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

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.

Cabin Crew:

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.
 

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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. 

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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 concerned

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Counting today's Air India crash, the last 11 airline accidents resulting in passenger fatalities have all involved foreign airlines (fatalities in parenthesis):

2010:

• 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)

2009:

• 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)

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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 US Airways 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.

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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 the lawsuit 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 in the United States, even though the accident happened on foreign soil, if and only if:

1. The passenger's ticket was issued in the United States;
2. 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; 
3. The airline is incorporated in the United States; or
4. 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.     

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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.  

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American Airlines Flight 331 was an international flight between Miami and Kingston, Jamaica.  Because the flight was international, 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 331:

• 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.  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. 
• American Airlines may avoid liability for amounts exceeding US$155,000 only if it proves that it was not in any way "negligent or at fault."  Experienced aviation lawyers know, however, that in a case like this, that will be impossible for the airline to prove.  Therefore, there will be no  artificial "cap" on American Airline's obligation to compensate the passengers who were physically injured in the accident. 
• To obtain fair compensation, the injured passenger may sue the airline in the United States, regardless of the passenger's citizenship.

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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.

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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 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.

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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. 

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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.
 

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

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

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

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

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

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

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

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

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

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

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

Air France must compensate each passenger's family:  

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

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

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

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

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

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

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

Compensation from the Manufacturers.

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

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

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

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

Did Lightning Destroy the Aircraft? Probably not. Lightning strikes are common. On average, each airplane is the US commercial fleet is stuck by lightning once per year. To protect against strikes, airliners are designed to route the electrical charge along the aircraft’s outer skin from one end of the aircraft, where the charge usually originates, to the other, where it leaves the aircraft harmlessly. Because the aluminum aircraft skin is a good conductor, it is fairly easy for engineers to make sure the path from one end of the aircraft to the other is unbroken, thus assuring that the aircraft will not be harmed.

The Airbus makes extensive use of composite (non-metallic) materials. This makes lightning protection more of an engineering challenge. Engineers have to take extra steps to make sure the conductive path is unbroken by, for example, embedding the composite parts with metallic mesh.  The mesh maintains a conductive path along the aircraft's exterior.

If there is a discontinuity in the conductive path, the lightning can cause a “burn-through” of the aircraft structure, which can be catastrophic. In addition, sparks can ignite fuel tanks. However, the last time an aircraft was brought down by a lightning strike was 40 years ago. So while lightning can theoretically cause catastrophic structural damage, it is unlikely.

Did Lightning Have Anything at all to do With the Loss of the Aircraft?  It is possible that non-structural damage from a lightning strike could have contributed to the loss of the aircraft.
 

Weather Radar Antenna. A lightning strike could easily have damaged the aircraft’s weather radar antenna, located in the aircraft’s nosecone. Manufacturers contend that the antenna cannot be completely protected from lightning if it is to function properly. If the antenna is struck by lightning, it could render the radar inoperative. In the dark of night, this could make it difficult for the pilots to avoid flying into a thunderstorm, resulting in the loss of the aircraft.

Electrical System. The Airbus’ "fly-by-wire" flight controls are heavily dependent on the aircraft's electrical system. A lightning strike can disrupt the aircraft electronics. Without assistance from the aircraft’s electrical system, an Airbus can be difficult to control – sort of like trying to drive a car without the power steering. While Airbus pilots are prepared to fly without a fully functioning electrical system, in areas of severe or extreme turbulence, it may be impossible to keep the aircraft upright.  Losing control of the aircraft for even a short time can overstress the structure and cause the aircraft to break apart.

Does the Fact that there was No Distress Call Mean Whatever Happened Was Sudden? No. When faced with an emergency, pilots are on their own. There is nothing someone sitting in a cushy chair 1000 miles away can do to help. Communicating his predicament is far down the list of a pilot's priorities, except in TV movies.

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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.

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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. 

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

But as the investigation progressed, it began to look as though, just before the pilot lost control of the aircraft, the nose of the plane pitched up  -- not down as usually happens when ice overwhelms an aircraft.  That raised an almost unthinkable possibility:  gross pilot error.  When an aircraft gets too slow and is about to stall (that is, quit flying), the pilot is supposed to push forward on the yoke and pitch the nose down, not pull back.  If the pilot pulls back, the nose will pitch up at exactly the wrong moment and the plane will stall. 

This is basic airmanship.  In fact, every student pilot is taught the proper stall recovery technique before he makes his first solo.  Could a professional airline captain have caused the crash by pulling back on the yoke instead of pushing forward?  Well, not only did the nose pitch up, but the aircraft's flight data recorder showed that the pilot did, in fact, pull back on the yoke just before losing control of the aircraft.

Now two prominent aviation law firms, representing different families, are taking different tacks. The first firm, the Clifford Law Firm in Chicago, has filed suit on behalf of two families, alleging that the aircraft crashed because it was inadequately equipped to deal with icing.

The second firm, Kreindler & Kreindler, representing 10 of the families of Flight 3407, says that pilot error caused the crash, not icing or any defect in the aircraft's deicing equipment.

Which is it? A defective de-icing system or pilot error? Commuter turboprops have a history of crashing due to ineffective de-icing systems, and they are most vulnerable when on approach to landing,  just as was Flight 3407. I represented the family of the pilot killed in the crash of Comair Commuter Flight 3272 near Monroe Michigan in 1997. All aboard were lost for just that reason – a defectively designed de-icing system that the FAA should never have certified.  And some of the similarities between Flight 3407 and Flight 3272 are striking. 

But, in this case, it is hard to square the information from the flight data recorder with anything other than pilot error.  Is it possible to come up with a scenario where pulling back on the yoke was anything but a very bad piloting mistake?  Yes.  Pulling back on the yoke, instead of pushing it forward, can be considered an appropriate reaction, for example, when ice overwhelms the tail of the aircraft rather than the wings.  But as explained by airline pilot and Salon columnist Patrick Smith, it is unlikely that the pilot was faced with tailplane icing.  That leaves pilot error as the most likely cause of the crash.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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