Month: November 2000

Swissair and McDonnell Douglas/Boeing have perpetrated the most cruel hoax possibly imaginable on the victims of Swissair 111

In open court before the Honorable James T. Giles, those defendants in some 170 lawsuits filed following the crash, told the court that they have agreed to share in the responsibility for the crash of Swissair 111 and not to contest liability for compensatory damages for the U.S. victims of the crash. There was, however, a proviso which was lost on most of the attendees, but not on the Plaintiffs’ Steering Committee responsible to the victims of the crash to see to it that they are properly compensated. The lawyers for Swissair and Boeing conditioned their offer on the application of the Death on the High Seas Act that there be a forum non conveniens decision which would eliminate all foreign claimants against Boeing/McDonnell Douglas for product liability and a decision by the court to throw out the Article 28 cases (under the Warsaw Convention), in other words, all those foreign travelers who purchased their tickets abroad.

In short, this cruel hoax was an effort to grandstand before the public and the press in an attempt to appear that Swissair and Boeing were owning up to their unmistakable responsibility for this accident.

What is it that they really offered, however? First, the Death on the High Seas Act, which doesn’t even apply to this accident, may allow for recovery of economic damages only for those who are financially dependent upon the deceased. In short, the value of the cases for children on the aircraft would be virtually nothing. The value of the loss of society, companionship, loss of guidance and tutelage, fear of impending death, pain and suffering, and all of those intangible, non-economic items which are truly the measure of the loss of a person, might not be recoverable under the Death on the High Seas Act.

The Death on the High Seas Act, in fact, is so tenuous that both Houses of Congress have voted to either eliminate it retroactively to the crash of TWA 800, which preceded Swissair 111, or vastly limit its impact. Indeed, the crash of Swissair 111 didn’t happen on the High Seas, but in Canadian territorial waters.

Nonetheless, Boeing/McDonnell Douglas and Swissair would want to eliminate most of the damages recoverable by requiring as a condition of their payment the application of the hideous limitations that are imposed by a statute which most everyone agrees has long since outlived its usefulness.

In addition, in this world economy, the defendants would have the court throw out all claims for those on the aircraft who were not U.S. citizens, regardless of the basis of their claim.

The MD-11 was designed, certified and manufactured in California. It is supported both with respect to parts, service instructions, service bulletins and airworthiness directives from the United States. The pilot flight manuals were created in the United States, and supplements prepared, even to this day, in the United States. All the wiring, flammable insulation and virtually all of the installations that may be relevant to this accident and its cause occurred in the United States or by designers or manufacturers in the United States. Notwithstanding these facts, McDonnell Douglas and Boeing claim that it is not convenient for the litigation against them to take place in the United States. Where are the designers? Where are the certification people? Where are the people who built the aircraft? They are right here in the United States. Where are the people who designed and built the entertainment system? They are in the United States. The home office of McDonnell Douglas was in St. Louis, Missouri.

To have it the way the defendants want it, an American sitting in seat 4-A would have an entirely different recovery and different law applied to his recovery than a person sitting in seat 4-B. If the person sitting in 4-B happened to be a child even from the U.S., there would virtually no recovery. If the person in 4-A was a man who had no one dependent upon him, there would be virtually no recovery. If the person in 4-C was a Swiss citizen, there would be virtually no recovery except that provided under Swiss law.

Instead of resolving all of the cases in one single place before a Judge uniquely qualified to handle the case, in a court designed to handle such disasters, with procedures established to facilitate the administration of justice, the defendants would have two-thirds of the cases sent to twelve different countries, the application of twelve different sets of laws, with only God knows how much delay.

The only thing worse than the crash of Swissair 111 into Peggy’s Cove last September was the charade on the public, the world press and, worse, the court that Swissair, McDonnell Douglas and Boeing pulled on August 5, 1999.

– Arthur Alan Wolk

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