Grounded: Why Boeing 737 Max 9 airplanes are being taken out of service and what it means to you

Every day, more than 45,000 flights carrying almost 3 million passengers pass through American airspace. Fortunately, the vast majority of these flights are largely uneventful. It is extremely rare for something to occur aboard a flight that the media would deem newsworthy enough to report.

But, when it does happen, the details can be shocking.

In this blog post, I discuss the mechanical failure of a Boeing 737 Max 9 airplane minutes after take off, outline other notable recent problems with some models of Boeing’s aircrafts, and explain what types of compensation are available to passengers if they are injured or suffer other damages as part of an airplane accident.

A calm crew and terrified passengers

On January 5, 2024, minutes into Alaska Airlines flight 1282 from Portland to southern California, a routine flight took a terrifying turn when a two by four-foot piece of fuselage blew out of the aircraft. When this exterior portion of the plane (behind a nonoperational emergency exit near the left wing) blew out, it created a vacuum so powerful that it twisted the metal of nearby seats, sucked out loose items such as cellphones, and even took the shirt completely off a teenaged passenger’s back.

Miraculously, everyone survived, and no one was seriously injured.

Warnings signs

The Associated Press (AP) reported that Alaska Airlines had made the decision not to fly its Boeing 737 Max 9 over water (a flight to Hawaii) after it recorded pressurization warnings on three of its 145 flights between December 7 and January 4.

Although Homendy warned not to assume the pressurization warning light was related to the accident, Steven Wallace, an air-safety consultant, and commercial pilot who once headed airplane accident investigations for the Federal Aviation Administration (FAA), suggested the decision was illogical. “If you are afraid to take the airplane far from land, what is the reason for that? That has to be answered by Alaska Airlines,” he told the AP reporter.

In the wake of the accident, the FAA grounded all Boeing 737 Max 9 airplanes operating in the United States (primarily affecting Alaska Airlines and United Airlines). Preliminary and unofficial investigations by United Airlines on its Boeing 737 Max 9 fleet found “loose bolts and other ‘installation issues’ on door plugs that were inspected.” Subsequent investigations by Alaska Airlines also uncovered “some loose hardware.”

A history of problems

Boeing told its staff that it was treating these reports as a “quality control issue” and vowed to address any and all findings that result from these investigations, but this latest incident has renewed scrutiny of the company’s problematic recent track record and may prompt stricter reviews by the FAA before it certifies other models of the aircraft. Reuters reported that the company had requested an exemption that would permit certification before any design changes of its 737 series.

NBC’s reporting on the January 5 incident included a list of other

  • Within the span of five months in 2018-2019, two Boeing 737 Max 8 planes (Lion Air’s flight from Jakarta to Sumatra and Ethiopian Airlines’ flight from Addis Ababa to Nairobi) crashed shortly after take off. A United States House of Representatives investigation into these airplane crashes described the accidents as “a horrific culmination of a series of faulty technical assumptions by Boeing’s engineers, a lack of transparency on the part of Boeing’s management, and grossly insufficient oversight by the FAA.” (All 346 people aboard the planes were killed and all Boeing 737s were grounded internationally)
  • An engine failure on a Southwest Airlines Boeing 737-700 flight from New York to Dallas shortly after take off resulted in a piece of the engine crashing into and shattering a window, thereby depressurizing the plane. (A woman who was partially sucked out the window mid flight died).
  • In 2015, a British Airways Boeing 777 flight en route to Seattle needed to return to London for an emergency landing after three pilots reported “headache, nausea, light-headedness, a constant urge to take deep breaths and difficulty maintaining concentration” due to debris blocking airflow to the cockpit. The same airflow issue in the same plane had been reported twice in the weeks prior to the incident. (There were no serious injuries).

Help for passengers. Is it adequate?

In its headline for a story on Alaskan Airlines flight 1282 passenger compensation, the Washington Post asks: “What’s the cost of passenger trauma? Alaska Airlines values it at $1,500.”

The article explains that the airline sent an email to passengers that offered an apology, a full refund for the flight and $1,500 “to assist with any inconveniences.” The airline carrier had also provided passengers with “round-the-clock access to mental health resources and counselling sessions from Empathia.”

Is this apology and compensation adequate?

Like the legal experts quoted in the Post’s story, I agree that launching a civil claim for additional damages would be premature at this point in time. While the investigation is ongoing, determining if there is evidence of negligence on the part of Boeing or Alaska Airlines is an open question and some of the damages experienced by passengers may not yet be evident.

If this flight had been a Toronto to Alaska flight for example, the Montreal Convention may have applied. However, there are limitations in air carrier liability for bodily injury under the Montreal Convention. Article 17(1) of the Montreal Convention states: “The carrier is liable for damage sustained in cause of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any operations of embarking or disembarking.”

In essence, while the recoverability of damages for physical injuries is possible, recovering for psychological injuries including mental suffering and post-traumatic stress disorder can be challenging and uncertain in claims against air carriers.

In the 2013 decision O’Mara v. Air Canada, Justice Perell of the Ontario Superior Court of Justice made the following comments in the context of a class action brought by passengers of an Air Canada flight who claimed to have experienced physical and psychological injuries due to their aircraft suddenly and violently taking a steep dive midflight. In assessing whether the passengers could pursue claims for purely psychological injuries stemming from the incident, he remarked that:

“The term “bodily injury” as used in the Montreal Convention is intended to have the same meaning as in the Warsaw Convention, and the case law from around the world about the Warsaw Convention and about the Montreal Convention holds that compensation for purely psychological injuries that do not manifest physical injury or an injury to the body are not recoverable under the Conventions.”

However, passengers in this type of incident may suffer physical injuries in addition psychological injuries which may be eligible for compensation, in addition to other heads of damages such as baggage loss and trip interruption.

In the interim, it is always advisable for affected passengers to contact an aviation accident lawyer to review any offers made by the airline or other entities with perceived liability. This independent review will help to ensure they do not sign a document that waives their right to make a future claim.

How can HSH LLP help you in the event of an aviation accident?

Fortunately, terrifying aviation accidents such as the blown fuselage on Alaska Airlines flight 1282 are rare. But if you or a loved one ever have the misfortune of experiencing such an event or suffering an injury or loss as a result, you should know that help is available.

As an experienced airplane accident lawyer, who personally knows what it feel like to experience this type of incident, I have the knowledge, skill and determination necessary to help injured airline passengers in their quest to obtain fair compensation for the harm they have suffered.

When you contact me for a no cost, no obligation initial consultation, I will listen to your story with great empathy, carefully answer your questions as I explain your legal rights, and provide an opinion about your options. If I believe I can help you advance a claim that will result in compensation from a settlement or court award, I would be honoured to become your legal representative and advocate.

Airplane accident cases can be complex, and they frequently require specialized technical knowledge by aviation and/or medical experts. As a personal injury lawyer with a practice focus on aviation law, I have developed a trusted network (including my frequent co-counsel partners at , Joe Fiorante, K.C. and Jamie Thornback) that can greatly benefit victims of airplane accidents as they seek justice.

Contact me to learn more about how I can help.

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