July 12, 2013
Facts, rights and obligations . . . reminders for coping with aviation disasters
What was supposed to be a long, celebratory holiday weekend, turned deadly with many people suffering from two heartbreaking plane crash disasters. On Saturday, July 6, 2013, Asiana Airlines Flight 214 made a crash landing at San Francisco International Airport (SFO), killing two and injuring dozens of passengers. On Sunday, July 7, 2013, two Greenville, S.C. families were killed, along with their pilot in Soldotna, Alaska, when their air taxi crashed.
As the former Inspector General of the United States Department of Transportation and the only aviation attorney who represented foreign nationals in the litigation of airline, security company and airport negligence related to the 9/11 attacks, I am, unfortunately, all too familiar with the stages of extreme grief, anger, overwhelming confusion and frustration that passengers and their friends and relatives can experience when aviation disasters occur.
United States courts are extremely experienced and very capable in handling large airplane disasters, but the laws can be difficult to decipher if you are not well versed in the law. Sharing the general processes and laws discussed below, I hope, will help those impacted by devastating air plane crashes to be empowered in the time-consuming process and in the difficult decisions that need to be made. In my experience, I’ve found that understanding what obligations the airlines’ or operators have to passengers is the first step. Fortunately, for an international aviation disaster such as the Asiana Airlines Flight 214 crash there is an act—Chapter 14 of Title 29 of the United States Code—which obligates foreign air carriers to address the needs of passengers and families involved in accidents. Recently, though, much has been said in the news about the fact that U.S. laws may not apply to the same extent to foreign carriers as they do to U.S. carriers. However, when foreign carriers operating in the U.S. have an incident, there is an applicable law. Foreign carriers that operate in the U.S. are required to have a plan for addressing the needs of families of passengers who are involved in an aircraft accident on file with the Secretary of Transportation and the Chairman of the National Transportation Safety Board (NTSB). These provisions include that the foreign carrier must:
- Provide the victims’ families with information and the appropriate level of support services and assistance following the accident.
- Return passengers’ possessions. If there are unclaimed possessions, the carrier must retain them for 18 months and make reasonable efforts to return them to the families.
- Provide compensation to service organizations such as the Red Cross that provide aid in the disaster.
- Provide passengers’ families with assistance in traveling to the location of the accident and for physical care of the families while the family is staying near the location of the accident.
The foreign carrier must commit sufficient resources to carry out its disaster plan and the Secretary of Transportation shall not allow the carriers to fly to the U.S. unless and until they have such a disaster plan in place to take care of their passengers in the event of an accident.
The rights of victims of an air disaster can be complicated and overwhelming due to many factors, including when international aviation disasters occur. Below are some reminders to keep in mind regarding victims’ rights.
Each passenger or relative of each deceased passenger has the right to obtain counsel from a qualified, experienced aviation attorney and file their own lawsuit. In the U.S., plaintiffs' causes of action in the aftermath of a plane crash are never a class action. Instead, each plaintiff is expected to file his or her own lawsuit. In the case of a minor, their parents, legal guardians, next of kin or personal representative, if the passenger is deceased, may file on their behalf. After these suits have been filed, then each plaintiff’s individual action will be consolidated in one court for purposes of discovery (the period of time after lawsuits are filed in which each side is entitled to discover the evidence of the case).
The lawsuit must be filed within two years after the plane crash, meaning before the expiration of two years. For an international flight, a treaty often referred to as the Montreal Convention applies to a portion of the case. The Montreal Convention only governs claims of the passengers against the airline – it does not govern claims of the passengers against the manufacturer, the airport or parties other than their carrying carrier.
- The Montreal Convention and case law that has interpreted the meaning of the Montreal Convention makes the carrier absolutely liable for the first approximately $175,000 of damages of the plaintiffs. Thereafter the carrier is liable for additional damages recognized by the Montreal Convention unless the carrier can show that it took all reasonable means to avoid the crash.
- In the example of Asiana Airlines Flight 214, I believe that it is impossible for the carrier to show that it took all reasonable means to avoid the crash because the carrier has already made statements that it knows of no mechanical problems that could be to blame, and it has made public statements indicating, although not outright admitting, its responsibility.
- The damages recognized by the Montreal Convention include passenger’s injuries, lost income (including reasonable future expectations), other related damages and costs as well as any emotional distress and psychological damages that flow from physical injuries sustained in the crash. Loved ones may also recover for personal losses such as the loss of companionship, services, advice and counsel and guidance stemming from their loved ones injuries.
Victims and families of the Asiana plane crash have input into the location of where the action is brought against the airline carrier. The Montreal Convention provides where such cases may be brought, and United States courts have made it clear that the plaintiff’s choice of forum (where the plaintiff chooses to file his or her lawsuit) will be given considerable deference. A passenger can bring an action against their carrier where the carrier is domiciled (where the airline is flagged or has its planes registered), the carrier’s principal place of business, where the carrier has a place of business to which the contract (the ticket) was made, the destination of the flight or where the passenger has his or her permanent residence at the time of the accident.
Motley Rice has participated in the court cases establishing precedential decisions on this issue. Recent court decisions in California, New York, Miami, and other major cities in the U.S. District Courts and the U.S. Courts of Appeals have followed the Montreal jurisdictional guidelines.
The courts in the U.S. have made it clear that the plaintiff’s choice of forum will be given considerable deference. In incidents such as Asiana Flight 214, typically defendants other than U.S. carriers or U.S. manufacturers file a motion to dismiss on the basis of “forum non conveniens.” That means literally that the non-domestic defendant asks the court to send the case from the United States to a foreign country because the United States is not a convenient forum. When that occurs, the court analyzes various factors, giving great weight to two aspects, among many other considerations:
- First, the court places significance on where the official accident investigation is taking place and where the physical evidence has been recovered and is located. In the Flight 214 instance, that is the U.S. for all of the above.
- Second, courts have been very sensitive and practical in desiring to bring cases together at a location that will make trial easier and more expeditious. A significant part of the case is likely to revolve around the location of the airport and particular runway on which the incident occurred, which the U.S. provides.
Finally, specifically for United States residents, the U.S. courts have noted a clear interest when citizens are victims and the injury occurs on U.S. soil. United States courts always presume a case is convenient, and therefore not an inconvenient forum, if U.S. residents are suing in a U.S. court. Since 60 of the passengers were U.S. residents and they will undoubtedly bring their case in a U.S. court, I believe the consolidated action will reasonably, logically, conveniently, and steadfastly, be brought here.
“Facts you should know in the aftermath of an air disaster” is a resource that offers some initial facts. In addition, I, along with my colleague and aviation lawyer Jim Brauchle have been guests on many shows reporting on the ongoing investigation of Asiana Airlines Flight 214 crash, many of which may be found here.
In addition, Motley Rice attorneys have associated Chinese speaking co-counsel for Asiana 214 clients. Motley Rice事务所律师与会讲中文的律师联合，代理韩亚214航班空难委托人。 For those attorneys who would like to review recent opinions, please refer to:
- Pierre-Louis v. West Caribbean Airways, 584 F.3d 1052 (11th Cir. 2009)
- In re Air Crash Near Peixoto de Azeveda, Brazil, on Sept. 29, 2009, No. 07 MD 1844 (E.D.N.Y. July2, 2008)
- In re Air Crash Over the Mid-Atlantic on June 1, 2009, No. 10 MD 2144 (N.D. Cal. October 4, 2010)
- Tazoe v. Airbus S.A.S et al., 631 F.3d 1321 (11th Cir. 2011)
My thoughts remain with the victims of these two horrific plane crashes. There are many organizations such as the National Air Disaster Alliance/Foundation and the AirCraft Casualty Emotional Support Services (ACCESS) that can assist victims of aviation tragedies.