US Court Tosses Out All Air France Flight 447 Cases

Posted on October 7, 2010 by Mike Danko

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 Air France Wreckagesystem 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.

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First Air France Flight 447 Lawsuit: Questions and Answers

Posted on October 3, 2009 by Mike Danko

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 Air France Fuselage Recoveryblack 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:

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Weather Analysis Suggests Air France Flight 447 Penetrated Thunderstorms

Posted on June 9, 2009 by Mike Danko

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.

 Vasquez Figure 12

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.

Vasquez Figure 13

 

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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Compensating the Families of Air France Flight 447

Posted on June 5, 2009 by Mike Danko

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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Air France Flight 447: Lightning, Thunderstorms, and the Airbus

Posted on June 2, 2009 by Mike Danko

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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