6 Ways an Aircraft Owner Can Be Liable for an Accident When Someone Else Was Flying

Here are six ways an aircraft owner can be found liable even if he was not on board when the plane crashed:

  1. Vicarious liability for acts of permissive user.   In many states, an aircraft owner is liable by statute for any injury caused by a pilot who was flying the aircraft with the owner's permission. The owner need not have done anything wrong -- the owner's liability is automatic.  But that liability is generally capped.  For example, in California, the aircraft owner is automatically liable for death or injury resulting from the pilot's negligence, but that liability is  limited to $15,000 per person killed or injured, up to a total of $30,000.
  2. Liability as Partner or Joint Venturer.  In some circumstances, if the pilot was the owner's partner or was engaged with the owner in a joint venture, the owner can be held fully responsible for any accident caused by the pilot's negligence.
  3. Owner's negligent conduct. Of course, if the aircraft owner was himself negligent, he may be held liable for the accident, once again without regard to any cap.  For example, if the owner performed maintenance on the aircraft (as permitted by FAA regulations), but didn't perform it properly, the owner can be held fully responsible for any accident that results.  Even if the owner never touches the aircraft, he might still be held responsible if he makes unreasonable maintenance decisions that, though permitted by FAA regulation, were not those that a reasonably careful owner would have made. One  such maintenance decision might be running the aircraft past TBO
  4. Non-delegable duty.  Mechanics are typically independent contractors.  Generally, we aren't responsible for their negligence.  But the federal aviation regulations make the owner of an aircraft primarily responsible for its airworthiness, That means the owner may be held responsible even when the accident was solely the mechanic's fault.
  5. Negligent entrustment.  An owner can be held liable for an accident if he allows a pilot to use an aircraft when he knows the pilot isn't competent to complete the planned flight safety.  For example, an owner may be held liable to those injured for allowing a pilot to fly to a high-density altitude airport if that pilot hasn't had a high-density altitude checkout. In the negligent entrustment context, the "permissive user" liability caps don't apply.  
  6. As the manufacturer of an amateur build aircraft.  Needless to say, if the owner was the builder of the aircraft that is involved in the accident, he can expect to be held liable, at least if the accident was the result of faulty workmanship.

Video Interview: Discussing AirAsia QZ8501 with LXBN TV

Following up on my recent posts on the incident, I had the opportunity to discuss the crash of AirAsia QZ8501 with Colin O'Keefe of LXBN. In the interview, I share my thoughts on the potential cause of the incident and what that might mean as far as compensation for families. 

AirAsia's Obligation to Compensate the Families of Flight 8501

Because AirAsia Flight QZ 8501 was an international flight, the airline’s obligation to compensate the passengers’ families is governed by a treaty known as the Warsaw Convention.  Here are some of the Convention’s important points, as they apply to Flight 8501:

Airlines Must Compensate Families for "Accidents"

AirAsia must compensate the passengers as long as the crash was caused by an "accident." The Convention defines "accident" to include any unexpected event -- from an encounter with bad weather, to poor planning on the part of the pilot, to mechanical failure. It would seem the loss of Flight 8501 will qualify as an "accident."  The exact cause of the accident doesn't matter. The families do not need to prove that the airline was negligent, or that the airline did anything wrong at all.  The airline is automatically required to compensate the families, unless the airline proves it took "all necessary measures" to avoid the accident -- a showing which is for all practical purposes impossible. 

Avoiding the Convention's Cap

The cap on an airline's liability under the Warsaw Convention is about US$23,000 (16,600 SDRs).  But families may avoid that limitation if they can prove that the accident was caused by AirAsia's "wilful misconduct."  That means that they must prove that AirAisa or its pilots did something wrong that, at the time, they knew was wrong.  

Compensation Will Be Determined By Local Courts

Assuming that the families can prove that the accident was a result of the airline's wilful misconduct, the court system where the family sues will limit the family’s recovery, not the Montreal convention.  For example, a US court might set fair compensation for the loss of a spouse at several million dollars.  But an Indonesian court is likely to set fair compensation at far less.  That makes “where to sue” a critical decision for each family.  And the Warsaw Convention strictly limits where suits against airlines such AirAsia may be brought.

 

AirAsia Flight QZ 8501 and Turbulence

Let's get it out of the way: there is little in common between the apparent loss of AirAsia Flight QZ 8501 and the disappearance of Malaysia Airlines Flight MH 370.  

But Flight 8501's disappearance does have at least some resemblance to the 2007 loss of Adam AirAirAsia A320 Flight 547.  Both Indonesian airliners disappeared shortly after contact was lost in bad weather. Both disappeared in Indonesian airspace -- the AirAsia flight over the Java Sea; the Adam Air Flight over the Makassar Strait.

Bad Weather vs. Pilot Inputs

The speculation after the Adam Air crash was that the flight was brought down by severe weather -- weather that the crew had been warned about.  But that turned out to be wrong. Adam Air Flight 547 went down because the crew fixated on troubleshooting a problem with the aircraft's navigation system, not because of weather.  The crew became so preoccupied withthe navigation system that they allowed the aircraft to slowly roll into a steep bank.  They allowed the nose to point down and the aircraft to build too much speed.  When the pilot figured out was going on and tried to recover, his control inputs broke the wings.

But the AirAsia Crew Had Requested a Deviation for Bad Weather

Unlike the Adam Air crew, the AirAsia pilots had requested from Air Traffic Control a clearance to climb to a higher altitude but didn't immediately get it.  A short time later, all contact with the airliner was lost. Isn't that a strong indication that rough weather may have been a factor?  

First, while small aircraft are often brought down by rough weather, it's extremely rare for an airliner to be.  Airliners avoid rough weather largely for comfort rather than for safety.  Second, although Air Traffic Control delayed in giving the AirAsia flight a clearance to climb, the pilots were free to do so immediately in the unlikely event the weather posed a risk to the aircraft's safety.

But while it's rare for an airliner to be brought down by turbulence, it's quite possible for an airliner to be brought down by a pilot's reaction to that turbulence.  

Airbus Rudder System

That's exactly what happened to American Airlines Flight 587 in 2001.  The aircraft encountered turbulence climbing out of JFK.  The co-pilot tried to correct by pushing on the rudder with his foot. He pushed too hard and the aerodynamic forces caused structural failure.  The airliner crashed and killed all 260 aboard and 5 on the ground.

American Airlines 587 was an Airbus A300. More then 10 years after that crash, the FAA required all 300 series aircraft to be modified to warn the pilot to "stop rudder inputs" when structural damage becomes a risk, a modification that I felt was inadequate.  Flight 8501 was an Airbus A320.  That's the same model which the NTSB called flawed because its rudder system was too sensitive:

The Airbus A320 family is . . .susceptible to potentially hazardous rudder pedal inputs at higher airpeeds. 

HEMS Operator Drops Pretense That It's All About Speed

The air ambulance industry has a poor safety record.  Most of the industry crashes involve EMS helicopters rather than airplanes.  The EMS helicopter fatal accident rate is 6000 times that of commercial airliners.  As it turns out, flying an EMS helicopter is one of the most dangerous jobs inSkyHealth America.

The industry tries to justify the poor safety record by pointing to the “need for speed.”  While acknowledging that the risk of a crash is many times greater for a patient traveling in an EMS helicopter than a ground ambulance, the industry argues that the additional risk is justified because the patient riding in a helicopter usually gets to the hospital sooner.  

That argument has always been questionable. Now, however, it seems that at least one operator is dropping the pretense altogether.  According to SkyHealth, a brand new contractor providing helicopter services to Yale-New Haven hospital patients, it’s really not about speed at all.  It’s really about the equipment on board the helicopter.

When you’re talking about using the helicopter for critical-care patients, people think it’s all about speed. . .  But it’s not about getting to the hospital faster.  It’s really about being able to provide care during transport from one hospital to another.”

The new operator reports that it is flying patients every other day.  But it's not rushing trauma victims from accidents sites to emergency rooms as you might expect.  Instead, it is moving stable patients from one hospital to another.

With the copter, ‘you don’t have out of hospital time because the crew in the hospital can do the same things as the [ICU]. . .It’s a higher level of care than our ground transport.

Wouldn’t it be safer for these patients and cheaper to simply upgrade the care available in a ground ambulance? 

Aviation Lawyer Terry O'Reilly Files Bankruptcy

His website tells of an illustrious legal career spanning decades.  Pictured next to an antique race car, Terry O’Reilly boasts that he is “one of the most distinguished and successful trial lawyers” in the entire United States. O'Reilly lists many awards he claims to have received and explains that “I have the largest number of seven and eight figure verdicts in Northern California.”  He speaks of one aviation case he settled for more than $160 million.  Scattered through the website are other photos showing him surrounded by the trappings of his success.

A prospective client couldn't help but be impressed.  Terry O'Reilly's Bentley

But it now looks as though O'Reilly's show is mostly smoke and mirrors.  Yesterday the Boalt Law School graduate filed personal bankruptcy, with unpaid debts approaching $10 million. 

O’Reilly brings with him into bankruptcy the O’Reilly Law firm itself.  O'Reilly is legally permitted to continue practicing law even though he is bankrupt.  But all that is left of his firm is a small desk in a San Mateo, California office building.  The office is staffed by a disbarred lawyer, Pamela Stevens.  Stevens, according to State bar records, bilked her injured clients out of millions of dollars of settlement money and is considered a danger to the public.  Not someone who an accident victim would want working on his or her case.  

Certain types of attorneys can serve clients perfectly well even if they are themselves insolvent.  But plaintiffs lawyers working on contingency need to finance their clients' cases.  They must advance on their clients' behalf hundreds of thousand of dollars for experts and court costs.  With no money, it’s unclear how O’Reilly will be able to adequately represent the clients he seeks to attract.  

How was O'Reilly able to appear to be so successful? Last week a California court of appeal ruled that over the years O’Reilly was able to buy flashy stuff by improperly siphoning money from his previous law firm.  As a result, he ended up driving that law firm, O'Reilly & Collins, into bankruptcy in 2012:

O’Reilly, “in a concerted effort to wring from the firm every last dollar . . wrote firm checks to others to: build and furnish for him and his wife a luxury ranch in Idaho; buy expensive vintage cars here and abroad in furtherance of his racing hobby; buy fine wine, entertainment systems, and clothes;  pay taxes and insurance on his home in San Francisco; fly around on private jets, take ski vacations and travel to rugby matches; pay for vacations and shopping sprees for his current spouse; and fund his personal trust and retirement accounts. . . “

In short, O’Reilly was buying things with other people’s money.  And he apparently had no way of paying those people back.  Yesterday, it all caught up with him.  

Having worked with O'Reilly years ago, it's sad to see.

Eddie Andreini Accident: Air Force Documents Reveal Travis Officials Confused by Air Force Regulations

Airport fire trucks must get to a burning plane within three minutes if they are going to save any lives. That's the maximum response time allowed by the National Fire Protection Association, the organization that sets the standard for airport firefighters, including those working at U.S. Air Force bases. 

The survivable atmosphere inside an aircraft fuselage involved in an exterior fuel fire is limited to approximately 3 minutes if the integrity of the airframe is maintained during impact. This time could be substantially reduced if the fuselage is fractured. . . rapid fire control is critical. . .

Aircraft flown in air shows are usually smaller and less fire resistant than transport category aircraft.  At air shows fire trucks need to get to crash sites even quicker – within 60 seconds or less.

The key to getting fire trucks to a crash quickly is to station the trucks near to where an accident is most likely to occur.  Normally, that might be the end of the active runway.  But most air show crashes occur at “show center” rather than the end of the runway.  As one Travis Air Force witness put it, show center is where ‘the majority of dangerous events focus.”  At air shows, that's where fire trucks should be waiting.

Eddie's Accident

On May 4, Eddie Andreini was flying a routine at the Travis Air Force Base open house.  He was attempting a stunt known as an inverted ribbon cut.  Something went wrong.  Eddie's Stearman slid upside down along the runway, coming to a stop at smack dab show center. Eddie was uninjured but was trapped inside.  A fire started almost immediately.  Air Force personnel say that they saw Eddie struggling to get out as he waited for the fire trucks to save him.  One minute passed, then two, then three.  But the crash trucks didn't come.  When they finally did, it was too late. 

What happened?

The Air Force refused to explain why it took so long for its fire trucks to reach Eddie.  So we sued it under the Freedom of Information Act.  We now have internal Air Force documents showing that the brass didn’t understand the Air Force’s own regulations.  They mistakenly believed regulations prohibited them from stationing fire trucks near show center.  So instead, the Air Force positioned the fire trucks more than a mile and a half away. 

The Travis speed limit for fire trucks is 45 mph.  So it took the first fire truck (a “Rapid Intervention Vehicle”) more than four minutes to get to Eddie.  Had the Air Force positioned even one truck at show center--as it was supposed to--firemen would have gotten to Eddie within a minute and Eddie would have been saved.   

Regulations can be confusing. Was the Air Force’s mistake understandable?  Not really. The manual that Travis show organizers had in hand--and agreed to follow--makes clear that fire trucks belong at show center.  According to that manual, the personnel who were permitted in the “aerobatic box” (the area in which performers fly) included “demonstration teams and fire/rescue.” (Page 28.) The manual goes on to direct that fire trucks should be located “with immediate access to the show line” (page 34) – not a mile and a half away. 

To the extent the Air Force brass was confused, the FAA cleared things up for them when, a week before the air show, it told Travis that crash trucks did indeed belong “in the box” near show center.   

Our team, specifically the air ops staff, was led to believe that we could not put an emergency vehicle (or anything else) inside the Show Box at Show Center, because it was sterile and protected.  We learned that this was not correct about a week before the show after [name redacted] discussed it with [name redacted] of the FAA.  We learned that we could place airshow official vehicles or people in the aerobatic box."

Travis had time

The Air Force's own documents prove that Travis officials had a week before the show was to begin to correct their mistake and arrange for the trucks to be stationed at show center. But the Travis officials had already decided that the fire trucks were going to be positioned where they couldn't be of any use to a performer.  Having made a plan, they weren't going to change, even if it put lives at risk unnecessarily.

"I'll say it again, I need the trucks on the runway!  I need the trucks on the runway now!"

The Travis Command Post recording is difficult to listen to. After hearing it, it's hard to believe that Travis still tells the public that its fire department responded to the crash in an "exemplary" fashion.

(Notes:  At 2:14, one of Eddie’s crew tried to fight fire with a hand-held extinguisher.  The extinguisher was too small and was expended in seconds.  By that time, the Rapid Intervention Vehicle had not yet even left its station.  The Air Force documents do not explain why it took so long for the truck to roll.  It finally arrives on scene after the 4 minute mark.  The time stamps were placed on the photos by Air Force.)

GAMA Responds to USA Today Claims re Post-Crash Fires

USA Today ran Thomas Frank's story on the unnecessary risks posed by post-crash aircraft fires.  According to Frank's article, small aircraft fires have killed at least 600 people since 1993, burning them alive or suffocating them after otherwise survivable accidents.  Hundreds more have survived post crash fires but have been horribly burned.

I’ve written many times over the years that no one should be burned in an otherwise survivable aviation accident.  The technology to prevent post crash fires has been around since the war in Vietnam.

The FAA has not required manufacturers to install such technology because it would be too costly – between $556 and $5,710 per aircraft.  That doesn’t sound like much, but according to the FAA, it doesn’t pencil out when compared to the dollar value of the lives that would be saved.  But the USA Today article points out that, in running the calculations, the FAA undervalued human life.  For example, while the EPA used a value of $3.3 million per life when it justified regulation to protect the ozone, the FAA used a lower value -- just $1 million per life -- when it ran the numbers on post-crash fires.  No wonder the costs didn’t pencil.

Of course, just because the FAA doesn’t require manufacturers to keep their aircraft safe from post-crash fires, it doesn’t mean that the manufacturers can’t do so on their own. 

Today the manufacturers responded to the USA Today article, suggesting that it was inaccurate and one-sided.

GAMA’s Greg Bowles talked for more than three hours with Mr. Frank [the article’s author] about general aviation safety to include preventing post-crash fires through improved crashworthiness and manufacturers’ efforts to mitigate the effects of accidents for Mr. Frank’s previous series, “Unfit for Flight.” Unfortunately, Mr. Frank chose not to include the bulk of Mr. Bowles’ remarks that chronicled our industry’s successful efforts to continue to improve our safety record.

The GAMA response goes on to talk about all the things the manufacturers are doing to help prevent planes from crashing.  It says nothing, however, about what it is doing to ensure that when they do inevitably crash, they don’t catch fire.  

Air Force Hides the Ball on Andreini Crash Response

Hall of Fame Aerobatic pilot Eddie Andreini died during the "Thunder Over Solano" air show at Travis Air Force Base in May.  There was a mishap during his routine, and his Stearman biplane slid to a stop on the runway. Eddie wasn't hurt, but he was trapped in the plane.  He radio'd for help.

The Air Force had told the performers that its fire trucks would be positioned and ready to respond toEddie Andreini such an emergency within seconds.  But for some reason, the trucks were nowhere to be found during Eddie's routine. Instead of getting to Eddie in a minute or less, as they were supposed to, the trucks didn't get to Eddie for nearly five minutes.  By then, Eddie's plane was engulfed in flames and it was too late.  Eddie was gone.

Where were the firetrucks?  What took them so long to get to Eddie?  When the family asked the Air Force these questions, the Air Force closed ranks and went mum.  So the family exercised its rights under the Freedom of Information Act. The family formally requested the Air Force to turn over to them the documents that would show why the Air Force fire trucks didn't come to Eddie's aid as it had promised, and instead let Eddie burn to death.  

Under the law, the Air Force had 20 days to respond to the family's request. We had hoped that, out of respect for the family, it would have turned over documents right away.  But that was not to be. The family made its request to the Air Force four months ago. Yet the Air Force has yet to turn over to the family even a single piece of paper.

We've just filed suit against the Air Force for violating the Freedom of Information Act.  We want to know:  

  • Does the Air Force believe it is above the law?  
  • Does the Air Force believe that the family has no right to know why Eddie died?
  • What is the Air Force trying to hide from Eddie's family and the public about it's role in Eddie's death?  

 

Complaint - Travis AFB Re FOIA Request - FEC

NTSB Sued for Obstruction of Justice

Families of those involved in five different general aviation crashes and their lawyer are suing the NTSB, charging it with obstruction of justice.  The suit claims that the NTSB withheld from the families information concerning each of the crashes in violation of the Freedom of Information Act.

I’ve commented before about how the NTSB’s “party system” creates a conflict of interest that skews the results of its investigations in favor of the manufacturers.  But this lawsuit goes further than that.  It alleges not just a conflict of interest, but collusion between the NTSB and the manufactures:

Upon information and belief, investigators and others employed by the NTSB collude with manufacturers and, upon their departure from government, most often accept employment defending the aircraft and component manufacturers whom they are previously tasked to investigate.

As a result of that collusion, the lawsuit alleges, the NTSB withholds and even destroys evidence for the express purpose of preventing the victims and their families from finding out what really caused the crash and holding those responsible accountable.

The NTSB, through its officers, employees and/or its agents, including party participants, acted and continues to act with the intent to avoid, evade, prevent and/or obstruct the timely investigation of airplane crashes.

Does the NTSB really destroy evidence? Every aviation lawyer knows that it does exactly that, at least to some extent.  For example, an NTSB investigator may take many photos of an accident scene or wreckage.  Yet, he will make part only certain of those photographs part of the “Public Docket.”  The investigator may simply discard the rest before the NTSB releases its final report and opens the docket to public review.  The lawsuit seems to suggest that at least some investigators discard material purposely and selectively so that evidence that would incriminate the manufactures or other “party participants” never sees the light of day.

Explosive stuff.

 

Obstruction of Justice against the NTSB