Boeing must pay for putting profits before safety

Faulty products, such as the Boeing 737 Max 8 passenger jet that crashed in Ethiopia in March, and a similar plane that crashed in Indonesia in October last year, exemplify the costs of corporate negligence and recklessness.

In both accidents, hundreds of lives were lost. What is more appalling is that preliminary investigations indicate that Boeing knowingly sold and marketed a fundamentally faulty, defective and unstable passenger jet on the premise of fuel savings. In short, Boeing callously prioritised profits above life and safety.

Investigations have attributed both crashes to defects in the Manoeuvring Characteristics Augmentation System (MCAS), which overrode the pilots’ interventions. In addition, Boeing deliberately concealed information on probable defects of the MCAS, and failed to adequately train pilots on operations of the system, among other forms of egregious negligence and recklessness.

It is expected that families of victims will file legal suits against Boeing. These suits provide an opportunity of obtaining further information on the flawed process upon which the 737 Max passenger jets were developed, in addition to the awarding of punitive damages against the corporation as deterrence against similar future conduct.

Since the US courts provide the best avenues for achieving such vital disclosures and remedies, and given that Boeing and the manufacturers of the various components are incorporated and have their principal place of business in the country, families of victims will most likely file their legal claims there.

Suits filed by non-American claimants will, however, have to overcome a serious procedural hurdle, that of jurisdiction. Aviation accidents exemplify some of the daunting choices of law and forum, and such cases are at times dismissed from US courts on the basis that American courts are not the most convenient forum for the proceedings.

The principle of forum non conveniens (inconvenient forum) has become a self-serving instrument through which corporations, even those potentially liable for egregious human rights violations, have strategically but questionably ousted the jurisdiction of US courts to those of other less punitive countries. It may be that Boeing will attempt to vigorously oppose any legal suits lodged in the US in connection to the Ethiopian Airline crash on the basis of inconvenient forum.

In the event of dismissal motion being lodged by Boeing, it is likely that the US court will first evaluate whether it is an adequate forum, and thus appropriate. Claimants’ lawyers should ably demonstrate that the parties will not be denied remedies, subjected to unfair treatment or undergo serious inconvenience by virtue of instituting the cases in the US.

This is due to the fact that the mere demonstration that litigation  in the home country is demanding, or that there are less strict rules for compelling provision of vital information from Boeing, or that the claimants will not benefit  from  a jury trial,  may not be sufficient to defeat a dismissal motion. 

Second, and of potentially overriding significance, the US court is likely to evaluate private and public interests factors in relation to both parties. Private interests may relate to costs and convenience of court attendance by witnesses, while public ones may be connected to the necessity of protecting lives and safety in relation to air travel, which is transnational in nature.

Given the diversity of citizenships of the claimants against US-based corporations, American courts are certainly the most appropriate forum from a private interest perspective. Boeing should be punished by the American courts for profits that it sought over human life and safety.