In the United States there has been completed the litigation concerning compensatory claims from the passengers of Boeing 767. The aircraft, piloted by Captain Tadeusz Wrona, had an emergency belly landing on 1 November 2011 at Okęcie Airport in Warsaw. The injured parties were represented by Wisner Law Firm based in Chicago, Stewarts Law based in London and Budzowska Fiutowski & Partners (BFP) from Poland, all specialising in aviation accidents and claims connected therewith.
The litigation was initiated by a civil claim filed in the United States Circuit Court of Cook County, Illinois, County Department, Law Division by the US attorney acting for the passengers, namely Att. Floyd Wisner of Wisner Law Firm. The lawsuit was filed on the first anniversary of the accident, i.e. on 1 November 2012, against the manufacturer of the aircraft, Boeing Company, as well as the servicing company Mach II. When the claim was filed, the group of the plaintiffs covered 95 passengers. Subsequently there joined other plaintiffs who were successively assed to the claim.
The first court action of the Defendant, Boeing, was the third-party claim against the Polish airline, LOT. Boeing argued that LOT was at least partially responsible for the accident and for the loss borne by the passengers. This litigation technique was to increase the chances of success of Forum Non Conveniens application, which was subsequently filed by the Defendants. The latter aimed at transferring the case to the jurisdiction of another country. Such an application is based on the assumption that the pending case has more ties with another country than the one where the claim was initiated, and therefore it is justified to transfer the case to the competence of another court. In this case, Boeing sought to transfer the case to the jurisdiction of the Polish courts, arguing that there were more factors connecting the case with Poland than with the United States. The third party claim, in accordance with the US provisions, led in fact to referring the matter to the state court of a higher level (i.e. United States District Court, Northern District of Illinois, Eastern Division) – since the third party has its registered office abroad. The latter court was to render the decision to transfer the case to the Federal Court. In turn, the chances to have the Forum non Conveniens application granted in the Federal Court are in principle higher than in state courts. In response to such actions on the part of the Defendants, the attorney for the Plaintiff sought to pursue the case in the state court and, consequently, applied to court to separate the cases filed on behalf of the passengers against Boeing and that filed against Mach II (main action) from the third party claim against LOT airlines. Granting this motion would allow to pursue with the first case in the state court (without the participation of LOT there was no reason that the case came before the Federal Court), which would in turn increase the chances of dismissing the application of Forum non Conveniens. The court rejected the application for the separation of the cases, yet the subsequent conclusion of the settlement by the parties caused that this issue has finally turned out to be irrelevant.
Ultimately, the number of the Plaintiffs in the actions initiated in this case in the US exceeded 130, while 103 Plaintiffs were retained directly by Budzowska & Fiutowski and Partners.
It should be pointed out that this court action is not regarded as a strict class action, but rather as the claim with multiple plaintiffs. This is due to the fact that the damage borne by each Plaintiff was separate and had a different scope.
In summary, it should also be clarified that bringing a lawsuit before the Polish court was inadvisable, because then it would be necessary to sue the carrier, i.e. LOT airlines. The passengers’ claims with respect to the carrier are subject to the provisions of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), which does not allow claims for non-pecuniary damages (emotional distress, negative experience, trauma); while this type of injury was the predominant element of the claims of all passengers. For the same reason it was not in the interest of the Plaintiffs to have Forum non Conveniens granted by the US courts.
The dispute was ultimately settled between the parties. The settlement is subject to confidentiality, it is therefore not possible to provide any information about its terms and conditions.