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Three more in Guyana crash landing to sue CAL

Published: 
Sunday, August 17, 2014

An attempt by Caribbean Airlines Limited to prevent three more persons from suing for personal injuries arising from the crash landing of Caribbean Airlines Flight BW 523 in Guyana three years ago, was denied by a US district court judge Wednesday (August 13) in Brooklyn, New York. 

In a multi-district litigation, numerous plaintiffs brought suit against defendant Caribbean Airlines Limited for personal injuries arising from the crash landing of Caribbean Airlines Flight BW 523 in Guyana on July 30, 2011. Plaintiffs were traveling from Florida to Georgetown, and while landing in Georgetown, Flight BW 523 overshot the runway, and plaintiffs sustained personal injuries.

Caribbean Airlines brought a motion "to dismiss" in several of the cases, asserting that the Warsaw Convention governed those plaintiffs' claims and that the treaty's forum provision deprived the court of subject matter jurisdiction. On May 16, 2014, the court issued an "Opinion and Order" holding that the Warsaw Convention does not govern these claims because Guyana is not a party to the Convention. Accordingly, the court denied Caribbean Airline's motion to dismiss, and granted plaintiffs leave to amend their complaints.

The caption of the opinion and order stated that it applied to the claims of plaintiffs Rajendra Persaud, 64, and Prampatie Persaud, 64, from Florida; and Shanti Persaud, 34, and her two children, ages 10 and 7, from Guyana. Both plaintiffs Rajendra and Prampatie Persaud have since settled their claims against Caribbean Airlines. The claims of Shanti Persaud and her two children, however, remain active.

Caribbean Airlines had requested that the opinion and order be amended to apply as well to three similarly situated plaintiffs Abdool Latif, Maylene Persaud and Ernest Scott, whose claims remain active. 

At a conference before Magistrate Judge Joan M Azrack on September 24, 2013, attorneys for the remaining three plaintiffs (Latif, Maylene Persaud and Scott) consented to inclusion in the then-pending motion to dismiss for lack of subject matter jurisdiction. They were inadvertently omitted from the caption in the May 16 opinion and order, and the opinion and order was then amended to apply to them.

On June 27, this year, Caribbean Airlines requested that the court certify an "interlocutory appeal" from the opinion and order's ruling that the Warsaw Convention does not govern plaintiffs' claims. 

Under US law, US Code 1292, a district court may certify an order for "interlocutory appeal" if the court is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." The Court of Appeals "may thereupon, in its discretion, permit an appeal to be taken from such order," the law says.

After outlining its reasons, US District Court Judge Allyne R Ross ruled on August 13 that Caribbean Airlines has not met its burden of demonstrating that this case presents the "exceptional circumstances" that justify interlocutory review, allowing plaintiffs Latif, Maylene Persaud, and Scott to proceed with their claims.