Boeing Keeps Suits Over Asiana Crash in Federal

     (CN) – Lawsuits over the 2013 Asiana Airlines crash that killed three people and seriously injured 49 others belong in federal court, the Seventh Circuit ruled.
     Reversing the judge who remanded the cases against Boeing to Illinois state court, a unanimous three-judge panel found Wednesday that admiralty jurisdiction applies to the accident, which began over navigable water.
     Three teenagers from China died in the crash and more than 180 other passengers were injured when the Boeing 777 that had taken off in Seoul, Korea, hit the seawall that separates the ocean from the end of a runway at San Francisco International Airport.
     The National Transportation Safety Board attributed the accident to pilot error last year.
     While many of the passengers filed federal complaints in California, some of the passengers filed negligence lawsuits in Illinois state court, alleging that Chicago-based Boeing was aware of several similar incidents but did not require the low-airspeed warning system on its 777 aircraft, such as on the Asiana plane that crashed.
     Boeing removed the suits to federal court, asserting admiralty jurisdiction, as well as federal officials’ right to have claims against them resolved by federal courts.
     U.S. District Judge Judge Harry Leinenweber in Chicago remanded the suits, concluding that Boeing did not act as a federal officer and that the accident happened on land when the plane hit the seawall, rather than over navigable water.
     The Seventh Circuit disagreed on the second point Wednesday, noting that the NTSB’s June 2014 report, issued after the Leinenweber’s ruling, determined that the crash began approximately 10 seconds before the plane hit the seawall.
     The board concluded that a collision was certain while the plane was over San Francisco Bay because a 777 aircraft lacks the ability to accelerate and climb fast enough, no matter what the pilots did in the final 10 seconds.
     “Given the NTSB’s findings, it is possible for Boeing to show that this accident was caused by, or became inevitable because of, events that occurred over navigable water,” Judge Frank Easterbrook wrote for the court.
     The panel also found that the airplane functioned as an “ocean-going” vessel when flying over navigable water not within the continental United States.
     “Asiana 214 was a trans-ocean flight, a substitute for an ocean-going vessel – as flights from the contiguous United States to and from Alaska, Hawaii, and overseas territories also would be,” which allows for general admiralty jurisdiction, the panel said.
     Because the passengers could have filed their suits directly in federal court under admiralty jurisdiction, Boeing was entitled to remove the complaints to federal court, the panel ruled.
     Boeing was less successful, however, with its argument that it represented a federal officer because it was “acting under” the Federal Aviation Administration’s authority to carry out some self-assessment to ensure compliance with aviation regulations.
     Easterbrook called it “linguistically possible to call self-certification a form of ‘acting under’ the FAA,” but said “all businesses must ensure that they comply with statutes and regulations.”
     Every regulated firm must use its own staff to learn whether it has satisfied federal regulations and the list of people who have to certify things is exceedingly long, the judge added.
     Rulemaking rather than rule compliance seems to be the key ingredient to obtaining “acting under” status, and the FAA does not allow Boeing to change substantive rules, the panel found.
     The passengers applauded this finding but wish the court did more than recognize that Boeing is not a federal officer for removal purposes, one of their attorneys, Colin Dunn, said.
     “The opinion is unprecedented, and conflicts with clear Congressional intent that appellate review of remand orders is extremely limited,” Dunn, a partner at Clifford Law Offices, said in an interview.
     Dunn added that his team is weighing their next step.
     Boeing has not returned a request for comment.

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