Monday, July 8, 2013
Obviously the big news over the weekend was Saturday's crash landing by Asiana Airlines flight 214. Here is a quick legal primer on Asiana's likely liability based on what is known so far:
- Any legal claims brought by passengers or their relatives against Asiana Airlines will be governed by the 1999 version of the Convention for the Unification of Certain Rules for International Carriage by Air, otherwise known as the Montreal Convention.
- This is because it was an international flight and all three of the States which could be considered origin or destination points (China, South Korea and the United States) are all parties to the 1999 Convention.
- Under Article 33 the Montreal Convention, plaintiffs will have their choice of bringing their claims in either South Korea or the United States. Additionally, any deceased or injured passengers who purchased their tickets in China or who are residents of China should be able to have their claims heard there as well.
- Unlike the regime under the Warsaw Convention, which predated Montreal, there is no hard cap on the amount of damages recoverable by the passengers.
- All passengers should be able to recover provable damages up to 113,100 Special Drawing Rights. Plaintiffs with larger damages should be able to recover up to the extent of their injuries unless Asiana can prove the accident did not result from its own pilots' negligence but was solely the fault of San Francisco International Airport.
- If the airport is at all responsible, Asiana will be able to bring a claim against the airport for at least partial indemnification for its liability to passengers.
- The Montreal Convention doesn't preclude the passengers' ability to bring claims against the airport or manufacturer should those prove the better legal strategy.
- While U.S. courts don't award damages under the Montreal Convention solely for emotional distress, in a case like this plaintiffs should have no trouble demonstrating physical injuries that will allow them to also recover for provable emotional damages.