United States: September 11 Litigation Set To Continue In The US

On 9 September 2003, Judge Alvin K. Hellerstein of the US District Court for the Southern District of New York rejected motions brought by United Airlines, American Airlines, various airport security companies and other airlines which had sought to dismiss claims brought by the "ground victims" – the estates of those who died at the World Trade Centre and at the Pentagon. The judge also rejected a similar motion brought by Boeing, which faces allegations as manufacturer of allegedly defective cockpit doors, by the estates of those killed on UAL flight 77 which crashed in Pennslyvania. The threshold for defeating the dismissal motions was admittedly not a high one but the judge has given the plaintiffs genuine cause for optimism in finding – at least at this preliminary stage of the litigation – that the airlines, security companies and Boeing owed a duty of care to the victims to prevent the hijackings and their consequences. It is to be noted that the US is not party to the Rome Convention (addressed elsewhere in this issue of BLG Aerospace News) nor does it have domestic legislation along the lines of section 76 of the UK Civil Aviation Act which imposes strict liability for surface damage and accordingly it will be necessary for the plaintiffs in this litigation to prove fault on the part of the defendants in order to establish liability.

The litigation will now move forward to discovery and potential summary judgment motions. There can be expected to be further detailed and contentious argument as to whether a duty of care is owed to victims on the ground. Fundamental questions will also arise as to whether, even if the hijackers could or should have been prevented from boarding the aircraft, their ultimate aims and actions could reasonably have been foreseen and whether those illegal acts were of such a nature and were sufficiently unpredictable to break any causative link between any breach of a duty of care and the attacks which occurred. In the meantime, the deadline for claimants to opt into the Victims Compensation Fund, the state fund established in the wake of the terrorist attacks, expires on 22 December 2003. In opting into the VCF, claimants give up their rights to pursue their claims through the courts. It is possible that the Judge’s refusal to dismiss the claims will give the impetus to many more claimants who have yet to make an election to decide to pursue the litigation route rather than opt into the VCF.

As well as litigation against the airlines whose aircraft were directly involved in the 11 September attacks, some readers may be aware of claims brought against numerous airlines whose alleged offence, it would seem, was to be operating at the same airports (or at any rate, in the same area within those airports) from which the hijacked aircraft departed. These claims appear to be based on allegations as to joint responsibility for the provision and supervision of security at the departure terminals concerned. So far, we understand that proceedings have been issued against over 40 such airlines.

Whether any of the claims mentioned here can ultimately be sustained must be highly doubtful. That however is small comfort to an already besieged industry which, together with its insurers, will be resigned to lengthy litigation before the final exposures following the 11 September atrocities can ever be calculated.