It is with a heavy heart that we again express our condolences online for the loss to families and friends of passengers and crew on a brand new Boeing 737 MAX aircraft, Ethiopian Airlines flight ET 302, a scheduled international flight between Addis Ababa, Ethiopia, and Nairobi, Kenya.
It is understood there are no survivors, and little information is presently available from the official investigation which will eventually publish the relevant contributing causes of the tragedy in the hope it can be avoided in future. The black box recorders have been found as the accident happened over land.
On this site we recently published information about the equally tragic loss of a 737 MAX soon after takeoff from Jakarta, Indonesia in the Lion Air JT 610 disaster. See the link here.
The causes of that accident remain unpublished as the investigation continues but much is considered to be known about it, and may be inferred from the behaviour and statements of both the US regulator responsible for certifying the aircraft, and pilot associations who have vocally objected to alleged issues with aircraft documentation and training in the wake of the accident.
Such matters (eg the possibilities of a link between the potential Boeing 737 MAX documentation and training issues that are thought to have been involved with Lion Air JT 610 and the recent Ethiopian crash) are expected to be the subject of close scrutiny by official investigators and Boeing, in the aftermath of ET 302.
Family assistance rights
We note that families who have recently lost loved ones on ET 302 have family assistance rights under international civil aviation guidance material published by the International Civil Aviation Origanisation (ICAO).
We can advise on that for no charge.
In addition and thereafter, families should seek competent legal advice before accepting any compensation payment (including advance payments) or signing any “release” document as these may hinder claims to other compensation they may be entitled to.
Claims in foreign jurisdictions
Families may well have claims for further compensation outside of their home country or either of the countries which were the points of departure and destination of the tragic flight, either against the manufacturers of the aircraft and its components under a variety of legal theories – if any such claim is being contemplated expert aviation legal advice should be sought.
Non – African claims require specific expertise and care – many legal teams have attempted this in the past with a lack of success on a flawed or simplistic expectation that high damages payouts will be automatically or easily available – see below regarding failed attempts to bring MH370 claims in the USA.
In a timely reminder that non-US claimants (and sometimes US claimants) are not necessarily welcomed with open arms in US courts, when seeking justice following foreign air crashes, the US District Court for the District of Columbia recently held that claims of a significant number of claimants (42) seeking compensation against Boeing for the loss of flight MH370, were most connected to Malaysia, and should be heard there: see In re Air Crash Over Southern Indian Ocean, on March 8, 2014, MDL Docket No. 2712, 2018 WL 6133070.
In this decision issued on 21 November 2018, Judge Ketanji Jackson, a US District Judge, analysed the legal arguments put by a variety of firms representing Chinese, Malaysian, and even American relatives of the lost passengers, to find that their various claims (including international compensation claims under treaty against the airline, and state law wrongful death and products liability claims against Boeing) were going to be more “conveniently” litigated outside of the US.
Courts in these circumstances undertake a balancing exercise as between both public and private interests involved with agitating issues for non-Americans in American courts, particularly when a Defendant or Defendants are American based – but some or many of the circumstances giving rise to compensation rights occurred outside the US.
One of the tests involved includes the adequacy of alternative for a Court to hear such claims and the Court held that Malaysia was an adequate forum.
The concerning aspect of the cases, including some American claimants, being brought together in the US at the time it was and with the limited evidence available (the cases were filed in early 2016) resulted in a significant loss of opportunity (potentially) for the concerned families to seek justice in the US.
The strategic attempt at accessing perceived high compensation payouts in the US thus failed the families involved.
The case and its decision raise many cautions for families affect by accidents such as JT 610 and ET 302 – these include to ensure the firms and lawyers you deal with are clear about their ability to execute a reasonable strategy and know about the nuances and foibles of international and the various domestic laws involved with non-US air crashes.
These accidents have sadly become the playground for firms jostling for cases in the past.
A key to avoiding poor outcomes will be to work with teams such as ours who patiently advise on prospects rather than rush into costly and unhelpful litigation too early. Beware of law firms that make promises that seem “too good to be true”.
Anyone who has queries about, or has been affected by, this air disaster is invited to contact Joseph Wheeler for more information: email@example.com.
Photo credit: Wikipedia