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Massport seeks to head off 9/11 suit

Victim’s family says airport liable for security lapses

The suit was filed by Mary Bavis, whose son, Mark (left), died when his flight crashed into the World Trade Center. The suit was filed by Mary Bavis, whose son, Mark (left), died when his flight crashed into the World Trade Center.
By Stephanie Ebbert
Globe Staff / July 7, 2011

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The Massachusetts Port Authority is seeking to avoid a contentious trial over its possible liability for the Sept. 11 hijackings, arguing that Logan International Airport had no role in screening passengers and no “causal connection’’ to the terrorist attacks.

In a strongly worded filing issued last week, Massport asked to be released from the wrongful-death case that Mary Bavis of Roslindale filed nine years ago, contending that hijackers were able to board United Airlines Flight 175 in Boston because of negligence by United and Massport, among other defendants. Her son, Mark Bavis, was a 31-year-old hockey scout who died when the plane crashed into the World Trade Center’s South Tower.

The case, scheduled for November in the US District Court of the Southern District of New York, is the only Sept. 11 wrongful-death case that is unresolved, and the first in which Massport would stand trial for culpability in the hijackings. Though Massport’s internal management was heavily criticized in the aftermath of the terrorist attacks, the agency has been dismissed as a defendant from other wrongful-death suits and has not contributed to settlements made to other victims’ families.

In a filing last week, Massport aimed to buttress its case for sum mary judgment, maintaining that, even if better security could have prevented the hijackings, it was not the airport’s role to provide it. Before the transformative terrorist attacks in 2001, passenger screening was the duty of the airlines, who subcontracted with security companies to provide it.

“Massport was not responsible for passenger checkpoint screening on 9/11,’’ Massport’s lawyers wrote in the most recent filing. “Passenger screening is and was no more an airport operator function than flight crew performance and aircraft maintenance.’’

While Bavis’s suit tries to assign Massport “overarching responsibility’’ for airport security, Massport’s lawyers countered, “There is no basis for doing so and such a holding would turn both the pre- and post-9/11 nationwide aviation system on its head.’’

Neither Mary Bavis nor her attorney could be reached for comment yesterday. A spokesman for Massport also declined to speak to the case, pointing instead to the details of the latest filing.

The trial is expected to begin in November and to last about a month, under the orders of US District Judge Alvin K. Hellerstein of New York, but it remains uncertain whether Massport will be a defendant. A July 27 hearing is scheduled on Massport’s motion for summary judgment.

Massport lawyers were responding to Bavis’ objection to dismissing Massport from the case. In that June 24 filing, her lawyers maintained that the airport did have some role in screening and that its possible culpability should be fully aired in court. The filing also noted that Logan was concerned enough about security that it hired a consultant to conduct a top-to-bottom security audit in March 2001.

“Massport was responsible for the entirety of security at its airport,’’ Bavis’s lawyers wrote. “Massport would have this Honorable Court believe that despite being charged by the United States Federal Aviation Administration and Federal Aviation Regulations with the overall security of Boston Logan Airport that when faced with actual knowledge that security was inadequate at Boston Logan, Massport could escape responsibility by claiming it did not have to act because federal law did not require it. Regulations in no way permit, condone, support or suggest such a hapless excuse by Massport to its security responsibilities.’’

If tried, it appears the case could expose Massport to fresh accusations of incompetence and a revival of embarrassments. On Saturday, the Boston Herald reported assertions by Bavis’s lawyers that state troopers failed to act on tips that Middle Eastern men were videotaping airport security at Logan in May 2001 and that one of them may have been Mohammed Atta, leader of the Sept. 11 attacks.

In their latest filing, Massport lawyers dismissed that charge as the one they found “perhaps most outrageous’’ in Bavis’s case. They pointed to the FBI’s belief that Mohammed Atta was in Florida on that date in May 2001 and that no one knew at the time what he was plotting for Sept. 11, 2001.

“This Court has already rejected this absurd theory of liability, and for good reason,’’ Massport’s filing states. “If this supposed failure could serve as a basis for liability, Massport obviously would need to revisit every other ‘missed opportunity’ the Government (and others) had to stop and deter the terrorists in the years and months leading up to 9/11, which will result in a significant expansion of discovery and any trial.’’

Reflecting the agency’s skittishness about loose accusations being made against it in court, Massport’s lawyers wrote that the plaintiff “may not pursue claims against Massport based purely on speculation and conjecture,’’ and warned that a “collection of unsubstantiated statements and irrelevant assertions against Massport’’ could only complicate and prolong a trial.

The lawyers also blasted Bavis’ legal team for demonstrating what they called a continued disregard for the court by violating a previously agreed-upon confidentiality agreement that requires the vetting of documents before they are publicly filed.

While most families who lost loved ones in the attacks agreed to settlements through the public September 11 Victim Compensation Fund, the Bavis family has held out for their day in court, hoping to expose security problems that led up to the attacks.

Stephanie Ebbert can be reached at ebbert@globe.com. Follow her on Twitter @StephanieEbbert.