The first thing Boeing does when sued for a crash on foreign soil is try to get those lawsuits moved out of the US and into the foreign countries.  In the case of the 737 Max cases, it means trying to move them to Indonesia and Ethiopia.  If Boeing’s successful, the cases would be virtually worthless and the families would get next to nothing.

The legal doctrine that Boeing relies on is called forum non conveniens. I’ve written about Boeing’s “FNC” strategy most recently here.   And then I gave an interview explaining the strategy to Business Insider reporter Sinead Baker in London, who published an article in June.  She took particular note of my comment that “having a trial in another country with a different legal culture, and less scope for close scrutiny of Boeing, would render the case worthless.”

Last week Boeing’s CEO, Dennis Muilenburg, testified before Congress.  When asked whether Boeing was seeking to move the cases out of the country, the best he could come up with was “Congressman, I can’t comment on that.  I’m just not familiar with the details of that. . . I don’t know the answer.”

Representative Peter De Fazio, the committee chairman, was incredulous.  He hammered the CEO. The Congressman pointed to the Business Insider article, and specifically referred to my comments about the cases being “worthless” in another country.

This took me 30 seconds with Google search.  June 13th, Business Insider. . . And you don’t that that’s happening?”

Read the transcript or watch the exchange at the Business Insider follow-up article.

Families of both Ethiopian Airlines Flight 302 and Lion Air Flight 610 have sued Boeing in Cook County, Illinois. To win, the families need prove only that a defect in the design of the Boeing 737 Max contributed to the crashes.  But first they have to convince the judges that their cases should be heard in this country and not in either Indonesia or Ethiopia, where the crashes occurred. Of course, if the Cook County courts decide to send the cases to the countries where the crashes occurred, its unlikely the families will ever receive meaningful compensation. Neither the Ethiopian nor Indonesian legal systems allow for meaningful monetary compensation in death cases, at least as compared to the legal system in the US.

So how will the Cook County judges decide whether to allow the cases to proceed in the US, or to instead send them away? The courts will look to the doctrine of forum non conveniens, a common doctrine in aviation cases which allows a judge to send a case to the country where the crash occurred if the judge decides the foreign country is a more appropriate place for the case to proceed.

In deciding whether to keep the case or send it away, the courts will seek guidance from an Illinois appellate case entitled Ellis v. AAR.  Like these cases, Ellis involved the crash of a Boeing 737, but in the Philippines. I represented 31 families from that crash and the issue of forum non conveniens was, of course, hotly contested. Ultimately, we won the forum non conveniens battle and went on to win settlements for all the families. Had we lost on forum non conveniens and the had the court sent the cases to the Philippines, the families would have been turned turned away without any compensation at all.

Under the Ellis case, some of the factors a court should consider in deciding whether to keep a crash case in the United States or send it to the country in which the crash occurred are as follows:

1. Which country would be most convenient for the witnesses?
2. In which country would it be easier to access the relevant evidence?
3. Where would it be easiest to subpoena unwilling witnesses?
4. In which country would it be the least costly to have witnesses attend trial?
5. In which country is it easiest to view the crash site, if necessary?

In Ellis, we convinced the court that, on balance, consideration of these factors weighed in favor of hearing the case in the US and not the country in which the crash occurred. Of note was that the crash site had no evidentiary value because it had been paved over shortly after the crash. Thus there was no reason for a jury to see it.

Boeing will argue that, unlike the Ellis case, these cases should be sent back to the countries in which the crashes occurred. First, Boeing will argue that only the foreign courts can decide the cases in their entirety. That’s because Boeing will blame the foreign airlines, their pilots and their mechanics, but the Cook County courts cannot force those parties to come to the US for trial. Boeing, on the other hand, will volunteer to submit to the jurisdiction of the foreign courts, making those courts the only ones where “complete relief” can be afforded. Boeing will further argue that crucial evidence, such as the aircraft flight data recorders, cockpit voice recorders, and various aircraft parts are in the foreign countries and it’s not likely those countries will allow the evidence to be shipped here.

The families will argue that most of Boeing’s engineers are in Chicago, right down the street from the courthouse, as are the reams of documents involved in the aircraft certification. Moreover, the evidence from the flight data recorders will soon be extracted and reduced to written form which can be easily copied and transmitted to the US. Further, getting to the bottom of what caused these crashes is of vital interest to the United States because the 737 Max aircraft will once again fly in this country.

Judges are allowed wide discretion in ruling on forum non conveniens motions.  That means that, whatever the trial judges decide, it will be difficult if not impossible to reverse the decisions on appeal.

A McDonnell Douglas MD-82 crashed in August 2008 while taking off from Barajas Airport in Madrid. 154 on board were killed and 18 were injured. The injured passengers and the families of those killed filed lawsuits in the US against Boeing, which merged with Spanair 5022 Crash LocationMcDonnell Douglas in 1997, claiming that the aircraft was defective.

Here’s what the plaintiffs say happened:

  • The airplane crashed because its flaps and slats were not extended as required for takeoff.
  • The pilot was not alerted that the flaps and slats were in the wrong position because the “Take-Off Warning System” (or TOWS) failed to operate.
  • The TOWS failed to operate because mechanics, to deal with another problem, had disconnected an electrical relay which, in turn, deprived the TOWS of power.

How would any of this make the manufacturer liable?

Because, according to plaintiffs, the manufacturer should have wired the TOWS to be “fail-safe” so that, if power to the system was disrupted, it still warned the pilot:

Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD–82 on takeoff from Detroit Metropolitan Airport in 1987. . .  According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff . . . Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a “fail” light in the event of a circuit power loss, but Defendants did not adopt that recommendation . . . Plaintiffs contend that TOWS failures now account for 49 accidents. . . On the basis of these allegations, Plaintiffs contend that “[t]his case is about a design defect that remains uncorrected despite Defendants’ knowledge of it for over 20 years.”

But even assuming plaintiffs made out a viable case against the manufacturer, there was still the question of whether the cases should be tried in the US or, under the doctrine of forum non conveniens, dismissed and sent to Spain, where the accident occurred.

In the end, the California federal court dismissed the cases, just as in the Air France Flight 447 litigation.

In dismissing the cases, the court decided that, in essence, it would be more convenient for all parties if the suits were brought in Spain. Two parts of its ruling were interesting. First, the court considered and rejected plaintiffs’ argument that it would be a great economic burden for them to bring the suits in Spain because in Spain, contingency fee agreements aren’t allowed.  

if the unavailability of contingency fee arrangements weighed against dismissal, it would likely weigh against dismissal in every case. This factor therefore does not deserve “substantial weight” in the balancing . . . Further, Plaintiffs have argued only that they will face “serious financial impediments.” Notably, they have not argued, or pointed to any evidence, that these financial impediments will be prohibitive.

In other words, it might be very difficult for the plaintiffs, many of whom had lost their bread winners, to pay hourly rates for attorneys to bring the cases in Spain. But it wasn’t impossible.

Second, the court ruled that it would be cheaper for the plaintiffs to obtain witness testimony if the cases were in Spain rather than the US.

Damages testimony–from family, friends, and doctors–will be necessary for each of the 100 victims.  All plaintiffs and the decedents they represent are from outside of the United States.  The cost of travel for these witnesses alone is extremely high.  Because almost all of the decedents come from Spain, the costs associated with obtaining testimony from those witnesses in that country would be far lower.

Never mind that plaintitffs, in chosing to bring the cases in the US, were obviously willing to bear those costs. Sure, they knew it might be cheaper to bring the witnesses to court in Spain.  But it wouldn’t matter much because in Spain the cases would be next to worthless.

Cases dismissed.

The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)

Most of the families of the 228 passengers who were aboard Flight 447 filed suit in the United States. The reason they chose to file suit in the United States was simple. The courts of other countries provide little compensation to those who have lost loved ones due to the negligence of another.  And resolving cases in other countries can take seemingly forever. For example, as discussed here, the July 2000 crash of the Air France Concorde is still wending its way through the French court system. That’s despite the fact that the families who sued in the US settled their cases years ago. It may be surprising to many, but the US court Air France Wreckagesystem moves much faster than those of many other countries.

The Air France Flight 447 cases were all pending before a federal judge sitting in San Francisco.  Earlier this week, the judge reluctantly dismissed all the cases, ruling that they should be brought in France instead of the US.

The judge noted at the outset that dismissing the cases will mean that they will likely be refiled in France where they will languish.  It is thus doubtful that the families will ever be fairly compensated. But given the law of forum non conveniens, he couldn’t justify keeping the cases in the US:  

The Court has great sympathy for all the families who lost loved ones in this horrific accident and is interested in seeing those families fairly and timely compensated. But sympathy cannot substitute for an unbiased application of the law.

The judge noted that many manufacturers of the aircraft’s various components are located in the United States. That means the United States does indeed have a legitimate interest in the litigation. After all,

The United States [has] an interest in deterring the manufacture of defective products by domestic corporations.

But the judge decided that interest was outweighed by other factors. For example, a criminal investigation into the cause of the crash is currently taking place in France. French civil courts can get access to the evidence that is gathered in that investigation. But US courts cannot. That, according to the judge, makes it more appropriate for the cases to be heard in France.

Unfortunately, as discussed here, nothing ever seems to come of those criminal investigations in France. And it’s unlikely that, in France, the victims will ever receive fair compensation for their loss. In fact, any compensation at all from the manufacturers is now a long, long way off.

The judge’s 20 page opinion can be found here.

The Yemenia Air flight that crashed near Moroni wasn’t built in the United States. It had no Americans on board, and no part of the flight was through U.S. airspace. The aircraft, however, was leased to Yemenia Air by a Los Angeles company, International Lease Finance Corporation, or “ILFC.” Could the Yemenia Air families successfully bring a lawsuit against ILFC in the U.S.? Perhaps, but only if they could prove all of the following:

1. That Yemenia Air Was Not Competent to Operate the Aircraft. The European Union banned the accident aircraft from entering EU airspace in 2007 after inspecting the aircraft and finding a long Yemenia Air A310list of technical discrepancies. The EU is now considering banning the airline from operating any of its aircraft in EU airspace. The reason? The airline does not seem capable of operating safely. Apparently, Yemenia lacks the technical expertise, the resources, or the inspectors to make sure minimum safety standards are met. From what we know about Yemenia Air thus far, the families should have little difficulty proving that the airline was not competent to safely operate ILFC’s aircraft.

2. That ILFC Knew the Airline Was Not Competent. A lessor can be held accountable to those injured by a lessee airline’s incompetence if, when it entrusted the aircraft to the lessee airline, the lessor knew the airline was not competent to operate the aircraft safely. The legal theory is called “negligent entrustment.” Yemenia Air has a terrible reputation and the families would have a good chance of proving that the leasing company knew it. Red flags certainly would have been raised for ILFC at least by 2007, when it learned that the EU had banned its aircraft from EU airspace.

3. That the Federal Law Immunizing Lessors from Liability for the Negligence of their Lessees Does Not Apply. A federal statute, USC section 44112, states that one who leases an aircraft is not liable when the lessor has an accident. But that statute was designed to protect the lessor from “automatic” liability that might arise in some states simply because the leasing company owns the aircraft. It doesn’t protect a lessor from liability for its own wrongful conduct when, for example, it knowingly entrusts an aircraft to an airline that can’t operate it safely.

4. That it is More “Convenient” for ILFC to Litigate in the US Than in Yemen. The legal doctrine of forum non conveniens allows a US court to transfer a case to a foreign country if it believes that, all things considered, it would be more convenient for the parties. And a court in California did exactly that in the Flash Air case, which involved ILFC and a 2004 crash off the coast of Egypt. In the Flash Air case, the court transferred the case overseas because, among other reasons, it decided that the best evidence concerning the cause of the crash was overseas, and that evidence would be difficult to bring here.  That’s the same situation in this case. So overcoming ILFC’s “forum non conveniens” argument would be the families’ biggest challenge. There is, however, one significant difference between this case and the Flash Air case. This case would be all about ILFC’s “negligent entrustment” of the aircraft.  So in this case, the most important evidence concerns what ILFC knew about the airline’s level of competence. That evidence is most likely here, not overseas.

Are the passengers’ families entitled to compensation for their loss? From whom? Does it matter what caused the crash? Can the families sue in the United States?

Air France is Responsible Regardless of the Cause of the Accident. 

The Montreal Convention requires Air France to compensate the families as long as the crash was caused by an accident.  The Convention defines "accident" to include any unexpected event, from an encounter with severe weather, to mechanical failure, to a terrorist attack.

Air France must compensate each passenger’s family:  

  • For all recoverable damages suffered up to $155,000; and
  • For all recoverable damages suffered in excess of $155,000, unless Air France proves it was not in any way “negligent or otherwise at fault."

In addition, Air France must advance $25,000 to cover each family’s “immediate economic needs” within 15 days of identifying who the proper claimants are. The $25,000 payment is credited against Air France’s ultimate obligation to the family.  

As a practical matter, Air France will be liable for all legally recoverable damages without regard to the $155,000 limit. That’s because to avoid liability, Air France has to prove a negative — that it was not in any way “negligent or at fault.” Regardless of whether it is ultimately determined that the crash was caused by weather, equipment failure, or even terrorism, Air France will not be able to demonstrate that its own negligence did not somehow contribute to the accident.  There are just too many possibilities for Air France to disprove.

The Final Amount of Compensation to Which a Family is Entitled Depends upon Where the Particular Family may Sue.

U.S. law is most favorable for the families, as the laws of other countries severely limit compensation in wrongful death cases. For example, unlike the United States, many countries do not allow families to be compensated for loss of a loved one’s "care, comfort, or society."  But the Montreal Convention will permit a family to sue Air France in the U.S. only if: 

  1. The United States was the passenger’s ultimate destination, or
  2. The passenger’s ticket was issued in the United States, or
  3. The passenger’s “principal and permanent residence” was in the United States.

The first two grounds are relatively straightforward. The passenger’s travel documents will determine whether the family meets the applicable requirement. The third ground, however, might well be hotly contested in at least some of the families’ cases. For example, two Flight 447 passengers were U.S. citizens from Texas who were living in Brazil. But was the U.S. their "principal and permanent" residence? That may depend upon whether they intended to return to their home in Texas and, if so, when. These details may need to be litigated.

Compensation from the Manufacturers.

If the crash was caused by a product defect – such as a problem with the Airbus’ weather radar, its flight control system, or a pitot tube — then the families would be entitled to pursue a product liability claim. Many of the Airbus’ components parts are manufactured by U.S. companies.  If  a U.S. manufacturer was responsible for the defect, the families would be permitted to sue the manufacturer here, even if the Montreal Convention did not allow them to sue Air France here.  A family that successfully sues in the United States may be compensated under U.S. law rather than the more restrictive foreign laws. 

Forum Non Conveniens is an Obstacle to Suing Manufacturers in the U.S.

The doctrine of forum non conveniens allows a U.S. court to decline jurisdiction and transfer a case to a foreign country if it decides that, all things considered, the foreign court would be more convenient for all involved.  U.S. courts frequently invoke the doctrine to avoid hearing cases involving foreign aviation accidents. Flight 447 may be one case, however, that a U.S. court may well decide to hear.  After all, the U.S. would be most convenient for the manufacturers because their engineers, their engineering documents and test data are undoubtedly here. There are no eyewitnesses to the accident who would need to be inconvenienced by traveling to the U.S. from abroad to testify. Finally, unlike disasters occurring on foreign soil, it makes no sense to have the case heard near the crash site because there is nothing at the crash site for any judge or jury to see.