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1. Singapore Air SQ 006 at Taiwan, October 31, 2000 In a horrendous mix up over open or closed runway, a Singapore Airway 747 jumbo jet, crashed into construction equipment while attempting take off in near typhoon conditions. Some were killed and injured; some with serious burns. Difficult question of international law arise from this crash. First, as to the Warsaw Convention: ordinarily, the place of the accident is not a factor in determining Warsaw applicability; it rather turns on the ticketing and destination. Questions will arise, however, about the Taiwan connection to the case, not because it was the site of the accident, but rather was the origin and ultimate destination point for a number of passengers, the majority Taiwanese nationals. Taiwan is not signatory to the Warsaw or successive conventions (Hague, et al), hence, travel originating or concluding there is not to or from a "High Contracting Party" (Warsaw talk for signatory or adhering nations). Thus, these somewhat confusing results. Ticketing (with or without intermediate stops) Warsaw? Taiwan-USA-Taiwan No USA-Taiwan Yes Taiwan-USA No USA-Taiwan-USA Yes Another view is that the adoption of the Convention by The People's Republic of China (PRC) (Mainland China) finds Taiwan. At least that is the firm view of the government of the PRC, which controls the China Seat in the United Nations and Security Counsel. In such a case, all above examples are Warsaw. By further contrast, ticketing of other passengers in Asia-Pacific, originating in countries other than Taiwan, are Warsaw, since all, except Thailand are signatory or adherents. Thus: Australia-Taiwan-USA Yes New Zealand-Taiwan-USA Yes Warsaw or not, this can have an enormous impact on the legal risk of passengers, even through all are equally exposed to injury and death. While the old arbitration limits on damages payable by airlines under Warsaw are off entirely as a practical matter, the key question remains: "where can the claims be brought"? Because the court that hears the case determines the law to be applied and damage laws - what is allowable to victims and families - vary greatly, and of course, are considerably more liberal to claimants in the U.S. So when can and cannot the claim be made in the U.S.? This perplexing problem has been brought to Sterns & Walker in the case, and briefs are being prepared. Quick Overview: A. If Warsaw: the Article 28 thereof controls, limiting place where the claim can be made to four: domicile or principal place of business of the "carrier"; place where ticket was purchased (almost always point of origin) and "destination" (generally held to be final entry of ticket, i.e., point of origin on a round trip or return ticket.) Notably excluded are place where accident occurred and domicile of the passenger. Incidentally, the "New Warsaw, or the Montreal Convention of 2000, not yet ratified by the U.S. Senate, essentially provides for the "Fifth Venue", the domicile of the passenger. Thus, under a conventional view of Article 28, Singapore Air could not be sued in the U.S. unless the passenger held a U.S. origin and/or final destination ticket, i.e., round trip LA-Singapore-Taiwan-LA (or variation thereon). Shorthandedly called a "U.S. ticket". This would mean any claim could only be asserted in the courts of Singapore, or origin/destination, such as Australia, Malaysia, etc. Very mindful of this, Singapore Airlines has mounted an impressive PR campaign, stressing how generous it intends to be as to Article 28 treaty jurisdiction in "U.S. ticket" cases - but it seems a far different story in the others. Claimants to whom we have talked are not particularly optimistic about getting substantial recoveries in a reasonable time and without burdensome expense in Asian courts. Traditionally, values in such are very low. Either by virtue of inheritance of the British system, which limits death case damages to a percentage of net after tax earnings at death, with no allowance for future growth, or internal rules, devised to protect local industries and defendants (e.g., Korean "custom" of judges to limit non-economic death damages to around $US 50,000). Singapore's insurers know the simple and basic bottom line: keep the cases out of the U.S., and the potential damages will be held to ten to twenty percent of U.S. expectations. B. If Not Warsaw: there are no Article 28 treaty rules on jurisdiction one way or the other. Including settled common law rules, Singapore Air can be sued anywhere it is doing business and has substantial contacts. That includes the USA, where it does regular business, on its own are through other airlines. (See, C. "Carrier Domicile" below.) Claimants in such cases can start suit versus Singapore Air in the U.S., even though the accident occurred in Taiwan, the problem is staying in the U.S. courts. Singapore lawyers will undoubtedly ask the court to dismiss such cases on the basis of "Forum Non Conventional ". This doctrine gives a court in the U.S. wide latitude (outside of Article 28 case, we believe - see [click place] "Warsaw and Forum Non Conventional - The United Turbulence Appeal") to decline to hear a case if it believes there are compelling reasons it should be heard elsewhere. Since the U.S. courts will undoubtedly hear many of the Article 28 cases, and deal with SQ006 liability and damage issues, anyway, the FNC arguments may not be as strong. But it is too early to say how the courts will rule on this. C. Warsaw, but New Thoughts on "Carrier" Domicile: This may well turn out to be the cutting edge issue of the SQ 006 litigation. Sterns & Walker believe that a compelling case can be made in the U.S. courts to hold Singapore Air under Article 28 treaty jurisdiction, even though there is no "U.S. ticket" as defined above. The argument in brief: The Warsaw Convention speaks to the term "carrier" in describing those providing transportation subject to it. It does not use the terms "airline" or "carrier", therefore, is a flexible term, and fairly can be said to describe who or what entity is providing the transportation and this need not be one airline. Indeed, it can be a group of them. Singapore Airlines, as with many other carriers around the world, has, for its own economic reasons, chose to ally and align itself with other airlines, in what is surely a de facto and not de jure partnership they call the "Star Alliance". In fact, SIA's own publications speak to other members of the Star as "partners" unqualified. These alliances and code share situations allow one airline in one country. The benefits of presence and marketing outlets, etc. is another. The airlines voluntarily take up these ties, beyond their own original "domicile", i.e., the home state of incorporation or principal place of business . Fine, so as they expand their economic and business base into new counties, so should the base of responsibility follow. In short, the "carrier" of the SQ 006 misadventure is not just Singapore Airlines, but rather the Star Alliance, a worldwide partnership of airlines, and thus with multiple domiciles and/or principal places of business. One of these has to be the United States, from whence hales, the Star Alliance. Founding and Senior Partner, United Airlines. Sterns and Walker will be pressing this compelling argument in the U.S. courts on behalf of Asia-Pacific victims who are not satisfied with the discriminatory treatment thus afforded them by SIA. This is new stuff; no court ruling so far as Sterns and Walker made similar allegations in the Swiss Air 111, Nova Scotia case on behalf of European families in non conventional Article 28 cases against Swiss Air and Delta (and the third carrier created by their code-share in that case, "Swiss Air/Delta". No court rulings were obtained, however, as the cases were settled mid-litigation. (See our "What's News", Swiss Air 111 cases concluded".) The Montreal Convention, completed on May 28, 1999, and sent to the US Senate for ratification by President Clinton, incorporates several key changes in the Warsaw system as it evolved in the second half of the twentieth century. For example, it now includes the substance of the IATA accords. In an advance, from the victims' point of view, it adds the so-called "fifth venue" option to the four fora that have always been part of the Warsaw scheme. At Article 21, it provides that in cases of injury or death the carrier may not exclude or limit liability for compensatory damages up to a provable amount equal to 100,000 SDR per passenger; for provable damages in excess of that limit, the carrier may avoid liability only if it proves that the injury or death was not due to its negligence or other wrongful act or omission, or if the injury was due only to the negligence or other wrongful act or omission of a third party. Article 17, which sets forth the conditions under which such liability attaches to the carrier, remains in substance unchanged from the Warsaw scheme. In what may prove to be a genuine shift in the way the Warsaw scheme works, and to the advantage of victims if it actually produces something, the Montreal Convention, at Article 24, provides for a periodic review of the limits of liability. At five-year intervals, the limits will be reviewed against inflation, based on the notion of the Consumer Price Index used to measure the actual effect of inflation on the purchasing power of a national currency. It provides for the adherents to the Montreal Convention, now called States Parties, to agree to an increase in the limits based on the CPI change. Another important and very welcome change is the addition, in Article 33, of the so-called "fifth venue." This provides that a plaintiff who has his or her principal and permanent residence (what in US law is called domicile) in a State Party where the carrier also does business, either directly or through a commercial agreement with another carrier, may bring suit in that State. The traditional four places where the action might be brought remain among the plaintiff's options. It is possible that the Montreal Convention will be more favorable to the theory that STERNS & WALKER is preparing to advance in the Singapore Air SQ 006 case, where the Star Alliance is to be viewed as a "carrier" under the terms of Warsaw. The Montreal Convention, at various places, does recognize that the way international air travel occurs has changed since 1929, and this recognition will only work to the advantage of victims. |