Malaysian Air, Boeing Data on Lost Jet Sought in U.S. Court

Mar 26, 2014 8:27 pm ET

(Updates with Asiana crash case ruling in 15th paragraph. For more information on Malaysian Air Flight 370, see EXT3 <GO>.)

March 26 (Bloomberg) -- Malaysian Airline System Bhd. and Boeing Co. records of Flight 370’s maintenance and crew are being sought by a law firm representing the uncle of one of the missing plane’s passengers, the opening salvo in what may become a barrage of litigation over its disappearance.

The jet carrying 239 people vanished from radar on March 8 after taking off from Kuala Lumpur for Beijing. Citing satellite data, Malaysia’s government said March 24 the flight ended in the southern Indian Ocean, southwest of Perth, Australia, and the airline said there is no hope of survivors.

“We believe that both defendants named are responsible for the disaster of Flight MH370,” Monica Kelly, a partner in the Chicago-based firm Ribbeck Law Chartered, said in a statement announcing the filing yesterday in Illinois state court in Chicago.

Filed on behalf of Januari Siregar, whose nephew, Firman Chandra Siregar, was a passenger on the plane according to the firm, the petition for information is a possible prelude to a lawsuit against the airline and or the airplane maker. Tony Nathan, a spokesman for the law firm, said Siregar is the personal representative of his nephew’s estate.

Possible Defects

Siregar seeks 26 different kinds of information, including data on possible defects in the missing Boeing-built 777-200ER or its component parts, the airline’s training of its crew and information about its cargo.

The filing demands data on “design and manufacturing defects that may have contributed to the disaster,” Kelly said in the statement. At a press conference today in Kuala Lumpur, she said her firm plans to seek $1 million for the estate of each passenger on the missing plane it represents, and that the firm has no plans to file lawsuits in China or Malaysia.

The Malaysian government’s conclusion that Flight 370 ended in the southern Indian Ocean sparked a street protest by passengers’ families in Beijing and Chinese demands for the data behind the decision to declare there were no survivors.

The search for the plane, which was suspended yesterday because of foul weather, resumed today with the participation of six nations: the U.S., China, Australia, New Zealand, Japan and South Korea.

Malaysian Prime Minister Najib Razak said the jet’s last position was over the Indian Ocean and that the flight ended there, based on satellite data from Inmarsat Plc.

Boeing

John Dern, a spokesman for Chicago-based Boeing, declined to comment on the court filing.

Malaysia Airlines said in an e-mailed statement that it’s aware of the lawsuit and that its “top priority” is to assist the families of the passengers and crew.

The Ribbeck firm said the petition seeking evidence is the same step it took at the beginning of legal proceedings against Asiana Airlines Inc. That filing came after the July 6 crash of one of Asiana’s planes at San Francisco International Airport, also a 777-200, which killed three people and injured 181.

“That’s usually how we begin the process,” Mervin Mateo, a spokesman for the firm, said yesterday in a phone interview about the reason for yesterday’s request. “We have our own experts doing their investigation.”

“If the wreckage is not found, there would be little or no evidence we can rely on,” Mateo said. “We are hoping against hope that they do find the wreckage of the plane and the black box.”

Document Disclosure

Cook County Circuit Judge Kathy Flanagan rejected Ribbeck’s bid for an order authorizing the firm to pursue pre-suit document disclosure from Boeing after the Asiana crash in a ruling issued Aug. 7, three weeks after the request was made.

The state law procedure is meant to aid in determining the identity of a party that may be liable for damages, Flanagan said. Once its clear who that may be, the “correct procedure,’ is to file a lawsuit, she said,.

Ribbeck’s 19-item list of documents and data sought from the plane maker exceed the scope of the rule under which it was filed, the judge said.

The firm filed such a suit against Boeing at the state courthouse in January. It was later transferred by Boeing to federal court.

California Crash

Boeing moved the Asiana case, which concerned a crash in San Francisco at the end of a flight from Seoul, on the premise that the plane’s path over water placed it in U.S. maritime jurisdiction, Mateo said.

His firm has asked U.S. District Judge Harry Leinenweber to return the case to the state court. He has not yet ruled.

Even without the wreckage, litigation could be carried out based on the firm’s investigation and information about past accidents similar to Flight 370’s disappearance, according to the lawyer.

‘‘We’re thinking it’s probably something wrong with the plane or the training of the pilots,” Mateo said, adding that a hijacking or some other cause can’t be ruled out.

Families of those who were aboard Flight 370 stand to be compensated as much as $175,000, and possibly more, from the airline under the Montreal Convention of 1999. The international treaty requires carriers to pay damages for each passenger killed or injured in an accident, even if its cause is unknown. If the airline isn’t able to show that sole fault for the plane’s loss lies with another party -- such as the airplane’s maker or terrorists -- its liability under the treaty may be higher.

Home Countries

Most of those claims will probably be brought in China or Malaysia, lawyers said, the home countries of a majority of the plane’s passengers and signatories to the convention.

However, the families’ best chance for seeking more money would be to find a way to sue in the U.S., as in the Chicago state court case, where awards and settlements can be more generous than in the two Asian countries.

“The U.S. is where people want to go,” said Dorothea Capone, a lawyer with New York’s Baumeister & Samuels PC.

One such scenario would be for plaintiffs to allege that Boeing, the missing 777’s manufacturer, was at fault, as the lawyers in the Siregar case seek to prove with the data they requested in the Illinois state court filing.

Production Order

Item “g” on the Ribbeck firm’s list asks for an order directing Boeing to produce “documents identifying each company, entity or person who is in possession of the evidence of findings of corrosion and fractures in the fuselage of the subject aircraft and other 777-200ER aircraft that could lead to catastrophic fatal depressurization of the cockpit.”

The U.S. Federal Aviation Administration in September circulated a draft directive “warning of cracking and corrosion problems” in the Boeing 777, according to a statement issued by the law firm yesterday.

The agency issued an airworthiness directive to detect and fix those defects if found in the skin of the planes’ fuselage, “which could lead to rapid decompression and loss of structural integrity,” the lawyers said. It can also render a jet’s passengers and crew unconscious, leaving no one to pilot it.

The FAA directive is set to take effect April 9.

The missing plane wasn’t subject to the warning by U.S. regulators since the antenna covered by the service bulletin wasn’t installed on the 11-year-old plane, said Wilson Chow, a spokesman for Boeing, in a March 12 e-mail, before the motion was filed.

Also sought by the law firm is the identity of the maker of lost plane’s underwater locater beacon.

Aviation Lawyer

Investigators have determined the Beijing-bound flight was deliberately steered off course to the west and flown seven hours into open ocean at cruising speed. Whoever was piloting the jetliner turned off the plane’s transponder, which helps radar pinpoint location, and a text-to-ground messaging system.

The only information investigators had to locate the plane consisted of hourly pings to a satellite that contained data only on the plane’s identity.

George Washington University law professor John Banzhaf said families seeking to sue Boeing may be able to argue that the missing plane’s tracking and telemetry shouldn’t have been vulnerable to being turned off or losing power during flight.

Battery Backup

Providing a battery backup for those systems would have been inexpensive and cost-effective design alternatives, Banzhaf said today by e-mail. Boeing’s failure to do so may constitute a design defect opening it to liability.

“Since a transponder is such an important safety feature, permitting it to be turned off during flight -- whether by accident, by technically sophisticated terrorists, by pilots voluntarily or while being held at gunpoint -- makes little sense unless there is a very compelling reason to do so,” he said.

Hao Junbo, a Beijing-based aviation lawyer, said several families of Chinese passengers on Flight 370 approached him to explore their legal options after Malaysia said the plane probably crashed with no survivors.

Hao, who represented families of 32 victims in a China Eastern Airlines Corp. flight that crashed in 2004, said today that some would-be plaintiffs have lost confidence in state- controlled Malaysian Air and in the Malaysian government.

“We’re discussing about legal possibilities and jurisdictions -- China, Malaysia, U.S.,” Hao said. “I will not jump to a conclusion and say there’s a case for sure before all the facts are known. It’s not a light decision.”

The case is Siregar v. Boeing Co., 14L003408, Cook County, Illinois, Circuit Court, Law Division (Chicago).

--With assistance from Angus Whitley in Sydney, Berni Moestafa in Jakarta and Julie Johnsson in Chicago.