Asiana could save millions by keeping lawsuits in China, South Korea

Jul 17, 2013

Asiana Flight 214 may have crashed in San Francisco, but only the 64 American citizens who were on the flight can automatically sue the airline in U.S. courts-- and benefit from this country’s generous injury lawsuit payouts.

That’s because of the Montreal Convention, an international treaty that governs international aviation disasters. The Montreal Convention limits suits brought by victims of plane crashes to five places: the passenger’s home country, the country where the ticket was purchased, the country where the airline conducts business, the country where the airline was incorporated, and the final destination of the plane. And with round-trip tickets, the final destination is actually the point of origin. For example, a Chinese citizen on the plane with a one-way ticket purchased in China can sue in China (where they live and bought the ticket), South Korea (where the airline is based), and the United States (the final destination). If that same Chinese citizen had a round-trip ticket, they could not sue in the U.S.

Most passengers on the flight were from South Korea and China. That means Asiana will fight to keep the majority of its lawsuits in those two countries, where there isn’t a precedent for large injury lawsuits. By keeping the lawsuits in Asia, the airline is expected to save millions. In the U.S., the Federal Aviation Administration has set the value of a life at $6 million. Mike Danko, an aviation lawyer, said in China, the family of a wage-earner can expect about $15,000.

Randy Scarlett, a personal injury lawyer in San Francisco, has been speaking with victims of the crash and their family members through interpreters. He said people are looking for any way to keep their lawsuit in the U.S.-- maybe they bought a ticket through an American travel company. But Scarlett said the Montreal Convention is very clear: victims can only sue in one of those five places. If nothing ties the passenger to the U.S., they can’t sue the airline here.

However, if Boeing --the maker of the airplane-- is found liable in the crash, all passengers will be able to sue the plane manufacturer here in the U.S., Scarlett explained. And if Boeing counter-sues Asiana, that could bring the whole mess into the States.

U.S. law bars personal injury lawyers from approaching plane crash victims directly in the first 45 days after the crash, following public outrage in the 90s when families of plane crash victims complained of being harassed. However, victims can reach out to lawyers on their own. During these 45 days, Danko said he expects Asiana will try to settle with as many people as possible, for much less money than if the cases had gone to trial.