Comair Limited filed a lawsuit in federal court against The Boeing Company for fraud and breach of contract concerning the purchase of eight 737 MAX aircraft. Comair is seeking damages in excess of $83 million, which it suffered as a result of Boeing's wrongful conduct. Based in South Africa, Comair Limited was an airline that operated scheduled services on domestic routes as a British Airways licensee. It also operated as a low-cost carrier under its own kulula.com brand. The airline was grounded in March 2022 partly due to the financial constraints put upon it by the ongoing 737 MAX issues and the global pandemic.
The lawsuit details Boeing's wrongful conduct and alleges:
In 2010, Boeing was under pressure from its largest competitor, Airbus. This pressure led Boeing to take shortcuts, make misrepresentations and conceal information to bring the 737 MAX to market quickly.One of the 737 MAX's central flaws was its new engines. They were larger and could not easily fit under the 737 frame's low wings. To obtain adequate ground clearance, Boeing moved the engines up and forward.The new mount location caused the aircraft's nose to abnormally pitch up.Rather than make the necessary, but more costly, aerodynamic changes needed to prevent the pitch-up problem, Boeing tried to combat it with a new software called the Maneuvering Characteristics Augmentation System ("MCAS"), which automatically applied downward stabilizer trim.
MCAS did not work safely, and Boeing knew it. A Boeing test pilot reported it took more than 10 seconds to respond to an uncommanded MCAS activation, which he described as a "catastrophic" condition. Boeing also eliminated one of two sensors that told MCAS when to activate—leaving it more prone to failure. Boeing deleted reference to MCAS from the Flight Crew Operations Manual, but forgot to remove it from the abbreviations table.Rather than rectify known problems, Boeing concealed them from customers (including Comair) and the FAA in a rush to market and to maximize profits.With the existence of the entire MCAS system concealed, Boeing avoided any requirement that pilots be trained on MCAS. Boeing represented that the pilot skill needed to fly the 737 MAX was "interchangeable" with the training and skill needed to pilot the existing 737 NG aircraft.In reliance on Boeing's misrepresentations and concealed facts, on September 19, 2013, Comair entered into a Purchase Agreement with Boeing for the sale of eight 737 MAX aircraft for a total aircraft base price of more than $98 million. Delivery of Comair's first 737 MAX would take place in February 2019.On October 28, 2018, a 737 MAX (Lion Air Flight 610) crashed 11 minutes after takeoff from Jakarta, Indonesia, killing all 189 passengers and crew on board. MCAS engaged to force the aircraft's nose sharply down. The crew fought to counteract it, but were eventually overcome by MCAS and the aircraft dove into the sea.On March 10, 2019, another 737 MAX (Ethiopian Air Flight 302) crashed six minutes after takeoff from Addis Ababa, Ethiopia, killing all 157 passengers and crew on board. Like Lion Air Flight 610, Ethiopian Air Flight 302 crashed when MCAS persistently engaged forcing the aircraft toward the ground.Shortly thereafter, all of Boeing's 737 MAX aircraft were grounded worldwide.In September 2020, a U.S. House of Representatives committee investigated the 737 MAX and concluded there was a "disturbing pattern of technical miscalculations and troubling management misjudgments by Boeing" and a "culture of concealment" at Boeing, among other things.Among "several unmistakable facts" uncovered, the House Committee found: "Boeing withheld crucial information from the FAA, [and] its customers . . . including 'concealing the very existence of MCAS from 737 MAX pilots.'"Comair relied on Boeing's misrepresentations and concealment of material facts in deciding to purchase eight 737 MAX aircraft.Comair paid Boeing more than $45 million in advanced payments on seven 737 MAX aircraft and full payment on the one 737 MAX aircraft it received. Boeing has refused to return the advanced deposits on the seven aircraft it never delivered to Comair. Comair suffered additional damages as a result of the grounding of its 737 MAX for a total loss of more than $83 million.
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