It used to be impossible for an American injured by a foreign government to sue that government in the US. If the American tried, the foreign government could assert “sovereign immunity” as a complete defense.  But now the Foreign Sovereign Immunities Act sets forth a few important exceptions to that immunity.  For example, a victim can sue the foreign government if the injury was caused by that government’s "commercial activity" in the United States.

What does this have to do with aviation law?  Many foreign airlines are owned or controlled by foreign governments. Suing those airlines — even for injuries that occur on US soil — is considered the same as suing the foreign "sovereign." Until relatively recently, it wasn’t allowed at all.

Some of the foreign airlines that have asserted the sovereign immunity Queen On Trial defense include:

  • South African Airways 
  • Lufthansa
  • Garuda Indonesia
  • Air France
  • Lot Polish Airlines
  • Air Afrique
  • Austrian Airlines

Many aviation manufacturers are also owned or controlled by foreign governments. Were it not for the "commercial activity" exception, they too would be completely immune from suit.  Some of those manufacturers that have been treated as foreign sovereigns include:

  • Augusta S.p.A
  • Embraer
  • Airbus
  • Siai Marchetti

Though the "commercial activity" exception now allows the victim to sue, the foreign sovereign (or the airline or manufacturer it controls) is still entitled to special protections.  First, the "sovereign" is entitled to have the case heard in a federal court, rather than a state court.  Next, the case must be heard by a judge, not a jury.  And finally, regardless of how bad the sovereign’s conduct, no punitive damages are allowed.

It’s not uncommon for three or four pilots to share ownership of an aircraft. For years, owning an aircraft as “partners” was the norm. That form of ownership, however, carries with it some liability considerations.

  • “Partners” can generally be held individually liable for one another’s debts, including debts arising from one another’s negligence. In other words, if one partner ’s piloting mistake kills or injures a passenger, the other partners may in some cases be held accountable to the victim or the victim’s family.
  • Aircraft owners are responsible for maintaining their aircraft properly. If one of the partnership’s maintenance decisions – such as an ill-considered decision to run past TBO – leads to an accident, each partner could be held responsible for that as well.
  • Even assuming the partnership made all the right maintenance decisions, the partnership may still be held responsible for the negligence of the mechanic. More on that here. If the partnership is liable, each of the individual partners may be liable as well.

Many pilots seeking to share an airplane now form a limited liability company. They arrange it so that the company, and not the individual pilots, own the aircraft. The pilots own shares in the company only. Because the pilots do not themselves own the aircraft, they avoid some of the liability that comes with aircraft ownership generally and with the partnership relationship in particular.

But here’s where people often get confused: no form of ownership allows the pilot who is flying the aircraft to avoid responsibility for his own negligence. If a pilot error kills or injures someone, that pilot may be held accountable to the victim or his family regardless of whether the aircraft is owned by his partnership or by his limited liability company.

When Cory Lidle’s widow sued Cirrus Design, it caused a bit of an uproar in the aviation community.  Her suit alleges that it was a defect in the aircraft’s flight controls that caused the Cirrus SR-20 to slam into a Manhattan hi-rise.  That claim led many to call the suit frivolous.  After all, the NTSB determined the accident was caused by pilot error, plain and simple. Right?

Cirrus asked the federal judge who is hearing the case to toss it out as being based on "junk science." Cirrus argued that under legal precedent known as Daubert v. Merrell Dow Pharmaceuticals, the judge must act as a "gatekeeper."  That means she must review the expert

Continue Reading Lidle v. Cirrus: Claim Not “Junk Science”

A passenger injured in an aircraft accident can’t sue the aircraft manufacturer if the part that caused the crash is older than 18 years. Any such suit would be barred by the General Aviation Revitalization Act, or GARA.

What if the accident was caused by a mistake in one of the aircraft’s manuals rather than a defect in the aircraft itself?  If the manual is older than 18 years, does GARA protect the manufacturer from liability for its error? 

It depends.  The manufacturer is off the hook if the manual is properly considered a "part" of the aircraft.  Some manuals are. Some aren’t.

A flight manual (sometimes called a "pilot’s operating handbook" or "flight handbook") is properly considered "part" of the aircraft, and so GARA protects the manufacturer. For example, in Caldwell v. Enstrom Helicopters, the pilot’s family blamed a helicopter crash on the flight manual’s failure to say that the last two gallons of fuel in the helicopter were unusable.  As a result, the pilot believed he had sufficient fuel but in fact did not.  He crashed just minutes from his destination.

The Caldwell court said that Twin Bonanza Flight Manualmanufacturers are required by regulation to provide a flight manual when it delivers the aircraft to the customer.  The manual must be carried in the aircraft at all times thereafter. Therefore, the manual was properly considered to be an aircraft "part."  Because the manual at issue was more than 18 years old, GARA applied to protect the manufacturer from liability for any errors. 

But the situation is different when the manual is a maintenance manual. A manufacturer can sell an aircraft without providing to the buyer a maintenance manual.  Thus maintenance manuals, unlike flight manuals, are not a "part " of the aircraft, and GARA doesn’t apply. At least according to Rogers v. Bell Helicopters Textron, a case decided earlier this month by a California appellate court. 

In Rogers, the pilot claimed the accident resulted from faulty instructions in a maintenance manual for balancing the helicopter’s tail rotor. The court ruled that, despite the fact that the manual was more than 18 years, GARA didn’t apply and so the pilot was entitled to sue.  

Unlike a flight manual that is unique to the aircraft, used by the pilot, and necessary to operate the aircraft, a maintenance manual applies to different aircraft models, is used by the mechanic, and only for troubleshooting and repairing the aircraft.

According to Rogers,, GARA won’t protect a manufacturer from liability for mistakes in its maintenance manuals, regardless of how old the manuals are. 

The plaintiff in Rogers was represented by Louis Franecke of San Rafael. 

The Death on the High Seas Act was originally intended to apply to shipwrecks and other shipping accidents in international waters.  Though a law of admiralty, DOHSHigh Seas and Air France Flight 447A’s wording is broad enough to cover any accident, not just shipping accidents. Therefore, it applies with equal force to aviation accidents occurring on the high seas.

The "high seas" are those international waters more than 12 nautical miles from the shore of the United States or one of its islands.  After an aviation accident, it doesn’t matter whether the passenger’s family sues the responsible airline under the Warsaw or Montreal conventions, a mechanic for negligence, or a manufacturer for a defectively designed product. If the accident happened on or over the "high seas," those responsible for the

Continue Reading The Death on the High Seas Act (DOHSA) and Aviation Accidents

The Federal Tort Claims Act allows citizens who have been injured by the federal government to sue the United States.  But there’s an important exception.  No suit against the government is allowed when the victim is a service member injured by the negligence of the United States military. 

The rule protecting the military is called the Feres Doctrine.  In aviation accident cases, the doctrine bars service Marine Aboard Sea Knight Helicoptermembers from suing the government regardless of whether the crash was caused by the negligence of a military mechanic, air traffic controller, dispatcher or pilot.

Not surprisingly, the Feres Doctrine is controversial.  It allows the military to avoid responsibility for not just simple negligence, but for gross negligence as well.  Because of its unfairness, Congress has repeatedly been asked to abolish the rule, or at least limit it.  (Large pdf of Congressional Hearing here.)  But the Feres Doctrine remains the law.  As long as the victim was an "active" service member, and the injury or death was "incident to service," the military is immune from suit.  

That doesn’t mean that injured soldiers or their families cannot sue others who may have contributed to a military aircraft accident.  For example, if a defect in the design of the aircraft contributed to the crash or to the injuries the crew member received, the crew member can still sue the aircraft’s manufacturer. The aircraft manufacturer may be able to assert defenses of its own, such as the "government contractor defense," but not the Feres Doctrine.

The military prepares an investigative report after every accident involving one of its aircraft.  The report focuses on the military’s role in the accident.  It seldom addresses whether a manufacturer or other civilian contractor may have been at fault. In fact, as discussed in this article concerning a military helicopter crash off the California coast, sometimes the report provides no answers at all.  Families will often need to enlist an aviation accident attorney to conduct an investigation on their behalf.  The attorney may need to file suit against the manufacturers just to obtain access to the evidence bearing on who, other than the military, may be responsible for a service member’s injury or death.    

In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident.  But as the case progresses, evidence may point to one defendant over another.  When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, andEmpty Chair to proceed to trial against the defendant who appears blameworthy.  Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.

Let’s say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible).  But let’s say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer.  It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer.  Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom — someone who should be seated in the "empty chair," but whom the victim decided not to bring into court. 

This strategy is called "blaming the empty chair."  Of course, the "empty chair" cannot defend itself.  Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether. 

A crew member injured by an aircraft’s defective design may sue to hold the aircraft manufactuSuper Stallion Helicopterrer accountable.  At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.

A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft’s design by asserting the "government contractor defense."  That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:

  1. That the US government specifically required or approved the design feature that caused the accident or injury; 
  2. That what the manufacturer built conformed to the specifications that the government approved, and
  3. That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn’t.

If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft’s design caused him.  

Generally, crew members may not sue their employers for injuries sustained on the job. Even where the crew member’s injury was caused by the negligence  of the employer or one of the crew member’s co-employees, the crew member’s sole remedy against his employer is to pursue a workers’ compensation case. This is known as the "exclusive remedy rule."  The trouble with the exclusive remedy rule is that worker’s compensation benefits are limited and are seldom adequate to compensate a crew member or the crew member’s family for the injuries suffered in an aviation accident.  

Fortunately, the exclusive remedy rule does not prevent a crew member from suing third parties who caused or contributed to the injury.  Therefore, a crew member injured in an aviation accident may sue the aircraft manufacturer if the accident was caused by a defect in the design or manufacture of the aircraft.  Similarly, where the accident was caused by the negligence of a mechanic who worked on the aircraft, the crew member may sue the mechanic provided, of course, that the mechanic was not one of the crew member’s co-employees. 

There are few exceptions to the "exclusive remedy" rule.  For example, a crew member can sue the employer who caused his injuries where:

  • The employer didn’t maintain workers compensation insurance;
  • The injury was the result of certain types of intentional wrongdoing on the employer’s part; or
  • The crew member was injured by a product or part that the employer manufactured.

The "exclusive remedy" rule also prevents the crew member from suing any co-worker who caused the accident.  Again, there are a few exceptions for unusual situations. For example, a crew member may sue his co-worker where the co-worker’s actions were malicious and with an intent to cause injury, or when the co-worker was intoxicated. 

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

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

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