Judge Rules Lawyer Filing Malaysia Flight MH 370 Petition Acted Improperly

Shortly after the crash of Malaysia Flight MH 370, Monica Kelly of the Ribbeck Law Firm announced that her firm was filing litigation in Chicago seeking to preserve evidence and identify other possible defendants who might be involved in the missing Boeing’s manufacture and upkeep.  The filingMonica Kelly, Ribbeck Law generated quite a bit of fanfare and media coverage for the Ribbeck Law Firm and, at the time, the firm said that it expected to represent families of more than 50 percent of the passengers on board.

But the filing hasn’t turned out so well.  The judge has now tossed it out of court, ruling that it was improper and should never have been brought.  Further, she noted that she has tossed out previous petitions improperly filed by Ribbeck, so the firm should know better.  According to the Chicago Tribune, the judge was not amused:

Ribbeck Law had filed virtually identical petitions last year after separate fatal airplane crashes in San Francisco and Laos, and [Judge Flanagan] had dismissed both for the same reason.

“Despite these orders, the same law firm has proceeded, yet again, with the filing of the (Malaysia crash) petition, knowing full well there is no basis to do so,” Flanagan wrote.

The judge said she “will impose sanctions” if Ribbeck Law continues to make such filings.

According to another article in the Tribune, Ribbeck and Kelly have been in trouble before:

Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash. . .

In 2008, Kelly's brother and partner in the firm, Manuel von Ribbeck, was cited while working for another firm he allegedly posed as a Red Cross worker when he approached a man who'd lost his wife and daughter in a plane crash in the Bahamas. . .

Kelly was recommended for censure last month for allegedly continuing to try to represent a survivor of a 2009 Turkish Airlines crash in the Netherlands that killed nine passengers and crew. The survivor had sent a letter terminating the relationship, records show.  

It seems Ribbeck's problems are not limited to aviation cases:

On March 20, von Ribbeck was found in civil contempt of court after he failed to set up an escrow account for child support as ordered by the judge overseeing a 2009 paternity suit filed against him in Cook County, court records show.

In the order, Judge Lionel Jean Baptiste said von Ribbeck must show up in court April 14 and pay $17,000, or a warrant could be issued for his arrest. . .

April 16 Update:  For more, see Christine Negroni's post "Flim Flam and Shenanigans"

Asiana Admits Pilots Allowed Aircraft To Get Too Slow But Blames Boeing

Asiana now says the autopilot confused the crew of Asiana Flight 214, and blames Boeing for the crash of Flight 214.  ABC Channel 7 asked me to comment.

 

Montreal Convention's Time Limit for Bringing Suit Leads to Unjust Result

A passenger suffered from lung disease.  The airline denied him the use of his supplemental oxygen.  As a result, six months later, the passenger died. 

The family sued the airline within two years of the passenger’s death.  Normally, that’s within the statute of limitations.  But because the flight was an international flight, the Montreal Convention applied.  And the Montreal Convention requires suits to be brought within two years of the aircraft’s arrival at the destination, not two years from the injury or death.  Because the family’s claim was filed two years and three months after the plane landed, the trial court dismissed the suit as being brought too late.  The Ninth Circuit Court of Appeals agreed. 

The Convention is rooted in a one-sided deal struck many years ago to protect a fledgling aviation industry.  From the Convention’s venue restrictions, to its limitation on recovery for emotional distress, the Convention leads to results that offend any sense of basic justice or fair play.  

The Convention’s time limit for bringing suit is just one more unfair provision.  Let’s say that a passenger is badly injured in an accident and dies from complications three years later.  It would have been impossible for the passenger’s family to bring a lawsuit within two years from the aircraft’s arrival, because the family’s claim would not have accrued by then.  In that situation, even though the airline caused the death, the family would have no recourse at all.

One justice, Justice Pregerson, dissented noting the Convention was unjust.

Because of the unfair and unconscionable result in this case and perhaps others, I hope that the Montreal Convention will be revisited and revised to protect families like the Narayanans.

That won’t happen any time soon.  Even if there was widespread international support for amending the Convention – and there isn’t – the process would take many, many years.   

The case is Narayanan v. British Airways.   

Malaysia Airlines Must Compensate Families Regardless of Whether Flight 370 was Diverted by Crew or Hijacked

Someone changed the course of Flight MH370 and turned off the aircraft’s transponder.  Turning off an aircraft’s transponder makes it more difficult for the plane to be tracked by radar.  A hijacker with even minimal flight training would have known that. 

But there is one wrinkle.  The transponder was reportedly turned off when air traffic control was in the process of a “handoff” from Malaysian Air Traffic Control to Ho Chi Minh City Control in Vietnam.  At that moment, the aircraft was in the shadows: on the outskirts of Malaysian radar coverage and just entering Vietnam radar coverage.  The crew had said goodbye to Malaysian air traffic control, but hadn’t yet established contact with Ho Chi Minh City Control.  If a crew wanted to disappear, that would be an ideal time to pull it off.  Only the most sophisticated hijacker would know that.

Airline’s Obligation to Compensate Family Members

An airline’s obligation to compensate the families of those lost in the crash of an international airliner is governed by an international treaty known as the Montreal Convention.  The Montreal Convention requires the airline to compensate the families of those lost whenever the crash was the result of an “accident.” An “accident”  is defined as “an unexpected or unusual event or happening that is external to the passenger.”  Whether the crash was caused by a pilot’s wilful misconduct, a hijacking, or even a terrorist attack -- it doesn’t matter.  The crash counts as an accident and the airline is liable.   

Cap on Airline Liability

An airline is strictly liable for a family's loss up to 113,100 “Special Drawing Rights,” an amount equal to about $175,000. The airline can avoid liability for sums exceeding that amount only if it can prove it was totally “free from fault.” That is usually an impossible task for an airline, even if the crash was caused by a terrorist.  The air carrier can seldom show that there was nothing it could have done to avoid the accident.  It’s the problem of proving a negative.  Thus, if in fact flight 370 was lost in a crash, it’s unlikely the Convention’s “cap” on liability will come into play. 

More in my interview appearing in the Malaysian press

Asiana Airlines Fined $500,000 for Failing to Comply with The Family Assistance Act

The US Department of Transportation fined Asiana $500,000 today for failing to live up to its obligations under the Family Assistance Act of 1996 in the days following the crash of flight 214.  Instead of getting crucial information to the victims and their families, Asiana was busy publicizing its plans to sue KTVU for "disparaging" the airline  by reading bogus crew names over the air.

NTSB Faults Aircraft Owner for Running Engine Past TBO

Aircraft engine manufacturers recommend that owners overhaul their engines when the engines have accumulated a set number of flight hours. Depending on the make and model, the "Time Between Overhaul" ranges from 1200 to 2400 hours. No regulation requires the general aviation aircraft owner to comply with the manufacturer's recommended TBO. As far as the FAA isTeledyne Continental Engine concerned, the owner is free to operate the engine indefinitely, as long as a certified mechanic has signed off the engine as airworthy within the preceding 12 months. And given recent advances in engine diagnostic equipment, more and more owners are feeling comfortable "busting" TBO.

I wrote about the practice years ago, in a post entitled "Running Past TBO: Smart Economics or Owner Negligence?" The NTSB recently came down on the side of "owner negligence," at least in the case of a Cirrus engine that was operated past Teledyne Continental's recommended 2000 hour TBO.

The National Transportation Safety Board determines the probable cause(s) of this accident to be: The inadequate servicing and maintenance of the engine and the airplane owner and maintenance personnel's disregard of the manufacturer's recommended engine overhaul schedule and service bulletins, which resulted in an in-flight internal failure and seizure of the engine.

In that case, the engine failed at 2978 hours.  The NTSB also faulted the pilot for flying the aircraft with only 5 quarts of oil on board, instead of 6 quarts as recommended by the manufacturer.

Fortunately, no one was hurt. But an owner should think twice about running past TBO, regardless of whether an FAA-certified mechanic has pronounced the engine airworthy.

 

NTSB Asks FAA To Ground R44's WIth Aluminum Fuel Tanks

Robinson Helicopters has been installing bladder-style fuel tanks in its R44 helicopters since 2009. But much of the fleet manufactured before then is still flying with the old-style aluminum tanks that tend to rupture in otherwise minor accidents.

 Last year, following a string of needless post-crash R44 fires, the Australian civil aviation authorities grounded all R44 helicopters until their owners retrofitted them with the new bladder-style tanks.  Not a bad idea.

 The FAA refused to follow the Aussies' lead, saying that "R44 fuel system crashworthiness does not appear inconsistent with other similar helicopters."  Because most other helicopters do not tend to explode in otherwise survivable accidents, no one was sure what the FAA was talking about. Now the NTSB is asking the FAA to reconsider and to ground Robinson R44 helicopters that aren't retrofitted with the safer bladder tanks.  According to the NTSB, requiring owners to retrofit their helicopters will "prevent accidents and save lives."  

It's hard to understand why the FAA is so reluctant to mandate the retrofits.

 

NTSB Safety Recommendation by Mike Danko

Another Look at "The Impossible Turn"

When the engine quits just after takeoff, the pilot has few options. One is to attempt to turn around and try to land at the airport. It's such a difficult maneuver that it's often referred to as "the impossible turn." I've written about the "impossible turn" before. AvWeb's Paul Bertorelli takes another look at the turn in the video below. Bertorelli suggests that the turn is an option that a pilot should not write off. But it does require practice.

My advice is to practice with plenty of altitude. I've had two cases involving fatalities resulting from turning back after simulated engine failures during flight training.  One is here.

Cirrus Burns After Crashing at Bolingbrook

The Cirrus SR20 burst into flames on impact.  The pilot's wife died inside.  The pilot escaped from the wreckage, but died from his burn injuries in the hospital.Cirrus SR20 Crash at Bolingbrook

Some say that a properly designed aircraft should not catch fire in an otherwise survivable accident.  We know this crash was survivable, because the pilot was able to walk away from the wreckage.  If it weren't for the post-crash fire, the pilot likely would have survived.

The Cirrus Aircraft boasts many safety features, such as its rocket-propelled parachute.  But the Bolingbrook crash is one more data point tending to show that the Cirrus seems to be unusually susceptible to post crash fires, especially when compared to other modern aircraft.  

Plaintiff Magazine Article on Asiana Flight 214

The September issue of Plaintiff Magazine featured our article on the Montreal Convention as it applies to the crash of Asiana Flight 214.   As far as we know, it's the most comprehensive legal article that has been published on the crash to date. 

Asiana Flight 214 and the Montreal Convention