Representatives from Asiana Airlines apologize to parents of students in Jiangshan High School in Zhejiang Province on July 17. Some 35 students and teachers from the school were on board Asiana flight 214 when it crash landed in San Francisco on July 6. Photo: CFP

 

It's been almost three weeks since the terrifying Asiana Airlines disaster at San Francisco airport that claimed three lives. While the smoke, dust and debris have long been cleared away from the runway; the issue of compensation remains murkier than ever.

In one example of how fraught these tensions can be, a Web user who claimed to be a daughter of two injured passengers wrote on Weibo that the airline planned to give her parents $400 each in "compensation," but in accepting it they would need to sign a document stating they would only file a lawsuit against the airline in China instead of in the US.

Asiana Airlines denied the claim to the Global Times, saying the money was just a subsidy for living expenses and the document was merely a receipt; however this statement was refuted by the Web user.

This dispute - one of many between passengers and the airline - highlights the complex nature of the fight for compensation. For now, legal action has taken a back seat to passengers all over the world who are negotiating with the airline for compensation, but the prospect still looms as passengers grow frustrated with responses from the company.

The diverse nature of these passengers has also prompted claims the airline is using different standards for some.

Dissatisfied passengers

The Web user, named Jackie_Jin on Sina Weibo, wrote in a series of posts after the crash that her parents were frustrated because Asiana was not taking good care of them and had not visited or discussed compensation.

She is not alone. Several other injured passengers also posted comments online saying the airline treated Chinese passengers differently from their US or Korean counterparts.

Zhang Qihuai, a lawyer who specializes in the aviation industry, was appointed by the local government as a legal consultant for students and teachers from Jiangshan High school, Zhejiang Province, who were in the crash. "Asiana representatives came to apologize at the school but they didn't reveal any plans, even vague ones, about compensation. They didn't even provide information on the progress of the investigation," Zhang said, adding that this frustrated the parents.

Zhang and local government are still negotiating with the airline, but he hasn't ruled out a lawsuit.

Feng Keke, a co-counsel with US law firm Motely Rice LLC, which often specializes in aviation cases, told the Global Times that she had heard the similar complaints.

She added that some victims being supported by the airline even claimed that the company cannot fulfill their requests for Chinese food or prescription medicine.

Asiana Airlines has refuted these claims, pointing out that it is a complicated case and as such, it would be premature to reveal a detailed compensation plan. The company also said it is doing its best to ensure the comfort of victims being treated in the US. "We also arrange physical tests for students and teachers who are back in China," the spokesperson added, but Feng noted that this could be an effort to collect evidence in the event of a lawsuit in the future.

Feng and her American colleagues have worked with governments of Shanghai Municipality, the city of Jiangshan in Zhejiang Province and Shanxi Province since the crash.

Although Zhang said some victims expressed a desire to take a class action against the airline, Feng said that US federal law stipulated that each plaintiff should file individual actions.

The Montreal Convention, a multilateral treaty that governs passenger claims in aviation related cases, stated that air carriers are liable for proven damages up to approximately $175,800. In cases where the damages are over that amount, the airline can avoid liability only if they can prove the accident was not caused by negligence.

Lawyering up

If pilot error is ruled to be the cause of the crash, then the Montreal Convention would apply and Asiana Airlines would be the defendant in a civil case, Zhang said.

However, if it is deemed to be the fault of aircraft manufacturers such as Boeing, the convention would not apply and any lawsuits would be product-liability cases, which would mean passengers may automatically sue in the US, Feng said.

Under the convention, the passengers could file lawsuits against the responsible parties in South Korea, where Asiana Airlines is located, or potentially the US or even China, if Asiana Airlines was able to argue that the final destination of the round trip made by some passengers was China.

Families of the three Chinese teens killed in the crash - one of whom was killed after being struck by rescue vehicles in the wake of the crash - have hired three American lawyers to represent them. 

None of the lawyers could be reached for comment by press time.

In relation to the victim killed by the rescue vehicle, several law experts reached by the Global Times pointed out that it was possible US courts will clear the rescue team of responsibility, as the accident happened in an emergency situation.

Zhang said there was no hurry for the victims to hire lawyers or file a lawsuit. "We need to be cautious, not only because of tricks by the airline but also some unethical lawyers. It's better to wait for the investigation to make progress before taking any action."

Feng said that although the convention has a two-year statute of limitations for filing a lawsuit, taking action against the airport, rescue teams or others could potentially be limited to a six-month window.

Sue in China or the US?

According to several lawyers who specialize in aviation cases, if lawsuits occur in the US, there is unlikely to be a cap on the amount of damages that can be requested.

Feng said that when considering filing lawsuits, which country should have jurisdiction is one of the biggest battles between lawyers from each side. "Asiana and their insurers will try their best to transfer the lawsuit to somewhere outside America, where the liability payments are likely to be smaller," Feng said.

According to aviation regulations in China, the highest compensation payout for a passenger in an air crash is around 400,000 yuan. Zhang, who has represented victims in several accidents in China, said that even though in some cases involving fatalities the families of the deceased received more than that, it is still likely that there would be lower compensation payouts from Chinese courts. 

However, as aviation lawsuits in the US usually last for years, Zhang suggested that it may be appropriate for Chinese passengers to sue in China, considering travel expenses and legal fees.