It was a long-standing battle for the families of the 157 passengers and crew of Ethiopian Airlines Flight ET 302, which crashed near Addis Ababa minutes after take-off on 10 March 2019, as well as relatives of the victims of Flight 610 of the Indonesian company Lion Air, which crashed near Jakarta, on 29 October 2018.
On 26 January 2023, representatives of Boeing are expected in court in Fort Worth, Texas, US where the aircraft manufacturer will be formally charged with a felony. Boeing is suspected of having knowingly concealed from client companies and regulators the failures of the MCAS piloting software installed on its 737 MAX, which caused the two crashes.
An ‘authoried’ representative
Sigrid Preissl, an attorney representing three of the families of the French victims involved, provides some clarity on the situation: “The summons does not target anyone in particular, just that an appropriate person – meaning someone authorised to represent [Boeing] as a legal advocate – must appear before the court.”
During this hearing, the relatives of the deceased will be heard for the first time, and all will have the right to either make an approximately five-minute statement before the court or submit a victim impact statement, each of which will be admitted into evidence.
This had not been the case when the Deferred Prosecution Agreement (DPA) was concluded in January 2021, which was an agreement guaranteeing immunity to the manufacturer in exchange for more than $2.5bn in compensation (a fine of $243.6m in the United States, $1.77bn in compensation to the airlines that ordered the 737 MAX aircraft that crashed, and an additional $500m towards a compensatory fund for the relatives of the victims).
An end to Boeing’s immunity?
But the passage of this agreement would run into a roadblock in October 2022, when a federal judge ruled that it violated the rights of the families impacted, as it was only negotiated between the state and the manufacturer.
As victims – a status they had been denied until then – the belief was they should have been involved in these negotiations and provided consent and consultation, which they did through legal representation, led by Paul Cassell.
READ MORE Ethiopian Airlines: Three years after the Boeing 737 Max crash, is it time to turn the page?
“The families are asking for two things: the indictment of Boeing, which the judge [may] grant on 26 January , and the lifting of the immunity guaranteed to Boeing by the DPA, a point on which the American justice system has not yet ruled,” says Preissl.
While Cassell is confident about this second aspect, the French lawyer is less optimistic and specifies that “even if the DPA were finally annulled, this would not automatically lead to criminal proceedings against Boeing, for which the initiative belongs to the Attorney General.
“There is no case law in this area. In the United States, it is very rare for corporations to be sued,” says Preissl.
For her and her clients, it is obvious that criminal consequences will have to be drawn from these two tragedies: “After the Lion Air crash [in Indonesia], Boeing knew that its 737 Max was not safe and was working on software modifications. But, in the meantime, it took the risk of letting this plane fly, which caused new victims in Ethiopia”, she adds.
“As for the questioning of a DPA that included an admission of liability and promises of reparations, it is historic. This is already a great sign that bodes well for the future, however, after the tragedy in Indonesia, Boeing still knew that its 737 MAX was unsafe, yet allowed it to take flight.”
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