On 17 May 2010, Pamir Airways Flight 112 was flying a domestic flight in Afghanistan from Kunduz to Kabul when it crashed into a mountain around 12 miles from Kabul airport. The Russian-made Antonov An-24 had left Kunduz at 8:30am and was carrying around 39 passengers and five crew, including Afghan, American, British, Pakistani, Turkish and Tajikistani nationals – all on board were killed.
Following this tragedy the airline went out of business and it was discovered that its insurer would not provide coverage for the accident. This left the families of the victims in a very difficult legal position where there appeared to be no credible case available – litigating in war torn Afghanistan against a bankrupt airline would be pointless. This was further compounded as there was no information from the Afghan government, which was responsible for the accident investigation.
Jim Morris analysed the available information to determine if there was a legal cause of action available that could be brought in another more favourable jurisdiction. On reviewing the flight track to the accident site and the topography, it was apparent to him that the crew of the aircraft had, for some reason, mistakenly started the descent to Kabul airport too early and had crashed just below a mountain ridge. On reviewing the available meteorological data, Jim concluded that at cruise altitude the aircraft was likely flying in visual meteorological conditions (VMC) under visual flight rules (VFR) but below there were probably layers of cloud that obscured the mountain. The issue was why the crew descended early into cloud. If this mistake was totally the fault of the flight crew there would be no credible case, as the cause of action would be against the airline in Afghanistan. If a fault with the aircraft or its engines had contributed to the crash then there would be a cause of action against Antonov in Russia, but this is not a desirable jurisdiction to file claimant aviation cases. Furthermore, there was no evidence available to indicate that a fault with the airframe or engine had contributed to the accident.
From his experience of flying large military aircraft and commencing descents from visual conditions into cloud layers below, Jim was of the view that the crew were likely to have notified air traffic control of their intention to descend. In this likely scenario, he was of the view that air traffic control were likely to have made some form of mis-communication with the pilots in relation to the descent profile and / or failed to notice that the descent was on a collision course with the mountain and failed to warn the crew before the collision. Jim conducted further research to ascertain whether this liability theory would provide a credible cause of action and discovered that the US authorities had awarded the contract for control of all Afghan Airspace to Midwest ATC, which was a US company. This analysis raised the possibility of filing the case in the US, which is a very favourable jurisdiction for aviation claims.
In addition, with his knowledge of the warning systems that are required on commercial airliners, Jim was of the view that the aircraft may have been fitted with an enhanced ground proximity warning system (EGPWS). These systems are designed to give pilots advance warning if the aircraft is on a collision course with terrain, which should give the pilots sufficient time to commence a climb and clear the terrain. As such, if the aircraft was fitted with an EGPWS that was working correctly, the crash should not have occurred. As these systems are predominantly manufactured in the US, he concluded that there was potentially a second US cause of action available to the families.
Notwithstanding Jim’s theories that could make a dramatic difference to the families’ legal position, in the absence of a final accident report and with the aircraft wreckage on a remote mountain in war torn Afghanistan, he needed evidence to be able to file the families’ cases in the US. As there were reports that the US aviation authorities had assisted the Afghan Government with the accident investigation, representations were made to the English and US Governments to try and facilitate the publication of an accident report. This eventually paid off and a report was published in December 2011. The accident report provided very strong corroboration of Jim’s theories which provided sufficient evidence to bring the families’ cases in the US.
The cases were filed in the state of Illinois against a number of US companies, including Honeywell (manufacturer of the Ground Proximity Warning System) and Midwest ATC (the provider of air traffic control services).
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