The US Department of Transportation fined Asiana $500,000 today for failing to live up to its obligations under the Family Assistance Act of 1996 in the days following the crash of flight 214. Instead of getting crucial information to the victims and their families, Asiana was busy publicizing its plans to sue KTVU for "disparaging" the airline by reading bogus crew names over the air.
Kristine Meredith has been appointed Chair of the American Association for Justice (AAJ) Aviation Law Section. The mission of AAJ is to promote a fair and effective justice system and to support attorneys representing those injured by the misconduct or negligence of others in cases against the most powerful interests.
The Aviation Law Section focuses on major air crash litigation. The Section offers to lawyers information on all aspects of aircraft accident investigation and reconstruction as well as how to handle aviation suits involving airlines, aircraft manufacturers, aircraft owners/operators as well as the federal government.
The last thing a victim needs just after an accident is for a crush of lawyers to show up on his doorstep, uninvited, pressuring him to sign up for a lawsuit. But that's what happens after just about every major air crash. That type of lawyer solicitation is distasteful, to say the least.
But thanks to a special law passed by Congress in 1996, it's also illegal. The law applies only to airline crashes and prohibits lawyers from contacting victims for the purposes of soliciting business for 45 days after the accident.
Unsolicited communications.— In the event of an accident involving an air carrier providing interstate or foreign air transportation and in the event of an accident involving a foreign air carrier that occurs within the United States, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident."
Every aviation lawyer knows the rule. But, unfortunately, not every aviation lawyer follows it. When lawyers cross the line, it's up to the NTSB to set them straight.
Immediately after the Asiana 214 crash, word circulated within the aviation bar that, as usual, some attorneys couldn't seem to restrain themselves and were doing whatever they could to get to the crash victims and get them to sign up for a lawsuit -- even if it meant violating the law. According to an AP article by Paul Elias and Ian Mader, one firm in question is Chicago-based Ribbeck Law Chartered, which made the news recently after it filed legal papers on behalf of 83 of the Chinese victims it claims to represent.
The National Transportation Safety Board says it has received an unspecified number of complaints. . . NTSB spokesman Keith Holloway said. . . the NTSB reported one firm, Chicago-based Ribbeck Law Chartered, to the Illinois agency that regulates attorneys for further investigation of its on line communications and in-person meetings with passengers."
According to the article, Ribbeck Law is not the only firm that has shown up at the hotel where victims were staying. The question will be whether the firms were invited or if they simply showed up.
Related Post: Attorney Solicitation
Asiana Flight 214’s crash landing and the events that followed were traumatic experiences for all aboard. Even some of those who suffered no physical injury will struggle with emotional injuries for months if not years to come.
Normally, a passenger would be entitled to compensation for all the emotional distress suffered, regardless of whether the passenger was physically injured. But under the Montreal Convention, Asiana is not liable for a passenger’s emotional distress, regardless of how severe, unless the passenger has also sustained a physical injury. Thus, those passengers who managed to evacuate without being physically injured will likely be left with no rights against Asiana at all.
What if, in addition to severe emotional distress, a passenger sustained a relatively minor injury, such as a cut on a leg or a twisted ankle? Can that passenger recover for her emotional distress then?
Most courts say no.
Jack v. Trans World Airlines, involved TWA Flight 843. The aircraft was headed to SFO from JFK, but aborted its takeoff and crashed. Fire destroyed the plane but everyone survived. Many passengers had minor physical injuries. The federal court in California ruled that passengers could recover damages for the emotional distress stemming from their physical injuries, but not the emotional distress caused by the experience of crashing.
The emotional distress recoverable is limited to the distress about the physical impact or manifestation, i.e., the bodily injury. Recovery is not allowed for the distress about the accident itself.”
This animation compares what Asiana 214's approach should have looked like to what it did look like. From the data we have, the animation appears to be fairly accurate, except the audio is not properly synchronized. (The initial transmissions are from when the aircraft was 7 miles from the runway, not several hundred feet.)
If the audio were fixed, would this animation be admissible in court?
Not in it's current state. It relies too much on guesswork. But once the data from the black boxes is available and the animation modified accordingly, it's exactly the type of thing the lawyers would want to show to a jury.
As described here, passenger claims against Asiana Airlines are limited by the Montreal Convention. But any claims the victims’ may have against a manufacturer of the aircraft or its component parts are not.
NTSB Chairman Deborah Hersman reported that evacuation slides opened inside the passenger cabin. The slides are, of course, designed to open outside the cabin. Passengers (or crew) who were injured by the slides may be entitled to compensation for those injuries from the appropriate manufacturers, if it is proven that the slides malfunctioned because of a defect rather than an error on the part of the flight crew. Those sorts of claims would be governed by U.S. product liability law, not by the Montreal Convention.
The markings on a runway are there to help the pilot aim for the proper touchdown point. Shortly before the Asiana 214 crash, SFO moved the touchdown point for runway 28L several hundred feet down the runway. SFO was thus required to remove the old markings, and paint on new ones that matched the new touchdown point. The airport was not permitted to simply paint over the old markings with black paint. It was supposed to remove the old markings entirely. According to the FAA:
Pavement markings that are no longer needed are not to be painted over but instead are to be physically removed. Removal of markings is achieved by water blasting, shot blasting, sand blasting, chemical removal, or other acceptable means that do not harm the pavement. The FAA does not endorse painting over the old marking because this practice merely preserves the old marking, which is some cases have misled pilots . . .
Look at the photo at right from the New York Post. It is clear that SFO did exactly the wrong thing – when they moved the touchdown point, they painted over the old markings instead of removing them.
Was this yet another factor that the crew of Asiana Flight 214 had to deal with?
So far, the NTSB has not mentioned the improper runway markings. We’ll see if it comes up in today’s briefing.
Because Asiana Flight 214 was international, lawsuits against the responsible airline are governed by the Montreal Convention. The Montreal Convention strictly limits where a passenger may bring suit. To bring suit against an airline in a U.S. court, the injured passenger must be a U.S. resident, the passenger’s ticket must have been issued in the US, or the trip must have had a final destination in the US. As discussed here, that means that many of the tourists who were victims of Flight 214 may not qualify to sue Asiana in the US.
The Montreal Convention also permits victims to sue the responsible airline in the country in which the airline’s principal place of business is located. In this case, that doesn’t help the victims because Asiana Airlines' principal place of business is in Korea.
But some foreign passengers may have purchased their tickets through Asiana’s code-share partner, United Airlines. The Montreal Convention allows a passenger to sue not just the “actual carrier” (Asiana), but also the “contracting” carrier (the code share partner who issued the ticket). For some passengers, the "contracting carrier" may have been United Airlines. United Airlines' place of business is in the U.S. That means that passengers who purchased a ticket from United may sue in the U.S. regardless of whether they qualify to sue Asiana here.
Other countries severely limit the compensation that may be awarded in lawsuits arising from airline accidents. For example, many other countries do not allow families to be compensated for loss of a loved one's "care, comfort, and society." Or for "pain and suffering." That's why in almost all situations the best venue for an Asiana Airlines Flight 214 victim to seek compensation will be the United States.
But any suit against the Asiana Airlines (as opposed to some other party who may have contributed to the crash) will be governed by the Montreal Convention. The Montreal Convention allows passengers or their family to sue Asiana Airlines in the United States if, and only if:
- The passenger's ticket was issued in the United States;
- The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States; or
- The United States was the passenger's "principal and permanent residence."
Unless the passenger can satisfy one of these three requirements, he cannot sue Asiana Airlines in the United States.
Asiana Airlines Flight 214 was an international flight between Seoul and San Francisco. That means the airline's obligation to compensate its passengers for their injuries is governed by an international treaty known as the Montreal Convention. Here are some of the Convention's important points, as they apply to Flight 214:
- The Airline must compensate its injured 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. This crash certainly qualifies as an "accident." The exact cause of the accident doesn't matter. The passenger does 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 any injured passenger.
- A passenger who was physically injured is entitled to compensation for his or her emotional distress as well as for the physical injuries. However, a passenger who was not physically injured is not entitled to compensation for emotional distress, no matter how severe the emotional distress may be.
- The cap on an Airlines' automatic liability under the Montreal Convention is US$170,000. Asiana Airlines may avoid liability for amounts exceeding US$170,000 only if it proves that it was not in any way "negligent or at fault." In this case, it appears that it will be impossible for Asiana to make such a showing. Therefore, there will be no artificial "cap" on Asiana Airline's obligation to compensate the passengers who were physically injured in the accident.
A pilot needs to reach the end of the runway at the right height and speed. Too slow and the aircraft could stall and crash. Too fast and the aircraft will run off the far end.
As an approach to landing progresses, the pilot watches the runway and constantly reassesses whether the aircraft is going to come up short or, instead, float too far down. The pilot needs to adjust his power settings and pitch all along the way to end up in the landing zone at the right speed and height. Things work out best if the pilot flies down a gradient of about 3 degrees. That profile allows the pilot to keep his speed and altitude in check.
So where did Asiana Flight 214 go wrong? We don't know yet but here’s what the pilot had working against him:
Surrounded by water. San Francisco airport is surrounded by water. The lack of visual cues impairs depth perception and makes it a bit tricky to tell whether the approach is going to work out properly. Not impossible by any means. Just a little tricky.
Slam dunk. Air traffic control kept the aircraft higher than normal as it neared the airport. The approach, sometimes called a “slam dunk” approach, requires the pilot to descend more steeply than he might otherwise be comfortable with. Again, just a little bit more difficult approach than normal.
ILS inoperative. In bad weather, the pilots use instruments in the cockpit to guide the aircraft down the proper glidepath. In fact, the autopilot will generally keep the aircraft on the proper descent – not too shallow, not too steep. Yesterday, the weather was nearly perfect and the aircraft had not been instructed to fly the electronic glide path. The crew was to fly by looking out the window. Nonetheless, most pilots keep the electronic glide path tuned in and engaged, just for additional help. Unfortunately, the electronic system (called an “ILS” or Instrument Landing System) was not operating at the airport yesterday. Certainly, it wasn’t needed given the weather, but it would have helped.
No PAPI lights. At the end of the runway is a series of colored lights. If the aircraft is too low, the lights turn red. Too high, and they turn white. The lights (called Precision Approach Path Indicators or "PAPIs") are an aid to flying the proper glide path when making a visual approach. Unfortunately, those lights weren’t working.
So the pilot made a slam dunk approach into an airport that can be a bit tricky. He had no ILS to help him, and no PAPI. He had one other thing working against him:
43 Hours. The co-pilot had only 43 hours of 777 time. With so little experience, it’s unlikely he would have felt comfortable telling the pilot that things just didn’t look right.
A poster on another forum notes that air traffic control kept Asiana 214 higher than the same flight from Seoul that landed the day before, requiring the aircraft to make a steeper descent to the runway. This is sometimes called a "slam dunk" approach.
The top illustration is the descent profile for the accident flight. The bottom is the profile from the Asiana flight that landed safely the day before.
In January 2008, a Boeing 777 crash landed just short of the runway at London Heathrow Airport. Ice crystals had formed in the fuel. The ice crystals restricted the fuel to the aircraft's two Rolls-Royce engines, causing a power failure just before landing.
Could the same thing have happened to Asiana Airlines Flight 214?
First, after the crash at Heathrow, the Rolls Royce engine components that had iced up were re-designed so that it could not happen again.
Second, Asiana 214's engines were not Rolls Royce Engines. Rather, they were Pratt & Whitney engines. Pratt & Whitney engines heat the fuel before passing it through the components that would otherwise be susceptible to icing up.
Finally, witnesses on board the aircraft report that the pilot increased throttle to what seemed to be full takeoff thrust just before the crash. If ice crystals had somehow restricted the fuel flow, that would not have been possible.
The picture to the right makes it clear that Asiana Flight 214 hit the berm just short of the runway 28L threshold. But why?
Sometimes, an aircraft lands short because of a mechanical problem. For example, British Airways Boeing 777 landed short at Heathrow in 2008 when ice crystals in the fuel caused the engine to lose power during its approach to landing.
But more commonly landing short is the result of pilot error. And I've listened to the tower tapes and didn't hear any indication of an emergency. (Admittedly, that doesn't necessarily rule out a problem in the cockpit.)
Here's an animation of Korean Airlines Flight 801 that landed short and crashed in 1997 in Guam. The cause was pilot error. The crew allowed the aircraft to get too low and then waited too long to add power and go around.
A flight attendant placed a cup of hot coffee on passenger Lourdes Cervantes' tray table. Then the passenger in the row ahead of her reclined. That caused the coffee to spill on Cervantes lap. Cervantes suffered second degree burns. She sued Continental.
Does she have a case?
Domestic travelers can hold the airline liable only if their injuries are caused by the airline's negligence. In other words, the airline is not responsible unless it was careless. So if Cervantes was on a domestic flight, it's hard to see how she could win.
But Cervantes was flying on a flight from Madrid, Spain, to Newark, New Jersey. Because she was traveling internationally, the Montreal Convention applies. Under the Convention, whether the airline was negligent is for the most part irrelevant. All that matters is whether the passenger was injured by an "accident."
The U.S. Supreme Court has defined “accident” to mean “an unexpected or unusual event or happening that is external to the passenger.” Does Cervantes' situation meet the definition? Yes, according to a California federal court that ruled on a nearly identical case involving hot tea rather than hot coffee:
The slide of the tea off of the tray table was unusual and unexpected. Although it may be common for an airline seat to shake when its occupant moves around, it is not common for beverages placed on the tray table behind that seat to be so jolted by the movement that they fall onto another passenger. It is the failure of the tray table to hold beverages securely despite passenger movement in the seat in front that is unexpected.
Looks like Cervantes' case is a winner.
The FAA allows Boeing to certify its own design work. That means that, at least to some extent, Boeing now regulates itself. That never seemed like such a great idea to me. After all, isn't it the FAA's job to make an independant determination that an aircraft design is safe? Does it make sense for the FAA to allow Boeing -- or any manufacturer -- to grant FAA certification to itself?
Now, the NTSB seems to agree. In discussing whether the FAA's "self-certification" policy played a role in Boeing's 787 battery problems, NTSB Chair Deborah Hersman hinted that maybe the FAA isn't doing its job:
This is an issue when you have a regulator with limited resources. . .You can delegate some of the action, but you can’t delegate responsibility.”
A regulator that allows a manufacturer to certify its own designs isn't a regulator at all.
The Jet Airliner Crash Data Evaluation Center (“JACDEC”) is an airline safety think-tank in Germany. Last week, it rated the safety records of 60 air carriers worldwide. It considered the number of crashes and fatalities each airline has experienced – regardless of cause – since 1983. Its “time-weighted” methodology placed the greatest emphasis on recent crashes.
The safest airline: Finnair. The least safe: China Airlines.
Over the past few years, most fatal crashes have been attributable to foreign airlines. Nonetheless, under JACDEC’s methodology, the US carriers didn’t fare all that well.
United Airlines was ranked 31st, American 42nd, US Airways 44th, Alaska 45th, and SkyWest was ranked one of the ten worst at 51st. Worse even than Aeroflot, the notoriously dangerous Russian airline.
American Airlines Flight 587 encountered wake turbulence. The pilot countered with rudder inputs. The rudder inputs were excessive, the tail assembly failed, and the aircraft crashed, killing 265 people.
The NTSB determined that the Airbus' rudder controls are unduly sensitive and make it easy for a pilot to overstress the aircraft's structure, causing a catastrophic failure. Now, eleven years after that crash,the FAA has issued an Airworthiness Directive against the A300 Airbus to remedy what it considers to be a problem with the aircraft’s design.
Originally, the FAA was going to require that all the A300's be modified to limit the rudder pedals' travel. The FAA felt that such a modification would make it much more difficult for a pilot to overstress the aircraft. That modification would have cost about $200,000 per aircraft. But Airbus convinced the FAA to allow a cheaper fix. So for about half of that cost, the FAA will allow the A300’s simply to be equipped with a warning light on the glareshield directly in front of each pilot and an associated "stop rudder inputs" aural warning.
A Warning is a Last Resort
Any engineer will tell you that when a hazard is discovered, the best option is to design out the hazard. If that can’t be done, then the hazard should be guarded against. If that isn’t feasible, the last resort is to warn against the hazard. That’s what’s known as the engineer’s “Safety Hierarchy.”
A Warning Is Not Always Appropriate.
Warnings work well in some situations. A warning system that alerts a pilot to low fuel is great. A warning system that alerts the pilot that some system is overheating is also useful. But warning systems that activate in emergency situations are often useless.
The problem is that under stressful situations, a pilot’s performance can degrade rapidly. The pilot is unable to comprehend a warning’s meaning in an emergency and respond appropriately. That’s what the BEA (Europe’s NTSB) concluded happened to Air France Flight 447. Confronted with an emergency, the crew could not comprehend and react to the Airbus’ aural warnings. As summed up by Paul Marks:
Despite a stall warning sounding continually, it was ignored and the pilot kept the plane's nose pointing upward - while the plane was in fact plummeting toward the ocean. All the crew needed to do was push the nose down to regain lift - but they didn't.
In the first minute after the autopilot disconnection, the failure of the attempt to understand the situation and the disruption of crew cooperation had a multiplying effect, inducing total loss of cognitive control of the situation," the BEA says.
The combination of the [Airbus] warning system ergonomics, and the conditions under which [Air France] pilots are trained and exposed to stalls during their professional and recurrent training, did not result in reasonably reliable expected behaviour patterns," the BEA adds with massive understatement.
Stress Performance Curve
Why would a trained crew essentially ignore the aircraft’s warning systems in an emergency? A little stress helps people focus, and they tend to perform better. But after a point, stress makes it difficult, if not impossible, to think. A Vietnam fighter pilot used to tell me: “The first thing that happens in an emergency is your IQ gauge goes to zero.”
The Airbus' rudder pedals can be feasibly redesigned to eliminate the hazard. That makes a warning system the wrong solution.
Today a French court of appeals reversed the conviction for criminal manslaughter against the Continental Airlines mechanic involved in the Air France Concorde crash.
That brings the criminal proceedings to a close 12 years after the airliner went down. I wrote here that the proceedings would do nothing for the families. To the extent that the families obtained any compensation at all, it was through the civil system, not the criminal trial.
What the criminal trial did do, however, is forever change the landscape for airline accident investigations, for the worse. Sure, the mechanic was ultimately acquitted. But the ordeal that the mechanic went through will not be soon forgotten by the aviation community worldwide.
The Air France Concorde ran over a strip of metal on the runway at Charles de Gaulle Airport. One of the Concorde's tires exploded. A chunk of the debris from the tire punctured the Concorde’s fuel tank. Fuel leaked from the tank, and into an engine. The ensuing fire and engine failure brought down the aircraft. 113 people were killed.
The metal strip fell onto the runway from a Continental Airlines DC-10 that had taken off minutes earlier. Had Continental's mechanic attached it properly, it wouldn’t have fallen off. Continental's maintenance practices were sloppy. No doubt about that. And the mechanic who was involved was in some fashion responsible for the crash. But not criminally. He shouldn't have been prosecuted.
Next time an airliner crashes, would anyone blame a mechanic for clamming up, instead of cooperating with the NTSB?
The Montreal Convention requires airlines to compensate international travelers who are injured as a result of an “accident.” If the passenger is killed, the Montreal Convention requires the airline to compensate the family members. But the Convention considers neither an airliner's pilots nor its flight attendants to be “passengers.” Thus, crew members' claims (or the claims of their families in the event of a fatal accident), are usually governed by by local law, not the Convention. In the US, that means that any lawsuit the crew member might bring against the airline would likely be barred by the applicable workers compensation statutes, which typically prevent any employee from suing his or her employer for work-related injuries.
Of course, crew members or their families are free to pursue claims against those other than the airline who might be responsible for an accident. Often that’s an aviation manufacturer. But unlike passengers, crew members generally cannot sue the airline.
There is one exception. A crew member may be considered a “passenger” if she was “deadheading.” That is, if the crew member was off-duty, but the airline had her on the aircraft simply to transport her from Point A to Point B, then the Convention would apply to her claims.
The Yemenia Airline flight that crashed near Moroni three years ago didn't involve an aircraft built in the U.S. The flight had no Americans on board, and no part of the flight was through U.S. airspace.
The families filed suit in California against International Lease Finance Corporation (ILFC), the Los Angeles company that had leased the accident aircraft to Yemenia Airlines. Not surprisingly, ILFC asked the court to move the case to France, arguing that the crash happened closest to French territory, many of the passengers had ties to France, and it made little sense to try the case here. This month, the court denied that request, meaning that the suit can proceed in the United States.
Of course, the families would prefer the suit to stay in the U.S. As discussed here, they have a better chance of obtaining meaningful compensation for their loss here than elsewhere.
The families sued on the theory of "negligent entrustment." In short, they alleged that ILFC should never have leased the accident aircraft to Yemenia Airlines because it knew that Yemenia Air was not competent to operate it safely. Given that Yemenia Airlines had been banned from operating in European Union airspace due to various safety violations, those charges seem solid.
ILFC's request to boot the case from the U.S. courts was a big hurdle for the families. In similar cases, courts have dismissed the families' lawsuits. Here, though, the court ruled that it wouldn't be fair to make the families sue the U.S. company in France because, if they won, it isn't clear how they would enforce a French judgment against the U.S. company.
Domestic travelers can hold the airline liable only if their injuries are caused by the airline’s negligence. But if the passenger is traveling internationally, then treaties called the Montreal and Warsaw Conventions apply. Under the Conventions, whether the airline was negligent is for the most part irrelevant. An airline is responsible only if the passenger’s injury was caused by an “accident.” So, for an international traveler, the key question is what, exactly, qualifies as an “accident.”
The U.S. Supreme Court has defined “accident” to mean “an unexpected or unusual event or happening that is external to the passenger.” Certainly, an aircraft running off the end of the runway would qualify as an accident. But there are plenty of injury-producing events which present more difficult questions.
Here’s what the courts have said:
- Accident: A passenger is injured when a fellow passenger opens an overhead bin and liquor bottles fall out.
- Not an Accident: A passenger slips and falls on plastic bag left in aisle (reasoning: after long flight, it would not be “unusual” to encounter trash in the aisle).
- Accident: A passenger burned by tea when tea spilled from tray table because the passenger seated directly in front of the injured passenger caused a “jolt” that upset the tray table.
- Not an Accident: A passenger falls while trying to walk up a broken escalator.
- Accident: A passenger seated near the smoking section asks to be moved, the flight attendant refuses, the passenger has an asthma attack and dies.
- Not an Accident: A passenger dies from an airline-induced blood clot.
- Not an Accident: One passenger falls on and breaks the arm of another passenger (reasoning: the passenger decision to try to climb over his fellow passenger not related to the aircraft’s operation.)
More at Chris Cotter’s excellent article: Recent Case Law Addressing Three Contentious Issues in the Montreal Convention.
The NTSB is underfunded and understaffed. So it investigates accidents using the "party system." That means the NTSB relies on those who may have caused the accident for help in investigating the accident's cause. Unfortunately, the "party participants" seldom point the NTSB towards evidence in their files that would tend to incriminate them. As a result, NTSB reports go easy on the industry players.
From time to time, I've offered examples of cases (like the ones here and here) where the real cause of the accident was found by plaintiffs lawyers -- sometimes well after the NTSB report is published.
Here’s yet another example, this time arising out of the crash of the Continental (Colgan) Flight 3407. According to a recent CBS News report, lawyers for the families uncovered emails showing that Colgan Air knew the captain was not qualified to fly the Q400, but put him in the left seat anyway.
According to an ABC report, in one of the emails a Colgan Vice President states that the captain
had a problem upgrading” and, taking that into consideration, “anyone that does not meet the [minimums] and had problems in training before is not ready to tackle the Q.”
The “Q” is a reference to the Bombardier Q400. Despite Colgan's concerns about the captain's ability to fly the Q400, they promoted him anyway. Just five months after that, the new Q pilot crashed his aircraft in Buffalo, killing 50.
This wasn't merely a case of "pilot error," it was the result of an airline that didn't take safety seriously enough. The newly released emails are critical to understanding why the accident happened, and how similar accidents can be avoided in the future. Yet, an NTSB spokesman confirmed that Continental did not provide these emails to the NTSB at any time during its year long investigation of the crash.
It looks like the company's emails tell the story of why Continental Flight 3407 crashed. And it was the plaintiffs' lawyers, not the NTSB, who found them.
The air in an airliner's cabin has been compressed by the aircraft's engines. Most of the time, the air is safe to breathe. But if a leaky seal in the engine allows the air to first mix with heated engine oil, the cabin air can be contaminated with toxic fumes.
When a cabin fills with toxic chemicals from an engine's bleed air, it's a "fume event." For years, Boeing denied that fume events occurred at all. Then, it conceded fume events happened, but denied that they were dangerous.
Terry Williams was an American Airlines flight attendant. She says the chemicals she breathed during a fume event in 2007 caused her debilitating tremors, memory loss, and headaches. When Boeing denied that a fume event could be responsible for William's illness, Seattle aviation attorney Alisa Brodkowitz filed suit on Williams behalf.
What Brodkowitz uncovered created an uproar. As it turns out, Boeing has known about the risks since the 1950's. But instead of fixing the problem, Boeing just covered it up.
According to Brodkowitz, Boeing has made no attempt to keep the flying public safe from fumes.
To this day, the only thing filtering this toxic soup out of the cabin are the lungs of the passengers and crew.
This week Boeing settled Williams' lawsuit. But it still denies any liability. Alhough Boeing insists it is safe to breathe the cabin air in its aircraft, it nonetheless designed its new 787 Dreamliner so that the cabin is pressurized without using a bleed air system.
If the baggage falls and injures a passenger who is travelling internationally, then the Montreal Convention or Warsaw Conventions apply. The conventions are international treaties that make the airlines automatically liable for any injury to the passenger that resulted from an "accident." An "accident" is defined as an unusual or unexpected event that is external to the passenger. Under certain circumstances, being injured by falling baggage may well qualify.
The conventions apply even if the flight was entirely domestic, as long as the passenger had an international destination somewhere on his itinerary.
What if the flight on which the injury occurred was domestic and there was no international travel involved? Then it's trickier. The passenger must prove that the airline was negligent before the airline can be held liable. For example, the passenger must prove that a flight attendant was careless in opening a baggage compartment and allowing the object to fall out. Or, the passenger must prove that the bag fell out when a fellow passenger opened the compartment because a flight attendant stowed the bag improperly.
In many countries, criminal prosecution of those involved in aviation accidents is the rule, not the exception. For example, the French courts began a criminal investigation almost immediately after the crash of Air France Flight 447. The Indonesian legal system convicted a Garuda Airlines 737 pilot of negligence and sentenced him to two years in prison following a 2007 crash in Jakarta. And a French court convicted a US mechanic of involuntary manslaughter for causing the July 2000 crash of the Air France Concorde. The mechanic got 15 months.
This week a Brazilian court convicted two American pilots of negligence for their role in the midair collision involving a Embraer Legacy and a Gol Airlines 737 over the jungles of Brazil in 2006. That court handed each pilot a four year suspended jail sentence.
Why are foreign courts so quick to turn aviation accidents into criminal cases?
Simple. The US legal system focuses on requiring those responsible for a crash to compensate their victims. When that happens, victims feel that, to some extent, justice has been served. The legal systems of many other countries, however, do not really concern themselves with compensating victims. Thus, to make things right, someone must be punished criminally and handed a jail sentence. Even if it was “just an accident.”
Either system may serve the interests of "justice." But the US system better serves the interests of safety. By taking the profit out of carelessness, it gives the airlines a monetary incentive to be safe. The systems of other countries, however, actually impede the interests of safety. That's because criminal prosecutions cause those involved in aviation accident investigations to "clam up" for fear of ending up in jail. That makes it only more difficult to determine the cause of an aviation accident and, most importantly, to bring about the changes necessary to prevent similar accidents from happening again in the future.
A McDonnell Douglas MD-82 crashed in August 2008 while taking off from Barajas Airport in Madrid. 154 on board were killed and 18 were injured. The injured passengers and the families of those killed filed lawsuits in the US against Boeing, which merged with McDonnell Douglas in 1997, claiming that the aircraft was defective.
Here’s what the plaintiffs say happened:
- The airplane crashed because its flaps and slats were not extended as required for takeoff.
- The pilot was not alerted that the flaps and slats were in the wrong position because the “Take-Off Warning System” (or TOWS) failed to operate.
- The TOWS failed to operate because mechanics, to deal with another problem, had disconnected an electrical relay which, in turn, deprived the TOWS of power.
How would any of this make the manufacturer liable?
Because, according to plaintiffs, the manufacturer should have wired the TOWS to be “fail-safe” so that, if power to the system was disrupted, it still warned the pilot:
Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD–82 on takeoff from Detroit Metropolitan Airport in 1987. . . According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff . . . Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a “fail” light in the event of a circuit power loss, but Defendants did not adopt that recommendation . . . Plaintiffs contend that TOWS failures now account for 49 accidents. . . On the basis of these allegations, Plaintiffs contend that “[t]his case is about a design defect that remains uncorrected despite Defendants' knowledge of it for over 20 years.”
But even assuming plaintiffs made out a viable case against the manufacturer, there was still the question of whether the cases should be tried in the US or, under the doctrine of forum non conveniens, dismissed and sent to Spain, where the accident occurred.
In the end, the California federal court dismissed the cases, just as in the Air France Flight 447 litigation.
In dismissing the cases, the court decided that, in essence, it would be more convenient for all parties if the suits were brought in Spain. Two parts of its ruling were interesting. First, the court considered and rejected plaintiffs' argument that it would be a great economic burden for them to bring the suits in Spain because in Spain, contingency fee agreements aren't allowed.
if the unavailability of contingency fee arrangements weighed against dismissal, it would likely weigh against dismissal in every case. This factor therefore does not deserve “substantial weight” in the balancing . . . Further, Plaintiffs have argued only that they will face “serious financial impediments.” Notably, they have not argued, or pointed to any evidence, that these financial impediments will be prohibitive.
In other words, it might be very difficult for the plaintiffs, many of whom had lost their bread winners, to pay hourly rates for attorneys to bring the cases in Spain. But it wasn’t impossible.
Second, the court ruled that it would be cheaper for the plaintiffs to obtain witness testimony if the cases were in Spain rather than the US.
Damages testimony--from family, friends, and doctors--will be necessary for each of the 100 victims. All plaintiffs and the decedents they represent are from outside of the United States. The cost of travel for these witnesses alone is extremely high. Because almost all of the decedents come from Spain, the costs associated with obtaining testimony from those witnesses in that country would be far lower.
Never mind that plaintitffs, in chosing to bring the cases in the US, were obviously willing to bear those costs. Sure, they knew it might be cheaper to bring the witnesses to court in Spain. But it wouldn't matter much because in Spain the cases would be next to worthless.
The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)
The FAA estimates that complying with the rule over the next 10 years will cost the charter industry $12 million. But it also expects that the new rule will result in fewer accidents, saving 20 lives over the same period.
Is it worth it? According to the FAA, yes. Government bean counters figure that the value of a human life is $6 million. So the “savings” to society over the 10 year period is $120 million – ten times the rule’s expected costs.
The government analysis is here.
I often write about the NTSB's "party system." That's the NTSB's practice of asking airlines and manufacturers for help in determining an accident's cause. If you ask me, it's a bit like asking the fox for help in figuring out what happened to the chickens. The party system allows industry participants to bias NTSB probable cause findings in their favor.
The NTSB allows party participants to handle evidence and perform certain engineering tests. But one thing the NTSB insists on doing all by itself is downloading the data from an aircraft's black boxes. The NTSB's labs in Washington DC are well equipped for that job, and it doesn't require any "help" from the airlines.
The Safety Board learned that the recorders were flown to Tulsa, Okla., where American Airlines technicians downloaded information from the DFDR. . .
Because maintaining and enforcing strict investigative protocols and procedures is vital to the integrity of our investigative processes, we have revoked the party status of American Airlines and excused them from further participation in this incident investigation.
In 1996, a ValuJet MD-80 went down in the Florida Everglades, killing all 110 on board. The cause of the crash was ultimately traced to oxygen generators, which had been removed from service and improperly secured and loaded into the plane's cargo hold.
The FBI became involved early on. Various players were charged with, among other things, criminal conspiracy to falsify records and violations of regulations concerning hazardous materials.
That turned out to be a bad idea. As soon as the FBI came on scene, witnesses clammed up. Many refused to talk unless granted immunity from prosecution. The NTSB’s work came, to some extent, to a standstill.
The lesson learned from the ValuJet crash was that, after an accident, determining the cause of the crash so that others can be prevented should be paramount. Meeting that objective requires a free flow of information. Except in the most egregious cases, aviation accidents should not be the subject of criminal proceedings.
On Monday, a French court convicted a US mechanic of involuntary manslaughter in connection with the July 2000 crash of the Air France Concorde. The details of the charges against the mechanic are here. Regardless of whether it sticks on appeal, the guilty verdict will negatively impact aviation safety for years to come.
The verdict will result in no additional compensation for the Concorde families. Nor will it bring about any additional improvements in industry maintenance practices. As discussed here, those improvements happened long ago as a result of the civil lawsuits. All that the guilty verdict will do is cause those involved in future aviation accident investigations to assert their 5th amendment right to keep mum for fear of criminal prosecution. That will make it only more difficult to determine the cause of an aviation accident, and to bring about the changes necessary to prevent similar accidents from happening again.
Most of the families of the 228 passengers who were aboard Flight 447 filed suit in the United States. The reason they chose to file suit in the United States was simple. The courts of other countries provide little compensation to those who have lost loved ones due to the negligence of another. And resolving cases in other countries can take seemingly forever. For example, as discussed here, the July 2000 crash of the Air France Concorde is still wending its way through the French court system. That’s despite the fact that the families who sued in the US settled their cases years ago. It may be surprising to many, but the US court system moves much faster than those of many other countries.
The Air France Flight 447 cases were all pending before a federal judge sitting in San Francisco. Earlier this week, the judge reluctantly dismissed all the cases, ruling that they should be brought in France instead of the US.
The judge noted at the outset that dismissing the cases will mean that they will likely be refiled in France where they will languish. It is thus doubtful that the families will ever be fairly compensated. But given the law of forum non conveniens, he couldn’t justify keeping the cases in the US:
The Court has great sympathy for all the families who lost loved ones in this horrific accident and is interested in seeing those families fairly and timely compensated. But sympathy cannot substitute for an unbiased application of the law.
The judge noted that many manufacturers of the aircraft’s various components are located in the United States. That means the United States does indeed have a legitimate interest in the litigation. After all,
The United States [has] an interest in deterring the manufacture of defective products by domestic corporations.
But the judge decided that interest was outweighed by other factors. For example, a criminal investigation into the cause of the crash is currently taking place in France. French civil courts can get access to the evidence that is gathered in that investigation. But US courts cannot. That, according to the judge, makes it more appropriate for the cases to be heard in France.
Unfortunately, as discussed here, nothing ever seems to come of those criminal investigations in France. And it’s unlikely that, in France, the victims will ever receive fair compensation for their loss. In fact, any compensation at all from the manufacturers is now a long, long way off.
The judge's 20 page opinion can be found here.
In May, passengers aboard United Flight 935 from London to Los Angeles were injured when the aircraft encountered severe turbulence. This time, it was the passengers aboard United Flight 967 from Dulles to Los Angeles. 26 passengers and 4 crew members were reportedly treated when the flight diverted to Denver so that the injured could get medical attention.
What is United Airline's obligation to compensate the injured? The answer varies.
Passengers who were traveling on United Flight 967 as part of an international flight:
If a passenger originated outside the US, or was ticketed to continue on from LA to a foreign destination, the Montreal Convention applies to that particular passenger’s claim. The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident." The definition of "accident" includes an encounter with severe turbulence. The passenger need not prove that the airline was at fault for the accident. Under the Convention, the airline is automatically liable.
As discussed here, the Convention also entitles the passengers to be compensated for the emotional distress they have suffered, but only if they suffered some sort of physical injury as well.
Passengers who were traveling domestically:
To obtain compensation for his injuries, the domestic passenger needs to prove that his injuries were due to the airline's negligence. For example, the domestic passengers might need to prove that the flight crew could have reasonably avoided the turbulence but chose to fly too close to a storm.
Provided that the domestic passenger can prove the airline was negligent, the law allows the passenger to be compensated for emotional distress suffered even in the absence of physical injury.
The injured cabin crew cannot sue their employer due to workers compensation laws. They may be able to proceed against others responsible for the encounter, such as the weather reporting agency used by the airline. In appropriate circumstances, the crew members can also sue the United States government if Air Traffic Control should have advised the flight of the upcoming turbulence.
At least 10 people aboard United Flight 935 were hurt when the aircraft encountered severe turbulence. Is the airline responsible for compensating its injured passengers?
Because Flight 935 was an international flight, a treaty known as the Montreal Convention governs the passengers' claims. The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident." The definition of "accident" includes an encounter with severe turbulence. The passenger need not prove that the airline was at fault for the accident. Under the Convention, the airline is automatically liable.
Some courts have ruled that while an airline is automatically liable for any "accident" on an international flight, its obligation to compensate an injured passenger may be reduced if the passenger himself contributed to his injury. One issue that typically arises in turbulence cases is whether the injured passenger should have been wearing his seat belt. In this case, it appears the seat belt sign was off and the turbulence competely unexpected, so that should not be an issue.
As discussed here, the Convention entitles the passengers to be compensated for the emotional distress they have suffered, but only if they also suffered some sort of physical injury as well.
Finally, as discussed here, the passengers are entitled to sue the airline for compensation in the United States, and in particular in California (Los Angeles or San Francisco), regardless of their citizenship or final destination.
Ten years ago, an Air France Concorde SST departing from Charles de Gaulle Airport ran over a strip of metal on the runway. One of the Concorde's tires exploded. A chunk of the debris from the tire punctured the Concorde’s fuel tank. Fuel leaked from the tank, and into an engine. The ensuing fire and engine failure brought down the aircraft. 113 people were killed.
The Crash Was Avoidable
The metal strip fell onto the runway from a Continental Airlines DC-10. Had Continental's mechanics attached it properly, it wouldn’t have fallen off. Continental's maintenance practices were sloppy.
It is not unusual for airplane tires to rupture during takeoff for one reason or another. On most airliners, tire blow-outs pose no serious safety threat. That's not the case with the Concorde. Unlike other aircraft, the Concorde's fuel tanks are positioned directly over the tires. The tanks are therefore at risk of being ruptured if a tire explodes. Furthermore, the aircraft's engines are positioned so that any fuel from a rupture could easily start a fire. That makes the Concorde design suspect.
This wasn’t the first time a blown tire ruptured a Concorde's fuel tank. In fact, there was a string of previous incidents. So the potential for disaster was obvious. Nonetheless, Air France, as well as the Concorde's manufacturer, chose to simply ignore the problem and hope for the best.
It was a bad decision.
The Criminal Trial
A criminal trial began in France in February. Yesterday, French prosecutors asked that Henri Perrier, the engineer who most refer to as the “father” of the Concorde, be sentenced to jail, but that the sentence be suspended. (Perrier is third from left in this 1969 photo.) Prosecutors asked for the same for the two Continental Airlines mechanics whose sloppy maintenance allowed the metal strip to end up on the runway.
Some suggest the trial is a colossal waste of time and effort. What, after all, is the point? How will the trial enhance aviation safety? Certainly, it won't help the families at all, will it?
No, it will not. In fact, such criminal prosecutions actually impede safety. If the mechanics and engineers who are involved in an aircraft accident investigation need to be concernedContinue Reading...
Counting today's Air India crash, the last 11 airline accidents resulting in passenger fatalities have all involved foreign airlines (fatalities in parenthesis):
- May 22 – Air India Express Flight 812 at Mangalore International Airport (158)
- May 17 – Pamir Airways Flight 112, Afghanistan (43)
- May 12 – Afriqiyah Airways Flight 771 at Tripoli International Airport (103)
- January 25 – Ethiopian Airlines Flight 409, Mediterranean Sea (90)
- November 12 – RwandAir Flight 205 at Kigali International Airport (1)
- August 4 – Bangkok Airways Flight 266, Ko Samui, Thailand (1)
- July 24 – Aria Air Flight 1525, Mashhad, Iran (17)
- July 15 – Caspian Airlines Flight 7908, Qazin, Iran (168)
- June 30 – Yemenia Flight 626, Indian Ocean (152)
- June 1 – Air France Flight 447, Atlantic Ocean (228)
- February 25 – Turkish Airlines Flight 1951, Amsterdam (9)
A cabin suddenly fills with fumes. Passengers get ill. The fumes eventually clear. But for some, the symptoms persist long after the flight is over. Others will first develop symptoms weeks or months later, and may not even relate their symptoms to their flight. These passengers are all the victims of what has become known as a "fume event."
Here's what happens: Airlines pump air into the cabin. The air is a mix of fresh air and air that has been compressed by the aircraft's engines--known as "bleed air." But when the air distribution system malfunctions, toxic chemicals found in the aircraft's engine oil can be heated and pumped through the airplane, creating a fume event. According to the Wall Street Journal:
Airline companies and jet manufacturers say that fume events are rare, and that when they do occur, air quality still exceeds safety standards. But unions representing pilots and flight attendants say the chemicals entering the aircraft cabin can endanger the health of flight crews and passengers.
For years, the airlines denied that fume events occurred at all Then, the airlines admitted the events occurred, but denied that they were dangerous. But fume events appear to be happening with more and more frequency, and the airlines seem to be more willing to admit that there is a danger to the flying public. Regardless, in March the US Senate approved a measure that would require the FAA to study cabin air quality generally and fume events in particular.
The increased focus on fume events is for the most part due to injuries that American Airlines flight attendant Terry Williams suffered in April 2007. She recently filed a lawsuit against Boeing, the manufacturer of the aircraft on which she was flying. Williams is represented by Alisa Brodkowitz, a prominent aviation lawyer in Seattle, who is perhaps the nation's leading expert on fume events.
What about the passengers of American Airlines Flight 49, who were involved in a fume event today while travelling from Paris to Dallas-Forth Worth?
Because the flight was international, the Montreal Convention applies. The Convention requires the airlines to offer fair compensation to anyone injured as a result of an "accident." An accident is an "unexpected or unusual event or happening" on board the aircraft that is "external to the passenger." A fume event would likely qualify (though some airlines contend that fume events are "normal".)
The flight attendants will have a tougher go of obtaining compensation for any long lasting injuries they might have suffered. They can't sue the airlines due to workers' compensation laws. That means their only claim is a product defect claim against Boeing, the aircraft's manufacturer.
Other countries severely limit compensation that may be awarded in wrongful death lawsuits arising from airline accidents. For example, many other countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society." As a result, in almost all situations, the best venue for a family's lawsuit against an airline is the United States.
If the airline passenger's trip included an international stop, then the proper venue for any lawsuit against the airline is controlled entirely by international treaties known as the Warsaw and Montreal Conventions. The Warsaw Convention permits the passenger (or the passenger's family) to sue the airline in the United States, even though the accident happened on foreign soil, if and only if:
- The passenger's ticket was issued in the United States;
- The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States;
- The airline is incorporated in the United States; or
- The airline's principal place of business is in the United States.
The Montreal Convention has replaced the Warsaw Convention in most situations. The Montreal Convention adds to the list what has been called a "fifth jurisdiction." Regardless of where the accident occurred, or where the passenger began or ended his trip, the international traveler or his family may sue the foreign airline in the United States if the United States was the passenger's "principal and permanent residence." For this fifth option to be available, however, the airline must maintain some sort of presence in the United States.
Icing or pilot error?
Last April, the NTSB released the data from Flight 3407's FDR. I blogged about that here. Despite wide spread speculation that icing brought down the aircraft, it looked to me like pilot error -- not weather -- was to blame.
Then, in May, the NTSB released an animation derived from the aircraft's flight data recorder, its cockpit voice recorder, and ATC transcripts. I blogged about that here. The animation, like the raw data from the FDR, made a strong case for pilot error. From the animation, it appeared to me that an inattentive pilot allowed the aircraft to get slower and slower, until it became dangerously close to the speed at which the aircraft would stop flying altogether and simply fall from the sky. Then, when the critical moment came, the pilot pulled back on the control yoke instead of pushing it forward, thereby inducing an aerodynamic stall.
The NTSB made public its official probable cause finding at a hearing yesterday. No surprises to anyone who has studied the data. According to an article in today's Buffalo News, the NTSB summed it up as follows:
The plane got so slow that the "stick shaker" — a device that helps to prevent stalls — activated. But Renslow [the pilot] mistakenly pulled back on the plane's controls at that point, which is exactly the opposite of what he should have done.
In total, Renslow pulled back on the controls three times in response to the stick shaker and "stick pusher," forcing the nose upward. That caused and then exacerbated the stall.
It's almost unimaginable that a professional pilot would make the series of mistakes that the pilot did in this case. Even a new student pilot would know better. But that's what he did.
The NTSB played its animation for those who attended the hearing. The animation shows the pilot's errors mount. The activation of the "stick shaker" is depicted 2 minutes and 8 seconds into the animation. The shaking control yoke was a final warning to the pilot that he must immediately push the yoke forward. But instead of pushing forward, the pilot pulled back. Three times. After the third time, the aircraft stalled and crashed.
There were countless points at which this aircraft could have been saved but, inexplicably, the pilot failed to take appropriate action.
I blogged about Scene Systems' animation of Flight 1549's landing in the Hudson here back in March. Great effort, but I noted that it would take hundreds more hours of work before it could be used in court. That's because it did not appear that the animation accounted for and synchronized all the available data for the flight. For example, the flight path depicted in the animation could not have been true to the information from the flight data recorder, because the flight data recorder had not yet been downloaded and made available by the NTSB. As a result, Scene System's finished product involved too much guesswork to ever be shown to a jury.
Just for fun, Kas Osterbuhr of Exosphere3d in Denver has been working on perfecting an animation ever since. He emailed me the link late last night. Kas, whose firm creates animations for use in court, explained to me that his animation is pretty much technically perfect.
Among the datasets utilized are: audio transcripts and recordings, digital flight data recorder, raw radar data, NEXRAD weather, witness statements, satellite imagery, elevation maps and several of the NTSB reports published in the docket. . .All aspects of this animation are based on actual data, whether from the NTSB docket or otherwise. The entire 3D reconstruction is built into a single environment where every piece of information can be aligned in position and on a timeline.
Tons of work went into this animation and it shows. Aviation accident animations don't get any better than this.
One question, Kas. The animation depicts flames coming from the aircraft's engines at certain times. On what data is this based and what would happen if the judge ultimately determined that that evidence for this aspect of the animation is insufficient to allow it to be shown to a jury?
November 9 Update: Kas' response is in the comments.
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:
Aviation manufacturers have long argued that victims should not be permitted to sue for aircraft design defects because, before any manufacturer's aircraft leaves the ground, its design has to be approved and certified by the FAA. If the aircraft's design is good enough for the FAA's engineers, they argue, it should be good enough for the court system. Judges and juries should not be permitted to second guess the FAA.
Aviation attorneys representing victims of air crashes take a different position. They argue that the FAA "approval" process is not really an independent safety review of an aircraft's design at all. Rather, the FAA certifies aircraft based largely on the say-so of engineers who, though designated by the FAA, are in fact employees of the manufacturer seeking the certification. The issue of whether an aircraft's design is defective is thus appropriately left to the judgment of an independent jury. In short, the fact that the FAA certified a design doesn't really mean all that much.
Now FAA certification of an aircraft's design will mean even less -- at least with regard to Boeing aircraft. That's because the the FAA will drop out of the certification process completely for certain Boeing products. Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping -- Boeing employees will do that too. According to the Seattle Times,
The new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification.
The Yemenia Air flight that crashed near Moroni wasn’t built in the United States. It had no Americans on board, and no part of the flight was through U.S. airspace. The aircraft, however, was leased to Yemenia Air by a Los Angeles company, International Lease Finance Corporation, or “ILFC.” Could the Yemenia Air families successfully bring a lawsuit against ILFC in the U.S.? Perhaps, but only if they could prove all of the following:
1. That Yemenia Air Was Not Competent to Operate the Aircraft. The European Union banned the accident aircraft from entering EU airspace in 2007 after inspecting the aircraft and finding a long list of technical discrepancies. The EU is now considering banning the airline from operating any of its aircraft in EU airspace. The reason? The airline does not seem capable of operating safely. Apparently, Yemenia lacks the technical expertise, the resources, or the inspectors to make sure minimum safety standards are met. From what we know about Yemenia Air thus far, the families should have little difficulty proving that the airline was not competent to safely operate ILFC’s aircraft.
2. That ILFC Knew the Airline Was Not Competent. A lessor can be held accountable to those injured by a lessee airline’s incompetence if, when it entrusted the aircraft to the lessee airline, the lessor knew the airline was not competent to operate the aircraft safely. The legal theory is called “negligent entrustment.” Yemenia Air has a terrible reputation and the families would have a good chance of proving that the leasing company knew it. Red flags certainly would have been raised for ILFC at least by 2007, when it learned that the EU had banned its aircraft from EU airspace.
3. That the Federal Law Immunizing Lessors from Liability for the Negligence of their Lessees Does Not Apply. A federal statute, USC section 44112, states that one who leases an aircraft is not liable when the lessor has an accident. But that statute was designed to protect the lessor from “automatic” liability that might arise in some states simply because the leasing company owns the aircraft. It doesn’t protect a lessor from liability for its own wrongful conduct when, for example, it knowingly entrusts an aircraft to an airline that can’t operate it safely.
4. That it is More “Convenient” for ILFC to Litigate in the US Than in Yemen. The legal doctrine of forum non conveniens allows a US court to transfer a case to a foreign country if it believes that, all things considered, it would be more convenient for the parties. And a court in California did exactly that in the Flash Air case, which involved ILFC and a 2004 crash off the coast of Egypt. In the Flash Air case, the court transferred the case overseas because, among other reasons, it decided that the best evidence concerning the cause of the crash was overseas, and that evidence would be difficult to bring here. That's the same situation in this case. So overcoming ILFC’s “forum non conveniens” argument would be the families’ biggest challenge. There is, however, one significant difference between this case and the Flash Air case. This case would be all about ILFC’s “negligent entrustment” of the aircraft. So in this case, the most important evidence concerns what ILFC knew about the airline's level of competence. That evidence is most likely here, not overseas.
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.
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.
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:
- The United States was the passenger’s ultimate destination, or
- The passenger’s ticket was issued in the United States, or
- 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.
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
I blogged here on whether it was icing that caused the crash of Flight 3407, or whether the pilot simply pulled back on the yoke when he should have pushed forward. The NTSB's animation, using data gathered from the aircraft's black boxes, makes a strong case for the latter.
The video is 2 minutes 39 seconds long. Watch the airspeed drop dangerously low by 2:04 and the stick shaker activate at 2:07. The pilot should have immediately pushed the yoke forward, which would have pointed the nose down and allowed the aircraft to regain airspeed. Instead, he pulls the yoke back.
The Washington Times recently reported that British Airways passengers may proceed with their lawsuit for compensation for lost baggage. British Airways loses 23 bags per 1,000 passengers carried, a rate more than 60 percent higher than the industry's average, according to the Air Transport Users Council.
The Warsaw Convention limits to $9.07 per pound what a passenger can recover against an airline for lost luggage, up to a maximum of $1500 per bag. The frustrated passengers' class action lawsuit (pdf) seeks to recover the full value of items lost, even if it exceeds the Warsaw Convention's monetary limit, because British Airways prematurely auctions personal items that inspectors remove from baggage-- such as iPods, digital cameras, computer laptops, and mobile phones-- instead of giving the passengers a reasonable chance to reclaim them. The passengers say that the airline auctions off items which have only been 'missing' for a few weeks.
British Airways says the suit overreaches. Nonetheless, federal judge Nicholas G. Garaufis has permitted the lawsuit to continue (pdf). The passengers may have found an ally in Judge Garaufis. But proving willful misconduct -- required before the passengers can bust the Warsaw limits -- will be difficult. My prediction: the passengers' lawsuit, like their baggage, will ultimately be lost.
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 getsContinue Reading...
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.
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.
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.
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.
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.
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.