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

Thursday's mid-air collision involving a Coast Guard C-130 and Marine Corps AH-1H Super Cobra was the second military helicopter crash that has occurred east of San Clemente Island since 2007.  

On January 26, 2007, four were killed when a Navy MH-60S Seahawk crashed just miles from the spot of Thursday's accident.

The Navy was unable to determine the cause of the 2007 crash.  As reported by the Navy Times,

[Navy] investigators were unable to conclusively determine a specific cause for the mishap, unable to find fault, finding no culpability, no sign of neglect on the part of the aircrew nor the personnel responsbile for maintaining the aircraft. 

When the Navy was unable to determine a cause, the family members hired their own aviation experts to investigate.  But, as reported by the Aviation Internation News Network,  the Navy wouldn't allow the families' experts access to the wreckage, instead requiring them to file a lawsuit so that they could conduct their own investigation.

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The families of the victims of the Zodiac crash near Oakdale, California, have filed suit against the aircraft's maker, Zenith Aircraft, alleging that the Zodiac's design is defective. The Zodiac is the two-seat aircraft whose wings tend to break off in flight due to a design-induced aerodynamic phenomenon known as flutter.  That appears to be exactly what happened in the Oakdale crash. The design has caused at least 10 deaths so far. 

According to the Modesto Bee, Zenith Aircraft is blaming the pilot and passenger for getting into the airplane it designed.

 Zenith Aircraft said the crash was caused by the "negligence" of [the pilot and his passenger]. The company said both had "full appreciation" of the risks involved.

As discussed here, months ago the NTSB called upon the FAA to ground all Zodiacs. The FAA, however, has yet to do so.  Unfortunately, the NTSB has no power to ground an aircraft on its own.  It doesn't matter how bad the design of the aircraft is; only the FAA can ground a fleet. 

The FAA refuses to act, and Zenith Aircraft won't accept responsibility for the fatal flaws in its aircraft's design.  Lawsuits brought by aviation accident lawyers like the families' lawyers in this case seem to be the only way to prevent others from being killed in the Zodiac. 

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The victim's family is seldom in the best emotional state to make important decisions right after an airplane or helicopter accident.  The stresses can be overwhelming.  Fortunately, hiring an aviation attorney is one decision that is seldom urgent.  It is a decision that, in most cases, can wait.

But how long is too long to wait?  Certainly, the attorney who the family eventually selects will want to investigate the accident, interview witnesses, collect evidence and make sure the wreckage is preserved.  He would like to begin his work while the evidence is fresh. The more time that passes, the harder it will be for the attorney  to prepare the case properly.  That said, as long as the wreckage remains secure in the custody of the NTSB, it is usually safe to wait up to 90 days after an accident before retaining an aviation lawyer.

Some families may want to wait longer than that.  In fact, some may want to wait until the NTSB has completed its work.  That's not a good idea.  In most cases, a lawyer should have investigated the case and, if warranted, filed a lawsuit well before the NTSB's issues its final report, for the reasons discussed here.  

In all cases, the victims must retain an aviation lawyer before the applicable statute of limitations runs.  It doesn't matter how good the case is -- if the applicable statute of limitations expires and no lawsuit is on file, the victim's rights will be lost forever.  Some statutes of limitation may expire as soon as 6 months after the accident.  Of course, every case is different.  Though some of the statutes of limitations are discussed here, determining which statute of limitation applies is a task best left to a qualified aviation lawyer.   

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Are written waivers of liability worth the paper they are written on?  The answer, of course, is that it depends.  In California, a waiver that a passenger signs before stepping into an aircraft is enforceable, as long as it meets certain rules.  For example:

• The waiver language must be clear and conspicuous to the person signing away his rights---not buried in fine print.
• A passenger cannot waive liability for injuries resulting from another's recklessness. 
• A waiver will not release an employer from liability to an employee for risks that are inherent in the employee's job.
• A passenger cannot waive liability for injuries resulting from an aircraft's defective design or manufacture.  

Despite the rules, a waiver can be written in such a way that it will, in most situations, prevent a passenger from obtaining compensation for injuries received in an aviation accident caused by another's negligence.  In fact, a well-written release can prevent not just the passenger who signed it from suing, but in the event of the passenger's death, his heirs as well.   But the release must be properly drafted. The language used is critical.  Many releases look "official" but simply do not pass muster.

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The families of Michael and Anne Harris, the American couple on board Air France Flight 447, filed suit this week in Houston federal court.  It's the first lawsuit arising from the crash. The most frequently asked questions about this suit are:

Question:  Aren't the families jumping the gun?  The black boxes haven't yet been recovered, and may never be.  For all we know, this may have been the result of a chance encounter with a thunderstorm.  The crash may have been an unavoidable accident with no one to blame.

Answer: The Montreal Convention is the international treaty that governs all claims against airlines involving international air travel.  Under the convention, Air France is responsible even if the the crash was "just an accident."  As a result, Air France must compensate the families for their loss regardless of what the cause of the crash turns out to be.

Question: Flight 447 was from Rio de Janeiro to Paris on a French airline.  Why should the families be allowed to sue in Houston, of all places?

Answer: The Montreal Convention allows the families to sue in the country of the passenger's "principal and permanent" residence.  The families say that, though the couple was living in Brazil, the couple maintained a permanent residence in The Woodlands, a suburb of Houston.  If that's so, the families have a good argument tha they are entitled to sue in Houston.

Question: Why did the families file suit in federal court, rather than state court?

Answer: Many aviation lawyers believe that state courts are more favorable than federal courts for family members who have suffered a loss.  So victims' attorneys often prefer to sue in state court.  However, a fairly new federal statute requires almost all cases arising from large air disasters to be heard in federal court.

More Air France Flight 447:

• Compensating the Families of Air France Flight 447
• US Court Tosses Out All Air France 447 Cases
• Weather Analysis Suggests Air France Flight 447 Penetrated Thunderstorms
• Lightning, Thunderstorms, and the Airbus

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