Flight 800: And Now To The Courthouse

Lawsuits are filed as probers zero in on mechanical failure

In the annals of aviation safety, this is going to go down as one lousy year. Federal investigators are getting ever closer to concluding that a mechanical defect, not a terrorist attack, may have caused the fatal explosion of TWA Flight 800 off the coast of Long Island on July 17, sources close to the investigation say. The cause may never be determined for certain, of course. But given the way the investigation is heading, the industry is bracing for a flood of lawsuits claiming negligence--not just against manufacturer Boeing Co., but against Trans World Airlines Inc. and possibly airline-parts manufacturers as well.

On Oct. 22, New York aviation attorney Lee S. Kreindler filed the first two suits, on behalf of the family of a husband and wife who died in the crash. Kreindler's firm represents 25 families of the victims and plans to file on their behalf in coming weeks. The initial suits seek a total of $75 million apiece against TWA and Boeing. With 230 passengers and crew members killed, more cases are certain to follow soon.

Huge bucks are at stake if the mechanical defect theory holds up. Boeing would face a major new risk: Because of tough legal standards applied to aircraft manufacturers, plaintiffs' attorneys would have to prove only that a glitch occurred, not that the company acted negligently. TWA, by contrast, would likely be liable only if it engaged in "willful misconduct"--a much harder charge to prove. In any event, the brunt of the liability is likely to fall on insurers such as United States Aviation Underwriters and the Lloyd's of London market.

Boeing wouldn't comment on the litigation, but notes that its 747s have a long record of safe flying. A spokesman for TWA called the suit "groundless" and defended the carrier's safety record. "We have a reputation in the industry as being very conscientious," he said. "This aircraft has been in our fleet continuously for 20 years. We have no reason to suspect any mechanical malfunction."

Maybe, but investigators have plenty of suspicions in that direction. After a painstaking reconstruction of the shattered plane, National Transportation Safety Board and FBI investigators have found little to support the theory that terrorists might have planted a bomb or possibly fired a surface-to-air missile at the New York-to-Paris flight. Suspicions now center on the plane's center fuel tank and the leading edge of the wing. "That's the area where something happened," says NTSB member John Goglia. "But we haven't been able to find a source of ignition and you have to have that for a fuel tank to explode."

KEY SUSPECTS. Even so, lawyers for the plaintiffs think they can prove willful misconduct on TWA's part. The plane that went down, they say, was 25 years old, structurally unsound, and prone to fuel leaks. The lawyers say that since the mid-1970s Boeing has issued a series of service bulletins related to fuel leaks in the older 747-100 model planes. "The main culprit is the fuel pumps [which] have a history of problems and are suspected as a potential source of ignition," says Steven R. Pounian, a law partner of Kreindler's. Pounian adds that the tragedy could stem from the fuel pump design on the older 747s, which he says have flaws that manifest themselves as the planes age. "This was an old airplane. TWA was pushing the envelope," Pounian says.

No single piece of physical evidence conclusively supports that case. But Kreindler's firm has managed to win cases in the face of similar difficulties in the past. It successfully represented families of victims of Pam Am Flight 103 that blew up over Lockerbie, Scotland, for instance, with arguments based on circumstantial evidence. Still, even some other members of the plaintiff's bar criticize Kreindler for filing his suit before the probe of the crash is finished.

If investigators finally do conclude that a mechanical failure brought down Flight 800, the repercussions will be wide. Most major airlines rely on older aircraft. And many of the new, low-cost carriers that continue to spring up in the deregulated industry press aged, less costly planes into service. Following the crash of ValuJet Airlines Inc. Flight 592 into the Florida Everglades on May 11, for instance, investigators found that the carrier was not keeping its aged fleet up to federal standards. "If the explosion is found to be related to age and maintenance, it would add yet another risk factor for buying a cheap seat on an inexpensive airline," says one federal safety investigator. That's probably right. But if investigators rule that the tragedy of Flight 800 was caused by the mechanical failure of an aging aircraft, the industry may find its wings clipped by tough new rules governing geriatric aircraft.

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