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

Flight Safety Foundation has released a study identifying the most significant risks involved in the helicopter air ambulance industry. The safety study was undertaken in response to the industry's increasingly poor safety record.

According to the 64 page report (pdf), one of the biggest problems is that it’s not clear who is in charge of overseeing the industry.  State agencies, county agencies, and federal agencies all have a hand in regulating air ambulance operations but there is little coordination between them. Because no one agency is clearly in charge, hazards cannot be appropriately identified or managed, and definitive industry standards cannot be established.  

The report went on to identify 25 other significant risk factors.  Among the problems discussed:

• Good decisions aren’t being made about whether a patient actually needs air transport.  Unnecessary flights lead to increased crew pressure and fatigue.
• The industry lacks a real “safety culture.”  That can give rise to environments that reward inappropriate risk-taking behavior.
• There is not enough money available to upgrade the EMS helicopters with current technology.
   

The report was underwritten by Bell Helicopter.  Though interesting reading, there's little in the report that those familiar with the air ambulance industry would find surprising.

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Right after the crash of Flight 3407 at Buffalo, investigators  focused on the aircraft's deicing system. The question, as explained by former CNN reporter and pilot Miles O'Brien, was whether ice had accumulated on the plane's wings faster than the de-icing system could remove it, leading to an aerodynamic “stall,” or loss of lift. 

But as the investigation progressed, it began to look as though, just before the pilot lost control of the aircraft, the nose of the plane pitched up  -- not down as usually happens when ice overwhelms an aircraft.  That raised an almost unthinkable possibility:  gross pilot error.  When an aircraft gets

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The Hawaiian Helicopter Tour Industry is Big Business.   Each year, more than 1 million people take an aerial tour of Hawaii.  That equates to one out of every 10 visitors to the islands.  Most of the tours are in helicopters.  The business generates more than $200 million annually, and supports countless jobs.

A helicopter is a great way to take in the islands' natural beauty.  And that is what the tour companies sell.  "Fly into the heart and heat of an active volcano" advertised one operator.  "Fly close enough to feel the waterfall's cooling mist" offered another.

But the Helicopter Safety Record is Terrible.  Flying too close to the terrain features, tangling with the islands' unpredictable "micro-weather," and substandard maintenance practices have resulted in a long list of fatal accidents. As a result, year after year, Hawaii's aviation safety record stacks up

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The General Aviation Revitalization Act, known as “GARA,” immunizes general aviation manufacturers from lawsuits for defectively designed or manufactured aircraft that are more than 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 years old, an injured victim cannot sue its manufacturer.

There are exceptions.  An injured party can sue the manufacturer regardless of the defective aircraft's age if:

• The aircraft, when first certified, seated 20 or more passengers;
• The aircraft is engaged in “scheduled” passenger operations;
• The victim was a passenger (not a crew member) in an air ambulance;
• The manufacturer misrepresented important information about the aircraft’s safety to the FAA during the aircraft certification process;
• The accident occurred as a result of a part that was replaced on the aircraft less than 18 years before the accident; or
• The victim was not an occupant of the aircraft.

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Accident victims or their families ask me this question a lot.  Sadly, the answer is usually: "no."

Pilots:  Most states require drivers on our highways to carry a minimum amount of liability insurance in case they injure someone. But pilots are regulated by the federal government, not the states. The federal government does not require pilots to have any insurance at all.

Though not required to have liability insurance, private pilots who own their own airplanes usually carry at least some. Many owner-pilots have policies with a $100,000 per passenger limit.  On the other hand, pilots who rent the aircraft they fly usually have no liability insurance at all.

Tour Operators:  Many tour operators aren't required to carry liability insurance either. So they frequently carry none -- or  just minimal policies with per passenger limits of $100,000 or less. To protect themselves from lawsuits, tour operators place title to their aircraft in shell corporations. By using shell corporations, victims' families cannot seize the operator's assets if it is determined that the operator was as fault for the accident. 

Aircraft Manufacturers:  Even aircraft manufacturers are free to "go bare", and many do. To protect themselves from liability for harm they may cause to others, some well-known manufacturers simply place their most valuable assets -- typically their type certificates -- in separate shell corporations so that they are out of reach of creditors.

The lack of insurance, combined with the industry's use of shell corporations, is a major obstacle facing victims of aviation accidents seeking fair compensation from those who have caused them harm.  It's a problem in need of a regulatory solution.

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Today the NTSB issued an "urgent" safety recommendation, asking the FAA to immediately ground all Zodiac CH-601XL aircraft.  The reason:  their wings tend to fall off.  So far, six have broken up in flight, causing 10 fatalities.  The NTSB suspects that the design of the aircraft induces "flutter"-- an aerodynamic phenomenon that can destroy an aircraft in seconds.  This short NASA video depicts flutter nearly destroying the tail on a Piper Twin Comanche.

Will the FAA act on this recommendation or, like it has with regard to so many other NTSB recommendations, simply ignore it?  I'm betting that this is one the FAA will act on.  As I've noted before, the FAA has been under increasing fire for sitting on NTSB recommendations while lives are lost. The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

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A reader of this post concerning air ambulance accidents asked, “Can the FAA really get away with ignoring the NTSB?"  The answer, to date, is "yes."  And there's nothing the NTSB can do about it.

The whole reason the NTSB exists is to learn from accidents and make safety recommendations so that similar accidents won’t happen again. But the NTSB has no power to make anyone, including the FAA, follow its recommendations.  And so, frequently, the FAA just ignores them.

Of course, ignoring NTSB recommendations can lead to loss of life. Some feel that the crash of Continental Flight 3407 in Buffalo might have been avoided, and 50 lives saved, had the FAA acted on the NTSB’s safety recommendations concerning turboprop planes and airframe ice. But the FAA never did, despite that some of those recommendations are now more than 10 years old. Even by goverment standards, ten years is a long time to sit on something. 

But back to air ambulances: The NTSB studied 55 air ambulance crashes occurring between 2002 and 2004 in which 54 people were killed.  As a result of what it learned, the NTSB recommended (pdf) that air ambulance companies be required to, among other things: 

• equip their helicopters with terrain warning systems;
• ensure that their pilots have good weather information before taking off; and
• ensure that their pilots get adequate rest. 

All straightforward stuff that is hard to argue with. 

That was back in 2006.  Since then, another 9 air ambulances have crashed, killing 35.  Still, the FAA hasn't acted on the recommendations. Though there has been some response from the FAA, the NTSB calls the response "unacceptable." 

One might wonder: if the FAA is free to ignore the NTSB, and has a record of doing just that, then what’s the point of even having an NTSB?

Good question.
 

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Some Flight 1549 passengers have reportedly "lawyered-up."  What legal claims do they have?  Putting aside the question of whether pursuing the claims is the right thing to do -- some say they should simply count their blessings -- do the passengers have any claims to begin with?

Well, it depends on the law that applies.  For example, under California law, a passenger would first have to show that the accident was caused by the airline's negligence.  From what is known so far, that seems unlikely. If, however, the passenger succeeds in proving negligence, he would be entitled to compensation for any physical injuries he sustained as well as compensation for the emotional distress he suffered. 

What if the passenger suffered just emotional distress and no physical injuries? Again using  California law as an example, if the airline was negligent, the passenger could recover for the emotional distress, as long as that the emotional distress was "serious."  (Not much question about that.)

What if the passenger had a foreign destination listed someplace on his itinerary?  That would change everything. Even though the flight was domestic, the Montreal Convention, an international treaty governing airline liability, would trump state law.  The passenger would not need to prove the airline was negligent to recover.  It is enough that a passenger's injuries were the result of an "accident."  The airline would be automatically liable. But under the Convention, the passenger would not be entitled to compensation for mental injuries, regardless of how "serious", unless he also suffered at least some physical injury.

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Two years ago, a Garuda Airlines 737 pilot botched a landing at Indonesia's Yogyakarta airport.  The plane crashed and 21 people were killed.  Many more were injured.

Indonesia's legal system focuses more on punishing the careless than on compensating the victims.  So, yesterday, the pilot was found "guilty of negligence" and sentenced to two years in prison.

While criminalizing negligence might seem like the "right" thing to do, it just doesn’t work to improve safety.  Indonesia's abysmal safety record is proof.

The US legal system does not send careless pilots to jail. Instead, it requires the careless pilot's employer to compensate the victims. The US system gives the airlines a monetary incentive to control the performance of their crews by training, evaluating and then retraining as necessary.  And that is one reason why we have the safest airlines in the world.

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Well, that seems to be what the National Transportation Safety Board said today when it commented on the preliminary accident statistics for 2008.

The NTSB's comment:

The 2008 accident statistics reveal a mixed picture. . . We are particularly concerned with the spike in fatalities in on-demand air charter operations. There's a lot of room for improvement in this area, and as evidenced by our recent forum on emergency medical service helicopter accidents, we continue to do everything we can to identify the safety issues involved, and to advocate for the adoption of our recommendations that will make the skies safer.

Our Translation:  "The 2008 accident statistics wouldn't look bad except for all the air ambulance helicopter crashes.  We've got some ideas on how to make air ambulance operations safer, but the FAA keeps ignoring us.  As usual." 

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Some people think that the National Transportation Safety Board is the final authority over an aviation accident -- that the NTSB acts as the accident "police."  They think that, in the end, the NTSB will catch the one responsible for the accident and make that person answer for what happened.  But that's just not the case.

It's true that, like a cop, the NTSB can secure an accident scene and keep others away.    It can examine the aircraft wreckage. It can have aircraft parts tested to help determine why the accident happened. It can even subpoena evidence. But the NTSB investigates a crash for one reason only: to gather and then publish information so that similar accidents may be avoided in the future.

Although it is an agency of the federal government, the NTSB has no enforcement powers. That means that the NTSB can't bring criminal charges. It can't fine anyone. The NTSB can't suspend anyone's license as a result of what it learns, and it can't put anyone out of business. If the NTSB concludes that someone, such as a maintenance facility, was responsible for the crash, that facility is free to ignore the findings and carry on business as usual. 

When the NTSB is done with its investigation, it prepares a report. The report usually includes the NTSB's opinion as to the accident's "probable cause."  The hope is that the aviation community will read the report and learn something from it.  Because that is the report's only permissible purpose, by federal law, the opinions in the report are inadmissible in any lawsuit arising from the crash. 

Sometimes the NTSB, as a result of what it learns, will publish a safety recommendation.  Often the recommendation is that the FAA pass tougher regulations.  But the FAA need not follow the NTSB's recommendations, and frequently chooses not to.   

If there is a lawsuit concerning the crash, the NTSB will not get involved.  Not only is the NTSB's report of the accident's probable cause inadmissible, but the NTSB investigators are prohibited by law from testifying in court, even if they are served with a subpoena.

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Most victims of a helicopter or airplane accident can't afford to pay aviation attorneys an hourly rate to investigate the cause of the crash or to take an aviation lawsuit to trial.  For these people, the doors of the courthouse would be essentially closed were it not for the contingency fee agreement.  The contingency fee agreement places the victim on a level playing field with the aviation manufacturers, insurance companies and other major corporations who may be responsbile for an aircraft accident.  Under a contingency fee agreement, the client hires a lawyer, but if there is no settlement or verdict, the client pays nothing to the attorney for his work in investigating the case, initiating the lawsuit, or taking the case through trial.  All costs associated with the investigation and the lawsuit are paid by the attorney. The contingency fee agreement allows any victim access to the legal system, regardless of the victim's financial circumstances.

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