Even if federal investigators are unable to determine what caused TWA Flight 800 to explode on July 17, lawyers preparing to file suit against the air carrier say they will conduct their own investigation and present their findings to a civil jury.
At stake are hundreds of millions of dollars in potential damage payments to surviving family members of the 230 passengers and crew on the plane.
The lawyers say the lack of official findings by the FBI and the National Transportation Safety Board could make it more difficult to get to the bottom of the lingering mystery of what caused the Boeing 747 to plunge into the ocean.
But it won't preclude a vigorous court battle, they say, over whether willfully negligent conduct by TWA and others may have contributed to the air disaster.
"The fact that the NTSB doesn't know what happened doesn't mean there is no case," says Kenneth Nolan, an aviation trial attorney in New York whose firm is representing five family members of Flight 800 crash victims.
"We are pursuing our own investigation in terms of the [maintenance] history of this airplane," says Steve Pounian, whose New York firm is representing 26 relatives.
He says the lack of evidence of a bomb or missile suggests the cause may have been mechanical. A defect that caused a plane to explode would raise questions about TWA's maintenance procedures as well as the structure of the plane, and it would open the door to considerations by a jury of willfully negligent conduct.
"A 747 is not expected to explode in midair," he says. "If it was not a bomb, what caused it?"
Plenty for jury to decide
Mr. Pounian says that is an issue a jury can decide. And unlike in a criminal case where the burden of proof is beyond a reasonable doubt, the burden of proof in a civil case is simply by a "preponderance of the evidence." That means if in the minds of jurors the scales of justice tip to one side, however slightly, that side wins.
"We can build a case on circumstantial evidence, and win it," Pounian says.
Both the FBI and the NTSB say they are stumped over the lack of evidence pointing to a cause of the crash.
Roughly 95 percent of the jumbo jet has been recovered from the ocean off Long Island, but investigators have found no proof supporting any of the three favored theories, that the plane was downed by a bomb, a missile, or mechanical failure.
Even if the NTSB had reached a decision about the cause, lawyers are barred from introducing such a conclusion in court, although they can use the evidence found by the NTSB.
With the potential for multimillion-dollar awards, not to mention handsome fees, lawyers in major air disaster cases are prone to pull out all stops in their own investigations. If necessary they call in industry experts in aircraft engineering, avionics, metallurgy, and any other discipline that might reveal a clue to a cause of the crash.
"Probably 50 percent of the time when the plaintiff's experts get in there they can usually find the causes of the crash, and it is not always the same cause found by the NTSB," says Cecile Hatfield, an aviation lawyer in Miami who specializes in defending airlines and pilots.
In addition to having to investigate the cause of the crash, lawyers for the victims' relatives will have to overcome at least two major legal hurdles to win substantial damages for their clients, according to legal experts.
1. They must overcome TWA's $75,000 liability limit.
2. They must find a way to bypass the regulations of the Death on the High Seas Act of 1920, which set limits on the type of damages a relative of a victim may recover. in court.
Because Flight 800 was an international flight - traveling from New York to Paris - a worldwide airline liability accord mandates that TWA does not have to pay more than $75,000 in damages per passenger on the fatal flight. To get more money, lawyers must prove to a jury that the airline in some way contributed to the disaster through willfully negligent conduct.
Lawyers working for relatives of the victims in the 1988 Pan Am 103 crash at Lockerbie, Scotland, faced a similar ceiling.
They won more money by proving that Pan Am had failed to use accepted antibomb precautions - the airline loaded luggage that was not accompanied by a passenger. Pan Am 103 was brought down after a bomb concealed in a suitcase exploded in the cargo hold.
In that case Pan Am's insurance underwriter is estimated to have paid damages of between $400 million and $500 million.
Some experts estimate that the TWA case could result in total damage awards of $400 million to $600 million. Calls to TWA's insurance underwriters were not returned.
But such sums are not likely to be awarded unless lawyers are also able to leap the second legal hurdle.
The Death on the High Seas Act of 1920 applies in any wrongful death lawsuit where the fatal incident occurred more than three miles from US shores.
The law permits only the recovery of so-called economic damages, which are payments equal to the amount that an individual would have contributed to his or her family over an uninterrupted lifetime.
The law forbids any financial compensation to surviving relatives on the grounds of loss of companionship, anguish, and grief. Punitive damages are also barred under the law.
High Seas Act
Some lawyers working on the TWA case are hoping to bypass the Death on the High Seas Act by convincing a judge that TWA 800 should be subject to the jurisdiction of New York laws rather than the more restrictive federal high seas law.
They plan to argue that even though the plane crashed into the ocean roughly nine miles off the Long Island coast, New York's territorial jurisdiction extends 12 miles off the coast.
They note that in December 1988, then President Ronald Reagan extended US territorial waters from three to 12 miles offshore. He did it under the authority of the 1982 United Nations Law of the Sea Convention. The action was approved by the US Senate.
It remains unclear whether a judge in New York will agree with their reasoning. In January, the US Supreme Court issued a unanimous decision, ruling that wherever the high seas law is applicable, less restrictive state laws may not be substituted to facilitate awards for anything other than economic damages.
That decision applied to the relatives of those who died aboard Korean Air Lines Flight 007 in 1983 when the plane was struck by a Soviet missile after the KAL pilot strayed into Soviet airspace.