On June 27 1980 an Itavia Douglas DC-9-15 jetliner was en route from Bologna to Palermo when it crashed into the Tyrrhenian Sea off the small island of Ustica. All 81 passengers and crew members were killed. Most of the wreckage sank to a depth of some 3,500 metres, but in the following days floating debris (along with several bodies) was found within an area of several hundred square kilometres.
The cause of the accident was never officially established. In the years following the event, panels of experts examined the wreckage and reached different conclusions, some alleging that the DC-9 may have accidently been shot down by a missile from North Atlantic Treaty Organisation fighters during a dogfight involving Libyan, US, French and Italian air force fighters in the area. It was also suggested that an explosive device had detonated in the rear (starboard) toilet.
In Italy, 'Ustica' is synonymous with cover-ups, and the case has inspired several television programmes, a film and several books.
The Supreme Court1 recently held that the plane crash was caused by a missile, and that the government must pay damages to the families of all 81 victims for not guaranteeing the safety of the skies. In doing so, the court upheld the decision of the Palermo Court of Appeal, which:
- held that the Italian radar systems had not adequately protected the skies, and that there was clear evidence that a missile had caused the crash; and
- ordered the Italian government to pay €100 million to the relatives of the victims for its failure to ensure the security of the flight.
The relevant ministries appealed the decision, alleging that the actions brought by the relatives of the deceased passengers were time barred, being subject to the five-year time limit applicable for actions in tort.
The court rejected this exception on the grounds that the claims were subject to the longer time limit of 15 years for events like the one at hand. Under Italian law, if the cause of action originates from acts or facts that amount to a crime subject to a longer time limit, such extended time bar applies to actions brought in civil proceedings for the recovery of damages arising from the event.
Government liability for 'dangerous activity'
The Supreme Court fully endorsed the conclusions reached by the Palermo court, in which the judges expressed the view that the relevant ministries were subject to the strict liability regime set out in Article 2050 of the Civil Code for the exercise of dangerous activities.
The Palermo court pointed out (confirming the position already expressed in several previous decisions) that activities aimed at ensuring safety and security in civil aviation are "inherently dangerous" when navigation takes place in abnormal or dangerous conditions. In case of an accident, the government must therefore indemnify the damages, unless proof is given that measures were taken to avoid the event.
Iure hereditario damages
The Supreme Court also addressed the argument raised by the relatives that the Palermo court had erroneously rejected their claim for damages that they were entitled to receive by iure hereditario. This is a peculiar area of Italian law. Pursuant to settled case law, where death is not sudden, but follows a more or less extended period of pain, the victim is entitled to claim damages indemnifying the suffering caused by the consciousness that death is approaching. Such damages can be transmitted to and claimed by heirs. However, the condition for such a right to accrue is that the death follow a reasonably extended period during which the victim suffers from protracted pain and anguish.
The Supreme Court considered that in the Ustica accident, death had most likely been sudden and occurred immediately after the moment that the plane was hit by the missile, and therefore rejected the claim.
This article first appeared on the International Law Office – www.internationallawoffice.com
1 Case 1871, January 28 2013.
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