A courageous client speaks to Stephen Stock about the risks to the flying public.
It was seven years ago that Kas Osterbuhr put together a nearly courtroom-ready reconstruction animation of Flight 1549. At the time, there really was nothing else like it. With the movie coming out, Kas went back and updated his work. Next worst thing to being there.
In the face of intense market rejection, Icon says it has heard its customers and is going to revise the rather onerous purchase contract it planned to require of its buyers. It hasn’t yet made the new contract public. But in a statement it says that one thing the new contract will keep is the requirement that anyone buying an A5 sign away their rights to sue Icon after an accident.
Another fundamental tenet of ICON’s approach to safe flight operations, personal pilot responsibility, and product liability-cost reduction is the agreement not to sue ICON for accidents that are not determined to be our fault. Unfortunately, the overwhelming majority of product liability lawsuits are filed against manufacturers even when the manufacturer was not found to be at fault. We must address this. While there is no silver bullet for guaranteeing safety and eliminating all product liability costs, we are working hard to improve it. This is one of those steps. We invite our customers to help us set a new precedent in our industry and to improve this situation by releasing ICON from accidents deemed not to be our fault by the NTSB. Reducing product liability costs is important because it reduces the cost of aircraft and allows manufacturers to spend that money on product development instead of legal fees and lawsuit settlements.
At first blush, all that sounds reasonable. Why should an A5 buyer be able to sue Icon after a crash if the NTSB places the blame for an accident elsewhere?
Well, for one thing, the NTSB is not a fair forum. After any accident, the NTSB “invites” the aircraft’s manufacturer to participate in the investigation, relying on the manufacturer and its experts to help pinpoint the accident’s cause. But the NTSB never allows the pilot or the pilot’s passengers to participate, nor does the NTSB allow experts hired by the pilot or the passengers anywhere near the investigation. The pilot and passengers are entirely excluded. If that sounds like a conflict of interest, it is. It’s no wonder the NTSB seldom finds the manufacturers at fault. Nor is it surprising that courts of law, after hearing from both sides, frequently come to conclusions different than those reached by the NTSB.
And in fact, it is because the NTSB’s investigations are so one sided that NTSB’s conclusions are entirely inadmissible in any court of law anywhere in the country.
Looks like Icon’s new contract will be as unfair as the one the market rejected back in April. It’s hard to believe that any buyer who has done his homework would sign it.
Aviation expert Clive Irving suggests that, because the Egypt Air pilots made no mayday call, they must have been killed before the aircraft crashed. In other words, the crash was the result of terrorism rather than a mechanical issue.
Normally in a fire and smoke emergency the pilots would have time to don smoke masks with microphones in them, and would be able to send a Mayday, and describe the problem. The Egyptian pilots clearly were never able to do this, suggesting the possibility that they were either disabled or killed at the onset of whatever overcame the airplane so rapidly.
I'm guessing Mr. Irving never experienced a significant in flight emergency. Those who have understand that the last thing a pilot facing an emergency feels the need to do is broadcast a mayday or “describe the problem” to some air traffic controller sitting in a warm dark room hundreds of miles away, sipping coffee. And calling air traffic control to “describe the problem” is a task that appears on few, if any, emergency checklists. Sure, pilots in distress broadcast “Mayday! Mayday!” all the time – in the movies. But that’s about it.
“Mayday” is from the French, “m’aidez”, meaning “help me.” When you are 6 miles over the ocean and dealing with smoke in the cockpit there is nothing an air traffic controller can do to help you. Nothing at all. The smoke is entirely your problem. In an emergency, communicating with an air traffic controller is most often a distraction to be avoided or at least deferred until time and bandwidth permits.
We don’t yet know whether the flight 805 crashed due to a mechanical problem or a terrorist act. But the fact that the pilots made no mayday call suggests nothing.
The NTSB allows aviation manufacturers to participate in its crash investigations. But it excludes from the investigation the crash victims, the victims’ lawyers, and their experts. That’s how the NTSB has gone about investigating aviation accidents for years. It’s little wonder, then, that the NTSB’s final reports are frequently biased in favor of the manufacturers and against the pilots or the passengers. The conflict of interest inherent in the NTSB’s investigations is one reason why the NTSB most often concludes that a crash is due to pilot error rather than, for example, a mechanical defect.
Lawyers for crash victims have long complained that the manufacturers and their lawyers are too cozy with the NTSB. When the manufactures aren’t trying to influence the NTSB’s conclusions in their favor, they are using their status as a “party” to the NTSB investigation to gather information they can later use to defend themselves in lawsuits the victims might bring.
Lawyers for manufacturers used to deny that they were too chummy with the NTSB. Now, not only do they concede that its true, but they have started touting their relationship with the NTSB as a way of attracting more manufacturers as clients.
Wilson Elser is one of the country’s largest aviation lawyer firms representing manufacturers and other industry interests. Today the firm announced that it is launching a “national helicopter defense practice.” Why should a helicopter manufacturer hire Wilson Elser after a crash? Well, because Wilson Elser is in tight with the NTSB:
Our team consists of accomplished litigators and trial attorneys, which are key to any defense team, as well as collective experience in aviation and aerospace with a distinct focus on rotorcraft. Together with our strong relationships with the National Transportation Safety Board and Federal Aviation Administration, we are able to gather the information necessary to create strong defense theories.”
It hardly seems fair that defense law firms are allowed to use their cozy relationship with the NTSB and their status as a “party participant” in the NTSB investigations to gain an advantage in litigation against the crash victims. Yet, that is the way it is.
Here’s the pre-emption argument:
Our plane’s design was approved by the FAA. If plaintiffs think there is something wrong with it, they should take it up with the FAA. But they should leave us alone.”
Manufacturers make this argument in just about every aviation case we bring. We respond that that the FAA regulations are the bare minima only, and weren’t intended to be the last word on whether an aircraft’s design is safe. Besides, the FAA is stretched so thin that it allows many manufacturers to essentially self-certify their design work. So in many cases the FAA stamp of approval was placed on the aircraft by someone who was actually on the manufacturer’s payroll. How safe is that?
Sikkelee v. Precision Airmotive involved the crash of a 1998 Cessna 172. The plaintiffs alleged the crash was caused by a defective carburetur. The manufacturers asked the court to dismiss the case against them because the aircraft engine's design was FAA-approved.
The court noted the controversy concerning the FAA’s practice of allowing manufacturers to self-certify, but held it wasn’t really relevant. Instead, the court agreed with plaintiffs that Congress simply didn’t intend the FAA regulations to be the last word on safety. That means that the regulations did not pre-empt state law, and the plaintiffs' tort case against the manufacturers of the plane and the plane’s engine components could proceed.
The manufacturers argued that if plaintiffs were allowed to sue over products even though they comply with all FAA regulations, it would end up killing the aviation industry. The court had an answer for that:
On the contrary, [our holding] simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects.”
No question that aviation manufacturers will continue to make the preemption argument going forward, as they are always looking for that sympathetic ear. They just didn’t find one in the Third Circuit.
Injured passengers have filed suit against Spirit Airlines in connection with last month’s drunken melee on board a flight from Baltimore to LAX. The plaintiffs, represented by Los Angeles attorney Gloria Allred, seek to hold Spirit Airlines responsible for the conduct of the unruly passengers who injured them because Spirit Airlines allegedly fueled the flap with copious amounts of alcohol and failed to protect them from injury.
Claims against ground-based barkeepers and others who over serve customers are permitted in some states. But such suits don’t work when the defendant is an airline. The Airline Deregulation Act of 1978 grants an airline immunity from any liability arising from the airline’s choices in connection with “routes, rates, or service.” “Service” includes drink service. That means that when a drunken passenger injures his fellow traveler, the airline who served the offending passenger cannot be held liable. Gee v. Southwest Airlines.
This case isn’t going anywhere.
Perhaps what is most troubling is its language that seeks to allow Icon to dodge liability for any accident, regardless of its cause.
Founder and CEO Kirk Hawkins told AOPA that Icon believes in "extreme responsibility."
What we’re trying to do, in a nutshell fundamentally, is put the responsibility [for accidents] where it belongs. . . If it’s our fault, we’ll own it. If it’s your fault, you own it.”
Seems fair enough, except that’s not what the agreement says. It says that if the accident is Icon’s fault because, for example, Icon screwed up the design or manufacture of the buyer's aircraft, the buyer and his family owns it, not Icon:
Owner and Managing Pilot understand that participating in ground, water and air operations and related activities could result in injuries from a variety of factors, including but not limited to . . . defects in the aircraft or components. . . Owner and Managing Pilot knowingly assume these risks on behalf of themselves and their Successors in Interest.
If Icon would like buyers or pilots to "knowingly" assume the risks of defects in its aircraft, maybe it should come out and tell us what those defects are.
This is not about "extreme responsibility" It's about extreme irresponsibility. Icon is trying to dodge liability for any defects resulting from its own actions and shift it onto others.
Who would buy an aircraft from a manufacturer who wants it in writing that if we made a mistake that injures someone, its your fault?
Malaysia Airlines Flight 370 is still missing. Before filing any lawsuits, the families of those missing would certainly prefer to know what happened. But with a strict two year statute of limitations set to expire tomorrow, the families have to file suit now or never. So it’s not surprising that a flurry of lawsuits are being filed around the world.
The Montreal Convention controls any lawsuits filed against Malaysia Airlines. It allows suit to be filed against an airline in a U.S. court only if either:
Most of the passengers were Chinese, so, as expected, a number of families filed suits today in Beijing Court. Many more filed in Malaysia.
But at least 45 plaintiffs joined in a suit filed in California federal court in a case entitled Zhang v. Malaysia Airlines Berhard. At first blush, it wouldn’t appear that the plaintiffs can meet the Montreal Convention’s prerequisites for obtaining jurisdiction in the U.S. For example, the passengers weren’t U.S. residents, nor is the airline’s principal place of business in the U.S. So what’s the justification for filing here?
The plaintiffs allege that jurisdiction is proper in the U.S. because the airline is now legally “dead.” When the person liable is dead, the Montreal Convention allows the family to sue those representing the dead entity’s estate. Plaintiffs allege that, in this case, the entity now representing the dead airline’s estate is its insurer, Allianz Global, and that Allianz maintains offices in the United States.
[A]n action lies against Allianz after [Malaysia Airlines] was rendered defunct and dead and an action lies against those Defendants as would lie against [the airline].. . .. Defendant Allianz maintains its principle places of business in three locations in California and six other locations.
Certainly, a novel argument for access to the U.S. court system. Expect Allianz to challenge U.S. jurisdiction almost immediately.
Today a Bell helicopter crashed into Pearl Harbor near the Arizona Memorial. Reports are that everyone survived.
Some are saying the helicopter experienced engine failure. Unlikely. Instead, the pilot probably experienced "settling with power." That's when the helicopter is forced down by the downdraft it creates with its own rotors. To avoid crashing, the pilot must ease up on the power. In the video, you can hear power increasing. Adding power (or torque) just makes things worse.
From the FAA's Rotorcraft Flying Handbook:
When recovering from a settling with power condition, the tendency on the part of the pilot is to first try to stop the descent by increasing collective pitch. However, this only results in increasing the stalled area of the rotor, thus increasing the rate of descent. Since inboard portions of the blades are stalled, cyclic control is limited. Recovery is accomplished by increasing forward speed, and/or partially lowering collective pitch. In a fully developed vortex ring state, the only recovery may be to enter autorotation to break the vortex ring state. When cyclic authority is regained, you can then increase forward airspeed.