Tragic incident
On July 12th, a 57-year-old woman from New Zealand tragically lost her life at Maho Beach, St. Maarten after being blown away by the jet blast of a departing Boeing 737 (Caribbean Airlines). The woman reportedly hit her head on a concrete block. The incident became international news.
The notorious Jet Blast tourist attraction at Maho Bay SXM
Maho Bay is situated at the one end of the runway of the SXM airport where the airplanes usually take off. The runway and the Maho Bay are separated by a narrow two-way street. The runway and the street are separated by a fence.
The departing airplanes come in very close proximity of the fence. People gather at the fence and try to hold on while the airplane releases its engines creating a jet blast that blows the trill-seekers away, from the fence all the way to the beach. The Maho jet blast experience has become a ‘must’ for every visitor to St. Maarten. YouTube has no shortage of videos showing people being blown away by the jet blasts of departing aircrafts.
There are sign posts at the fence that read as follows:
‘DANGER Jet blast from departing and arriving aircraft can cause severe physical harm resulting in extreme bodily harm and/or death.’
In recent years, the fence has been extended outwardly. This may have been done in order to reinforce the fence and / or to expand the distance from the runway.
The recent incident is (not surprisingly) not an isolated occurrence. In 2012, a young woman landed face first on the pavement after trying to flee the jet blast. The incident was captured on film (the YouTube video is available here).
The Case Hartmann vs PJIAE
In the year 2000, a Swiss woman (Hartmann) was standing at the fence. The jet blast from a KLM airplane caused her to be blown away after which she landed on a concrete block from which she sustained serious physical injuries.
Hartmann started a civil case against the St. Maarten Airport, which eventually ended up at the Highest Court of the Netherlands (De Hoge Raad der Nederlanden). The case Hartmann vs Princess Juliana International Airport (HR 28-05-2004, NJ 2005, 105), also known as ‘The Jet Blast Decision’ (het Jetblast arrest) became a cornerstone decision in liability cases, specifically regarding the obligation to effectively issue warnings to others regarding potential dangers.
Discussion of the Case Hartmann vs PJIAE
Hartmann argued that the airport was liable for not creating a safe environment. According to Hartmann, the placement of signs (which at the time read ‘Warning! Low flying and departing aircraft blast can cause physical injury’) were not sufficient to deter people from standing at the fence.
The Highest Court introduced a new standard in order to determine if and when a warning is considered an adequate measure in (potentially) dangerous situations. According to the Highest Court, it is essential whether the warning (sign) effectively causes people to act (or not to act) in such a way as to avoid the danger.
The Highest Court concluded in the favor of Hartmann and decided that the signs did not meet the newly introduced safety standard.
The current situation at Maho Bay
The situation at Maho Bay has changed little since 2000. There are posts with warning signs at the fence. Concrete blocks divide the two-way street and at the far end of the road there is a concrete pavement which separates the road from the beach. As mentioned above, the center part of the fence has been reinforced / extended outwardly. People are however still allowed to stand at the fence.
The concrete blocks on the road greatly contribute to the potential danger (see picture). The jet blast causes people to flee to the beach. However, in order to reach the beach they have to jump over the concrete blocks and the pavement. A misstep may easily cause a person to trip and or fall. The chance of a misstep is further increased by the sandstorm caused by the jet blast, which reduces visibility.
The current situation would not meet the safety standard
In my opinion, on the basis of the factors mentioned above it could be argued that the current situation would not meet the safety standard of the Jet Blast Case. The current signs seem to have no or very little deterrent effect. People keep flocking to the fence. The current warning signs indicate that the jet blast could cause serious bodily harm. However, it is not the jet blast that causes the harm. It creates the dangerous environment, but the concrete blocks on the road and the pavement are the actual culprits. There are no signs that warn against these obstacles.
Liable parties, wrongful act
The injured party could hold the PJIAE Airport liable for the damages in case the current signs would not meet the safety standard. The legal basis constitutes wrongful act (onrechtmatige daad).
In my opinion, the injured party could also hold Country Sint Maarten liable. Under Article 6:178 Sint Maarten Civil Code, Country Sint Maarten is considered the owner of the concrete blocks and the pavement. If certain conditions are met, Country Sint Maarten is liable for the damages resulting therefrom for persons and or property (risico aansprakelijkheid).
Country Sint Maarten could also be held liable on the basis of negligence. Negligence constitutes a wrongful act. In order to make the environment safer, the concrete blocks could be simply removed and replaced by something less dangerous. Accidents happen when people jump or trip over the blocks. They lose their balance and fall on the floor, or worse on the pavement. It is furthermore the responsibility of Country Sint Maarten to make the fence strictly off limits, either via legislation or otherwise.
Which damages?
The injured party could claim material and bereavement damages. Material damages are the damages due to loss of income, for instance. Bereavement damages are the damages caused by the emotional suffering of the injured party. In case of death of the injured party, the surviving relatives could claim material damages in the form of funeral costs and loss of income (Article 6:108 CC SXM).
In regards to the loss of income, the deprivation (behoeftigheid) of the surviving relatives is key. All the financial circumstances of the relatives are thereby taken into account. The damages incurred due to the loss of the financial contribution of the deceased party to the household and the upbringing of the children could be claimed, among others.
The surviving relatives cannot claim bereavement damages, however. This is not yet possible on the basis of current CC SXM.