design limits. Following this hard landing, the starboard main gear collapsed. The starboard wing fuel tank ruptured, and the contents ignited. The DC-10 fuselage split in two, coming to rest with the front section lying on its side.

The Dutch Aviation Council

After the air disaster, the Dutch Aviation Council cooperated in the investigation by the Portuguese Aviation Authorities. The Dutch Aviation Council also held information meetings in the Netherlands that were attended by victims and relatives. Partly based on the Dutch report, the lawyers of the victims and the relatives of the passengers concluded that there was no reckless act on the part of the pilots and that a procedure to break Martinair's liability limitation had no chance of success. The victims and surviving relatives subsequently concluded settlement agreements with Martinair.

Pilots at Fault

A new analysis of the accident concluded in 2011 that the pilots were at fault. It was upheld by the lawyer of the victims and relatives, that the Dutch Aviation Council had hidden these faults at the time during which the negotiations with Martinair took place. A procedure was started in which it was alleged that the victims and relatives were misled by the report and acts of the Dutch Aviation Council, which constitutes a tort for which the Dutch State could be held liable.

The Court Procedure

In an earlier interlocutory decision dated 26 February 2014 the Court of first instance in The Hague held that a body governed by public law, such as the Dutch Aviation Council, has the duty to operate to the best of its knowledge and with the required level of expertise. If the Council has not acted as a careful and competent (co) investigator or rapporteur, this can result in an unlawful act, even if there is no intentional act.

In the final decision of 8 January 2020, the Court of The Hague held that the Dutch State is indeed partly responsible for 20% of the non-recovered damages sustained as a result of the plane crash in Faro in 1992.
The court finds that the Dutch Aviation Council acted negligently and unlawfully. In the investigation into the causes of the disaster, the Council unquestionably stated that wind shear (sudden change in wind speed and wind direction) had to be regarded as the primary cause of the accident. However, in the final Accident Report of the Portuguese Investigation Council, windshear is not recognized as a cause.

It is also careless that the Council at the time did not made it clear to the victims and relatives that its conclusion and text proposals were not to be included in the Portuguese investigation report. It was also held to be misleading that the Dutch Aviation Council, at a meeting for victims and relatives in 1994, gave the impression that it still believed that windshear was the primary cause of the accident. In addition, the Council should have identified several so-called "missed calls" from the crew, as well as the need to abort landing due to the instability during the approach of the aircraft.

Partial Award

The Court held that this has deprived plaintiffs of the chance of a better negotiating result with Martinair. The court sets this probability at 20%. If the Council had not acted unlawfully, the plaintiffs' lawyer would have entered the negotiations with the correct assumption that the weather conditions played a less serious role than the Council put forward and kept suggesting. At the same time, the lawyer and claimants knew that human error had contributed to the accident. The Council itself had also addressed some of these errors. Given this the Court holds that the State must compensate 20% of the damage that plaintiffs have not yet received from Martinair. The amount of the claim must be determined per individual claimant in a separate procedure.

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AUTHOR: Hein Kernkamp

Copyright Minerva Advocaten



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