NAIROBI, Kenya, Apr 16 – More wrongful death lawsuits against United States plane manufacturer Boeing over last month’s Ethiopian Airlines flight 302 crash are expected to be filed in subsequent weeks with a second consortium of law firms set to announce legal action later Tuesday.
US-based aviation law attorneys Nomaan Husain, Omar Khawaja, and Floyd Wisner in partnership with two Nairobi-based law firms will be the second batch of lawyers to announce a federal lawsuit against Boeing on behalf of Kenyan families that lost relatives in the March 10 plane crash.
A consortium of Kenyan and American law firms announced the first litigation against Boeing on April 3, on behalf of eight Kenyan families.
The decision by the law firms to sue the plane manufacturer as opposed to the airline has been linked to preliminary investigation reports that have singled out the malfunction of an anti-stall system of the Being 737 Max 8 plane model that crashed six minutes after takeoff from Ethiopia’s Bole International Airport as the trigger factor for a sudden nosedive that plunged the plane into the ground killing all 157 persons onboard.
Article 21 (2) of the Montreal Convention (1991) provides that an airline shall not be held liable for deaths and loss of property in the cause of air travel as a result of an accident if the carrier can prove that the accident was due to the negligence of a third party.
“The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that: a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or b) such damage was solely due to the negligence or other wrongful act or omission of a third party,” the Convention states.
Under Article 21 (1) of the Convention, a carrier can be held liable for damages not exceeding 100,000 Special Drawing Rights (SDR) – an international exchange reserve asset established by the International Monetary Fund – for each passenger, with an SDR equivalent to about Sh140.
“For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.”
Damages, injuries, or deaths for which airlines can be held liable are those resulting from accidents that take place on board an aircraft or in the course of its operations such as embanking and disembarking, according to Article 17 (1) of the Montreal Convention.
The family of a Rwandan citizen who died in the March 10 crash was the first to file a lawsuit against Boeing at a US federal court on March 28.
Jackson Musoni’s kin alleged Boeing had “defectively designed the automated flight control system,” according to Reuters.
The March 10 incident involving an ET 302 flight en-route to Nairobi’s Jomo Kenyatta International Airport which had 36 Kenyans on board was strikingly similar to a Lion Air-operated Flight 610 that crashed into the Java Sea just 12 minutes after takeoff from Soekarno-Hatta International Airport in Jakarta on October 29, 2018 killing 189 people on board.
Investigations resulting from the two catastrophic falls pointed to the now infamous Manoeuvring Characteristics Augmentation System (MCAS) which relays on angle-of-attack sensor readings to alter the pitch of the plane to prevent stalling.
The Being 737 Max 8 has since been grounded internationally after several airlines suspended its operations following safety concerns on the reliability of angle-of-attack sensors and the MCAS.
The aircraft manufacturer defended the anti-stall systems saying it had published manuals outlining how pilots could override the MCAS system in case it is activated by erroneous data emanating from defective angle-of-attack sensors.
“Boeing’s 737 MAX Flight Crew Operations Manual (FCOM) already outlines an existing procedure to safely handle the unlikely event of erroneous data coming from an angle of attack (AOA) sensor. The pilot will always be able to override the flight control law using electric trim or manual trim,” the aircraft manufactures said in a statement following Ethiopian Airlines accident.
According to Boeing, the MCAS command could also be controlled through existing runaway stabilizer procedure which it reinforced in an Operations Manuel Bulletin it issued on November 6, 2018.
The firm later announced it was working closely with the Federal Aviation Administration (FAA) on a further software enhancement incorporating feedback received from clients, an update the company said “will be deployed across the 737 Max fleet in coming weeks.”
The new software upgrade was due for FAA’s Airworthiness Directive (AD) “no later than April,” Boeing had said in March.
The manufacturer said in an additional statement on April 4 the upgrade was on the final stages of certification.
“We’re taking a comprehensive, disciplined approach, and taking the time, to get the software update right. We’re nearing completion and anticipate its certification and implementation on the 737 MAX fleet worldwide in the weeks ahead. We regret the impact the grounding has had on our airline customers and their passengers,” Boeing Chairman, President & CEO, Dennis Muilenburg, said.
“This update, along with the associated training and additional educational materials that pilots want in the wake of these accidents, will eliminate the possibility of unintended MCAS activation and prevent an MCAS-related accident from ever happening again,” he assured.