Willful misconduct is an intentional violation of, or a knowing disregard for, a policy or action that results in personal injury or death.
In aviation law, in particular international aviation litigation cases, proving willful misconduct is important because the liability limits of the Warsaw Convention and the Montreal Convention are lifted if plaintiffs are able to prove the airline committed willful misconduct and caused an accident.
When the idea of “willful misconduct” was first written into the Warsaw Convention in 1929, it was vaguely defined as the carrier not taking “all necessary measures to avoid the damage.” It wasn’t until the Hague Protocol amended the Warsaw Convention and clarified willful misconduct as being the “intent to cause damage or recklessly and with knowledge that damage would probably result.”
One major case in which proving willful misconduct was key to the plaintiff’s suit was the Pan Am Flight 103 disaster. This was a major case not only for Kreindler & Kreindler but for aviation litigation and terrorism litigation in general. In Pan Am 103, Kreindler attorneys claimed Pan Am’s security was clearly negligent by knowingly allowing an unauthorized suitcase onto the plane in Malta. The suitcase contained a bomb that exploded while the plane was over Lockerbie, Scotland, leading to the crash that killed 259 people on board as well as 11 people on the ground.
After a three-month trial in 1992, a Brooklyn federal jury found that the airline defendants were liable for compensatory damages because they had committed willful misconduct in failing to provide mandated security.
The courts upheld that the negligence of the security team was indeed willful misconduct on the part of both Pan Am and its security subsidiary thereby opening the airline to unlimited damages.
Another case is the Korean Airlines Disaster of 1983. When a Korean Airlines 747 was shot down by a Soviet fighter in 1983, many believed there was no way to prove that the airline had committed “willful misconduct,” the standard necessary to recover full damages. Two of the firm’s attorneys were appointed to the committee that tried the case. We meticulously detailed the series of errors made by the pilots during the flight, won a verdict of willful misconduct against the airline, and successfully defended the verdict on appeal.