THE LEGAL LANDSCAPE CREATED BY ASIANA FLIGHT 214
© 2013 by David L. Fiol, Attorney at Law*
Most of the passengers of Asiana Flight 214 and the families of the young women from China who were killed in the crash are going to start thinking about legal remedies for the injuries that they have suffered. This article is intended to help those passengers, family members and their counsel to foresee some of the issues that will arise with respect to their claims. Remarkably, the airline’s attorneys may argue that some of the people on the plane have no legal remedies at all, although Asiana and its insurers may find it politically untenable to make that argument. The remedies available also will differ based on the residences of the passengers. Injury claims in the context of international aviation are quite complex, because they are governed by an international treaty that sets out governing principles in broad language that has been interpreted over the decades by courts in dozens of nations, sometimes with differing results. Because some of the potential defendants in the litigation are California governmental entities, familiarity with California laws and procedures also will be required.
At the time of this writing, reports seem to indicate that negligence by the pilots in failing to monitor the airspeed of the plane played a key role in the accident. Therefore, it is highly likely and assumed that the airline will be liable for the full losses suffered by the passengers and families of the deceased. As will be discussed more fully below, the only way in which Asiana could escape liability is by proving that the accident was caused solely by the neglect of other parties, and that it took all possible measures to avoid the accident. It seems impossible for Asiana to prove that here.
CLAIMS AGAINST ASIANA
The first defendant in a lawsuit for injuries suffered in the course of air travel that comes to mind is the airline itself. Because Asiana Flight 214 was an international flight, the claims of everyone on the plane will likely be governed by some version of a series of international treaties governing injury and death lawsuits arising out of international air carriage. The more recent of those treaties, The Montreal Convention of 1999, will likely govern most if not all of the claims, since most of the passengers were from China, South Korea and the United States. All three of those nations have adopted the Montreal Convention.
The Montreal Convention is a modernized version of the Warsaw Convention of 1929, a treaty whose provisions have been interpreted over the decades by the U.S. Supreme Court and lower federal courts. Because the language of the two treaties is identical or similar in many subject areas, judicial constructions of the Warsaw Convention often are extended to the Montreal Convention. Therefore, simply reading the Montreal Convention is not enough to understand it fully: knowledge of a large body of law built up over more than 50 years is necessary.
Jurisdiction to Sue Asiana
The first impact that the Montreal Convention will have is in controlling where lawsuits are filed against the airline. The plaintiffs will want to pursue their claims against Asiana in the United States, where recoveries are largest, but many of them will not be able to do so, at least if the airline is the only defendant. The airline’s attorneys will do their best to keep claims out of the United States; in some cases they may succeed.
Article 33 of the Montreal Convention offers plaintiffs a choice of jurisdictions to bring their cases. Two of those are usually the same – the domicile and principal place of business of the airline – in this case both are Korea. The other three choices also are often the same: the passenger’s “final destination” (in other words, the very last stop for the entire trip shown on the passenger’s ticket or flight confirmation), the place where the ticket was purchased (a complex question when the ticket is purchased online), and the place where the passenger had his or her permanent residence, as long as the airline does business in that country. On the basis of these three factors, those passengers who lived in the United States at the time of the accident, or who had round trip tickets that ended in the U.S., will have the right to bring claims in U.S. Courts. If any passengers do not meet those two criteria but purchased their tickets from U.S. based travel agencies, it may be argued that they can bring claims in the U.S. as well.
For those foreign passengers who traveled on tickets that ultimately brought them home to Korea, China or elsewhere, and who purchased their tickets overseas, it likely will be difficult for them to maintain a case in the U.S. against Asiana alone. This is true even if they planned to stay in the U.S. for many weeks.
As discussed more fully below, some attorneys for foreign plaintiffs who are not able to sue Asiana alone in the United States may attempt to secure the U.S. forum by combining a case against Asiana with claims against other defendants such as Boeing and the City of San Francisco, which can (or in the case of the City, must be) sued in the United States. The Montreal Convention applies only to claims against airlines, so claims against other defendants will be governed by less demanding jurisdictional rules set by state and federal laws. It is not clear whether these efforts will be successful.
For those cases that are maintained in the U.S., while they may be filed by the plaintiffs in any court in the country, it is fairly certain the lawsuits will be consolidated by judicial authorities before a single judge in San Francisco or nearby.
Attorneys who are not familiar with the laws governing injuries in international air transportation often make the mistake of filing their claims under state negligence laws. Claims against Asiana must be filed under the terms of the Montreal Convention, which the Supreme Court has held to be the sole and exclusive legal basis for suing an airline for injuries suffered in the course of an international trip. Failure to file the case under the Convention will lead to dismissal of the case. While judges usually allow attorneys to amend the complaints to invoke the appropriate laws, an attorney who fails to file a proper case the first time has signaled his or her inexperience to opposing counsel, and impaired the client’s position.
Asiana’s Strict Liability
There is virtually no doubt that Asiana will be held liable for all of the damages suffered by the passengers on Flight 214. Under Article 21(1) of the Montreal Convention, an airline is liable without proof of fault for damages suffered by a passenger of up to 113,100 SDRs. SDRs are monetary references used by the International Monetary Fund and others; currently 113,100 SDRs are worth approximately US $171,000.
Under Article 21(2) of the Convention, the airline is liable for all of the plaintiff’s damages unless the airline proves that it was completely without fault, or that the accident was caused solely by the fault of a third party. Unlike most laws that place the burden on the plaintiff to prove his or her claim, the Convention imposes on the airline the duty to prove its lack of fault. In the case of Asiana Flight 214, it will be virtually impossible for Asiana to prove its lack of fault, and it is not likely to try. It already appears established that the aircraft was significantly below the minimum safe speed for its approach to the threshold of the runway, and that the pilots had the means to know this, from physical observations through the cockpit windows and by monitoring an array of instruments. Although there may be claims that the aircraft’s systems and instruments were designed or built defectively, in most accidents a multitude of factors combine to cause the ultimate result, and in this case the Airline’s role in the crash appears beyond doubt.
Physical Injury Requirement
It may surprise some to learn that a number of the passengers on Asiana Flight 214 have no legal remedy at all. One of the key, settled interpretations of the Convention that will figure prominently in litigation arising out of the crash of Asiana Flight 214 is that there can be no claim unless the passenger suffered a physical injury of some sort: a claim for purely emotional injuries is not viable. This rule arose out of a case before the U.S. Supreme Court in which a number of passengers sued for the terror they experienced when the engines on their plane failed. The passengers endured many minutes of terror as the plane rapidly lost altitude over the ocean, but one engine was restarted, and ultimately no one was physically injured. The U.S. Supreme Court reviewed the language of the Convention and ruled that it required that there be some physical injury in order to maintain a Convention claim. A claim for emotional distress could be added to a claim for physical injury, but could not be maintained alone.
Since that decision lower federal courts have struggled with the question of how serious a physical injury must be in order to maintain a claim under the Convention. Is a scratch or bruise enough? Can a cut on a finger form the basis for a sizable award for emotional distress? Most courts have imposed a proportionality test of sorts, by limiting the claim for emotional distress to that distress that arose from the physical injury. Obviously it is difficult to make that distinction in the real world, but the judges who will handle cases arising out of Asiana Flight 214 will have to struggle with these issues, since some passengers walked off the plane with few or no physical injuries.
Clearly, those Asiana 214 passengers who suffered burns, broken bones, serious bruises or other injures requiring medical care should be allowed to maintain claims. It remains to be seen whether Asiana’s insurers will argue that passengers without serious physical injuries are barred from making any recovery.
Damages under Local Laws; No Punitive Damages
Article 29 of the Montreal Convention states that the Convention does not govern “who are the persons who have the right to bring suit and what are their respective rights.” Stated more simply, the courts where Convention cases are tried must use their own rules to determine who is entitled to sue and what kinds of damages they may seek. Typically, in U.S. courts, these issues are governed by either local laws or the laws of the passenger’s domicile, or permanent place of residence. The selection of damages laws is a complicated and uncertain process, but it seems fairly certain that for those passengers who live in California, damages will be governed by California’s laws.
Article 29 also continues the prohibition contained in the Warsaw Convention on awards of punitive damages. The Convention offers passengers the benefit of strict liability for modest damages and a shifted burden of proof in claims for unlimited damages, but the cost of those benefits is giving up the right to seek punitive damages for egregious misconduct by the airline.
CLAIMS AGAINST OTHER DEFENDANTS
By Passengers Who Can Sue Asiana in the U.S.
Unless compelling facts that are not yet public emerge, those passengers who can bring their claims in the United States are unlikely to benefit from bringing claims against additional defendants. U.S. Federal Aviation Administration regulations require air carriers (including foreign air carriers like Asiana, when their flights land in the United States) to purchase ample liability insurance, so there will be more than enough coverage to fully compensate all of the passengers and their relatives (under most state’s laws, passengers’ spouses will be permitted to bring claims for the losses they suffered as a result of their spouse’s injuries).
While some attorneys may argue that they can obtain greater compensation for clients by suing additional defendants, the benefits of this approach are hard to prove. Other attorneys may argue, as they have in previous cases, that they can obtain more for their clients by not only pursuing strict liability claims against the airline, but also bringing claims against manufacturers or others for punitive damages. Promises like these have been made previously and rarely are fulfilled. Usually, bringing these additional claims only makes relatively simple cases more protracted and more expensive for clients. However, if some egregious conduct by a party other than Asiana is found to have contributed to the accident, it may be productive to bring a claim against that party. Note, however, that like Asiana, governmental entities such as the City of San Francisco are immune from claims for punitive damages.
In short, for those who can bring claims against Asiana in U.S. courts, there is probably little to be gained by pursuing additional parties.
By Passengers Who Can Not Sue Asiana in the U.S.
For those passengers and families that cannot sue Asiana in the United States under the jurisdictional provisions of the Montreal Convention, it is a virtual certainty that their attorneys will bring claims in the U.S. against additional parties such as Boeing, The City of San Francisco and other U.S. businesses and entities. Claims against these other defendants are not governed by the Montreal Convention and there are few jurisdictional rules that would prevent these defendants from being sued in California courts. If successful, these suits against U.S. defendants will allow foreign plaintiffs to obtain U.S.-scale damages. Moreover, foreign plaintiffs may argue that since they have valid claims against U.S. defendants in U.S. courts, they should be permitted to pursue their claims against Asiana in the same courts, to avoid piecemeal litigation. This latter argument will be difficult to prevail on but is worth trying.
The City and County of San Francisco
For the family of the young woman who was struck by a rescue vehicle, it is obvious that a claim against the City is appropriate. Here, more than in any other case, it could be possible to pursue the case against Asiana in the U.S. courts, even if jurisdiction is not permitted by the Montreal Convention. The City cannot be sued in foreign courts, so the only way in which the relative responsibilities of Asiana and the City can be determined would be in a U.S. court.
Notice of intent to file a claim against the City must be delivered to its officials within six months of the accident.
While initial news reports noted that the Glide Slope Indicator on the runway was inoperable, this is a common condition that pilots were notified about, and they should have had no trouble operating safely without the system. Moreover, California laws protect officials and government agencies from liability for executive-level decisions. Thus, it seems likely that the absence of a working ILS (instrument landing system) will not be a viable basis for a claim.
Boeing and Navigation System Component Part Manufacturers
News reports indicate that the pilots of Asiana Flight 214 believed they had activated systems on the aircraft that were designed to maintain its airspeed at proper levels, but that the aircraft’s airspeed was far lower than it should have been. If the system malfunctioned due to defects in its design or manufacture, no doubt Boeing is an appropriate defendant, although nothing will exonerate the pilots completely. Boeing usually purchases from third parties the complex flight management computers that it installs in its aircraft, so those third parties also would be viable defendants. Even if the pilots were mistaken about having activated the system, claims against Boeing or others might be pursued for designing these systems such that pilots are confused or misled about their operation.
POTENTIAL FOR DISMISSALS BASED ON FORUM NON CONVENIENS
Even where a court has jurisdiction over a claim, under U.S. law it retains the ability to conclude that the case before it cannot be conveniently tried in its jurisdiction because of the location of evidence and witnesses. This is not likely to be relevant in cases brought by U.S. residents, but for those cases where the passengers were not residents of the United States but may bring their claims here, Asiana and the other defendants may argue that it would be more convenient to try their claims in the courts of their home countries. If the court agrees, it will either dismiss the case or place it on hold, and direct the plaintiffs to file their claims in the foreign country. If for some reason the claims cannot be maintained in the foreign country (due to no fault of the plaintiff), the U.S. court will allow the case to resume.
(1) For those passengers who lived in the United States at the time of the accident or were flying on a ticket whose overall journey ended in the United States, claims can be filed in the U.S. Courts and Asiana will pay full damages under U.S. laws. It is almost certain that Asiana will concede full liability, so it will be unnecessary for counsel to litigate that issue. The physical injury requirement may be raised in some cases, and of course the parties will differ over the amount of damages that each claimant will be entitled to. Some law firms will argue that claimants should hire them to pursue claims against parties other than Asiana, in the hope that they can recover not only compensatory but also punitive damages. It is very unlikely that punitive damages will be recovered in an accident case like this, especially in light of California’s laws, which limit punitive damages against corporations to cases in which the egregious conduct is that of company managers.
(2) For passengers who are not able to bring claims against Asiana in U.S. courts, it may be productive for their attorneys to investigate theories of liability against Boeing or other U.S. defendants. If non-airline claims can be maintained in the U.S., damages may be available to them under U.S. laws and standards.
*David L. Fiol received his BA in Government from Cornell University (Ithaca, NY) in 1984 and graduated from the Harvard Law School (Cambridge, MA) with his JD in 1988. He spent the first ten years of his career litigating aviation accident and other wrongful death and personal injury cases for a leading aviation accident firm in New York City. He represented clients and family members injured by everything from automobile accidents to small private plane crashes to major disasters including the bombing and crash of Pan Am Flight 103 over Lockerbie, Scotland. He also revised many portions of the founding partner’s treatise, Aviation Accident Law, including the chapter on accidents occurring during international transportation.
In 1999 Fiol relocated to San Francisco and worked with a preeminent class action firm on consumer class actions, as well as continuing his work on aviation and personal injury cases. He has appeared and argued cases before trial and appellate courts all around the country. He is admitted to practice before the courts of California, the United States Supreme Court and numerous lower federal courts including, of course, the federal Court of Appeals and District Courts in California.