The Robinson R66’s safety record to date is troubling.  The aircraft did not go into production until 2010 and the fleet is very small.  Yet a total of five R66 helicopters have already crashed, killing 11:

  • July 12, 2011, Flandes, Colombia, pilot and passenger killed;Robinson R66
  • October 1, 2011, near Philip, South Dakota, pilot killed;
  • January 3, 2013, Caraguatatuba, Sao Paolo, Brazil, pilot and passenger killed;
  • March 9, 2013, Oamaru Valley, near Taupo, New Zealand, pilot killed; and
  • July 27, 2013, near Skyhaven Airport, Pennsylvania, pilot and 4 passengers killed. 

Lawsuits have just been filed regarding two of those crashes. 

The first was filed last month in Los Angeles against Robinson Helicopter Company and others arising from the Colombia Crash. The crash occurred moments after take off in good weather  The lawsuit alleges that the R66 fuel system was defective and that, as a result, the Rolls-Royce RR300 turbine engine that powers the R66 repeatedly cycled between full power and low power, rendering the helicopter uncontrollable and causing it to crash. The suit was filed by Ronald Goldman and Ilyas Akbari, two attorneys who have a long track record of suing Robinson.   

The second suit deals with last month’s R66 crash in northeastern Pennsylvania. That helicopter crashed in the vicinity of thunderstorm activity.  The suit was filed by another prominent helicopter accident attorney, Gary Robb of Kansas City on behalf of a woman who lost her 3 year old son in the crash.  Robb’s suit alleges that the charter service that owned the R66 is liable for allowing a pilot to fly the helicopter who was not competent for the mission he was attempting.

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 Flight 214 Cabin 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. 

US Courtroom

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:

  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; or
  3. 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.PAPI's were inoperative 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.