New Icon A5 Purchase Contract Will Require Buyers to Sign Away Their Rights to Sue

In the face of intense market rejection, Icon says it has heard its customers and is going to revise the rather onerous purchase contract it planned to require of its buyers.  It hasn’t yet made the new contract public.  But in a statement it says that one thing the new contract will keep is the requirement that anyone buying an A5 sign away their rights to sue Icon after an accident.

Another fundamental tenet of ICON’s approach to safe flight operations, personal pilot responsibility, and product liability-cost reduction is the agreement not to sue ICON for accidents that are not determined to be our fault. Unfortunately, the overwhelming majority of product liability lawsuits are filed against manufacturers even when the manufacturer was not found to be at fault. We must address this. While there is no silver bullet for guaranteeing safety and eliminating all product liability costs, we are working hard to improve it. This is one of those steps. We invite our customers to help us set a new precedent in our industry and to improve this situation by releasing ICON from accidents deemed not to be our fault by the NTSB. Reducing product liability costs is important because it reduces the cost of aircraft and allows manufacturers to spend that money on product development instead of legal fees and lawsuit settlements.  

At first blush, all that sounds reasonable.  Why should an A5 buyer be able to sue Icon after a crash if the NTSB places the blame for an accident elsewhere? 

Well, for one thing, the NTSB is not a fair forum.  After any accident, the NTSB “invites” the aircraft’s manufacturer to participate in the investigation, relying on the manufacturer and its experts to help pinpoint the accident’s cause.  But the NTSB never allows the pilot or the pilot’s passengers to participate, nor does the NTSB allow experts hired by the pilot or the passengers anywhere near the investigation.  The pilot and passengers are entirely excluded. If that sounds like a conflict of interest, it is It’s no wonder the NTSB seldom finds the manufacturers at fault.  Nor is it surprising that courts of law, after hearing from both sides, frequently come to conclusions different than those reached by the NTSB.

And in fact, it is because the NTSB’s investigations are so one sided that NTSB’s conclusions are entirely inadmissible in any court of law anywhere in the country. 

Looks like Icon’s new contract will be as unfair as the one the market rejected back in April.  It’s hard to believe that any buyer who has done his homework would sign it. 

Related post:

April 1, 2016  Icon Aircraft A5 Purchase Agreement: Who would sign this thing? 

Icon Aircraft A5 Purchase Agreement: Who would sign this thing?

As AOPA is pointing out, Icon’s 41-page purchase agreement for its long-awaited A5 is, well, “unusual.” 

Perhaps what is most troubling is its language that seeks to allow Icon to dodge liability for any accident, regardless of its cause.

Founder and CEO Kirk Hawkins told AOPA that Icon believes in "extreme responsibility."

What we’re trying to do, in a nutshell fundamentally, is put the responsibility [for accidents] where it belongs. . . If it’s our fault, we’ll own it.  If it’s your fault, you own it.”

Seems fair enough, except that’s not what the agreement says.  It says that if the accident is Icon’s fault because, for example, Icon screwed up the design or manufacture of the buyer's aircraft, the buyer and his family owns it, not Icon:

Owner and Managing Pilot understand that participating in ground, water and air operations and related activities could result in injuries from a variety of factors, including but not limited to . .  . defects in the aircraft or components. . .   Owner and Managing Pilot knowingly assume these risks on behalf of themselves and their Successors in Interest.

If Icon would like buyers or pilots to "knowingly" assume the risks of defects in its aircraft, maybe it should come out and tell us what those defects are. 

This is not about "extreme responsibility"  It's about extreme irresponsibility. Icon is trying to dodge liability for any defects resulting from  its own actions and shift it onto others. 

Who would buy an aircraft from a manufacturer who wants it in writing that if we made a mistake that injures someone, its your fault?

FAA Declines To Close LSA Loophole

Operators have begun using LSAs -- particularly "trikes" -- to give air tours over the Hawaiian islands.  LSAs fly low and slow, just like helicopters, and are much cheaper to run.  But they have a terrible safety record.  And it's illegal to use LSAs for commercial tours.

If it is illegal to use LSAs for commercial tours, how do LSA operators get away with it?  As I wrote here, they simply say that they are taking the passenger for an introductory "flight lesson," rather than a tour. 

The FAA now recognizes that operators are taking advantage of the regulatory loophole. According to one FAA official, "It appears some operators are trying to get around the air tour provision by offering flights under the guise of introductory flying instructions."

The Honolulu Star-Advertiser reports that  the FAA's plan for dealing with the problem is to  step up surveillance:

the plan will call for more unannounced visits, interviews with pilots and record examinations of aircraft operators. Officials also held a meeting with weight-shift control operators to encourage more voluntary compliance.

The FAA says no new regulations are needed, since the existing rules are clear.  Yes, the rules are clear.  That's the problem.  It's clear that it's legal to take a paying passenger for an introductory flight lesson.  And so that's exactly what the tour companies operating LSAs will continue to do.

LSA Loophole Claims the Life of Another Hawaiian Tourist

The Hawaiian air tour industry has a horrible safety record. And now it has claimed yet another life – that of a 53 year-old Californian who had traveled with his wife to the islands to celebrate their 25th wedding anniversary.

I've written before about the dangers of Hawaiian helicopter tours. But this tourist’s death was not the result of a helicopter crash.  Rather, it was the result of the crash of a “Light-sport Aircraft” or LSA.  And, in fact, this was the third fatal LSA crash in Hawaii since last April.  Altogether, 6 people have died.Quik 912S

So what's an LSA? It’s an aircraft that, among other things, weighs less than 1320 pounds and flies no faster than 140 miles per hour. LSA's come in different shapes and sizes.  The model involved in the most recent crash, the Quik 912s, is pictured to the right.

LSA's are cheap to buy and to operate. They are much, much less expensive than helicopters.  And many think they are just as good as helicopters, if not better, for “low and slow” sightseeing. 

There’s one catch. It’s illegal to use an LSA for commercial air tours. LSAs are not engineered and tested to the same standards as conventional aircraft. If a hobbyist wants to fly an LSA, that’s one thing. But the FAA won’t allow a pilot to use an LSA to give a member of the public an aerial tour for hire. LSA's just aren’t safe enough.

Then how do the Hawaiian operators get away with doing just that?  The loophole: While a pilot can't use an LSA to give tours for hire, he can give flight lessons.  So the pilot need only call this ride the tourist’s first "flight lesson,” and he’s legal.

Another Zodiac In-Flight Breakup Triggers an NSTB "I told you so"

Zodiac AircraftThis past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight.  As it turns out, a defect in the Zodiac's design induces an aerodynamic phenomenon known as flutter.  Flutter can destroy a wing or other control surface in a matter of seconds.  This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here

When the NTSB's issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures.  Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

I was wrong.  The FAA refused to ground the aircraft.  Even I was surprised.

Of course, it was just a matter of time.  On November 6, another Zodiac crashed in Arkansas.   It looks like another flutter-induced failure.  That brings the death toll to 11.  On November 13, the NTSB issued an official "I told you so."

The Safety Board's urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet." 

The NTSB's unstated question:  Just how many deaths are required before the FAA finds "adequate justification" to act?

More Zodiac Victims File Suit

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

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

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

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

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

NTSB to FAA: Ground the Zodiac Fleet

Zodiac CH-601XL

Today the NTSB issued an "urgent" safety recommendation, asking the FAA to immediately ground all Zodiac CH-601XL aircraft.  The reason:  their wings tend to fall off.  So far, six have broken up in flight, causing 10 fatalities.  The NTSB suspects that the design of the aircraft induces "flutter"-- an aerodynamic phenomenon that can destroy an aircraft in seconds.  This short NASA video depicts flutter nearly destroying the tail on a Piper Twin Comanche.

Will the FAA act on this recommendation or, like it has with regard to so many other NTSB recommendations, simply ignore it?  I'm betting that this is one the FAA will act on.  As I've noted before, the FAA has been under increasing fire for sitting on NTSB recommendations while lives are lost. The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.