Potential Theories of Liability and Recovery for Passengers on Asiana Flight 214

It is never wise to assume facts or jump to conclusions regarding aircraft accidents and the causes behind them.  More often than not, an airline crash is the result of a series of events or mistakes that by themselves may be benign, but mixed together create a recipe for disaster.  Such was probably the case with the crash of Asiana Flight 214.  However, there have been daily briefings by the NTSB, and evidence has been provided which gives some insight into what may have caused the crash and what theories of liability could be pursued to recover damages.

Airline Liability under the Montreal Convention

The Convention for the Unification of Certain Rules for International Carriage by Air Signed at Montreal on 28 May 1999 (Montreal Convention) governs claims by passengers against the air carrier on most international flights.  China, South Korea, and the United States are all signatory countries to the Convention.  For passengers aboard the plane, it is not necessary to prove negligence – only that an “accident” occurred.  An “accident” is defined as an unusual or unexpected event, not unique to the passenger.  The crash at SFO falls within that definition, and Asiana is liable without the passengers having to prove fault up to 113,100 Special Drawing Rights (SDRs), which is approximately $138,000.  Physical damages related to the crash must be proven, and there is no recovery under the Montreal Convention for purely psychic (non-physical) injuries, no matter how terrifying the crash may have been.   For claims over that amount, the airline can claim they were not at fault, but must prove that others were.  It is likely that Asiana may initially offer the 113,100 SDRs to passengers on the aircraft, or the heirs of those killed.  However, it is very important that anyone wishing to accept that amount seek legal counsel to make certain the right to seek more from the airline is not waived.  The jurisdiction where one can sue Asiana under the Montreal Convention depends on several factors, and an experienced aviation lawyer should be consulted to assist in that determination as well.

Liability of the Aircraft Manufacturer:

Boeing designed and manufactured the 777 involved in the crash.  It is not known at this time whether the aircraft or any component parts thereon caused or contributed to the crash.  However, if there is evidence that something went wrong with the engines, flight controls or other components of the aircraft which caused the pilots to get too low and too slow, claims may be pursued based on theories of negligence and product liability against the designers and manufacturers of the equipment.  Likewise, should it be determined that post-crash fire or un-crashworthy components of the aircraft caused injury or death, claims may be pursued based upon crashworthiness, or lack thereof.

Liability of the Government

Although there appears to be no evidence of such at this time, should it be determined that the Asiana 777 was following too close to another aircraft due to air traffic controller instructions, and wake turbulence from the preceding aircraft caused the loss of control, claims may be pursued against the United States government under the Federal Tort Claims Act.  If the local government authorities such as the fire department, airport authority, or other city agencies caused or contributed to injury or death, claims may be filed against them as well.  It is important to note that government claims are handled differently than private ones.  Before the United States may be sued, a Claim must be timely presented to the appropriate agency within two years.  Under California law, before a lawsuit may be pursued against any governmental agency, a Claim must be filed with six months of the accident.  Again, it is important to contact knowledgeable and experienced attorneys for advice or representation to make certain the claims are handled properly.

Magaña, Cathcart & McCarthy are Experienced Aviation Accident Attorneys

Attorneys at Magaña, Cathcart & McCarthy have considerable experience and expertise in aviation accident cases.  Examples of major international airline accident cases handled by the firm include:

• Singapore Airline 747 crash in Taipei, Taiwan
• China Eastern Airlines loss of control en route to Los Angeles
• Korean Air crash in Guam
• Egypt Air crash
• Pago Pago crash
• Tenerife collision

For sound advice and professional representation regarding any aviation accident, contact Magaña, Cathcart & McCarthy to speak with one of our experienced aviation lawyers.