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, in effect since 1994.)
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.) 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.
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.
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 in bankruptcy court. The form from the bankruptcy
court is available with their instructions. Click
here.
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
Baum Hedlund
Aristei Guilford & Schiavo
April 9, 2003
© 2003
Mary F. Schiavo
