Nairobi — A Kenyan family has sued United States plane manufacturers Boeing over the wrongful death of their kin, George Kabau, in last month's plane crash involving Ethiopian Airlines flight 302.
Nomaan Husain, a US attorney, confirmed filing the suit before a Federal Court in the State of Illinois on Monday during a media briefing in Nairobi Tuesday afternoon.
Husain ruled out an out-of-court settlement with Boeing saying his law firm which is cooperating with a Nairobi-based law firm on the matter will pursue the case to its conclusion.
"We want to discover why Boeing cleared the new plane model. Where are the documents? Where are the emails? People at the corporation new before the plane was first delivered in late 2017 that there were problems with the plane. We're not interested in taking any money from Boeing at this time; will let the litigation process play out," the founding attorney of Husain Law and Associates remarked.
He said the prosecution team will seek to table before the court evidentiary material available to accurately access the claim due to the bereaved family and also punish the aircraft manufacturer for wrong doing.
"We're going to do the discovery which will entail exchange of documents, written statements and oral depositions so that we can take all evidence and at that time we'll be able to evaluate the value of the claim," the attorney said adding that the suit was not just seeking compensation for the Kabau's but also to hold Boeing "accountable and responsible for its greed and reckless action."
Husain said his team will assess as the case unfolds the need to enjoin the US Federal Aviation Authority (FAA) in the matter, a State-agency which certified the Being 737 Max 8 plane model that crashed six minutes after takeoff from Ethiopia's Bole International Airport on March 10 killing all 157 persons onboard.
"We're currently investigating whether the FAA should be brought into the case. Our focus right now is Boeing because they designed, manufactured and sold the plane. That doesn't mean after our investigation as we obtain more evidence we wouldn't add another party into the case," he said.
Aviation law attorneys Husain, Omar Khawaja, and Floyd Wisner in partnership with a Nairobi-based law firm are the second group of legal entities to announce a federal lawsuit against Boeing on behalf of Kenyan families that lost relatives in the March 10 plane crash.
A consortium of Kenyan and American law firms announced the first litigation against Boeing on April 3, on behalf of eight Kenyan families.
The decision by the law firms to sue the plane manufacturer as opposed to the airline has been linked to preliminary investigation reports that have singled out the malfunction of an anti-stall system of the Being 737 Max 8 plane model Ethiopian Airlines was flying in respect to the ill-fated flight of March 10.
Article 21 (2) of the Montreal Convention (1991) provides that an airline shall not be held liable for deaths and loss of property in the cause of air travel as a result of an accident if the carrier can prove that the accident was due to the negligence of a third party.
"The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that: a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or b) such damage was solely due to the negligence or other wrongful act or omission of a third party," the Convention states.
Under Article 21 (1) of the Convention, a carrier can be held liable for damages not exceeding 100,000 Special Drawing Rights (SDR) - an international exchange reserve asset established by the International Monetary Fund - for each passenger, with an SDR equivalent to about Sh140.
"For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability."
Damages, injuries, or deaths for which airlines can be held liable are those resulting from accidents that take place on board an aircraft or in the course of its operations such as embanking and disembarking, according to Article 17 (1) of the Montreal Convention.
The family of a Rwandan citizen who died in the March 10 crash was the first to file a lawsuit against Boeing at a US federal court on March 28.
Jackson Musoni's kin alleged Being had "defectively designed the automated flight control system," according to Reuters.
The Ethiopian Airlines crash of flight 302 en-route to Nairobi's Jomo Kenyatta International Airport which had 36 Kenyans on board was strikingly similar to a Lion Air-operated Flight 610 that crashed into the Java Sea just 12 minutes after takeoff from Soekarno-Hatta International Airport in Jakarta on October 29, 2018 killing 189 people on board.
Investigations resulting from the two catastrophic falls pointed to the now infamous Manoeuvring Characteristics Augmentation System (MCAS) which relays on angle-of-attack sensor readings to alter the pitch of the plane to prevent stalling.
The Being 737 Max 8 has since been grounded internationally after several airlines suspended its operations following safety concerns on the reliability of angle-of-attack sensors and the MCAS.
The aircraft manufacturer defended the anti-stall systems saying it had published manuals outlining how pilots could override the MCAS system in case it is activated by erroneous data emanating from defective angle-of-attack sensors.
"Boeing's 737 MAX Flight Crew Operations Manual (FCOM) already outlines an existing procedure to safely handle the unlikely event of erroneous data coming from an angle of attack (AOA) sensor. The pilot will always be able to override the flight control law using electric trim or manual trim," the aircraft manufactures said in a statement following Ethiopian Airlines accident.
According to Boeing, the MCAS command could also be controlled through existing runaway stabilizer procedure which it reinforced in an Operations Manuel Bulletin it issued on November 6, 2018.
The firm later announced it was working closely with the Federal Aviation Administration (FAA) on a further software enhancement incorporating feedback received from clients, an update the company said "will be deployed across the 737 Max fleet in coming weeks."
The new software upgrade was due for FAA's Airworthiness Directive (AD) "no later than April," Boeing had said in March.
The manufacturer said in an additional statement on April 4 the upgrade was on the final stages of certification.
"We're taking a comprehensive, disciplined approach, and taking the time, to get the software update right. We're nearing completion and anticipate its certification and implementation on the 737 MAX fleet worldwide in the weeks ahead. We regret the impact the grounding has had on our airline customers and their passengers," Boeing Chairman, President and CEO, Dennis Muilenburg, said.