Thursday, 27 March 2014

Flight MH 370: US law firm plans lawsuit against Boeing and Malaysian Airlines

Reuters has reported that US law firm Ribbeck law plans a lawsuit against Malaysian Airlines and Boeing over the accident of flight MH 370. The firm is representing the relatives one of the persons presumed dead. It plans to turn also against component manufacturers and possibly maintenance service providers.

The law firm, based on previous experience, assumes that the accident was caused by manufacturing or design defect of the aircraft involved, a Boeing 777-200, namely cockpit fire or loss of cabin pressure, which incapacitated the crew. Therefore, it has filed a petition for discovery against Boeing and Malaysian airlines to secure evidence.

The previous experience Ribbeck refers to is mainly the July 2011 accident of Egyptair flight MS667 from Cairo (Egypt) to Jeddah (Saydi Arabia), which also involved a Boeing 777-200 (a Boeing 777-266ER). The accident occurred on the ground before take-off and had no fatalities. The same law firm has also filed lawsuits against Boeing concerning the July 2013 accident of a Boeing 777-28EER of Asiana Airlines flight 214 from Seoul to San Francisco. However, preliminary findings evidence suggests that the latter accident was due to pilot error. 

From a legal view, suing both the aircraft operator and manufacturer is not that usual under the 1999 Montreal Convention (MC), an international convention that regulates airline passenger liability for accidents in international flights. The MC foresees two-tier liability in the event of passenger death or bodily injury, i.e. limited strict liability for claims up to 113.100 Special Drawing Rights (as adjusted in 2009, which amount to about  174.553 US$ or 126.726 €), and unlimited liability for presumed fault for claims above the said amount. Nevertheless, for States not having ratified the MC, the “Warsaw System” (WS) would be applicable,  a system of international law treaties based on the 1929 Warsaw Convention (WC), which is the predecessor of the MC. Under the Warsaw System the airline incurs limited liability for presumed fault (the limit depends on the version of the WC applicable, but in most States applicable is the WC in the form of the 1955 Hague Protocol, which sets the limit to the equivalent of 250.000 golden francs) and unlimited liability for higher claims, provided that the claimant proves at least gross negligence of the airline – a very onerous burden of proof. As a result, under the WS, claimants used to turn against the aircraft manufacturer, whose liability in most States, and especially in the US, is unlimited. The exact airline liability regime applicable depends on each passenger’s place of departure and place of final destination, as these are mentioned on his/her ticket  - nationality plays no role.

Another interesting feature is the claimants’ effort to establish jurisdiction of US courts over the accident – a very usual phenomenon owing to the high damages awarded in the US. Under the MC, US courts have jurisdiction over the airline, if the claimant has domicile in the US and the airline engages in commercial operations in the US (so called 5th jurisdiction – see Art. 33 MC). However, even in such cases US courts may deny jurisdiction based on the forum non conveniens doctrine, i.e. the whole case is connected by large to another State, whose courts would be more suited to hear the case. Thing for claimants are even more difficult under the WS, which foresees jurisdiction of the courts of the State of final destination, the State in which the air carrier has its domicile or its principal place of business and the State where the contract was concluded (Art. 28 WC). These problems on jurisdiction of US courts can be overcome if claimants sue Boeing, which is a US based corporation. Of course, the risk of forum non conveniens is not eliminated, but is significantly mitigated.

To the rest, Ribbeck’s announcement to initiate legal proceedings against the aircraft operator and its manufacturer, before even the wreckage is discovered, aims mainly at attracting victims’ relatives as clients.

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