Aviation Law Monitor : Aviation Lawyer & Attorney : Michael Danko Law Firm : California Airplane & Helicopter Crashes : Aviation Law Monitor

An airline's liability for a passenger's injury or death is most often determined by state law. But if the passenger's trip includes a stop in a foreign country, then the airline's liability is controlled entirely by international treaties.  The treaties are known as the Warsaw Convention and the Montreal Convention. 

The treaties also govern a passenger's claims for injuries occurring on a domestic flight, as long as a foreign destination was on the passenger's itinerary.  That means that state law may govern the claims of one victim of an airline disaster, while a treaty may govern the claims of his friend in the very next seat.  Because different law applies, one victim (or his family) might be entitled to compensation from the airline, and the other not.

Which is more favorable for the victim -- state law or the treaties? It depends on the circumstances of the case. For example, if state law applies, to successfully sue an airline, the passenger must prove that the injury occurred because the airline was "negligent" or, in other words, "careless".  But if a treaty applies, the passenger need not prove the airline was negligent at all. If a treaty applies, the passenger need only prove that his injuries were the result of an "accident." 

What if a flight attendant accidently pours hot coffee on you and you are seriously burned?  Under state law, you could recover from the airline, if you prove the flight attendant was careless.  Of course, if the flight attendant splashed you on purpose, you would be entitled to compensation as well.  But what  if the treaties apply? Can the flight attendant's intentional act be considered an "accident"?  Courts have struggled with this sort of question, and offer no clear-cut answer. 

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Text of Warsaw Convention here. (pdf)

Text of Montreal Convention here. (pdf)

List of countries which have signed on to Montreal Convention here. (pdf)  [updated December 2009]

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For years, wrongdoers have tried to avoid responsibility for accidents they cause by arguing that, as long as they have complied with the applicable FAA regulations, they should be off the hook.  Aircraft manufacturers, for example, argue that because the FAA certified their aircraft design before it went into production, a passenger injured in one of their airplanes should not be able to sue for design defects. Maintenance facilities argue that they should be immune from lawsuits for maintenance errors unless the injured passenger proves that the mechanic violated one of the federal aviation's maintenance regulations.   

These arguments are called the "pre-emption defense."  The reasoning goes something like this:  If it's good enough for the FAA,  it should be good enough for the court system.  Courts shouldn't  be allowed to second guess the FAA.  A court should not require more of a defendant than do the regulations. 

Over the years, the pre-emption defense hasn't worked all that well for defendants.  After all, the FAA regulations themselves make clear that they are "minimum" standards only.  Recently, however, the pre-emption defense has gained traction with some courts.  For example, one federal appeals court recently ruled that airlines don't have to warn passengers about the risks of airline-induced Deep Vein Thrombosis, even though the airlines knew that warnings would save passengers' lives. The court's reasoning was that the FAA regulations cover what warnings an airline must give to its passengers.  The regulations require the airline to tell passengers how to unbuckle their seat belts, how to use the oxygen masks, and about placing their seat backs in the upright position before landing.   The regulations don't require the airline to tell passengers how to avoid DVT.  So, according to the courts, that's the end of the matter.  The airlines are off the hook.   

The US Supreme Court just put the brakes on the pre-emption defense with its decision in Wyeth v. Levine (pdf).  Wyeth wasn't an aviation case.  It was a drug case.  But the drug company in Wyeth made the same pre-emption argument that defendants make in aviation cases.  And the Court rejected it.  It  ruled that the defendant drug company was properly found liable for failing to warn about a drug's side effects.  The fact that the drug company's warnings complied with all the federal regulations was not a defense.

Wyeth is now the law of the land.   A careless defendant can't count on it's having met the bare minimum of the regulations as a sure-fire way to to escape responsibility for the harm it causes.   According to the Supreme Court, a defendant's compliance with the regulations will be a complete defense only where holding the defendant to a higher "due care" standard would frustrate the purpose of the regulations, or make it impossible for the defendant to comply with the regulations. 

The Supreme Court explained that one reason drug companies can be held to a higher standard than set forth in the regulations is because the Food and Drug Administration regulations were not intended to be the "final word" on drug safety.    Defendants will likely seize on this part of the Wyeth opinion to argue that Wyeth shouldn't apply in aviation cases.  They will point to some federal appeals court opinions that have ruled that  the FAA regulations, unlike the FDA regulations, were intended to "occupy the field." 

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CNN recently came up with advice on how to survive a plane crash.  Make a plan, brace yourself, know where the exits are, and so on. All good stuff.  But if you really want to increase the odds of surviving your flight, here's what you need to do: every hour, unbuckle your seatbelt, get up, and walk around for 5 minutes.  Then drink a glass of water.

The biggest threat to your health and safety on board a long-haul flight is not a crash.  It's something called "Deep Vein Thrombosis."  In plain english -- blood clots.  The clots are relatively harmless if they stay in your legs where they first develop.  But if they break off and move through your system, they can cause fatal pulmonary embolisms, strokes, or heart attacks. Walking around during your flight and staying hydrated are among the best ways to keep clots from forming.

The risk of death from blood clots dwarfs all other aviation-related risks. An airline traveler is 100 times more likely to die from an airline-induced blood clot, for example, than from all causes related to bad weather, pilot error, mechanical failure, and terrorism combined.  Airhealth.org estimates that up to 100,000 people die each year as a result of airline induced DVT.  On the other hand, less than 1000 die each year from airliners going down. 

The airlines have been aware of the risks of blood clots since the 70's. Nonetheless, the airlines have done little to spread the word. In fact, they've kind of kept the risks under wraps.  We don't expect that to change, since the courts have ruled repeatedly that the airlines have no legal obligation to warn their passengers about the risks of DVT and what can be done to avoid them. 

What factors contribute to formation of blood clots? Stasis -- the pooling of blood in the legs from prolonged sitting; decreased blood oxygen levels resulting from the cabin environment, bruising of deep vein in the back of the leg from prolonged term sitting (no, you can't feel it happening) , and dehydration that results from the dry cabin air.

Walking around every hour or so and remaining hydrated are good strategies for avoiding Deep Vein Thrombosis and staying safe. 

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Scene System's animation of the crash of US Airways Flight 1549 is a viral hit.  The litigation support firm combined available ATC audio tapes, flight track information, and an on-scene photograph into a great recreation.  This is the exactly the type of animation used in court to help juries understand the details of an aviation accident.  

But would this particular animation be admissible in a lawsuit?  Probably not. It incorporates too much guesswork.  For example, Scene System overlays the animation with audio from Air Traffic Control tapes.  Are the movements and positions of the aircraft properly synchronized with the audio? To do that right, you'd most likely need information from the Flight Data Recorder , which isn't yet available. Without that data, the animation is objectionable as "lacking foundation."  It's safe to say that, before it could be shown in court, the animation would require hundreds more hours of work and refinement. 

Of course, Scene Systems wasn't out to produce a recreation that was admissible in court. It was just trying to show the type of product it is capable of. And it did that very nicely. 

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Actually, the black box is day-glo orange.  And there are two of them.

The first is the Cockpit Voice Recorder. It records not just what is said in the cockpit, but also all the background mechanical sounds that provide clues to determining the chain of events leading to the accident.  The NTSB, along with other parties to the investigation, listens to the CVR, and then prepares a transcript of what it hears.  The transcript, or parts of the transcript, may be released to the public.  The actual recording, however, is almost never made public, mainly out of concerns over the crew's right to privacy.

After an accident, we will often hear on the news the crew's conversation with Air Traffic Control.  Sometimes the news media report that the recordings are the "cockpit tapes."  They're not.  What we are hearing is the recording made by Air Traffic Control.  So we are hearing only what the crew decided to transmit over the aircraft's radio.  We're not hearing what  the crew said amongst themselves.  Those discussions are on the CVR only.

The second "black box" is the Flight Data Recorder.  That box records things like the aircraft's heading, altitude, airspeed, and position of the aircraft's flight controls.  The information from the Flight Data Recorder frequently allows the NTSB to reconstruct the flight all the way up to the moment of impact.

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