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.
Contact Us
Families whose loved ones have died or been injured in an airline crash are welcome to contact an aviation lawyer at Lieff Global by email to learn more about their legal rights. Lieff Global is representing families whose loved ones died in various airline crash tragedies. We welcome the opportunity to answer your questions free of charge, without obligation and in strict confidence.
