Liability Questions Emerge as Search for Flight 370 Continues
While talk of lawsuits might sound premature while the search for a missing Malaysia Airlines Boeing 777 continues, law firms have already begun the chase for compensation for those who now seem certain to have lost loved ones. Chicago-based Ribbeck Law, for one, has already filed petitions for discovery in Circuit Court of Cook County, Illinois—the court whose jurisdiction covers Boeing headquarters in Chicago–on behalf of relatives of a missing passenger and crewmember, raising questions about international liability law in such cases and the extent to which the manufacturer and Malaysia Airlines might have to bear responsibility.
Under the Montreal Convention of 1999, to which Malaysia is a signatory, passengers can collect $174,000 each without having to prove negligence or fault of the airline. Under those terms, Malaysia Airlines already faces monetary claims of at least $40 million. However, once investigators determine what actually happened to the airplane, the costs can rise exponentially. Malaysia Airlines has so far offered to advance the families of each passenger some $5,000 each to help with travel costs and other related expenses.
The Montreal Convention replaced the Warsaw Convention of 1929, which allowed for much lower levels of compensation, and offers other “consumer friendly” provisions such as the ability for passengers to bring claims in a wider choice of jurisdictions and the possibility of advance payment by airlines to victims of accidents. The International Civil Aviation Organization (ICAO) reviews the liability limits every five years to ensure that the Montreal Convention “remains current and relevant.”
Of course, the precise jurisdiction in which a claimant files could prove vital in determining how much compensation he or she might win. According to the Montreal Convention, a claimant can bring a lawsuit in one of five places, including the airline’s headquarters, its main place of business, the location of the ticket purchase, the flight’s origin or destination or the plaintiff’s primary domicile.
Most claimants, however, want to file their cases in the U.S., due to its courts’ tendency to award generous sums and the fact that lawyers there often work on contingency, allowing people with little or no money access to representation, explained Washington-based lawyer and former deputy secretary of state for aviation Allan Mendelsohn. However, U.S. courts have recently tended to cite the doctrine of forum non conviens, or an inconvenient forum, to move cases to different jurisdictions, most often the country of the person’s primary residence.
“Foreigners always want to sue in the United States because we have a much better system of jurisprudence, number one, and number two, we have lawyers that take cases on contingency fees,” said Mendelsohn. “I happen not to be a contingency fee lawyer, but I respect them because it’s a great equalizer.”
In the case of Malaysia Airlines, 154 of the passengers carried Chinese passports; most of the remainder came from Malaysia. In what some might consider a sort of feeding frenzy, several lawyers from the U.S. have already descended on the hotel in Beijing where victims’ family members have gathered.
However, Mendelsohn doesn’t believe the U.S. should serve as a sort of “forum for the world,” he noted. “As more cases are litigated in this area, more foreigners are tossed back to the courts of their domicile countries, which is what I think ought to be the case.”
Mendelsohn explained that the Supreme Court of France ruled in the case of the 2005 fatal crash of West Caribbean Airways Flight 307 that the passengers could choose to file their claims in any of the five venues specified by the Montreal Convention. Because the travel agent who arranged the trip based his operation in the U.S., the lawyers representing the families of the victims chose to bring their case there. However, based on the doctrine of forum non conviens, the U.S. court refused to hear the case, returning it to Martinique, the country of domicile of all the passengers.
“The United States would not have ratified the Montreal Convention of 1999 unless the international community had agreed to add the fifth forum, and the fifth forum was the domicile of the victims,” said Mendelsohn. “It is naturally the courts of [the victim’s] country that are best suited to compensate him under their laws.”
Nevertheless, said Mendelsohn, in the case of Malaysia Flight 370, non-U.S. plaintiffs will try to sue in the U.S. on the basis that Boeing maintains its headquarters in Chicago, even though no one yet knows whether or not some design defect or mechanical problem contributed to the airplane’s disappearance. “It happens in every single air crash,” said Mendelsohn. “We who are in this field of law have come to expect that no matter the crash, no matter the place of the crash, no matter the nationalities of the victims, there will be a suit in the United States.”
Photo: Wikipedia Creative Commons, Aero Icarus under license.