Danko & Meredith Asiana Flight 214 and the Montreal Convention Plaintiff Article

7/29/2019 Danko & Meredith Asiana Flight 214 and the Montreal Convention Plaintiff Article

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BY MICHAEL S. DANKO

AND KRISTINE K. MEREDITH

Our own backyard. For many of us,the July 6th crash of Asiana Flight 214 atSan Francisco Airport struck a deeplypersonal chord. Who hasnt heard a fel-

low passenger express concern aboutSFOs over-water approach, or perhapswonder whether the aircraft was going tomake the runway? Not all such worriescan be chalked up to simple jitters aboutairline travel. It is a fact that the runwaysafety area for runway 28L (two-eight-left) was shorter than the safety area formost runways. The runway began only300 feet from the waters edge. That

didnt comply with the regulations. Infact, to meet the federal standards, theairport had just finished repainting therunway markings so as to move the run-way threshold an additional 300 feet awayfrom the seawall.

Runway 28L was equipped with an

instrument landing system, or ILS, thatelectronically guides pilots to the desig-nated touchdown zone. That guidance ishelpful at night and is crucial in badweather when the pilots cant see the run-way. After moving the runway threshold,SFO was required to relocate the ILS.Otherwise, the ILS would guide pilots tothe old touchdown point, rather than thenew one, now 300 feet downfield. To

avoid misleading pilots, until the ILScould be relocated, it had been turnedoff. The ILS was off when Flight 214made its approach.

The weather was clear on July 6when Asiana Flight 214 arrived fromSeoul. The tower directed the Boeing 777

to make a visual approach to 28L. Thatmeans the crew was to find the runwayand fly to it simply by looking out thewindow. As it descended, the crew was tocontinually adjust the aircrafts power set-ting and pitch to ensure that the aircraftarrived in the landing zone at the rightspeed and height. Too fast or too highand Flight 214 could run off the far endof the runway. Too low or too slow and it

Asiana Flight 214 and the

Montreal ConventionA look at the exclusive remedyfor all the passengers claims against Asiana

Copyright 2013 by the author.

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could stall and crash short of therunway.

Approaches usually work out best ifthe crew flies down a gradient of aboutthree degrees. That profile allows thecrew to keep the aircrafts speed and alti-tude in check. And a three-degree slopeis what an aircraft will fly if it stays on theILS course. Pilots learn and practice thisdescent path as part of their initial train-ing without help from an ILS. Given theideal weather conditions on July 6, guid-ance from the ILS simply wasnt neces-

sary. Flying the proper slope without theILSs help shouldnt have been difficult.

Trouble was that over the years theAsiana crew had become increasingly re-liant on electronics and cockpit automa-tion for even fair-weather landings. Thatresulted in a phenomenon that humanfactors experts call deskilling. Studiesshow that piloting skills degrade, espe-cially among less experienced crews, whenpilots do not regularly handle the aircraftmanually.1

The Asiana crew misjudged andcame up short of the 28L threshold. They

were not up to the task of landing withoutguidance from an operating ILS. Thus, ina sad twist of fate, SFOs efforts to ensurea safe undershoot area contributed to thevery type of accident those efforts wereintended to prevent. Tragically, the crewshorted the landing, Flight 214 hit theseawall and broke apart.

One hundred and eighty passengerswere injured and three were killed. Oneof those killed, a 16-year-old girl, sur-vived the crash but was fatally injured bya fire truck as she lay on the runway.Of the 291 passengers, 77 were Korean,

141 were Chinese, and 61 were Ameri-cans.

The Montreal Convention

No question about it, the crew shouldhave been able to land the airplane safelyon the runway. A functional ILS mighthave made the job easier, but a compe-tent crew should have been able to arriveat the runways landing zone without it.

Accordingly, passengers seeking compen-sation for their injuries would be ex-pected to look first to Asiana Airlines.

Claims against an air carrier arisingfrom injuries suffered onboard an inter-national flight are governed by the Mon-treal Convention, a treaty that is amongthe most widely recognized in the world.The Montreal Convention follows fromthe Warsaw Convention, a similar treatywhich predated World War II. For aircarriers, the new Convention providescertainty about where claims will be adju-

dicated. For passengers, the conventionprovides a right to compensation for bod-ily injury or death without, in most cases,caps on recovery. The 191 signatories ofthe Montreal Convention include China,the Republic of Korea, and the UnitedStates. Given their accord, the MontrealConvention provides the exclusive rem-edy for all the passengers claims againstAsiana.2

Asiana Airliness liability

The Montreal Convention requiresthe international air carrier to compen-sate its passengers or their families when-ever the passengers injury or death is theresult of an accident. The airlines obli-gation to pay does not turn on the acci-dents cause. Pilot negligence, mechanicalfailure, or even terrorist attack itdoesnt matter. If a passenger is killed orinjured as a result of an accident, the air-line is liable. A plaintiff need not provethat the airline was at fault.

Cap on airline liability

The airline is strictly liable for a pas-sengers damages up to 113,100 SpecialDrawing Rights, or about $170,000.3 Theairline can avoid liability for sums exceed-ing that amount only if it can prove it wastotally free from fault.4 That is usually animpossible task for an airline. Even whenan accident results from the classic act ofGod such as when the aircraft is struckby lightning or other weather phenomena the air carrier can seldom show thatthere was nothing it could have

done to avoid the accident. Its the prob-lem of proving a negative. Thus, the Con-ventions cap on the airlines liabilityhardly ever comes into play.

Here, the question of whether theairline was free from fault will not beclose. The Asiana pilots should have beenable to land the plane without crashing it.Thus, Asiana will be unable to prove thatthe crash wasnot due to its negligence orother wrongful act. The airline will besubject to unlimited liability forall dam-ages that are compensable under the

Convention without regard to any limit ofliability. Not all damages, however, arecompensable.

Recovery of damagesfor emotional distress

Airplane crash victims often sufferemotional distress resulting from what isreferred to as the fear of impendingdoom. The emotional distress encom-passes the anxiety and panic the passen-ger experiences between the time herealizes that the aircraft is going to crash

and when the aircraft comes to rest andhe is out of danger. Temporally, this typeof mental injury usually precedes the pas-sengers physical injury, if any.

By most accounts, Flight 214s crashlanding and the events that followed werehorrific experiences for all aboard. Surelymany passengers will struggle with emo-tional injuries that will disrupt both theirwork and family life for months, if notyears, to come. Outside the context of theMontreal Convention, an airline passen-ger would expect to be compensated forall the emotional distress suffered, re-gardless of whether the passenger experi-enced any physical injury.5 But under theConvention, an airline is not liable for apassengers emotional distress, regardlessof how severe, unless the passenger hasalso sustained a bodily injury. Thus,Asiana passengers who evacuated withoutsuffering any such physical injury, will beleft without any remedy at all.

What if, in addition to severe emo-tional distress, a passenger sustained a




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relatively minor injury, such as a lacera-tion from an evacuation slide or perhapsa twisted knee? Can that passenger re-cover for her emotional injury?

Not likely. The majority of courtshave ruled that the only emotional dis-tress that is compensable under the Mon-treal Convention is that which is causallyrelated to the physical injury. For exam-ple, the Eighth Circuit held inLloyd v.American Airlines (8th Cir. 1992) 291 F.3d503, that mental injuries must proxi-mately flow from physical injuries caused

by the accident. (Id. at 509.) It thusruled that a passenger who survived acrash could recover only emotional dam-ages which flowed from the physical in-juries to her legs and from her smokeinhalation, and that her post-traumaticstress disorder was thereforenotcompensable.6

The Northern Districts opinion inJack v. Trans World Airlines (N.D. Cal.1994) 854 F.Supp. 654 is credited as serv-ing as the cornerstone of the majorityview and is a must-read for anyone han-dling an Asiana Flight 214 case.7

The Jack case dealt with TWAFlight 843. Bound for SFO from NewYorks JFK, Flight 843 aborted its take-off and crashed. Fire completely de-stroyed the plane but all passengerssurvived. Many had minor physical in-juries as a result of the crash and evac-uation. TWA removed to federal courtthe claims of three of the passengerswho were ticketed for internationaltravel. The court followed the majorityrule, holding that the internationaltravelers could recover damages for theemotional distress flowing from their

physical injuries, butnot the emotionaldistress caused by the experience ofcrashing.

Plaintiffs with impact injuries may re-cover for their impact injuries and theemotional distress flowing only from thephysical injuries. They may also recoverfor the physical manifestations of theiremotional distress. Plaintiffs with physicalmanifestations may recover damagesfor the manifestations and any distress

flowing from the manifesta-tions, but may not recoverdamages for the emotionaldistress that led to themanifestations.In both in-stances, the emotional distressrecoverable is limited to thedistress about the physical im-pact or manifestation, i.e.,the bodily injury. Recovery isnot allowed for the distressabout the accident itself.(Id. at 668, Emphasis

added.)Only one federal dis-

trict court has permittedinternational passengers torecover for emotional dis-tress unrelated to theirphysical injuries. TheCourt inIn re Air Crash Dis-aster near Roselawn, Indiana,on October 31, 1994 (N.D.Ill 1997) 954 F.Supp. 175held that a physical injurywas simply a prerequisite toobtaining full compensa-

tion for mental injuries. Inthat case the compensablemental injuries includedpre-impact fear, providedthe impact resulted inphysical injury or death.Thus, inRoselawn, once avictim established a physical injury,all ofhis mental injuries were deemed compen-sable.Roselawns reasoning has beenwidely criticized as conclusory and hasnot been followed by other federalcourts.8

Further narrowing the scope of what

a passenger may recover as compensationfor emotional injuries is the Ninth Cir-cuits ruling in Carey v. United Airlines (9thCir. 2001) 255 F.3d 1044.

The Carey court held that, contraryto the ruling inJack, a passengersphysicalmanifestations of his emotional distress donot satisfy the Conventions bodily injuryrequirement. Such injurieswhich canrun the gamut from skin rashes to stom-ach ulcers arenot compensable.

Comparative fault

Because its so difficult for an airline toprove after a crash that it was free fromfault, its often said that airlines have nodefense to most Montreal Conventioncases. Thats not entirely accurate, as theConvention provides that the carrier is to be

exonerated from its liability to the claimantto the extent the [passengers] negligence orother wrongful act or omission caused orcontributed to the damage.9 Thus, thosewho were injured because, for example, theyfailed to properly use their seatbelts, orthose who would not have been injured dur-ing the evacuation had they left behindtheir carry-on baggage, can expect a diffi-cult time obtaining compensation for eventheir physical injuries.




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Visual approach to Runway 28L at SFO.


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No punitive damages

The Montreal Convention does notallow for punitive damages, regardless ofhow derelict the airline or its employees,or how willful their misconduct.10

The complaint

Complaints against Asiana should setforth a single cause of action for TreatyLiability. Allegations pertaining to theairlines negligence, gross negligence, orwilful misconduct, are irrelevant and arethus misplaced. (Recall that it is not theplaintiff s burden to plead or prove neg-ligence, but rather the airlines burden toplead and prove that it wasfree from neg-ligence or other fault if it seeks to limit itsliability.) The only necessary allegationsare that the plaintiff was a fare-payingpassenger engaged in internationaltravel, that defendant was the air carrier,that there was an accident, and that theplaintiff passenger suffered injury ordeath as a result.

Because the Convention is a federaltreaty, federal courts have original juris-diction. There is a conflict in authority as

to whether state courts have concurrentjurisdiction. Thus, a plaintiff filing thecomplaint in state court should expect itto be removed.

Obtaining jurisdiction

Without question, the most impor-tant issue in Montreal Convention casesis jurisdiction. Thats because the Con-vention leaves the issue of how much apassenger or her family is to be com-pensated to the local law of the jurisdic-tion in which the case is being heard.For cases brought in the U.S., for exam-

ple, a plaintiff who has lost a child islikely to be compensated in the millionsof dollars. But the same case brought inChina may result in compensation in anamount equivalent to $20,000 or less.Thus, for some passengers, if they can-not sue in the U.S., they will have nomeaningful remedy at all.

The Montreal Conventions jurisdic-tional provisions are for the most part

unambiguous. Passengers whose perma-nent and principal residence is in theU.S. can most certainly sue Asiana inU.S. courts. But it will be much more dif-ficult for foreign tourists to sue Asianahere. A passenger who is not a U.S. resi-dent can sue Asiana hereif and only if:1.) The passengers ticket was issued inthe United States; or2.) The passengers journey was a roundtrip that started in the United States; or3.) The passengers journey was a one-way trip that ended in the United States.

Unless the passenger can satisfy one ofthese requirements, the passenger cannotsue Asiana Airlines in the United States.11

The Convention aims to establishuniformity around the world in compen-sating international air travelers who areinjured in a crash. But application of theConventions jurisdictional provisionsoften results in wildly disparate treatmentof passengers who most would argueshould be treated the same. Imagine: twoChinese residents seated next to eachother, perhaps they are also sisters. Onetraveled on a one-way ticket, and one a

round-trip ticket. Both suffered seriousspinal injuries in the crash. Despite virtu-ally identical injuries, one will be com-pensated in accordance with U.S.standards, and one will be compensatedpursuant to Chinese law. One will receivemillions of dollars and one virtually noth-ing. Few travelers would ever suspect thatthe details of their ticket purchase will de-termine whether they have a meaningfulremedy in the event of an accident.

Liability of United Airlines

One other option is available for a

select few who cannot establish jurisdic-tion here over Asiana. In the event of anaccident, the Convention allows a passen-ger to sue his contracting carrier as wellas the actual carrier. United Airlinessold tickets to some of the passengers onFlight 214 as Asianas code share partner.United is thus those passengers con-tracting carrier.12 Because United Air-lines has its principal place of business in

the U.S., the Convention allows anyonewho flew on a United ticket regardlessof his residency or destination to sueUnited here.

Conclusion

While the Montreal Convention es-tablishes liability against Asiana, its provi-sions will significantly limit the recoveryavailable to most of the passengers whohave suffered primarily non-economicloss. Because the Montreal Conventiongoverns only claims against the airline,

practitioners will thus undoubtedly lookfor compensation to potential third-partydefendants such as Boeing, various com-ponent parts manufacturers, and The Cityand County of San Francisco. Given therole pilot error played in this crash, how-ever, any recovery against third partieswho contributed to the cause of the crashis likely to be significantly reduced whenliability is apportioned in accordance withProposition 51.

Mike Danko has repre-sented the families of those lost

in dozens of different aviationdisasters. His notable cases in-clude those arising from thecrashes of TWA Flight 800over Long Island Sound,Egypt Air Flight 990 nearNantucket Island, and the AirFrance Concorde at Charlesde Gaulle Airport in Paris,France. Mike Danko is an ac-tive pilot who has logged morethan 3000 hours in variousmakes and models of air-planes and helicopters.

Kristine Meredith has represented injuredair travelers against virtually every majorU.S. carrier. Kristine is the Chair of the Amer-ican Association for Justice Aviation Law Sec-tion.

Danko Meredithis a trial law firm lo-cated in Redwood Shores, California.

Endnotes:

1 Institute of Ergonomics and Human Factors, Contemporary Er-gonomics and Human Factors 2013 (Anderson edit. 2013) p. 61.




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Meredith


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2 Article 29 of the Montreal Convention provides: In thecarriage of passengers, baggage and cargo, any action fordamages, however founded, whether under this Convention orin contract or in tort or otherwise, can only be brought subjectto the conditions and such limits of liability as are set out inthis Convention without prejudice to the question as to whoare the persons who have the right to bring suit and what aretheir respective rights. . . .3 A Special Drawing Right is an artificial currency establishedby a basket of global currencies whose value fluctuates de-pending on the global currency markets. The value is pub-lished daily by the International Monetary Fund. SpecialDrawing Rights are to be conver ted into applicable nationalcurrencies at the date of the judgment.4 Article 21 of the Convention provides: The carrier shall not beliable for damages arising under paragraph 1 of Article 17 to

the extent that they exceed for each passenger 113,000 Spe-cial Drawing Rights if the carrier proves that:(a) such damage was not due to the negligence or otherwrongful act or omission of the carrier or its servants oragents; or (b) such damage was solely due to the negligenceor other wrongful act or omission of a third par ty.5 See, e.g.,Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293.6 See alsoEhrlich v. American Airlines Inc., (2nd Cir. 2004)360 F.3d 366 [a couple who survived runway overshoot couldnot recover for mental injuries caused by the accident (fear,anxiety and sleep disruption) that did not flow from thephysical harm they suffered (knee, neck, back, shoulder andhip injuries)].7 ThoughJackconstrued the Warsaw Convention, rather thanthe Montreal Convention, it is still persuasive. The ExplanatoryNote to the Montreal Convention states that it is expected

that the provision of Article 17 governing carrier liability forpassenger injury and death will be construed consistentlywith the precedent developed under the Warsaw Conventionand its related instruments. Montreal Convention, S. TreatyDoc. No. 106-45.8In re Air Crash at Little Rock Arkansas, on June 1, 1999 (8thCir. 2002) 291 F.3d 503;Ehrlich v. American Airlines Inc. (2dCir. 2004) 360 F.3d 366;Ligeti v. British Airways PLC (S.D.N.Y.Nov. 5, 2001) 2001 WL 1356238; Carey v. United Airlines,Inc. (9th Cir. 2001) 255 F.3d 1044.9 Montreal Convention, Article 20.10 Montreal Convention, Article 29.11 Montreal Convention, Article 33.12 Montreal Convention, Article 39.




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Danko & Meredith Asiana Flight 214 and the Montreal Convention Plaintiff Article

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