We spoke with Lexi Hazam, an attorney at the American
firm of Lieff Global, and Jean-Pierre
Bellecave, an attorney at the French firm of Martin Chico & Associes,
who are working together in representing survivors and the
families of those lost in the tragic S7 crash in Irkutsk
on July 9, 2006. Ms. Hazam and Mr. Bellecave visited Moscow
and Irkutsk recently to hold meetings and conduct investigations
relating to the case.
A preliminary report was issued last week blaming the
accident on pilot error, and finding that there was no
problem with the engines. How will this impact the lawsuit?
It is important to keep in mind that the report is preliminary,
meaning that the investigators have not finished reviewing
the evidence and have not reached final conclusions. One
should never assume, however, that any official report gives
a complete and unbiased story. Generally only government
officials and representatives of the airline and the manufacturers
participate in such reports, while the lawyers and experts
for the victims cannot. Also, while the preliminary report
arrived fairly quickly, final reports can be subject to long
delays. For these reasons we do not advise that the victims
wait for the final report before taking action to protect
their legal rights.
The report does provide further indication, however, that
pilot error will be a central issue disputed in the litigation.
The manufacturers, particularly Pratt & Whitney, will
attempt to use the report to show that they are not at fault,
and that S7 bears all of the blame. They will argue that
a lawsuit cannot proceed without S7, because evidence regarding
S7’s role will be essential to their defenses, and
S7 should be forced to contribute to any compensation the
court awards to the victims.
Can S7 be sued abroad?
S7 probably cannot be sued in the United States. It does
not fly to the US or have offices in the US. The plane was
leased to it by an American leasing company, but in past
cases, including our firm’s Flash Air case, US courts
have held that such a lease contract does not provide jurisdiction
over a foreign airline for purposes of a suit by air crash
victims. There would be no other basis for jurisdiction over
S7 under US law.
However, it is clear that under French law, an action brought
in France against Airbus can also include S7. The Martin
Chico firm has filed several actions in France against Airbus
and a foreign airline on behalf of foreign victims of crashes
of internal flights, including, for example, the Thai Airways
International Airbus A-310 crash in Thailand in 1998 and
the 2000 Gulf Air Airbus A-320 crash in Bahrain. Lieff Global
and Martin Chico have also worked together previously on
actions in France against Airbus, including in the Aeroflot
Airbus A-310 crash in Siberia in 1994, in which pilot error
also played a prominent role but our team was able to present
evidence that Airbus’ defective design was a contributing
cause. All of these cases resulted in substantial economic
settlements for the victims.
Can an action filed in the United States proceed only
against the manufacturers, without S7?
An action filed in the US against only the manufacturers
is very likely to be dismissed by the US court on the grounds
of forum non conveniens, or inappropriate forum. Under
this doctrine, a US court can dismiss a case brought by foreign
plaintiffs, even though it has jurisdiction over the American
defendant, if it determines that it would be more efficient
for the case to proceed in another country in light of the
location of the key evidence, witnesses, and potentially
liable parties. In recent years the large majority of aviation
cases filed in the US on behalf of foreign victims of crashes
occurring abroad have been dismissed on FNC grounds. All
of the American firms currently representing S7 victims have
had this happen in their cases.
These dismissals have occurred even where the plane’s
manufacturer was American and the airline could be sued in
the US (such as in the 2002 China Air Boeing crash in Taiwan).
The risk increases where the main manufacturer is foreign
(such as Airbus), and is even higher where the airline is
also foreign and cannot be sued in the United States, particularly
if pilot error is a contributing cause. To take just one
example, the case filed in the US on behalf of the Russian
victims of the Bashkirian Air crash over Germany in 2002
was dismissed on FNC in part because Bashkirian could not
be sued in the US, even though there was jurisdiction in
the US over Boeing.
If one of the claimants is an American, will this allow
the case to stay in the US?
No. In many of the foreign air crash cases filed in the
US, there were one or a few American citizens or residents
among the claimants. The US court kept the claims of the
few Americans in some of these cases, but it nonetheless
dismissed all the foreign plaintiffs on FNC. This happened
in a 2001 Cessna crash in Milan, Italy, in which the court
dismissed all the Italian’s claims but kept the Americans’ claims.
In some of the cases, such as in the Taiwan crash, the court
dismissed the Americans too.
What would happen if the case were dismissed from the
US on FNC grounds?
The court would decide to send the case to either Russia
or France, and in either place the case would have to start
over from the beginning. Sending the case to Russia would
be disastrous for the victims, as the compensation offered
by Russian courts is extremely low. Either way, the process
of litigating FNC will be time-consuming and costly. In the
Bashkirian case, for example, it took one year after filing
for the US court to dismiss the case, and then it took another
year to refile it in Spain (where it was sent because there
was jurisdiction over both the manufacturer and the airline
there). It was finally refiled this past summer, 4 years
after the accident. Thus, a dismissal on FNC means that the
families have to wait longer for compensation, and that the
costs paid out of any recovery will be higher.
All of the cases we found in our research that were brought
in the US on behalf of Russian victims of accidents occurring
abroad have been dismissed on FNC grounds. In some of the
cases, the dismissal was to Russia, while in Bashkirian it
was to Spain.
Because we think dismissal from the US is very likely and
would be highly detrimental to the families, we think it
is clear that the claims should be filed in France. All potentially
responsible defendants, including S7, can be sued in France,
and there is no risk that the case will be dismissed there.
How does compensation compare in France and the US?
Both France and the United States allow the recovery of
both economic and moral damages, and both typically award
substantially higher amounts than Russian courts do. The
US courts are known for generous compensation, but no damages
are awarded by a US court in a case that is dismissed on
FNC, and such a dismissal increases the costs of the litigation.
Also, in France each member of the immediate family can bring
a separate claim for his or her individual damages, while
in most US jurisdictions only the estate representative or
next of kin may file the claim.
What does the evidence suggest at this point regarding
the potential liability of the manufacturers?
Further investigation is necessary before any definitive
conclusions can be reached on this topic. The evidence that
has surfaced thus far, however, indicates that after the
plane landed and began braking, its left engine unexpectedly
went into takeoff mode, causing the plane to accelerate and
veer off the runway, where it crashed into buildings. A switch
into takeoff mode is unlikely to be the result of a malfunction
in the engines themselves, as the preliminary report found,
and thus it is unlikely that Pratt & Whitney bears significant
responsibility. Instead, such a switch is the result of movement
of the throttle in the cockpit. The throttle can be moved
manually by the crew or automatically by the flight control
system, which is located in the cockpit and manufactured
by Airbus. There would be no reason for the pilots to purposefully
move the throttle into takeoff mode. It may be possible that
the pilots moved the throttle accidentally, as the preliminary
report suggests. It is also possible, however, that the throttle
was moved automatically as the result of a malfunction in
the flight control system. The preliminary report does not
even contemplate the latter possibility, a notable omission.
Our experts, however, will be looking at it closely, as well
as other possible defects in the Airbus design and manufacture.
What about the thrust reversers?
While further investigation is needed, the thrust reversers
do not appear to have been a principal cause of the accident.
One of the thrust reversers was not functioning prior to
the flight, but FAA and international standards authorize
planes to fly with only one thrust reverser, and the crew
was informed of the issue. The functioning thrust reverser
appears to have operated correctly when the plane landed
and to have slowed the plane sufficiently. The thrust reversers
would not be involved in the switch to take-off mode on one
engine, which caused the plane to unexpectedly accelerate.
Can the case be settled favorably without litigation?
All the lawyers with clients will be in communication with
the defendants and their insurers regarding the possibility
of settlement. However, defendants and their insurers are
rarely inclined to offer substantial amounts without the
pressure of a lawsuit being filed and litigation advancing.
Litigation gives the claimants the ability to obtain evidence
from the defendants and brings in the power of the court.
In addition, defendants are unlikely to offer substantial
amounts to settle a case filed in the US until the FNC issue
is decided, which could take a year or longer after filing.
While we do not think it prudent to publicly estimate the
amounts that could be obtained through litigation in this
case, we can say with confidence that the amounts some have
stated in the press in Russia could not be obtained without
litigation.
Can this case be brought as a class action?
No. Aviation tort claims cannot be brought on a class action
basis in either the US or France. In both places, the claims
would be brought individually, though they would be consolidated
in the same court for handling of common issues, such as
liability. Damages determinations are always individualized,
based on each claimant’s actual economic and moral
losses.
Do you plan to return to Russia soon for this case?
Yes, we plan to return to Russia soon, including to Irkutsk
and Moscow, to meet with our clients and conduct further
investigations. In the meantime, persons wishing to learn
more about the accident and our team can visit http://www.globalaviationlaw.com/accident-S7airbus-russian.htm, or contact our Russian colleagues. In Irkutsk, contact attorney Tatiana Morozova at 011 7 395 2 255 929. In Moscow, contact the law firm of Barshchevsky & Partners at 011 7 495 237 15 88..
|
