SAN FRANCISCO -- A treaty governing international airline accidents means the most severely injured Chinese and South Korean victims from the crash of Asiana Flight 214 will likely receive much less money than American passengers with far less serious injuries.
To overcome that legal hurdle, dozens of foreign passengers aboard the doomed Boeing 777 are considering lawsuits against the airplane's Chicago-based manufacturer, hoping a sympathetic U.S. jury will find Boeing even partially liable for the crash that killed three Chinese teenage girls and injured 182 passengers and crew July 6 as it tried to land in San Francisco.
But if they're unsuccessful, foreign passengers could receive no more than about $135,000 from Asiana, even if they suffered permanent, crippling injuries.
The first lawsuit stemming from the crash could go to trial in U.S. District Court in San Francisco as early as 18 months from now, according to Walnut Creek attorney Michael Verna, who filed it.
Any cases will involve two distinct classes of passengers: Americans who can sue in U.S. courts, and their fellow Chinese, South Korean and other foreign passengers.
"Most of the non-U.S. plaintiffs can only sue in Korea or China," said New York attorney James Kreindler, whose firm represents the families of the three girls who were killed and a dozen more victims from various countries. "Asiana will say, 'You've got us. We owe you money. Here's $5,000 for your shattered back.' That's it."
A seriously injured American passenger who sues Asiana in U.S. courts, however, could be looking at "a pretty big number -- many millions of dollars," said attorney David McMahon, managing partner for the San Francisco office of Barger & Wolen, which specializes in maritime and aviation cases.
A spokesman for Asiana said it's company policy to not comment on pending litigation. Boeing said it does not comment on "litigation issues."
The United States, China and South Korea are among the countries that signed the 1999 Montreal Convention, designed to provide at least limited financial relief to passengers involved in airline disasters in foreign countries. Because of the treaty, injured passengers can only file suit in the country where they're from, where they bought their ticket or in accordance with three other factors that ultimately restrict the ability of foreign passengers to sue Asiana in America.
If they went to court in China or South Korea, injured passengers would present their cases before a judge and not a jury, which tend to be more sympathetic to victims, several legal experts said. And there are no provisions for punitive damages or attorney contingency fees in those countries, limiting the size of the awards they could get and meaning clients would have to pay for their attorneys' services up front.
Passengers who lose could be ordered to pay Asiana's legal fees.
"You certainly don't see multimillion-dollar awards in China or South Korea," said Kevin Durkin, a partner at the Chicago-based Clifford Law Offices who used to head the American Bar Association's aviation litigation section. "Their damages will be minuscule compared to what they would get in the United States."
The Montreal Convention does allow victims of overseas airline crashes to collect up to about $135,000 in damages, which could be the total amount that seriously injured Chinese and South Korean victims ever receive from Asiana.
So 83 passengers aboard Flight 214 have filed a petition indicating their intent to sue Boeing in Chicago.
They would have to prove that Boeing was partially liable. The National Transportation Safety Board will take about a year to determine the cause of the crash, but has said it involved a veteran Asiana pilot making his first landing at SFO in a Boeing 777, along with his training pilot who was on his first flight as a trainer. So far, there have been no public indications of mechanical failure.
"If we can prove a claim against Boeing and can try a case against Boeing in Cook County, you have a good chance of getting a fair, reasonable award," Kreindler said. "For a U.S. client, the Boeing component isn't essential. But it certainly is for the non-U.S. passengers."
The suit filed by Verna in San Francisco seeks no less than $5 million in damages on behalf of Younga Jun Machorro, 41, and her 8-year-old son, Benjamin Hyo-Ik Machorro.
Benjamin is a U.S. citizen and his mother is a citizen of South Korea but lives in California, has a U.S. permanent resident card and is married to an American, Verna said.
Both mother and son experienced "disabling" soft-tissue injuries, Verna said, and the mother cannot return to her job as a foreign language instructor.
"Under the Montreal Convention, she qualifies to sue in the U.S.," Verna said. "If the three girls that were killed were American residents, their families could sue Asiana here in San Francisco and they clearly would be the highest-valued cases. If they were to sue Asiana in a Shanghai court under the Montreal Convention, any recovery the families would get for the deaths of their daughters would be a fraction of what a U.S. jury would award the parents of a dead American teenager."
Contact Dan Nakaso at 408-271-3648. Follow him at Twitter.com/dannakaso.
Asiana Flight 214 passengers by country:
South Korea: 77
United States: 64