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

During the Vietnam war, hundreds of soldiers suffered serious burn injuries following otherwise survivable Huey helicopter crashes.  In 1970, Bell Helicopter responded by developing a crashworthy fuel system and installing it in the new Hueys it produced.  The crashworthy system included stronger fuel cells, breakaway fuel lines, and cutoff valves.  

The Army kept track of the effectiveness of the new fuel system.  Over the next 39 months, 895 helicopters without the new system crashed.  Post impact fires resulted in 52 burn fatalities and 31 burn injuries.  Over the same time period, 702 helicopters with the new crashworthy fuel system went down.  Remarkably, there was not a single thermal injury or death in any of those crashes.  That was enough to convince the Army.  After that, it required all its helicopters to be manufactured with the crashworthy fuel system.   

Today, no one should be burned in an otherwise survivable helicopter accident.  The technology has long existed to almost completely eliminate post-crash helicopter fires. But while the risk has been virtually eliminated in military helicopter operations, post crash fires are still the single biggest hazard to survivors of civilian helicopter crashes. (pdf) That's because some civilian helicopter manufacturers have resisted incorporating crashworthy fuel systems into their designs.    

Helicopter manufacturers know that some of the aircraft they manufacturer will inevitably be involved in accidents.  They must take steps to make their civilian helicopters reasonably safe in the event of an accident, just as they do when building helicopters for the military.  If someone is burned in a civilian helicopter crash, then the aircraft's design may well be proven to be defective, and the manufacturer held accountable for the injuries its design has caused. 

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Clients often ask: "Shouldn't we wait for the National Transportation Safety Board to finish its report before deciding whether to bring a lawsuit?" Sometimes, that makes sense. But most of the time, waiting is not in the client's best interests. Here are four reasons not to wait:

1. The NTSB's Findings are Seldom Unbiased. The NTSB doesn't have the engineering expertise or financial resources to investigate an accident on its own. So it asks for technical help from the aircraft manufacturers. For example, if a case involves an engine failure, the NTSB will ask the engine manufacturer for help in determining why the engine failed. Not surprisingly, the manufacturer seldom points out to the NTSB evidence suggesting that its own product may have caused the accident. The conflict of interest inherent in the NTSB's investigations mean that the NTSB's final reports almost always favor the big industry players.

2. The NTSB Seldom Tackles the "Why" Questions.  More and more, the NTSB's report describes what happened, without really saying why it happened. But the "why" questions are the ones that matter most.

As an example, in one case, an EMS helicopter crashed and all aboard were killed. A year and a half later, the NTSB published its probable cause report concluding that one of the helicopter's rotor blades came apart in flight. That, however, was obvious from the outset.  Only during the lawsuit that followed the crash was it discovered that the blade came apart because, months before the accident, a mechanic had botched a repair to the blade, weakening its internal structure. The NTSB never interviewed the mechanic involved.  It was satisfied that it had determined the "cause" of the accident when it figured out that the rotor blade failed. As far as the NTSB was concerned, once it determined that the blade failed, the case was closed.  The NTSB told us what happened, but not why. 

3. The NTSB's Accident Report Isn't "Binding" on Anyone. The NTSB's conclusions have no legal effect, and they are inadmissible it court.  So we can't just rely on the NTSB to do our work for us; we have to conduct our own investigation. Waiting for the report just puts us behind.

4. We Could be Waiting Forever. It usually takes the NTSB one to four years, sometimes even longer, to come out with a report.  The NTSB is so slow that if we begin a lawsuit right away, it often can be settled and sometimes even tried to verdict before the NTSB report is completed. On the other hand, if we wait for the NTSB's report before starting our own investigation, witnesses' memories will have faded and important documents may be lost or destroyed.  The wreckage may end up being scrapped before our experts examine it.  Worst of all, statutes of limitation may run on the claim, preventing us from filing any lawsuit at all regardless of what the cause of the accident turns out to be. 

The NTSB investigators are good people dedicated to aviation safety. They perform a very difficult job under harsh conditions. They are, however, underfunded, understaffed, and overwhelmed. They just don't have the necessary resources or expertise, especially when it comes to investigating general aviation accidents. Sad to say -- NTSB reports are seldom worth waiting for.

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Two months ago, Scene Systems -- a litigation support firm -- released its animation of Flight 1549's crash into the Hudson. I posted here that, in all likelihood, the animation would not be admissible in court. The legal objection would be that the animation "lacked foundation." For example, without information from the Airbus' black boxes, Scene Systems couldn't confirm the aircraft's flight path or guarantee that the Air Traffic Control audio was properly synchronized to the aircraft's path of travel.  Therefore, the animation involved too much guesswork to be shown to a jury.

The National Transportation Safety Board has now released its own animation. Having retrieved the black bloxes, the NTSB was able to plot accurately the Airbus' position, speed, and altitude at each point along the aircraft's short flight.  The NTSB then properly synchronized the Air Traffic Control audio to the aircraft's flight path.

The only audio on the NTSB's animation is the radio transmissions between the crew and Air Traffic Control. As is typical, the NTSB did not make public the audio of the cockpit conversation between the captain and the first officer. The NTSB did, however, prepare a written transcript of that conversation. The NTSB superimposed the transcript on the animation. (HOT-1 is the pilot, HOT-2 is the first officer.)

Would this animation be admissible in court?  While Scene System's animation would not pass legal muster, the NTSB's work probably would. 

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The pilot's original destination was Bozeman, Montana.  But the pilot amended his flight plan and diverted to Butte.  The pilot did not tell air traffic control why he was diverting.  About 25 minutes later, as the aircraft approached for landing at Butte, it went out of control and crashed. 

The NTSB is now investigating two things: (1) why the pilot diverted to Butte, especially when he was so close to Bozeman, and (2) why the pilot lost control and crashed so near the runway at Butte.

Some possible explanations for diverting include:

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Tim Vasquez is a meteorologist with Weather Graphics in Oklahomoa.  He has plotted Flight 447's flight path against GOES-10 satellite and other weather data. Vaquez' work suggests Flight 447 penetrated two thunderstorm cells.

The image below, according to Vasquez, is similar to what the Flight 447 crew would have seen on its weather radar screen, assuming its radar was working. The black line in the image represents the aircraft's flight path.  "ACARS Position" represents the aircraft's position when it sent it's last ACARS message.

This next diagram is a cross section of Flight 447's track through the thunderstorm cluster.  According to Vasquez, instead of fying around these two cells, Flight 447 flew through the top of the first cell and then continued on through the middle of the second.

Not surprisingly, Vasquez concludes the aircraft encountered severe turbulence that may have damaged the aircraft.  The question of why Flight 447 failed to avoid the storms (theories discussed in a previous post) remains unanswered.  Vasquez's full report can be found here.

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Are the passengers’ families entitled to compensation for their loss? From whom? Does it matter what caused the crash? Can the families sue in the United States?

Air France is Responsible Regardless of the Cause of the Accident. 

The Montreal Convention requires Air France to compensate the families as long as the crash was caused by an accident.  The Convention defines "accident" to include any unexpected event, from an encounter with severe weather, to mechanical failure, to a terrorist attack.

Air France must compensate each passenger's family:  

• For all recoverable damages suffered up to $155,000; and
• For all recoverable damages suffered in excess of $155,000, unless Air France proves it was not in any way “negligent or otherwise at fault."

In addition, Air France must advance $25,000 to cover each family’s “immediate economic needs” within 15 days of identifying who the proper claimants are. The $25,000 payment is credited against Air France’s ultimate obligation to the family.  

As a practical matter, Air France will be liable for all legally recoverable damages without regard to the $155,000 limit. That’s because to avoid liability, Air France has to prove a negative -- that it was not in any way “negligent or at fault.” Regardless of whether it is ultimately determined that the crash was caused by weather, equipment failure, or even terrorism, Air France will not be able to demonstrate that its own negligence did not somehow contribute to the accident.  There are just too many possibilities for Air France to disprove.

The Final Amount of Compensation to Which a Family is Entitled Depends upon Where the Particular Family may Sue.

U.S. law is most favorable for the families, as the laws of other countries severely limit compensation in wrongful death cases. For example, unlike the United States, many countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society."  But the Montreal Convention will permit a family to sue Air France in the U.S. only if: 

1. The United States was the passenger’s ultimate destination, or
2. The passenger’s ticket was issued in the United States, or
3. The passenger’s “principal and permanent residence” was in the United States.

The first two grounds are relatively straightforward. The passenger's travel documents will determine whether the family meets the applicable requirement. The third ground, however, might well be hotly contested in at least some of the families' cases. For example, two Flight 447 passengers were U.S. citizens from Texas who were living in Brazil. But was the U.S. their "principal and permanent" residence? That may depend upon whether they intended to return to their home in Texas and, if so, when. These details may need to be litigated.

Compensation from the Manufacturers.

If the crash was caused by a product defect – such as a problem with the Airbus' weather radar, its flight control system, or a pitot tube -- then the families would be entitled to pursue a product liability claim. Many of the Airbus' components parts are manufactured by U.S. companies.  If  a U.S. manufacturer was responsible for the defect, the families would be permitted to sue the manufacturer here, even if the Montreal Convention did not allow them to sue Air France here.  A family that successfully sues in the United States may be compensated under U.S. law rather than the more restrictive foreign laws. 

Forum Non Conveniens is an Obstacle to Suing Manufacturers in the U.S.

The doctrine of forum non conveniens allows a U.S. court to decline jurisdiction and transfer a case to a foreign country if it decides that, all things considered, the foreign court would be more convenient for all involved.  U.S. courts frequently invoke the doctrine to avoid hearing cases involving foreign aviation accidents. Flight 447 may be one case, however, that a U.S. court may well decide to hear.  After all, the U.S. would be most convenient for the manufacturers because their engineers, their engineering documents and test data are undoubtedly here. There are no eyewitnesses to the accident who would need to be inconvenienced by traveling to the U.S. from abroad to testify. Finally, unlike disasters occurring on foreign soil, it makes no sense to have the case heard near the crash site because there is nothing at the crash site for any judge or jury to see.    

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Did the Pilots Attempt to Fly Through a Thunderstorm Intentionally? That's very unlikely. Pilots avoid thunderstorms at all costs, because they know a thunderstorm can destroy any aircraft. Pilots use the aircraft’s on-board weather radar system to make sure they keep a safe distance. During the day, they can see the towering thunderstorms rising up to 50,000 feet and avoid them that way as well.

Did Lightning Destroy the Aircraft? Probably not. Lightning strikes are common. On average, each airplane is the US commercial fleet is stuck by lightning once per year. To protect against strikes, airliners are designed to route the electrical charge along the aircraft’s outer skin from one end of

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