Because Asiana Flight 214 was international, lawsuits against the responsible airline are governed by the Montreal Convention. The Montreal Convention strictly limits where a passenger may bring suit. To bring suit against an airline in a U.S. court, the injured passenger must be a U.S. resident, the passenger’s ticket must have been issued in the US, or the trip must have had a final destination in the US. As discussed here, that means that many of the tourists who were victims of Flight 214 may not qualify to sue Asiana in the US.

The Montreal Convention also permits victims to sue the responsible airline in the country in which the airline’s principal place of business is located. In this case, that doesn’t help the victims because Asiana Airlines’ principal place of business is in Korea.

But some foreign passengers may have purchased their tickets through Asiana’s code-share partner, United Airlines. The Montreal Convention allows a passenger to sue not just the “actual carrier” (Asiana), but also the “contracting” carrier (the code share partner who issued the ticket). For some passengers, the "contracting carrier" may have been United Airlines.  United Airlines’ place of business is in the U.S. That means that passengers who purchased a ticket from United may sue in the U.S. regardless of whether they qualify to sue Asiana here.

Other countries severely limit the compensation that may be awarded in lawsuits arising from airline accidents. For example, many other countries do not allow families to be compensated for loss of a loved one’s "care, comfort, and society."  Or for "pain and suffering."  That’s why in almost all situations the best venue for an Asiana Airlines Flight 214 victim to seek compensation will be the United States. 

US Courtroom

But any suit against the Asiana Airlines (as opposed to some other party who may have contributed to the crash) will be governed by the Montreal Convention. The Montreal Convention allows passengers or their family to sue Asiana Airlines in the United States if, and only if:

  1. The passenger’s ticket was issued in the United States;
  2. The passenger’s journey was a round trip that started in the United States or was a one-way trip that ended in the United States; or
  3. The United States was the passenger’s "principal and permanent residence."

Unless the passenger can satisfy one of these three requirements, he cannot sue Asiana Airlines in the United States.

 

A jury in Washington state handed down a $26 million verdict against Avco Lycoming as a result of a fatal Cessna 172 crash that killed three people in 2008.  The  jury’s award included $6 million in punitive damages, designed to punish Lycoming for consciously disregarding the safety of the flying public.

It’s the second time a jury has slammed Lycoming with punitive damages for its carb floats. In 2010, a jury awarded $89 million, including $64 million in punitive damages, as a result of 1999 Cherokee 6 crash that killed four and injured one.

This case, however, was a bit different. It was the judge who ruled that Lycoming was responsible for the crash before the case ever reached the jury.  All that was left for the jury to decide was how much to include in its verdict.  The judge ruled against Lycoming because it refused to turn over relevant documents in the case.  Apparently, the documents were so incriminating that Lycoming felt it was better to suffer a certain jury verdict than to allow the documents to see the light of day. 

[I]n December 2005, Lycoming participated in a series of emails discussing the leaking Delrin Float issue, none of which Lycoming produced during discovery. The series of emails informs Lycoming of the significance of the Delrin float leaking problem. In the emails, Lycoming employees state that it is clear that hollow plastic carb floats can leak, allowing fuel to enter the interior of the floats. The emails reflect that there was also a recent inflight [engine] stoppage. The email also recognized the danger of discussing the defects in writing: “It is too bad that we have to answer in writing on such a touchy issue.”

Plaintiffs asked Lycoming to turn over the rest of the emails on the subject, including those that went to upper managment.  The emails would have been important evidence that Lycoming knew the floats leaked and could cause engine failure. But Lycoming refused. So the court ordered Lycoming to turn them over. Lycoming still refused. 

Lycoming’s  willful and deliberate refusal to follow the court’s order prevented plaintiffs from proving their case. So the court did the only thing that was fair and ruled that the floats were defective and caused the accident.

The Judge’s order is an interesting read. 

Judge’s Sanctions Order Against Lycoming

The American Association for Justice’s Annual Convention begins today at the Vancouver Convention Centre.  The program for aviation lawyers will be held on Monday, July 12.  The schedule: Vancouver

8:30 – 11:45, Room 215-216:

Speakers will be

Mike Danko – Aviation Litigation Forecast

Ricardo Martinez-Cid – International Commercial Airplane Crashes

Ladd Sanger – Aviation Deposition and Trial Skills

Heidi Snow – Clients and Grief – Insights

Vicki Norton – Three Things a Commercial Airline Pilot Would Change

1:30 – 2:30, Room 101 – 102:Teashouse

Aviation Law Section Meeting

5:30 – 7:30:

Aviation Law Section Reception (sponsored by The Danko Law Firm and Slack & Davis.) 

The Teahouse 

7501 Stanley Park Drive

All are welcome. 

Other countries severely limit compensation that may be awarded in wrongful death lawsuits arising from airline accidents.  For example, many other countries do not allow families to be compensated for loss of a loved one’s "care, comfort, or society."  As a result, in almost all situations, the best venue for a family’s lawsuit against an airline is the United States.International Flags

If the airline passenger’s trip included an international stop, then the proper venue for any lawsuit against the airline is controlled entirely by international treaties known as the Warsaw and Montreal Conventions.  The Warsaw Convention permits the passenger (or the passenger’s family) to sue the airline in the United States, even though the accident happened on foreign soil, if and only if:

  1. The passenger’s ticket was issued in the United States;
  2. The passenger’s journey was a round trip that started in the United States or was a one-way trip that ended in the United States; 
  3. The airline is incorporated in the United States; or
  4. The airline’s principal place of business is in the United States.

The Montreal Convention has replaced the Warsaw Convention in most situations. The Montreal Convention adds to the list what has been called a "fifth jurisdiction." Regardless of where the accident occurred, or where the passenger began or ended his trip, the international traveler or his family may sue the foreign airline in the United States if the United States was the passenger’s "principal and permanent residence."  For this fifth option to be available, however, the airline must maintain some sort of presence in the United States.     

In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident.  But as the case progresses, evidence may point to one defendant over another.  When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, andEmpty Chair to proceed to trial against the defendant who appears blameworthy.  Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.

Let’s say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible).  But let’s say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer.  It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer.  Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom — someone who should be seated in the "empty chair," but whom the victim decided not to bring into court. 

This strategy is called "blaming the empty chair."  Of course, the "empty chair" cannot defend itself.  Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether. 

I blogged about Scene Systems’ animation of Flight 1549’s landing in the Hudson here back in March.  Great effort, but I noted that it would take hundreds more hours of work before it could be used in court.  That’s because it did not appear that the animation accounted for and synchronized all the available data for the flight.  For example, the flight path depicted in the animation could not have been true to the information from the flight data recorder, because the flight data recorder had not yet been downloaded and made available by the NTSB.  As a result, Scene System’s finished product involved too much guesswork to ever be shown to a jury.

Just for fun, Kas Osterbuhr of Exosphere3d in Denver has been working on perfecting an animation ever since.  He emailed me the link late last night.  Kas, whose firm creates animations for use in court, explained to me that his animation is pretty much technically perfect.

Among the datasets utilized are: audio transcripts and recordings, digital flight data recorder, raw radar data, NEXRAD weather, witness statements, satellite imagery, elevation maps and several of the NTSB reports published in the docket. . .All aspects of this animation are based on actual data, whether from the NTSB docket or otherwise. The entire 3D reconstruction is built into a single environment where every piece of information can be aligned in position and on a timeline.

Tons of work went into this animation and it shows.  Aviation accident animations don’t get any better than this.

One question, Kas.  The animation depicts flames coming from the aircraft’s engines at certain times.  On what data is this based and what would happen if the judge ultimately determined that that evidence for this aspect of the animation is insufficient to allow it to be shown to a jury?

November 9 Update: Kas’ response is in the comments.

The families of Michael and Anne Harris, the American couple on board Air France Flight 447, filed suit this week in Houston federal court.  It’s the first lawsuit arising from the crash. The most frequently asked questions about this suit are:

Question:  Aren’t the families jumping the gun?  The Air France Fuselage Recoveryblack boxes haven’t yet been recovered, and may never be.  For all we know, this may have been the result of a chance encounter with a thunderstorm.  The crash may have been an unavoidable accident with no one to blame.

Answer: The Montreal Convention is the international treaty that governs all claims against airlines involving international air travel.  Under the convention, Air France is responsible even if the the crash was "just an accident."  As a result, Air France must compensate the families for their loss regardless of what the cause of the crash turns out to be.

Question: Flight 447 was from Rio de Janeiro to Paris on a French airline.  Why should the families be allowed to sue in Houston, of all places?

Answer: The Montreal Convention allows the families to sue in the country of the passenger’s "principal and permanent" residence.  The families say that, though the couple was living in Brazil, the couple maintained a permanent residence in The Woodlands, a suburb of Houston.  If that’s so, the families have a good argument tha they are entitled to sue in Houston.

Question: Why did the families file suit in federal court, rather than state court?

Answer: Many aviation lawyers believe that state courts are more favorable than federal courts for family members who have suffered a loss.  So victims’ attorneys often prefer to sue in state court.  However, a fairly new federal statute requires almost all cases arising from large air disasters to be heard in federal court.

More Air France Flight 447:

What happens to the wreckage after an airplane accident? Who gets access to it? What does the aviation accident attorney need to do to make sure it is properly preserved?
 
Here’s what happens: 
 
1. The National Transportation Safety Board Secures the Wreckage on Site. The wreckage usually remains at the site of the aircraft accident until the National Transportation Safety Board arrives. The Board investigator immediately secures the wreckage and makes Wreckage Awaiting NTSBsure no one tampers with it.  The Board investigator inspects, documents, and photographs the wreck.
 
2. The Wreckage is Removed to a Secure Location. After the Board investigator has inspected the wreckage on site, it asks a salvage company to remove it to a secure location.  The salvage company usually cuts the aircraft up, loads it on a truck and carts it away.  Wreckages from northern California airplane accidents often end up at a facility called Plain Parts in Pleasant Grove near Sacramento.  Wreckages from southern California accidents often end up at Aircraft Recovery Services in Pearblossom, California. Though the wreckage is now in the hands of a private salvage company, it is still considered to be in the custody of the NTSB. The salvage yard operators are supposed to allow no one access to the wreckage without the NTSB’s permission.
 
3. The NTSB Goes to the Storage Facility. The NTSB visits the storage facility with the other parties whom the NTSB has invited to participate in the accident investigation.  (As discussed here, the NTSB often invites the aircraft and engine manufacturer to participate in the investigation. The NTSB never invites the victim or the victim’s representatives. In fact, the NTSB won’t even allow the victim or his representatives access to the wreckage.)  The NTSB and the invited parties conduct a more detailed inspection of the parts, and they may disassemble the engine. They may send parts out for testing. 
 
4. The Wreckage is "Released" to the Owner.  When the NTSB is done with its various inspections, it "releases" the wreckage to the owner.  By now, legal title to the aircraft has often changed from its original owner to the insurance company that paid for the loss of the aircraft. As far as the NTSB is concerned, the owner — whether it’s the insurance company or the original owner — is now free to do with the wreckage what it wants, including scrapping it or selling it.    
 
Of course, the aircraft wreckage is important evidence. Therefore, before the NTSB releases the wreckage, the aviation attorney must take whatever steps are necessary to make sure the wreck is preserved.  The victim’s attorney needs to determine who the aircraft wreckage’s owner is, and he must obtain the owner’s written agreement to keep the wreck secure once the NTSB releases it. If the owner refuses, or threatens to destroy the wreck, the attorney may need to seek a court order. 

An aviation insurance company must fairly compensate those injured due to the negligence of one of its policy holders.  Of course, in most cases, the insurance company’s  financial responsibility is limited to the dollar limits of the insurance policy. 

But not always. 

When an insurance company unreasonably forces an aviation accident victim to take his case to trial instead of paying the policy limits to settle out of court, the rules change.  In that situation, the insurance company may be required to pay whatever amount the jury decides would fairly compensate the injured person, even if that amount is more than the limits of the policy.  That is because an insurance company who unreasonably refuses to pay its policy limits to settle a case is considered to be acting in "bad faith." 

Here’s an example of how California insurance law works. Let’s say that a passenger is injured in an aircraft crash, and that the crash was caused by the pilot’s negligence.  Let’s also say that the passenger has medical bills and lost wages or more than $250,000, but that the limit of the pilot’s insurance policy is only $100,000.  If the injured passenger demands  from the pilot’s insurance company $100,000 to settle out of court, the insurance company should pay it.  After all, it would be unreasonable not to pay that amount given the harm  the passenger has suffered.  But what if the insurance company decides to play "hard ball" and force the case to trial?  If a jury renders a verdict against the pilot of, say, $500,000, the insurance company may be required to pay the entire amount.  It is no defense that its policy was for only $100,000.  

This doesn’t mean that the insurance company must automatically fork over the policy limits to the accident victim in every case. Rather, the insurance company must pay the limits to settle only when it would be unreasonable not to.  In short,  if the insurance company decides to play hardball with the injured party, then the insurance company can be held financially responsible for the consequences.