AVIATION LAW Asiana Flight 214, Strict Liability Flight 370 and Flight 17 for International

By Jonathan S. Ziss Aviation Disasters

Under the applicable Within a span of just eight months, the international international treaties, aviation community experienced the tragic loss of three the only way in which large commercial aircraft resulting in hundreds of deaths either Asiana or Malaysia and injuries. Last July, Flight 214 crash-­ landed in San Francisco. Malaysia Airlines took off from ’s International Airlines could escape Flight 370 quite literally was lost—disap- , about 30 minutes later than sched- pearing from radar and presumably ending uled. The weather was clear as the Boeing liability is by proving in disaster. And shortly before this article 777 began its planned 10-hour voyage to went to press, Malaysia Airlines Flight 17 San Francisco . Four that these accidents was shot out of the sky by a missile over crewmembers, 12 flight attendants, and 291 Eastern Ukraine, and area in which mili- passengers were on board the plane, which were caused solely by tary forces are engaged in active aggression. had accumulated 36,000 flight hours since While technical and forensic investiga- its first voyage in February 2006. the neglect of other tions continue in all three instances, the The flight itself was uneventful. Accord- legal framework for liability is already well ing to the National Transportation Safety parties and that the developed. This article will review these Board (NTSB), as the plane began its tragic events and will explain the unique descent into San Francisco the autopi- respective airlines took legal environment in which liability claims lot was switched off, and Flight 214 was are made in the aftermath of an interna- cleared for a visual approach. A pilot who all possible measures tional aviation disaster. The article will was in transition training for the 777—he also spotlight the uniquely modern chal- had 9,684 total flight hours but had logged to avoid the losses. lenges faced by corporate defendants in just 43 hours as pilot-in-­command of a 777 the age of instantaneous, crowd-­sourcing, since beginning his training on March 25, social media. 2013—was in the left seat, with an instruc- tor pilot to his right. While this was the lat- Asiana Airlines Flight 214 ter pilot’s first trip as an instructor, he had It was 5:04 p.m. Korean Standard Time on logged roughly 3,000 hours in the 777. A July 6, 2013, when Asiana Airlines Flight 214 relief sat in the cockpit jump

■ Jonathan S. Ziss is the chair of Goldberg Segalla’s Aviation Litigation Practice Group and a member of the steering committee for DRI’s Committee. He represents regional, national, and international air carriers, as well as under wing service providers, municipal authorities, general aviation owners and pilots, and fixed base operators, in connection with property and casualty liability litigation. In addition to handling disputed matters, he counsels commercial airlines in connection with industry-­ related consumer compliance and contractual matters.

54 ■ For The Defense ■ August 2014 seat during the approach and landing, flights stuck on the tarmac, others from “The crew is required to maintain a safe while a fourth pilot was seated in the cabin. travelers in the airport and residents liv- aircraft. One of the very critical things that For roughly 42 seconds, the plane ap- ing nearby. The first photos showed dark needs to be monitored on approach to land- peared to descend normally to 500 feet and smoke billowing from the wreckage, fol- ing is speed.” Meanwhile, the trainee pilot’s slow at a proper rate to 134 knots. Over the lowed by the decimated remains of Flight significant lack of experience flying a 777 next 18 seconds, the plane slowed below the 214. The stated numbers of unaccounted-­ was deemed by the NTSB to be particularly target speed for such a landing. Roughly eight for passengers, fatalities, and injured were noteworthy and would become a recurring seconds later, at 200 feet, the pilot attempted varied and changed as the afternoon and issue throughout the investigation. to increase the aircraft’s speed. A “stick evening wore on. On March 17, 2014, Asiana filed its shaker” stall warning was triggered about At around midnight, local time, the accident investigation submission report four seconds before impact, followed by a NTSB arrived on the scene to start its inves- with the NTSB. The document includes crew member’s call for a “go-­around”—an tigation. The NTSB began tweeting about Asiana’s analysis of the accident, including attempt to abort the landing—at the three- the crash even before arriving at the crash the following summary statement from second mark. Another call for a “go-­around” site. In fact, between July 6 and July 17, the the : was made about 1.5 seconds before the crash. @NTSB account posted 86 tweets, with The crash of flight 214 was the result of It was too late. At 11:28 a.m. Pacific Day- many of these including photos. Complete a unique and complex chain of inter- light Time, Flight 214 struck the seawall in videos of the media briefings conducted by related events. The record makes clear front of the , and subsequently the NTSB Chair Deborah Hersman were also that the flight crew members were thor- runway itself, causing the engines, landing tweeted to followers, and the account even oughly trained and well-­equipped to gear, and tail section to separate and the replied to questions and comments from complete the approach to SFO with- remainder of the plane to cartwheel before Twitter users. This served the objective of out incident. Nevertheless, the accident coming to a stop on runway 28. The wreck- the NTSB to be open and transparent by flight crew did not ensure a minimum age soon burst into flames and an evacu- disseminating accurate information about safe airspeed. The investigation also ation began. To make the situation even the state of its investigation. reveals, however, a number of other more difficult, the emergency slides did not Asiana’s first tweet about the crash came contributing causes of the accident, in- deploy properly due to the severe force of roughly six hours after it occurred: “Thank cluding inconsistencies in the B777’s the impact—with two slides deploying in- you for your concern and support at this automation logic that led to the unex- side the . Two passengers— time. We are currently investigating and pected disabling of airspeed protection, 16-year-olds—were found dead at the scene, will update with news as soon as possible.” a low airspeed alerting system that acti- and a third, also age 16, died several days By that time, social media had taken the vated too late to permit recovery of the later from her injuries after reportedly be- story in directions that the airline could flight, and demands ing run over by an airport crash tender, her never have imagined. An initial Asiana that led to excessive pilot workload dur- body possibly having been obscured by fire- Airlines press release deemed cold and ing final approach. fighting foam. A total of 181 of the 307 indi- unsympathetic did not help matters. Asiana Airlines Accident Investigation viduals on board were reportedly injured. Submission, NTSB Accident File: DCA “We’re Not Talking About 13MA120 (Mar. 17, 2014). “Haven’t Felt This Way Since 9/11” a Few Knots” Boeing’s submission to the NTSB included News of the crash traveled quickly. Cru- As Hersman stated at an NTSB news con- a statement that “all systems were cially, some news emanated from the air- ference, no distress calls had been issued functioning as expected prior to impact plane’s passengers. Samsung executive before Flight 214’s approach, and no “air- and did not contribute to the accident.” David Eun tweeted about the crash at craft anomalies” were detected. One pas- The NTSB convened in Washington, D.C. around 1 p.m.: “I just crash landed at SFO. senger said that the pilot gave no warning on June 24, 2014, to determine the probable Tail ripped off. Most everyone seems fine. of a possible crash landing in the seconds cause of the disaster, concluding: I’m ok. Surreal.” Later, Eun tweeted the before impact. During the approach, how- … the probable cause of this accident following: “Fire and rescue people all over ever, the plane was coming in too slow, was the flight crew’s mismanagement of the place. They’re evacuating the injured. well under the target airspeed of 137 knots: the airplane’s descent during the visual Haven’t felt this way since 9/11.” Another “We’re not talking about a few knots,” approach, the pilot flying’s unintended Twitter user, Eunice Bird Rah, told CNN Hersman said. deactivation of automatic airspeed con- shortly after the crash that her father was Months later, the flying pilot told the trol, the flight crew’s inadequate moni- on the plane and said that it was obvi- NTSB that he had been “very concerned” toring of airspeed, and the flight crew’s ously approaching the runway too low about landing without an airport navi- delayed execution of a go-round after and missed the end before skidding out gation system: the airport’s Instrument they became aware that the airplane was of control. Landing System was not functioning. How- below acceptable glidepath and airspeed Meanwhile, eyewitnesses began posting ever, as Hersman stated at a post-crash tolerances. Contributing to the accident photos via social media within minutes. media briefing, “You don’t need instru- were: (1) the complexities of the auto- Some came from passengers on delayed ments to get into the airport” safely,” and, throttle and autopilot flight director sys-

For The Defense ■ August 2014 ■ 55 AVIATION LAW

tems that were inadequately described tion is predicated upon an international Asiana took up to five days to con- in Boeing’s documentation and Asiana’s treaty governing the rights of passengers tact passengers’ families, which the U.S. pilot training, which increased the like- and others with respect to aviation-­related Department of Transportation (DOT) lihood of mode error; (2) the flight crew’s injury claims. See Convention for the Uni- deemed far too slow, under the Foreign non-­standard communication and coor- fication of Certain Rules for International Air Carrier Family Support Act of 1997, dination regarding the use of the auto- Carriage by Air (Montreal, 28 May 1999) as amended, codified in part at 49 U.S.C. throttle and autopilot flight director (the “”). The city and §41313. In fact, the regulators fined Asiana systems; (3) the pilot flying’s inadequate county of San Francisco and San Francisco US $500,000, the first instance in which training on the planning and execut- International Airport also are defendants a government fine was leveled against an in one of the lawsuits pending in the North- airline for a slow and otherwise deficient ern District, filed on behalf of the parents response to an accident. According to the of 16-year-old Ye Meng Yuan, the teenage report, for the first 18 hours after the crash By that time, social media girl who was allegedly run over and killed the only airline number reachable by fam- by two emergency vehicles at the crash ilies was a reservations line, forcing those had taken the story in scene. Altogether, the lawsuits pending in seeking information to “navigate through the Northern District comprise the claims cumbersome automated menus before directions that the airline of 54 passengers and one crew member. being connected to an Asiana employee.” In addition to California, a number of Even locating this phone number on the could never have imagined. Flight 214-related suits are pending in Illi- airline’s website required significant effort, nois. Sixteen cases were brought over the according to the DOT. course of several months in Cook County, After the Department of Transportation ing of visual approaches; (4) the pilot Illinois, against The Boeing Company, and imposed the fine, Asiana released a statement monitoring/instructor pilot’s inade- they were removed to the Dis- saying that it “provided extensive support to quate supervision of the pilot flying; trict Court for the Northern District of Illi- the passengers and their families following and (5) flight crew fatigue which likely nois under 28 U.S.C. §§1441(a) and 1442(a)(1). the accident and will continue to do so.” The degraded their performance. Boeing asserted that the federal district court airline attributed the slow response to short Crash of Asiana Flight 215 Accident Report had subject matter jurisdiction under 28 staffing due to a holiday weekend. Summary, NTSB Public Meeting of June 24, U.S.C. §§1331(1) (admiralty jurisdiction) and Even so, the DOT found that the airline 2014. (The reader should note that NTSB 1442(a)(1) (federal officer jurisdiction, mean- had failed to adhere to federal law repeat- probable cause findings are inadmissible ing cases against a “person acting under” an edly: “In the very rare event of a crash, air- as evidence in a civil action.) officer of the United States). The district court lines have a responsibility to provide their remanded the first of these cases to state full support to help passengers and their Falsities, Blame, and Lawsuits court. Boeing filed a motion for reconsider- families by following all the elements of False information is a fact of the Inter- ation, which was denied. Boeing then filed a their family assistance plans,” said U.S. net era, but in the case of Flight 214, it notice of appeal to the United States District Transportation Secretary Anthony Foxx. was television news that fell victim to an Court for the Seventh Circuit. An expedited Elaborating, Foxx commented, “The last unfortunate prank. KTVU in San Fran- briefing schedule was established and the re- thing families and passengers should have cisco incorrectly reported the names of the mand proceedings were stayed. The appeal to worry about at such a stressful time is pilots after an NTSB intern reportedly con- covers all of the Cook County, Illinois, Flight how to get information from their car- firmed the racist names. Among the more 214 claims filed against Boeing. rier.” It should be noted that Asiana had examples were “Sum Ting Wong” on file with the DOT an approved “fam- and “Wi Tu Lo.” In July of last year, Asiana Asiana’s Real-Time Response ily assistance plan,” and yet real-time cir- filed a lawsuit against KTVU, but amidst Regardless of whether there is merit to cumstances swamped the plan. The plan heavy criticism, the airline dropped the Asiana’s claims that faulty software design had been filed in 2004, perhaps not long suit shortly after a large-scale passenger was a contributing cause, public opin- removed in time, but eons removed in lawsuit was filed. ion of the airline’s response to the crash terms of the development of sources of Presently, 27 lawsuits arising from the has been overwhelmingly unfavorable. communication and the pace—and result- crash of Flight 214 are pending against Asiana CEO Yoon Young-doo faced criti- ing expectations among the public of cor- Asiana, Boeing, or both in the United States cism for not arriving in San Francisco until porate responsiveness—in 2014. District Court for the Northern District of three days after the incident. Before his California. The cases pending in the North- arrival, he called the pilots “very compe- Malaysia Airlines Flight MH370 ern District of California have been consoli- tent,” but he did acknowledge his “tremen- Similar to Asiana Airlines Flight 214, Ma- dated into multidistrict litigation, styled, In dous responsibility for those affected by laysia Airlines Flight 370 took off in normal Re: Air Crash at San Francisco, California, the crash.” Asiana later announced plans conditions. Departing from Kuala Lumpur On July 6, 2013, U.S.D.C., N.D.CA., MDL to increase pilot training to decrease the International Airport at 12:41 a.m. Malaysia No.: 2497. Federal subject matter jurisdic- risk of pilot fatigue. Standard Time on March 8, 2014, the Boe-

56 ■ For The Defense ■ August 2014 ing 777—the same type of plane involved in While the search continued on vari- debunked), and changing the account of the Asiana crash—was scheduled to land at ous fronts, details about the passengers the flight’s last words. In addition, poor Beijing Capital International Airport at 6:30 and crew were revealed. All 12 crewmem- coordination led to a three-day delay in p.m. China Standard Time on March 7. Also bers were Malaysian citizens. The 53-year- switching the search zones after new infor- similar to Flight 214, the Malaysia Airlines old captain had logged more than 18,000 mation revealed the initial search was too flight included 12 crewmembers. The num- hours of experience in the skies, while the far south, by more than 600 miles. ber of passengers, 227, was significantly less. first officer, age 27, had 2,700 hours. The Prime Minister Razak drew fire for con- The similarities between flights 214 and pilot’s homes were searched and reportedly tradicting his March 24 statement that 370 end quickly. Unlike the former, Flight turned up nothing suspicious, while early “none of those on board survived.” How- 370 never arrived anywhere near its des- claims of possible terrorist responsibility tination. In fact, it did not arrive at all. were deemed fraudulent. Twenty-six minutes after taking off, the As expected when a plane carrying more aircraft sent its last automatic mainte- than 200 passengers disappears, the mys- Until the cause of nance data transmission. At 1:19 a.m., air terious fate of Flight 370 drew the eyes of traffic controllers heard what investigators the world. America’s “big three” television the disappearance can initially reported as the last words from networks, ABC, CBS, and NBC, all broke the cockpit: “All right, good night.” Later, into regular programming with updates, be determined, and Malaysian authorities announced that the while CNN made Flight 370 its top story for final words—spoken by either the pilot or weeks. The network drew widespread criti- the wreckage is found, co-pilot—were, in actuality, “Good night cism for its coverage, which bandied about Malaysian three-seven-­ zero.”­ various theories, including “supernatu- many questions of The transponder was shut off two min- ral” possibilities. The public, however, was utes later, severing all contact. No distress watching; CNN saw a 68 percent increase liability and jurisdiction signal was ever sent. At 1:30 a.m., the cap- in ratings over the previous year. tain of another plane attempted to make On Twitter, the hashtag #MH370 con- are unanswerable. contact, hearing only static. About 45 min- nected users anxious to discuss theories utes later, Malaysian military radar plotted about the flight’s fate. Others used social the aircraft south of Phuket island, indi- media to grieve, drawing additional media ever, on March 29, he stated that officials cating that the plane turned west and then attention. In one case, the teenage daughter are “hoping against hope, no matter how north over the Andaman Sea. of the flight’s chief steward has continually remote…. We are praying and we will con- What happened next is still unknown. tweeted messages about her missing father, tinue our search for the possible survivors.” While electronic signals thought to be from among them: “How I wish to wake up every the aircraft’s black box were detected in morning, hoping that it is just a dream. But “Here Come the Lawyers” April, authorities now suspect that these sadly, this is… sigh; reality.” A CNN headline on April 22 said it all: signals did not emanate from a man-made As of early June, the search for “More Than 45 Days into the Search, Here device. Meanwhile, an underwater search answers—and evidence—continues. The Come the Lawyers.” in the Indian Ocean failed to find any sign individual charged with leading the hunt, The first legal action arising from the of the missing plane, and a search of the former Australian Defense Force Chief ’s disappearance was the widely surface discovered only garbage. Angus Houston, has called it the most reported case Siregar v. Boeing Co., No. difficult search in human history. Until 14-L-003408, which was filed in the Cook “MH370 Has Been Lost” the cause of the disappearance can be County, Illinois, Circuit Court in Chicago Sixteen days after Flight 370 took off from determined, and the wreckage is found, on March 25 of this year by a relative of Kuala Lampur, Malaysian Prime Minister many questions of liability and jurisdic- a passenger seeking information on the Najib Razak stated that authorities “con- tion are unanswerable. aircraft and pilots. However, other mem- cluded that MH370 flew along the south- bers of the family of the passenger quickly ern corridor and that its last position was The Response denounced the lawsuit as having been in the middle of the Indian Ocean, west As was the case with Asiana Flight 214, unauthorized, and a Cook County Circuit of Perth.… It is therefore with deep sad- Malaysia Airlines itself has been the sub- Judge dismissed the suit on grounds that ness and regret that I must inform you ject of intense criticism in the aftermath of the petition was incorrectly filed, without that, according to this new data, flight MH370’s disappearance. In this instance, the benefit of a potential known defendant. MH370 ended in the southern Indian the government came under fire as well, (Federal law prohibits unsolicited commu- Ocean.” Meanwhile, Malaysia Airlines with the investigation described as hugely nication concerning a potential action for notified families of the passengers that flawed. The missteps ranged from not hav- personal injury or wrongful death by an it was assuming “beyond any reasonable ing a proper response plan in place to attorney (or representative of an attorney) doubt that MH370 has been lost and that inaccurately characterizing the event as or any potential party to the litigation to none of those on board survived.” involving “suspects” with terror links (later an individual injured in the accident, or to

For The Defense ■ August 2014 ■ 57 AVIATION LAW a relative of an individual involved in the include three infants seated on laps, a partic- Because the language of the two treaties is accident, before the 45th day following the ularly dispiriting detail. identical or similar in many subject areas, date of the accident.) Malaysia Airlines’ long-term response to judicial decisions concerning the Warsaw Meanwhile, the missing plane is still a this new disaster, and its impact on the air- Convention often are read as applying to popular topic on Twitter, with one devastat- line’s already-wounded international rep- the Montreal Convention. Recognized as ingly simple hash tag, in particular, garner- utation, will become clear over the weeks the supreme law of the land in the United ing worldwide attention: #PrayForMH370. and months to come. States, claims against an airline involving And, theories continue to fill the informa- international flight must be filed under the tion void, from sudden mechanical crises to The Law Governing International terms of the Montreal Convention, and not an intentional crash, reminiscent of Aviation Disaster Liability under state negligence laws. “Montreal,” Air Flight 990. As will be discussed more fully below, as the convention is more casually known Flight 990 involved the crash of a Boeing Asiana 214 has spawned nearly 50 lawsuits in the aviation community, is the sole and 767-366ER in the ocean south of , that are presently pending in U.S. courts. exclusive legal basis for suing an airline for shortly after takeoff from JFK International Malaysia Airlines 370 has produced much injuries suffered in the course of an inter- Airport. Lost were four crew members, 10 less litigation to date, but it is fairly safe to national trip. flight attendants, and 203 passengers. The predict that it is only a matter of time be- The Montreal Convention requires an NTSB determined that the probable cause fore additional suits are filed on behalf of airline to compensate passengers who sus- of the accident was “the airline’s departure passengers, even if the mystery surrounding tain bodily injury, or the families of those from normal cruise flight and subsequent the loss of the flight remains unsolved. Un- lost, whenever a crash was the result of an impact with the Atlantic, as a result of the der the applicable international treaties, the “accident.” An “accident” is undefined, relief first officer’s flight control inputs.” only way in which either Asiana or Malaysia but has been interpreted by the United National Transportation Safety Board Air- Airlines could escape liability is by proving States Supreme Court as “an unexpected or craft Accident Brief, EgyptAir Flight 990, that these accidents were caused solely by unusual event or happening that is external Oct. 31, 1999, http://www.ntsb.gov/doclib/ the neglect of other parties and that the re- to the passenger.” Montreal Convention, reports/2002/aab0201.pdf. In other words, the spective airlines took all possible measures Article 17; v. Saks, 470 U.S.392 relief first officer intentionally flew the- air to avoid the losses. Given the position taken (1985). Whether a crash was caused by a craft into the ocean. With characteristic by Asiana in connection with the NTSB in- pilot’s willful misconduct, a hijacking, or understatement, the NTSB noted, “The rea- vestigation, it has apparently yielded that even a terrorist attack is largely beside the son for the relief first officer’s actions was defense. The position of Malaysia Airlines point. A crash will be considered an “acci- not determined.” has yet to be declared in this arena. dent” and the financial responsibility of the airline will be determined in accordance Months Later, Another Claims Against Asiana Airlines with the Montreal Convention. Malaysia Airlines Disaster and Malaysia Airlines Just a few months after the disappearance of Because both Asiana Flight 214 and Malay- Jurisdiction and Venue Considerations Flight 370, tragedy again struck a Malaysia sia Airlines Flight 370 were international for Claims Against the Airlines Airlines flight. Taking off from Amsterdam flights, the claims of everyone aboard will The initial consideration for litigants under at 12:15 p.m. (local time) on July 17, Malay- likely be governed by a series of interna- the Montreal Convention is where on earth sia Airlines Flight 17 was scheduled to land at tional treaties governing injury and death lawsuits may be filed against an airline. Kuala Lumpur International Airport at 6:10 lawsuits arising out of international air car- Plaintiffs commonly attempt to pursue a.m. (local time) on July 18. A total of 298 peo- riage. The more recent of those treaties, the their claims under the Montreal Conven- ple—283 passengers and 15 crew members— Montreal Convention of 1999, will likely tion in the United States, where recov- were onboard, an increase over Flight 370’s govern most if not all of the claims, since eries are largest, but many of the Asiana total of 239. About two hours after takeoff, the most of the passengers on these flights Flight OZ 214 and the Malaysia Airlines flight disappeared from radar, and soon af- were from countries that are signatories, Flight MH 370 claimants may ultimately be ter, the airline made its first tweet about the provided that they intended to begin and unable to do so, at least if the airlines are disaster: “Malaysia Airlines has lost contact end their trips in their home countries. See the only defendants. of MH17 from Amsterdam. The last known Convention for the Unification of Certain Article 33 of the Montreal Convention position was over Ukrainian airspace. More Rules for International Carriage by Air (the offers plaintiffs a choice of jurisdictions to details to follow.” At press time it was widely Montreal Convention) http://eur-lex.europa. bring their cases. Two of those are usually reported that the aircraft was shot down— eu/LexUriServ/LexUriServ.do?uri=CELEX:22001A the same—the domicile and principal place perhaps accidentally—by a sophisticated 0718(01):en:HTML (last visited June 20, 2014). of business of the airline—in these cases, anti-­aircraft missile operated by pro-­Russian The Montreal Convention is a modern- Korea, for Asiana Airlines, and Malay- separatist forces. All of the passengers per- ized version of the of sia, for Malaysia Airlines. The other three ished, including World Health Organization 1929. The Warsaw Convention has been choices also are often the same: (1) a pas- spokesman Glenn Thomas; note that an ear- interpreted over the decades by the U.S. senger’s “final destination,” in other words, lier tally of 295 passengers was later raised to Supreme Court and lower federal courts. the very last stop for the entire trip shown

58 ■ For The Defense ■ August 2014 on the passenger’s ticket or flight confirma- jurisdictional provisions of the Montreal tary Fund and others. In 2013, the U.S. dol- tion; (2) the place where the ticket was pur- Convention, if there is evidence that a loss lar value of SDR 113,100 was approximately chased, an often complex question when was due to a defect involving the airframe, US $175,504. the ticket is purchased online; and (3) the power plant, hydraulics, or other techni- Under Article 21(2) of the 1999 Montreal place where a passenger had his or her per- cal systems, it is a virtual certainty that Convention, an airline is liable for all of a manent residence, as long as the airline the plaintiffs’ attorneys will bring product plaintiff’s damages, which may potentially does business in that country. Based on defect claims in the United States. Claims exceed the SDR 113,100 threshold, unless these three factors, those passengers who against product manufacturer defendants the airline proves that it was completely lived in the United States at the time of are not governed by the Montreal Conven- without fault or that an accident was caused the accident, or who had round trip tickets tion, and there are few jurisdictional rules that ended in the United States, will have that would prevent these foreign plain- the right to bring claims in U.S. courts. If tiffs from suing in U.S. courts, seeking to certain passengers do not meet those two obtain U.S.-scale damages. Moreover, for- Unless Malaysia  criteria, but purchased their tickets from eign plaintiffs may argue that since they U.S.-based agencies, there is an argu- have valid claims against U.S. defendants Airlines could prove that ment that they can assert claims in the in U.S. courts, they should be permitted to United States as well. pursue their claims against Malaysia Air- it did everything possible Foreign passengers who were traveling lines in the same courts to avoid piece- on tickets that ultimately returned them to meal litigation. This latter argument will to prevent the plot or homes outside of the United States, but who be a difficult one to make and to prevail purchased their tickets overseas, will find with based on the case law to date, but it is deed, it will likely be held it difficult to maintain a case here solely not entirely out of the question as a poten- against the airline. That being said, com- tial tactic. liable to the families of bining a case against an international air carrier with claims against other defend- Potential for Dismissals Based the passengers for full ants, such as an aircraft or a component on Forum Non Conveniens part manufacturer or an airport author- When a U.S. court has jurisdiction over compensatory damages ity, could change the jurisdictional land- a claim, it retains the ability to conclude scape. In any event, jurisdiction is a crucial that a case before it cannot be conveniently under the applicable law. feature of international aviation disaster tried in its jurisdiction because of the loca- claims. It would be difficult to overstate the tion of evidence and the witnesses. This is importance of this dynamic. not likely to be relevant in cases brought solely by the fault of a third party. Unlike For the Asiana 214 tragedy, the bulk of by U.S. residents. But when the passengers most laws that place the burden on a plain- the lawsuits were filed in federal district are not residents of the United States, while tiff to prove his or her claim, the Montreal court in the Northern District of Califor- they still may bring their claims here based Convention imposes on an airline the duty nia, and they have been consolidated into on other grounds, the airlines or other de- to prove its faultlessness. This is, needless to an a multidistrict case, styled, In Re: Air fendants may argue that it would be more say, a critical feature of the legal landscape Crash at San Francisco, California, on July convenient to try their claims in the courts underlying claims against airlines arising 6, 2013, before the Honorable Yvonne Gon- of their home countries. If a court agrees, from international aviation disasters. zalez Rogers. An action is also pending in it will either dismiss the case or place it on California state court brought by the fam- hold, and direct the plaintiffs to file their Compensation for Claims Brought ily of the young woman who suffered fatal claims in the foreign country. If for some Outside of the Montreal Convention injury allegedly from having been run reason the claims cannot be maintained Note that the legal issues would be somewhat over on the field by an emergency vehicle. in the foreign country—due to no fault of different for the families of Malaysia Airlines And, as is noted above, a number of Asiana the plaintiff—the U.S. court will allow the Flight 370 passengers from Holland, Indone- 214 cases were filed in Illinois state court case to resume. sia, Russia, and Taiwan because those nations against Boeing, although Asiana is not are not signatories to the Montreal Conven- presently a party to any of these, and they Compensation Under the tion. Those families may be required to resort all are currently on appeal from orders of Montreal Convention to the 1929 Warsaw Convention, predecessor remand following successful challenges to Under the 1999 Montreal Convention, of the Montreal Convention, or they may need notices of removal. both Asiana Airlines and Malaysia Air- to pursue claims under domestic laws. Their lines will be held liable for damages suf- compensation rights should be similar to Claims Against Other Parties May fered by the passengers’ families without those that the Montreal Convention provides, Be Possible in the United States proof of fault, up to 113,100 Special Draw- however, because Malaysia Airlines volun- For many families that cannot sue Malay- ing Rights (SDR). An SDR is a monetary tarily waived the more restrictive limits of lia- sia Airlines in the United States under the reference used by the International Mone- bility contained in the Warsaw Convention.

For The Defense ■ August 2014 ■ 59 AVIATION LAW

Malaysia Airlines’ Strict Liability a number of the passengers on Asiana by either local laws or the laws of a passen- It remains to be seen whether the inten- Flight 214 may have no legal remedy at all ger’s domicile or permanent place of res- sive ongoing investigation will identify evi- against the airline. Under settled decisional idence. While selecting the appropriate dence that will allow Malaysia Airlines to law, there can be no claim unless a pas- damages laws is not an uncomplicated pro- mount a defense under Article 21(2) of the senger suffered a physical injury of some cess, it seems fairly certain, for example, Montreal Convention. Even so, someone sort; a claim for purely emotional injuries that for those passengers aboard Asiana cannot assume that the airline will escape is not viable. Flight 214 who live in California, damages liability if the evidence demonstrates that This rule arose from a case before the will be governed by California laws. the flight was diverted by a criminal act. U.S. Supreme Court in which a number Article 29 of the Montreal Convention of passengers sued for the terror that they also prohibits the award of punitive dam- experienced when the engines on their ages in connection with claims against plane failed. The passengers endured a no- the airlines. This prohibition would not Under settled decisional doubt harrowing experience as the plane extend to defendants other than the air- rapidly lost altitude over the ocean before line, however. law, there can be no one engine was restarted and disaster was averted. Fortunately, no one was physically Claims by Passengers Who Can claim unless a passenger injured. The U.S. Supreme Court reviewed Sue Asiana in the United States the language of the Warsaw Convention As discussed above, passengers with cogni- suffered a physical injury and held that its language and legislative zable claims against Asiana Airlines would history required someone to have suffered appear to be entitled to “full recovery” of some sort; a claim a physical injury (i.e. a true “bodily injury”) under the Montreal Convention. Likewise, to maintain a claim under Montreal. East- the Malaysia Airlines scenario poses an for purely emotional ern Airlines, Inc. v. Floyd, 499 U.S. 530 extreme challenge to mounting a defense (1991). An allegation of emotional distress to the airline, regardless of whether the injuries is not viable. may be added to a claim for physical injury, mystery is solved. Thus, we might rea- but it cannot be maintained on its own. sonably conclude that those passengers, In the 20-plus years since this deci- or their survivors, who can bring their Crime, including terrorism, whether per- sion, lower federal courts have struggled claims in the United States are unlikely to petrated by a flight crew or passengers, is with the question of how serious a physical benefit from bringing claims against addi- a known risk in aviation. Therefore, unless injury must be for someone to maintain a tional defendants. Taking the financial Malaysia Airlines could prove that it did psychic or emotional injury claim under strength of the airlines into account, and everything possible to prevent the plot or the Montreal Convention. Compare, for perhaps more to the point, the applicable deed, it will likely be held liable to the fami- example, a minor bruise or pinprick with insurance resources, financial responsibil- lies of the passengers for full compensatory a broken limb or concussion. Given that ity for any verdict or settlement should not damages under the applicable law. many Asiana 214 passengers suffered very be an issue, even taking into account the modest or no physical injuries while expe- claims of surviving spouses for losses in Asiana Airlines’ Strict Liability riencing an acutely distressing sequence of their own right. And yet, claims against the According to its publicly reported state- events, it will be interesting to see how the manufacturer, Boeing, have been brought ment to the NTSB, discussed above, Asiana issue of emotional distress plays out in the in seeming abundance: in excess of 40 will ultimately be held liable for all of the claims against the airline. In the Malay- such claims have been filed either against cognizable damages suffered by the pas- sia 370 scenario, however, we appear to Boeing alone or in tandem with Asiana. sengers on Flight 214, up to and, as may be have a different calculus: an apparent loss One possible explanation is that not all the case, beyond SDR 117,000. As is noted of life, but without evidence of passenger passengers can bring their claims against above, under Article 21(2) of the Montreal awareness of an unfolding threat—as in a Asiana in the United States, which is recog- Convention, the airline is liable for all of sudden catastrophic explosion, for exam- nized as the most desirable forum for acci- a plaintiff’s damages, even those beyond ple—meaning a claim for emotional dis- dent compensation. the SDR 117,000 ceiling, unless the airline tress is merely speculative. It remains to be seen whether the pas- proves that it was completely without fault senger claims are resolved by settlements, or that the accident was caused solely by Damages Under Local Laws: leaving the defendants to adjust the ulti- the fault of a third party. No Punitive Damages mate financial responsibility for the losses The courts where Montreal Convention among themselves, once the proverbial Physical Injury Requirement cases are tried must use their own rules dust surrounding any battles over jurisdic- Even with Montreal’s strict liability scheme to determine who is entitled to sue and tion and venue are concluded, or whether and its shifted burden of proof, the finan- the kinds of damages that they may seek. courts deconsolidate and try the U.S.-­ cial exposure of Asiana and its insurers Montreal Convention, Article 29. In U.S. venued claims ultimately, or some combi- may not extend to all passengers. In fact, courts, these issues are typically governed nation of results devolves.

60 ■ For The Defense ■ August 2014 In the case of MH17, there are early be utterly catastrophic, meaning crisis pre- questions being raised concerning insur- paredness is vitally important. The stories ance coverage both for passenger loss of life of aircraft incidents and the responses that and property, and for the lost hull (the air- follow do not fade quickly. In a worst-case craft itself, valued in the hundreds of mil- scenario, such as Flight 370, there may lit- lions of dollars). The questions may turn erally be no end in sight. on interpretation of “wartime exclusions” commonly found in airline insurance pol- icies, given that the disaster was, loosely speaking, apparently the result of an act of war, and/or interpretation of “terror- ism exclusions”. The fact that MH17 was lost over a conflict zone where there has been no formal declaration of war; the fact that Malaysia most certainly is not at war; and, the fact that the shoot-down may have been a mistake as opposed to a mali- cious act, might come into play as financial responsibility for the disaster is consid- ered. Likewise, efforts to seek indemnity, whether by Malaysia Airlines or/or by its insurers, from the party or parties respon- sible for the destruction of MH17 might eventually become a feature of this trag- edy. The continued financial viability of Malaysia Airlines may hang in the bal- ance, one can confidently say without fear of overstatement. The ultimate lessons of Asiana Airlines Flight 214 and Malaysia Airlines Flight 370 will not be learned for some time because the litigation surrounding the disasters will take place over many years to come. What is clear, however, is that the compensation scheme for many of the passengers who suffered injury or for the survivors of those who perished is well settled. Regardless of what caused these two tragedies, compen- sation will be paid to the victims. The lit- igation will focus primarily on adjusting the losses among the potentially respon- sible parties. Beyond the litigation arena, both Asiana Airlines and Malaysia Airlines received brutal lessons in contemporary social media and its response to unfolding trag- edy. From live tweets by passengers still at the crash site and wet with foam, to a truly global and ceaseless conversation about solving the mysterious disappear- ance of an airliner, corporate communica- tions have never been so challenged. As a result, decisions must be made at the high- est levels and communicated to a global audience within mere minutes. Failing to deliver a prompt and proper message could

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