Litigation Likely, but Where to Sue Remains Unclear
by Joe Palazzolo, The Wall Street Journal
July 9, 2013
The Asiana Airlines jet crash on Saturday will likely generate litigation. But where the bulk of it will take place is very much an open question.
The U.S. is a highly sought venue for lawsuits because damage awards for pain and suffering and emotional distress in U.S. courts are typically much larger than in other countries. The crash, which killed two Chinese teenagers and injured 182 others, occurred on U.S. soil, but that doesn’t guarantee entry into U.S. courts.
The method of compensating victims of international airline crashes is governed by a treaty known as the Montreal Convention, which came into force in 2003. Under the treaty, Asiana, of South Korea, is automatically liable for as much as about $150,000 in damages per injured passenger—damages that would likely be paid by the airline’s insurers, legal experts said. Passengers could seek more money from Asiana if they can show the airline was at fault for the crash.
But legal experts were divided on where passengers would be allowed to file any claims. The treaty allows victims of the crash to sue Asiana in U.S. courts if they are permanent U.S. residents, purchased tickets in the U.S. or were flying into the U.S. as a final destination.
Representatives of Asiana couldn’t immediately be reached for comment.
Most of the passengers weren’t U.S. residents, including 141 Chinese and 77 Koreans. There were 64 Americans aboard. A big question will likely be whether courts consider the U.S. a final destination for foreigners with round-trip tickets.
“For a Chinese person with a round-trip ticket, the final destination is China,” said Mike Danko, a trial lawyer based in Redwood City, Calif., who is working with foreign counsel for some of the victims. He predicted the U.S. courts would knock many of the passenger claims to foreign jurisdictions.
But Ladd Sanger, an aviation lawyer and commercially rated pilot, said, “I think there’s a good argument that everyone on that airplane could bring a case in the U.S.”
Mr. Sanger said U.S. courts have split on the meaning of “final destination” in the Warsaw Convention, the predecessor of the Montreal Convention.
U.S. courts have occasionally ignored jurisdictional requirements of the treaty, he said, sending cases to the place where the crash occurred. That happened in the aftermath of Air France Flight 447, which crashed into the Atlantic Ocean in 2009, killing all 216 passengers and 12 aircrew.
Regardless of where claims against Asiana could be filed, passengers may still sue other parties in U.S. courts, such as the aircraft manufacturer, the aircraft-parts makers and the federal government, which controls air traffic, Mr. Danko said.
The findings of the National Transportation Safety Board, which is investigating the crash, aren’t admissible in court. So it is possible a passenger could proceed with a claim against the manufacturer or another party besides Asiana, even if the NTSB concludes the crash was the result of pilot error, legal experts said.
Under federal law, lawyers are prohibited from contacting victims or victims’ families until 45 days after air crashes. In the past, according to Mr. Danko, airlines have used that time to make settlement offers.