Friday, November 20, 2009

On Thursday, ten of those on board British Airways Flight 38 launched a case against Boeing over the accident before a court in Illinois. They are suing over an alleged flawed design that allowed an ice buildup to bring the 777 jet down at London’s Heathrow Airport. Scottish advocate Peter Macdonald spoke to Wikinews, commenting on the case and explaining the surrounding legislation. He has experience of litigating aviation accidents.

Although investigations are ongoing, the United Kingdom’s Air Accidents Investigation Branch (AAIB) has issued interim reports indicating ice buildup on an engine component. As the jet passed over Siberia on its journey from Beijing, China it encountered significantly reduced temperatures. The AAIB has determined that the fuel was at a temperature below 0°C for an unusually long duration. This is believed to have caused water in the fuel — which met all relevant international standards — to have frozen into crystals.

A build-up of ice developed on a component called the fuel/oil heat exchanger. This restricted the flow of fuel to the engine, resulting in an “uncommanded engine rollback” — a loss of power — on approach for landing. Investigators initially struggled to produce enough ice under test conditions but later discovered that at high concentration, fuel can form ice at very low temperatures in enough quantity to seriously restrict fuel flow. This does not occur when fuel demand is lower, as the hot oil then becomes sufficient to entirely melt the ice. It was only when extra fuel was pumped in from the tanks for the landing that the crystals became a problem. The fuel/oil heat exchanger is a dual purpose part designed to simultaneously melt fuel ice and cool down engine oil by passing oil pipes through the fuel flow.

If I am correct that it is a product liability suit, then the fact that this is the first such accident matters not

The crew of the aircraft were praised for their handling of the emergency, avoiding the airport’s perimeter fence and nearby houses to crash land short of the runway. None of the 136 passengers and 16 crew were killed but some of those suffered serious injuries, including broken bones and facial injuries. Some were left unable to fly and there were cases of Post Traumatic Stress Disorder (PTSD).

The crash was triggered by highly unusual circumstances; the first AAIB report noted that cold fuel behaving in this manner was an “apparently hitherto unknown phenomenon.” As part of the investigation, data of 141,000 flights of 777s equipped with the engine model involved — the Rolls-Royce Trent 800 — was reviewed without finding any relevant circumstance similar to the accident flight, although there was later a similar incident in the United States in which the aircraft continued safely after repowering one engine; the second did not lose power.

Given the circumstances surrounding the case, Wikinews asked Peter Macdonald if the plaintiffs intended to prove that Boeing knew or should have known the Rolls-Royce powerplant was dangerously defective by design. “I rather suspect that there may be product liability legislation in place in whichever US jurisdiction is being used,” Macdonald explained. “Such statutes normally do not require proof of fault, nor do they require proof of knowledge. All that you have to show is that there was a defect in the product which caused the losses concerned… If I am correct that it is a product liability suit, then the fact that this is the first such accident matters not.”

[Rolls-Royce] would be liable for a defect in terms of the Consumer Protection Act 1987

Macdonald went on to discuss the international legislation and how it interacts to the plaintiffs and the three companies involved — Boeing, British Airways and Rolls-Royce. Only Boeing is currently named in an action over the case. “There are several reasons why the plaintiffs will wish to sue Boeing in the States,” he said. “Were the plaintiffs to seek redress in a court in the United Kingdom, it is unlikely that the relevant part of Boeing would be subject to jurisdiction here.” He also pointed out that “US damages are generally higher than English damages.”

“As to whether Boeing should settle, that all depends upon the basis of the action. If it is a fault [negligence] based action, they will be able to defend it. If fault is not needed, that is why they would want the action dismissed, forcing litigation in the UK.” In the UK, a product liability suit “would ordinarily be directed against the importers, i.e. British Airways… It would be a simple matter to sue BA here [the UK] for the physical injuries and their financial consequences,” said Macdonald. “That leaves RR [Rolls-Royce]. I assume that the engine was made in the UK. They would be liable for a defect in terms of the Consumer Protection Act 1987, Part I.” This piece of UK-wide legislation states that “where any damage is caused wholly or partly by a defect in a product [the manufacturer] shall be liable for the damage.” Damage includes injuries.

US courts decide international jurisdictional issues under the Jones Act, passed as a result of Bhopal litigation, “which makes it much more difficult for a foreigner to sue in the US if the accident did not happen there… My restricted understanding of that is that it is likely that it would be difficult to remove an action from a US court where the aircraft was made in the US.” He further pointed out that the court would require there to be an alternative court with jurisdiction over the issue. “It may well be that the relevant part of the Boeing group is not subject to the jurisdiction of the English courts… I have seen cases where it was made a condition of the grant of an order under the Jones Act that the defendants would submit to the jurisdiction of a court in Scotland and that they would not take a plea of time bar in the even that an action was raised within three months of the court order.”

He then addressed the international law with regards to what could be claimed for against air carriers such as BA. In a previous case against the same airline, Abnett v British Airways, the House of Lords ruled in 1997 “that the only remedy for an injured passenger on an international flight is to sue under the Warsaw Convention, Article 17, incorporated into our law by the Carriage by Air Act, 1961.” The Warsaw Convention governs liability for international commercial airlines. At the time, the House of Lords was the highest court of appeal in the UK, although it was recently replaced by the Supreme Court. The Abnett case referred to British Airways Flight 149, in which Iraq captured the aircraft and occupants when it landed in Kuwait hours after Iraq invaded in 1990. Peter Macdonald represented Abnett in this case.

The Convention “provides a remedy for “bodily injury”. Interestingly, the term only appeared in the final draft of the Warsaw Convention. There is no mention of the term in the minutes of the many sessions which lead up to the final draft. It was produced overnight and signed later that day.” This term creates difficulties in claiming for mental problems such as the fear of flying or PTSD, although Macdonald points out that “there is a large amount of medical literature which details physical and chemical changes in the brains of people who are suffering from PTSD.”

In King v Bristow Helicopters, heard before the House of Lords in 2002 “held that PTSD was not a “bodily injury”, but expressly left the door open for someone to try to prove that what is known as PTSD is the manifestation of physical changes in the brain which have been brought about by the trauma. Such a litigation is pending in Scotland.” Macdonald is acting in this case.

Actions against Boeing are not bound in this way, as the Warsaw Convention only applies to airlines, making the States an attractive place to sue due to the issues with demonstrating jurisdiction against the relevant part of the Boeing group in the UK. Another reason why the plaintiffs would prefer to sue in America is that in the UK “there would be liability [for BA], and that would be subject to a damages cap. An action in the US [against any defendant] would probably have the same cap, but is likely to award damages more generously in the event that the cap is not reached.”

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