Kreindler Represents Victims Killed in Asiana Airlines Flight 214 San Francisco Crash
- Kreindler represented all three students who were tragically killed as a result of the crash.
- Partner Brian Alexander was appointed as Plaintiffs’ Lead Counsel in the litigation against Asiana Airlines and The Boeing Company.
A Disastrous Landing
On July 6, 2013, a Boeing 777-200 operating as Asiana Airlines Flight 214 crashed into a seawall short of the runway during a visual approach into San Francisco International Airport (SFO). Flight 214 originated in Shanghai, China, with an intermediate stop in Seoul, Korea, before reaching San Francisco. There were 291 passengers and 16 crew on board. Kreindler was retained by the families of three students who were killed as well as other American and foreign passengers who suffered serious injuries.
We know of no decision where a properly brought Montreal Convention claim arising from a crash in the United States was dismissed on forum non conveniens grounds, and we may see a decision of first impression in the Asiana litigation.
According to the San Francisco Fire Department’s Assistant Deputy Chief Dale Carnes, a total of 181 people were transported to San Francisco area hospitals with 49 of the injured people referred to as “serious” and who were part of the initial emergency transport effort.
As of July 16, there have been three passenger fatalities as result of the Asiana plane crash.
In an ABC News report, San Francisco General Hospital chief of surgery Dr. Margaret Knudson revealed that many patients were covered in what was characterized as “road rash,” a phenomenon more closely tied to people in motorcycle crashes when they aren’t wearing leather clothing. Knudson also said many patients suffered severe abdominal bleeding that might have been caused by the plane’s seat belts. At least two individuals with spinal fractures were paralyzed and others suffered head trauma. Some passengers sustained broken ribs or fractured sternums from the crash. Others experienced minor burns and many had short-term breathing difficulties as a result of the smoke and fumes, or possibly from outgassing. Partner Brian Alexander spoke with China Daily about the case.
It is very important for the families to retain U.S. lawyers who have a complete understanding of the Montreal and Warsaw treaties that govern international flights. The survivability of the crash and the evacuation of the aircraft and the performance of rescue personnel will be evaluated as part of the NTSB investigation.
There have been many reports in the media about emergency 911 calls from passengers who were complaining about the absence of ambulances at the crash scene. One of the callers pleaded with the 911 operator, “There are no ambulances here. We’ve been on the ground 20 minutes. There are people lying on the tarmac with critical injuries, head injuries. We’re almost losing a woman here. We’re trying to keep her alive.”
The first fire trucks reportedly responded to the crash within three minutes, but the people on board did not begin exiting the plane until after the crew had communicated with the tower — a delay of 90 seconds.
In addition to the injuries suffered as a result of the crash, there have been more injuries sustained during the rushed exit of passengers and crew from the plane onto the runway and subsequently during the emergency response effort.
Partner Anthony Tarricone spoke with NBC News and spoke about 16-year-old victim, Ye Meng Yuan, who survived the initial crash “only to be fatally struck by a San Francisco Fire Department rescue truck.” Tarricone relayed a statement by Yuan’s relatives, our client, that they are “devastated and heartbroken.”
San Francisco police spokesperson Albie Esparza told CNN that the victim may have first been inadvertently covered in thick fire-fighting foam the firefighters were spraying onto the burning plane. The fire trucks, hesitant to get too close to the burning plane, first shot fire-suppressing foam from powerful canons atop the fire trucks covering the fuselage and the area surrounding the plane before approaching. The foam product was likely AR-AFFF, a synthetic foam developed for fighting fuel-based fires.
When the truck repositioned itself to get a better aim of the fuselage, they discovered the body of the victim in the fresh track from the path of the truck. The foam was thick enough to cover a body. Moreover, it is difficult for those in the "industrial-size" fire trucks that responded to crash to see things on the ground.
Tarricone appeared on ABC 7 discussing possible criminal charges in Ye Meng Yuan’s death saying, “The fire department personnel directed one vehicle to go around her while she was on the ground. She was known to be there. She was never properly examined… she was then left unattended.”
In the coming days and weeks the NTSB and other investigators will, among other things, review the flight data recorder (FDR) which records pilot flight control inputs as well as aircraft systems and engine parameters during the flight, the cockpit voice recorder (CVR) which records the crew conversations during the flight, and interview the flight crew to determine what may have caused this crash. The NTSB will also analyze the evacuation and emergency response to the crash.
While it is premature to speculate as to the ultimate cause and contributing factors, some preliminary information has already been provided which raises questions that will need to be answered.
After analyzing the cockpit voice recorder, NTSB Chairperson Deborah Hersmann stated, “the aircraft was proceeding normally as they descended and there was no discussions of any aircraft anomalies or concerns with the approach.” The CEO of Asiana Airlines, Yoon Young Doo, has also preliminarily ruled out engine or mechanical problems as a contributing factor for the crash.
The NTSB has also reported that the aircraft speed “was significantly below” the proper speed for the approach and the crew called for more airspeed approximately seven seconds before impact. Moments later the aircraft’s stall warnings, including an aural alarm and a stick shaker, engaged to warn the crew that the aircraft was about to stall. Less than two seconds before impact, the crew attempted to abort the landing and perform a go-around but it was too late.
Partner Daniel Rose was interviewed by KQED host Michael Krasny on the Asiana investigation and had this to say about the possibility of mechanical error:
I would be careful to caution that mechanical error is not the same as design error ... you could have systems working as designed on the plane that still may have caused or contributed to the end result.
Based on this preliminary information, the NTSB has essentially determined that the aircraft was too slow and too low during the final stage of the approach. Accordingly, the investigation is focused on the crew’s experience and training as well as the pilot’s actions during the approach.
This is not the first time the two major Korean carriers have experienced fatal aviation disasters. KAL and Asiana have had at least a dozen accidents since the mid-1970s. Several of these crashes have occurred as a result of pilot negligence during the landing approach. As a result, the airlines’ training programs, safety culture, crew resource management and crew selection procedures were scrutinized by investigators, as well as independent safety experts, in order to ensure the appropriate safety “checks and balances” were in place in the cockpit. Despite these efforts and greater technology, it now appears that Asiana Flight 214 may be the result of a critical break down in cockpit crew coordination. From the human factor perspective, there will be many questions, not least among them: Why was the aircraft flying below the proper glide slope and approach speed? Was the landing profile and airspeed different (slower) from other aircraft the pilot had flown? Did the lack of an Instrument Landing System (ILS) glide slope information contribute to the crash? Were there issues with how the flight crew interacted with the automated systems on board the aircraft that contributed to the crash? Why didn’t the more experienced 777 pilot notice the low speed sooner and call for immediate corrective or emergency action? Was the pilot’s lack of experience in this model Boeing a contributing factor to the poor approach and should more training without passengers on board be required before passenger carrying flights are permitted?
Kreindler will investigate whether any potential delay in the emergency response harmed any of the survivors. Additionally, the NTSB and local authorities will see whether any additional survivors were injured by emergency vehicles responding to the accident site.
Summary of the Crash
On July 6, 2013, Asiana Airlines Flight 214, carrying 291 passengers and 16 crew members, crash landed at its destination, San Francisco International Airport. Based on initial reports from the NTSB, it appears the flight crew at the last second attempted to abort the landing causing the large passenger plane to hit a seawall separating San Francisco Bay from the beginning of runway 28L. The main landing gear impacted first followed by the tail section of the plane. The landing gear and the tail were severed from the plane on impact as the plane slid and spun down the runway finally coming to a rest approximately 2000 feet from the point of impact. The plane had departed about 10 hours earlier from Incheon International Airport just outside of Seoul, Korea. According to NTSB reports, the pilot made a last second request to initiate a “go-around” — meaning to abort the landing, fly around the airport and try again. The request was made only 1.5 seconds prior to impact. Amateur video shows the incoming plane’s nose pointed up at a higher angle than usual indicating the pilot may have been attempting to add power to climb and initiate the go-around, but it was too late and too low to avoid impact.
Flight 214 originated from Shanghai, China. Flight 214 was a 10-hour nonstop flight departing from Incheon International Airport (ICN) outside Seoul at 5:04 p.m. KST (08:04 UTC). It departed 34 minutes behind its scheduled departure time. It was scheduled to land at San Francisco International Airport (SFO) at 11:04 a.m. PDT (18:04 UTC). It crash landed at about 11:28 a.m. PDT.
The airplane, a 2006 Boeing 777-200ER, was powered by two Pratt & Whitney PW4090 engines. Asiana had 11 other Triple 7s in service at the time. Three different manufacturers have produced engines for the Boeing 777, Pratt and Whitney, Rolls Royce and General Electric. The Pratt and Whitney engines actually represent only 15% of the engines currently installed in Triple 7s. The General Electric GE90 is currently the exclusive engine series for all new Boeing 777s and will eventually represent 100% market share.
Because the transpacific flight was scheduled for a duration of 10 hours, there were four pilots on board. Transoceanic flights have 4 pilots, 3 captains and 1 first officer on board. The pilot at the time of the crash was Captain Lee Kang-Kook who was receiving his initial operating experience (IOE) training. Lee Kang-Kook was operating the controls under the direction and instruction of Captain Lee Jeong-Min. Although Lee Kang-Kook had a total of 9,793 flying hours, he only had 43 hours in the cockpit of the 777 and had never landed the aircraft at San Francisco International Airport. Lee Kang-Kook’s instructor, Lee Jeong-Min, was both a check/instructor captain and was the pilot in command. At the time of the accident, Lee Jeong-Min was located in the right seat, the co-pilot position. Flight 214 was Lee Jeong-Min’s first flight as an instructor and also his first flight with trainee Lee Kang-Kook. The third pilot was a relief first officer who occupied a cockpit jump seat at the time of the crash, and the fourth pilot, the relief captain, was seated in the passenger cabin at the time of the crash. In addition to the four pilots, there were 10 flight attendants for the nearly full plane. Fourteen members of the crew were from South Korea and the remaining two members were from Vietnam.
The plane was nearly full, carrying a total of 307 people — 291 passengers and 16 crew members. Of the 291 passengers aboard, 141 were from China, 77 from South Korea, 64 from the United States, 3 from Canada, 3 from India, 1 from France, 1 from Japan and 1 from Vietnam. Because of limited direct flights from Shanghai to San Francisco, the Asiana Shanghai-to-Seoul-to-San Francisco route is a popular choice for Chinese residents planning a trip to the United States.
Legal Issues Surrounding the Crash of Asiana Flight 214
Federal law prohibits unsolicited communications with any Asiana Flight 214 accident victim or relative of any individual involved in the accident before the 45th day following an accident that involves an air carrier providing interstate or foreign air transportation and any foreign air carrier accident that occurs in the United States.
What law governs claims against Asiana Airlines?
The Montreal Convention (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) is a multilateral treaty that will govern passenger claims. Under the Montreal Convention, air carriers are strictly liable for proven damages up to 113,100 special drawing rights (SDR) (around $175,800). In cases where damages of more than 113,100 SDR’s are sought, the airline may avoid liability only by proving that the accident was not caused by its negligence. In this case, there is little likelihood the airline will be able to limit its liability.
Where can victims bring claims against Asiana Airlines?
Article 33 of the Montreal Convention provides that an action for damages must be brought at the option of the plaintiff before the court:
- Where Asiana Airlines is domiciled
- Where the carrier has its principal place of business
- Where Asiana has a place of business through which the contract of carriage was entered into (where the ticket was bought)
- The place of destination (which may be the final destination on a round trip ticket)
- Where the passenger has his or her permanent residence. All U.S. residents may sue Asiana in the United States based on Montreal Convention’s “fifth jurisdiction” provision regardless of where they purchased their tickets and the destination of their flight.
The potential for U.S. jurisdiction for foreign passengers will depend on the facts related to their flight ticketing and itinerary.
Can passengers seek punitive damages against Asiana?
No. The Montreal Convention does not permit the recovery of punitive damages.
What damages are available?
The passengers may seek full compensatory damages (which includes damages for physical pain and suffering and economic losses). The Montreal Convention does not provide for damages, rather the damages will be controlled by State law.
Products liability claims
In the event that evidence points to a problem with the airplane’s design or manufacture, the victims and the families of the deceased victims will be able bring actions in the United States against the Boeing Company and potentially U.S. manufacturers of the airplane’s component parts. These claims would not be governed by the Montreal Convention. If these claims are successful, the manufacturers would be liable for compensatory damages and, if the facts support it, potentially punitive damages. Based on the pilots’ statements to the NTSB, we are looking at the airplane’s autothrottle, its autopilot and the absence of an aural low speed warning which would have alerted the pilots that the aircraft’s airspeed was slowing to dangerous levels.
The actions of the first responders will also have to be examined to determine which, if any, of their actions or omissions may have contributed further harm to any of the crash victims. The claims would be based on local California law and may involve certain immunities that first responders and/or government actors enjoy. There are also significantly shorter time periods in which to bring a claim if a local government agency is involved.
Possible Causes of the Crash
The National Transportation Safety Board (NTSB) is working with Boeing, the Federal Aviation Administration, and the Korean Air and Accident Investigation Board to determine the exact cause of the crash. A typical NTSB crash investigation can take 12 to 18 months, but Chairperson Deborah Hersman has stated that she hopes to have the report completed earlier.
There is no indication the weather played any part in the crash. The weather was fair and the aircraft was cleared for a visual approach. The tower may have requested that the pilots make a visual approach as a result of the airport’s Instrument Landing System (ILS) not functioning at the time of the landing. NTSB’s Hersman addressed the issue by stating that because the jet was on a visual approach in excellent weather, “you don’t need instruments to get into the airport” safely. There has been speculation, however, that Korean pilots tend to be more comfortable with automated systems and less comfortable with visual approaches than their western counterparts. A recent Reuters story reported that a Korean government aviation official said manual flying was once common among Korean pilots, many of whom where former military pilots. But in an effort to improve safety after a 1997 Korean Air crash in Guam, pilots were encouraged to make more use of automated controls. Many Korean commercial pilots are former military, having gained much of their flying experience in highly automated aircraft. On the other hand, commercial pilots who trained in the U.S. tend to have had an opportunity to hone their skills flying smaller, simpler planes with fewer automatic features.
Slow approach speed
The pilots allowed the jet’s speed to slow below proper approach speed causing it to lose altitude too quickly. Seven seconds before impact, a voice is heard on the cockpit voice recorder calling out to “increase speed.” The relief first officer occupied the cockpit jump seat told NTSB investigators that he was warning them that their speed was too slow as they approached the runway. Four seconds before impact, the stall warning stick shaker rattled into audible action. One and a half seconds before impact, the pilots attempted to initiate a go-around. At that point the airplane was descending too close to the ground to recover.
Last second abort attempt
According to former TWA pilot Barry Schiff, once the airplane nears its destination and goes below an altitude of 500 feet, “target airspeed on final approach must be established and stabilized; power required for the descent must be established and stabilized; the required rate of descent must be established and stabilized; and the airplane must be on the desired descent profile and stabilized. If any of these variables becomes unstabilized or allowed to vary significantly, the pilot is required to abandon the approach and begin anew.”
On a typical Boeing 777 landing, when flying at an appropriate landing speed of 132 knots, the plane will descend to the benchmark of 500 feet about 35 to 42 seconds before landing. It is unknown at this point why the Asiana 214 pilot did not attempt to abort the landing until a few seconds before impact.
Aircraft equipment or systems failure
From initial NTSB reports, there was no indication of any problem, mechanical or otherwise, with no distress calls or other problem reports during the flight except for the final few seconds. The NTSB is investigating whether a failure in the mechanics or in the crew’s use of the aircraft’s autothrottle system could have occurred. The NTSB reports that the autothrottle was programmed to be in the “Vertical Speed mode,” one of the three available modes. Typically, the Vertical Speed mode is used for step down descents during an earlier part of the approach process. The most preferred mode for final approach is known as the “Vertical Navigation with Speed Intervention mode.” It is not yet known why the pilot chose a less common mode for the final approach. In addition, the autothrottle control was found to be in the “armed” position during documentation of cockpit levers and switches, differing from both the “on” and “off” positions, and the flying pilot’s flight director was deactivated whereas the instructor pilot’s was activated. “Armed” means the autothrottle is available to be engaged, but is not necessarily active. Thorough understanding of each of the modes of the autothrottle, as well as understanding its armed and automatic processes and limitations, is critical during final descent. The pilot must also be prepared to land the plane manually in case there is any equipment malfunction or confusion. The NTSB will attempt to understand the pilots actions with respect to use of the autothrottle and their ability to land the plane without the use of the autothrottle.
The flying pilot was undergoing training and had never landed a Boeing 777 plane at SFO. He only had 43 hours in the Boeing 777. Likewise, Flight 214 was the trainer pilot’s first flight as an instructor and he had never overseen a trainee during a landing. The NTSB will look into whether the training exercise distracted the pilots from performing their duties. Since the crash, Asiana has already announced they will enhance the training program for pilots looking to fly new aircraft. The new measures will include enhancing training for visual approach and automated flight. They also pledge to further conduct flight inspection at airports that are “vulnerable to safety.”
One of the pilots reported being temporarily blinded by a bright light on approach at about 500 feet. There was little information regarding that claim, and Chairperson Hersman discounted the idea that the light was from a potentially dangerous laser.
During the landing, the crew was engaged in a training exercise. The NTSB will look to see whether the crew became so distracted during the approach that they lost awareness of their airspeed. It is unknown if any of the pilots were engaged with personal electronic devices such as cell phones or tablets during the approach. According to a New York Times story, one crash in which cellphone interference with airplane navigation was cited as a possible factor involved a charter in Christchurch, New Zealand, in 2003. Eight people died when the plane flew into the ground short of the runway. In the New Zealand crash, the pilot had called home, and the call remained connected for the last three minutes of the flight. In the final report, the New Zealand Transport Accident Investigation Commission stated, “The pilot’s own cellphone might have caused erroneous indications” on a navigational aid. Not to mention the possibility of the pilot being distracted at one of the most critical parts of the flight.
Potential language barriers
According to the NTSB, the pilots were speaking both English and Korean in the cockpit. We assume that communication with SFO air traffic controllers was in English and the Korean communication that was recorded would have been between the Korean pilots. Additionally, it is unknown if the post-crash NTSB interviews of the pilots were conducted in English, Korean or with the aid of an interpreter. It would be part of the NTSB investigation to conclude if language differences played any role in delaying action or misinterpreting directives during the approach.
The pilots were at the end of a long transoceanic flight. The NTSB will look at how fatigue played a role in the flight crew’s mistakes.
Construction at the airport
According to the NTSB, a component of the airport’s Instrument Landing System (ILS) that tracks the glide path of incoming airplanes was not working at the time of the crash. The computerized system calculates a plane’s path of descent and sends the information to pilots in real-time. The NTSB will investigate how the runway markings and the absence of the instrument glide slope contributed to the accident.
The investigation will examine the crashworthiness of the airplane. In particular it will examine the failure of some of the emergency slides to properly deploy. Two of the emergency slides may have actually deployed inside of the aircraft. Some passenger statements indicated that one of the malfunctioning slides may have temporarily trapped a flight attendant.