A memorial of flowers and candles can be seen in front of the Joseph-Koenig-Gymnasium secondary school in Haltern am See, western Germany on March 26, 2015.
Sascha Schuermann–AFP/Getty Images
By Simon Shuster / Berlin
March 26, 2015

In the minutes before their plane slammed into a mountainside in the French Alps this week, many of the passengers on Germanwings Flight 9525 witnessed a terrifying scene at the front of the aircraft. The captain of the plane found himself locked out of the cockpit by his co-pilot, Andreas Lubitz, as the plane lost altitude at alarming speeds, officials said Thursday. After banging on the door and beseeching Lubitz to open it, the captain tried to break through its armor plating. Until the final moments, the screams of the passengers could be heard on the flight recorder later found at the crash site, French prosecutor Brice Robin said.

Under the aviation laws that apply in this case, these final moments of terror could be part of the airline’s liability, said Peter Urwantschky, a leading German aviation lawyer who has represented the victims of commercial airplane crashes. “What you could have here is pre-death pain and suffering,” he said. “If a court concludes that the passengers knew what would happen, you would have to assess the fear of death in those final minutes.”

The broader question of liability for the crash, he added, seems clear in this case. “If you have a pilot with intent to bring down this plane, then you can forget about the liability limit,” he said. “You can say there is no limitation of liability.”

Such limitations could apply if the causes of a crash are outside the control of the airline and its staff—for instance, if a missile strikes the plane, like it did with Malaysia Airlines Flight 17, which was shot down over Ukraine last year. But such cases are extremely rare. Typically, the laws enshrined in the Montreal Convention, the international treaty that governs compensation for the victims of an air disaster, places the responsibility for an accident with the airline. That tends to encourage airlines to settle such claims out of court.

But because most of the claims in the case of the Germanwings plane would fall under the jurisdiction of German courts, the compensation available to the families would “not be very generous,” Urwantschky said. Unless a family can prove that it lost its breadwinner in the disaster, a claim for moral damages in Germany could be expected to bring about $20,000 to $40,000, far less than a similar claim in the United States, he said.

Speaking at a news briefing on Thursday in Frankfurt, the chief executives of Germanwings and its parent company, Lufthansa, declined to discuss issues of liability payments at this stage in the investigation.

Read next: Germanwings Plane Crash: We Could Be Doing Much More To Prevent Pilot Suicide

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