The 9/11 Litigation


The litigation process has already exposed several widely held misconceptions concerning the September 11 hijackings and the legal proceedings available to the families of the airline passenger victims. These misconceptions have been spread by innumerable inaccurate media reports, by governmental, airline and security company spokespersons, by those promoting the Fund, by legal analysts in print and on TV, and by others.

Several Misconceptions

1.  Were box cutters permissible carry-on items aboard airlines on September 11, 2001?

Almost immediately we were all told that the carriers and screeners did nothing wrong because box cutters, the most commonly mentioned weapon of the hijackers, were items that were allowed to be carried on board commercial aircraft. Almost every news account emphasized how box cutters were permissible. These accounts were false. We have discovered that the airlines themselves specifically listed box cutters as prohibited items. The airlines failed, therefore, in each instance, to discover, confiscate and bring to the attention of a supervisor, the presence of prohibited box cutters. (See the relevant page of the airlines’ list of proscribed items (PDF), in effect since 1994.)

2. Will the families who sue be able to recover anything?

This notion has been especially raised with regard to United Airlines Flight 175 and American Airlines Flight 11 which crashed into the World Trade Center towers. These carriers have been sued by most plaintiffs — American, United and US Airways — because they cleared two hijackers through security in Portland, Maine to board a Colgan Air flight to Boston, Logan. It has been widely reported that each of the hijacked flights had insurance coverage of at least 1½ billion dollars. Each flight had several policies. (See the lists (PDF).) Part of this insurance is specifically reserved for the passengers’ benefits. For example, US Airways’ insurance policy in effect on 9/11 states “with respect to passengers – $1,500,000,000″ and “with respect to other than passengers – $25,000,000.” (See the copy of the declaration page of the US Airways policy.) We believe the policies of United and American contain similar provisions. However, there are several more policies, as stated by the carriers to the U.S. Government.

3. Did the carriers have a duty to protect from terrorism?

Absolutely. By federal law, the carriers were required to protect passengers from hijacking and terrorism. The carriers admitted this in a pleading they filed in these 9/11 cases. See the statements of American Airlines. American Airlines, in its Memorandum of Law in Support of the Motion of the Aviation Defendants to Dismiss Ground Damage Claims, filed on January 17, 2003, claim that “the Duty of Air Carriers in the Circumstances of September 11 Extended Only to the Protection of Passengers and Crew.” (See the applicable portion of the Memorandum.) They moved to dismiss all ground claims. This month the judge will rule on their motion.

4. Will lawsuits against the airlines bankrupt them?

The Airline Stabilization Act of 2001 was supposedly passed to protect the airlines from the financial devastation caused by their negligence on September 11. That Act created a “Fund” for victims in addition to, and instead of, the normal litigation remedies.
In point of fact, United Airlines filed for bankruptcy in Chicago on December 9, 2002 without having paid one dime in actual claims to September 11 victims.

United Airlines filed for bankruptcy US Airways filed for bankruptcy in Alexandria, Virginia on August 11, 2002 without having paid one dime to September 11 victims.

American Airlines (after its smaller insurance policies on Flights 11 and 77 paid out $28,735.63 and $42,372.88, respectively) has also been considering bankruptcy.

These two airlines’ bankruptcies and American’s financial plight, have been brought about, not by any September 11 victim’s lawsuit, but by the arguably excessive salaries and “bonuses” paid to its management for poorly managing the airlines and for helping to bring about the large downturn in air travel by having failed to protect their passengers from hijacking and sabotage as the law required. And this in spite of both United and American having received their share of the 10 billion dollars of taxpayer money paid to airlines in the above “bailout bill.” The U.S. Congress is currently considering additional bailout bills.

5. Family members will have an extra six months to file wrongful-death lawsuits under a deal announced recently by New York state leaders.

The two-year statute of limitations for filing wrongful-death actions will be extended to March 11, 2004. However, the New York legislature extended the deadline to file lawsuits in New York, with a very misleading statement. Statements were made in the press that they were doing this so families would not have to file a lawsuit to toll (stop the running of) the statutes of limitations (deadlines by which one must file a lawsuit or be barred) while families decided whether or not to go to the Fund, and then later dismiss the case if they went to the Fund. The Fund language is very, very clear on that point. Any suit on file after March 2002, bars an application to the Fund. The state of New York cannot change federal law and regulation. So, this change does not have any effect on the cases currently moving thought the courts, and federal regulation does not permit filing a case and then dismissing and going to the Fund. The first 10 families who filed cases will recall that last summer they actually had to discuss the decision (either in person or on the phone) with a federal magistrate in New York City. Thereafter the Federal judge suspended that requirement to discuss their reasoning with the magistrate because it was painfully apparent to him after our first 10 cases that families were very much aware of the Fund, and had put careful thought into their decisions.

6. Are there deadlines which will pass within the next month affecting the ability to file suit?

Yes. If you wish to preserve a claim against United, you mush file a proof of claim by May 12, 2003 in bankruptcy court. The form from the bankruptcy court is available with their instructions. Learn More (PDF).

If you wish to preserve a claim against US Airways, you must do so by May 15. Click here. We named US Airways in our lawsuits concerning American Airlines Flight 11 and United Airlines Flight 175 because they cleared Mohammed Atta and Abdul Aziz Alomari through security in Portland, Maine. From there the hijackers boarded a Colgan Air flight to Boston and landed behind security at Logan so they did not have to re-clear security. While those hijackers boarded American Airlines Flight 11, they clearly compromised security at Boston Logan and could have affected both flights.

Regardless of the New York legislature extending the deadline to file a lawsuit, in order to file a law suit against United or US Airways, you have to file a proof of claim in the bankrupty courts by the deadlines in May. If you don’t, any future claims against them will be barred. After the May deadlines you may be able to file suit against the security companies and other defendants, but not United or US Airways.

I hope this helps clear up misconceptions for NADA members and friends and aids in their search for justice and accountability.

Sincerely,

Mary F. Schiavo
April 9, 2003
© 2003 Mary F. Schiavo

The following documents, referenced above, all open in PDF: