India's search areas for Malaysia Airlines Flight 370
India’s search areas for Malaysia Airlines Flight 370 (Indian Navy via Wikimedia Commons)

The disappearance of Malaysian Airlines Flight 370 is unlikely to lead to lawsuits in the United States because, unlike the Asiana Airlines crash last year, there’s no potential case against the American manufacturer, The Boeing Co., according to lawyers with aviation litigation expertise.

That’s primarily because, so far, the aircraft hasn’t been recovered.

“You could come up with a pretty good theory about why it happened and why the airplane is defective, but without the airplane you won’t be able to prove your theory,” said Justin Green, a partner at New York’s Kreindler & Kreindler.

Asiana and Boeing have offered to settle 27 lawsuits over Flight 214, which crashed on July 6 while landing at San Francisco International Airport, killing three people and injuring about 180. In court documents filed Tuesday, both companies proposed to halt discovery “to allow time for all parties to engage in a determined effort to settle these cases.”

A hearing is scheduled for April 11 in Oakland.

“Plaintiffs welcome Defendants’ suggestion to immediately address settlement,” Frank Pitre of Cotchett Pitre & McCarthy in Burlingame, Calif., wrote in a filing for the plaintiffs on Tuesday, “however, a blanket stay of all proceedings is neither necessary nor appropriate.”

As in the Asiana case, most of the passengers on the Malaysian Airlines flight were citizens of Asian nations and, as such, prohibited under an international treaty from suing either airline in U.S. courts, which offer significantly higher damages awards than do overseas jurisdictions.

There are some exceptions in the treaty, called the 1999 Montreal Convention, and, of course, U.S. citizens on board the planes may sue in U.S. courts. But most of the family members of the passengers, who are presumed dead, would sue in foreign courts and, unless the airline is found to have been negligent, would be limited to an amount of damages set by the treaty—about $175,000 per passenger.

“These cases are going to be resolved under the Montreal Convention against Malaysia, with or without an airplane,” said Robert Clifford, a partner at Clifford Law Offices in Chicago. “They will be largely resolved in other countries, whether it’s China or Malaysia.”

That’s despite the fact the flight, like Asiana’s, involved a 777 aircraft manufactured by Boeing, headquartered in Chicago.

The Asiana crash prompted lawsuits against Boeing, but lawyers have hesitated to file suit over the Malaysian Airlines tragedy. A massive search led by Australian authorities has failed to turn up debris from the aircraft, which is believed to have crashed into the Indian Ocean on March 8 after veering off course from its destination of Beijing.

“The problem is causation,” Green said. “You don’t have to prove the airplane is defective, but that it caused the accident. And you can’t prove causation unless you find the wreckage.”

Still, a Chicago law firm claiming to represent a family member of a Malaysian Airlines passenger filed a petition for discovery on March 25 under an Illinois Supreme Court rule that allows a plaintiff to obtain certain records for the purpose of identifying potential defendants. Three days later, Cook County Circuit Court Judge Kathy Flanagan threw out the petition and threatened to impose sanctions against the firm, Ribbeck Law. Flanagan tossed similar petitions the firm filed on behalf of passengers of the Asiana flight and those on board a turboprop plane that last year plunged into a Laos river, killing 49 people.

“Despite these orders, the same law firm has proceeded, yet again, with the filing of the instant petition, knowing full well there is no basis to do so,” she wrote.

Monica Kelly of Ribbeck Law did not respond to a request for comment.

In the Asiana litigation, the suits claim the airline’s flight crew was negligent and that Boeing was responsible for a defective warning system and automatic throttle. Both companies have denied the allegations. And both companies argued that halting discovery would allow the National Transportation Safety Board to complete its investigation this year.

But plaintiffs lawyers have balked at the plan, citing documents made public by the safety board on Monday in which Boeing and Asiana blamed each other for the crash. Asiana admitted its pilots failed to maintain a safe airspeed, but also cited problems with the aircraft’s warning light-system.

“Under such finger-pointing circumstances, plaintiffs are clearly entitled to initiate liability discovery,” Pitre wrote. He did not return a call for comment.

Neither Asiana’s lead counsel, Frank Silane, a partner in the Los Angeles office of New York’s Condon & Forsyth, nor Boeing’s attorney, Kaycie Wall, a partner in the Palo Alto office of Seattle’s Perkins Coie, responded to requests for comment.

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