The Montreal Convention requires airlines to compensate international travelers who are injured as a result of an “accident.”  If the passenger is killed, the Montreal Convention requires the airline to compensate the family members. But the Convention considers neither an airliner’s pilots nor its flight attendants to be “passengers.”  Thus, crew members’ claims (or the claims of their familiesCrew Cap in the event of a fatal accident), are usually governed by by local law, not the Convention. In the US, that means that any lawsuit the crew member might bring against the airline would likely be barred by the applicable workers compensation statutes, which typically prevent any employee from suing his or her employer for work-related injuries.

Of course, crew members or their families are free to pursue claims against those other than the airline who might be responsible for an accident. Often that’s an aviation manufacturer. But unlike passengers, crew members generally cannot sue the airline.

There is one exception. A crew member may be considered a “passenger” if she was “deadheading.” That is, if the crew member was off-duty, but the airline had her on the aircraft simply to transport her from Point A to Point B, then the Convention would apply to her claims.

The owner of the Glasair III had finished painting the aircraft just before the fatal flight that killed him and his passenger near Byron, according to his ex-wife.

[Behne] had just finished painting the plane at his private airstrip when he and a friend went on the ill-fated flight. "He wanted to get it up and running," said Shelley Rose, whose marriage to Behne ended in divorce in 2009."

When an aircraft is painted, the painter must mask holes in the aircraft’s exterior, called static ports, as well as the aircraft’s pitot tube.  The pitot tube and static ports sample air pressure exerted on different parts of the aircraft during flight.  That information from the pitot static system drives the aircraft’s airspeed indicator, altimeter, and vertical airspeed indicator.

Forget to remove the masking tape, or allow tape residue to clog the tiny static ports, aPitot tubend none of the instruments will work properly.  Masking tape is what brought down a Boeing 757 in 1996, killing 70.   A problem with the pitot-static system (unrelated to masking tape) was also implicated in the crash of Air France flight 447.

Years ago,  I picked up my plane after it was repainted by a reputable shop in Northern California.  During my pre-flight inspection, I found tape residue clogging the pitot tube.  The tape residue would have prevented the airspeed indicator from working properly, and could have caused problems in controlling the aircraft, especially on takeoff.

An inoperative pitot-static system always presents challenges.  But the challenges are greatest at night or in bad weather, not during the nearly ideal flight conditions the Glasair pilot experienced.

In July, aviation lawyers Terry O’Reilly and James P. Collins were billing their firm, O’Reilly & Collins, as “the premier trial law firm in Northern California.” They claimed the firm had the financial resources to take on any fight, and that it was “one of the most successful plaintiff’s trial law firms in the United States.”  O’Reilly was a long-time member of the prestigious Inner Circle of Advocates, and had just been named a Northern California Super Lawyer. To celebrate, Collins and O’Reilly published ads showing the pair posing in front of Terry O’Reilly’s very expensive 1954 Bentley race car, talking about all the cases they have won. 

Sweet.

But today, O’Reilly & Collins is in bankruptcy, leaving its creditors holding the bag for millions.  All the firm’s lawyers, except for O’Reilly himself, have scattered.   

Court records show that the San Mateo aviation firm has passed off some of its clients to John Kristensen, one of O’Reilly’s former associates.  Other cases have been handed off to Jack Stein of the Boccardo firm in San Jose. Terry O’Reilly himself is holding on to at least one case involving the Pilatus crash at Butte, Montana. 

O’Reilly continues to be assisted by Pamela Stevens, a lawyer who, according to California State Bar records, bilked her injured clients, including children, out of millions in settlements. The Bar pulled Stevens’ license in 2002, finding that she posed a danger to the public.

In July, a San Francisco jury returned a verdict against O’Reilly & Collins for $3.2 million. The judge sanctioned O’Reilly personally for more than $107,000 for failing to turn over documents and then giving false testimony about it. 

The firm still has its office in San Mateo, but its website has been taken down.  Since the verdict, O’Reilly says that he has moved out of state. 

O’Reilly has paid neither the judgment nor the sanctions order. 

Bonanza N7472N crashed in December 2008 after its engine failed in flight. The engine failed because the crankshaft broke. The 25 year-old pilot was killed in the forced landing attempt. The pilot’s widow sued Continental Motors, alleging that the crankshaft, which was only 58 hours old, was defective. This week, the jury sided with Continental.Beech Bonanza After Crankshaft Failure

The plaintiff brought the suit in Continental’s home court, in Mobile, Alabama. The key ruling, according to well-known plaintiff’s attorney Kirk Presley, was the judge’s decision to keep from the jury evidence of other similar failures of Continental crankshafts. That sort of evidence is often crucial. If a jury hears of other similar failures, it is more likely to find against the manufacturer. If it doesn’t, it tends to believe that there is nothing wrong with the product and finds for the defendant.  In this case, the jury decided that the fault was not with the crankshaft’s manufacturer but with the facility that installed it into the Bonanza’s IO-520 engine a year before the crash. According to an article appearing in Alabama Live, the facility was Performance Engines. 

A similar ruling may have played a key role in the Corey Lidle trial against Cirrus Aircraft. (There, the judge would not allow the jury to learn about other cases where Cirrus controls jammed in the same fashion that plaintiff alleged the controls jammed on Lidle.)

This is the second win in a row for Continental. In 2011 it won a case involving allegedly defective magnetos. That case was also tried in Continental’s home court in Mobile. 

The last time Continental lost at trial was 2008, in a case involving cylinders that came loose from an IO-550 engine installed in a 1966 Bonanza. That case was tried in California, and the judge allowed the jury to hear evidence of a limited number of other similar failures.

Another Robinson R44 Helicopter rolled over and almost immediately caught fire.  This time it was at Slaton Municipal Airport in Slaton, Texas.  According to the Avalanche-Journal, the Robinson R44 firehelicopter was engulfed in flames within 10 seconds of the helicopter rolling onto its side.

Fortunately, the pilot got out.  But the R44 is racking up quite a record for catching fire in otherwise survivable accidents. The problem is that once the helicopter’s rotor blades strike the ground, its transmission rips into the fuel tank.  See here, here, and maybe here.

These fires aren’t supposed to happen. In 2010, Robinson began using a different fuel tank that is supposed to be resistant to punctures. But it didn’t retrofit the existing fleet.  This aircraft was a 2004 model.

 

Cirrus Fire at FalmouthThe Cirrus SR22 crashed while landing at Falmouth Airpark in Massachusetts and immediately exploded in a fireball.  One occupant died.  Two others, however, survived, only to be badly burned in the post-crash fire.

Some say that, if properly designed, an aircraft should not burn as a result of an otherwise survivable impact. Technology that prevents such fires has existed since the 70’s.

Landing at Falmouth AirparkOf course, many aircraft flying today were designed before such technology became available.  But the Cirrus was designed in the ’90’s. One might expect that a fire after a survivable Cirrus crash should be a rare event.  But that doesn’t seem to be the case. 

Cirrus critics, pointing to the Cirrus crash at Scottsdale, among others, want to know why the aircraft seems to be more prone than legacy aircraft to post-crash fires, rather than less.  Some blame the fact that the Cirrus is constructed of composite material, while older aircraft are metal.  I’m not sure that’s an explanation, since I have been unable to find a report of anyone being burned in a Diamond aircraft.  Diamond aircraft compete with Cirrus and are also of composite construction.

The NTSB has determined that the probable cause of the Galloping Ghost’s crash at last year’s Reno Air Races was flutter. No surprise there — I wrote about flutter within hours of the accident. At its presentation, the NTSB even showed the same NASA video demonstrating flutter that I had posted last year.

Flutter can occur whenever an aircraft is flown faster than it is designed to fly. As it turned out, Jimmy Leeward, the pilot of Galloping Ghost, exceeded by nearly 40 mph the aircraft’s previous top speed without any previous testing to determine if the aircraft would be able to resist flutter at the new speeds. As it turned out, it couldn’t. Board member (and pilot) Robert Sumwalt was highly critical of Leeward’s decision to fly the aircraft in competition without first testing it at race speeds:

If you want to go out and fly fast and try to win, that’s one thing. If you’re modifying an aircraft without fully understanding how the modifications can affect the aerodynamics, you’re playing Russian roulette.”

A loose trim tab assembly contributed to the flutter’s onset. The assembly came apart because the lock nuts that held it in place had been reused multiple times. That’s a no-no. Each time locknuts are removed and then re-tightened, they lose a bit of their ability to grip. That’s why once removed, locknuts should always be replaced with new.

What was surprising was the NTSB’s sentiments concerning “assumption of risk”.  According to the NTSB board chair Deborah Hersman:

At the heart of the tragedy was the fatal intersection in transference of risks from participant to observers. One moment, spectators were thrilled at the spectacle of speed only to have it followed by inescapable tragedy. The pilots understood the risks they assumed. The spectators assumed that their safety had been assessed.”

Those sentiments echoed what I wrote here.  Judging from readers’ comments to that post, many disagree.

Transcript of the NTSB presentation here.

All this blog’s Reno Air Crash posts here.

Why doesn’t the FAA do a better job of promoting aviation safety?

1. The FAA’s Inherent Conflict of Interest.  When the FAA was created, it was charged with bothFAA regulating aviation and promoting it. But most aviation regulations don’t promote aviation — they constrain it. The FAA’s inherent conflict of interest explains why the FAA so often ignores the NTSB’s aviation safety recommendations.

2. The Problem of the Captive Regulator.  Putting aside the inherent conflict of interest, the FAA is simply too close to the industry it regulates to do an effective job. This problem is not unique to aviation.   For example, the drug industry has tremendous influence over its regulating agency, the FDA.  We saw that play out most recently last year, when we learned that a number of the FDA committee members who voted against requiring stronger warnings on a drug’s label had economic ties with the drug’s manufacturer. In California, we learned that the Public Utilities Commission was too cozy with the gas utility it was supposed to regulate. It let the utility slide again and again until September 2010 when a gas explosion in San Bruno killed 8 and damaged or destroyed more than 40 homes.

3. Bureaucratic Incompetence.  Sometimes, it seems that bureaucratic incompetence is the simplest reason for the FAA’s failure to act in the face of a known ongoing hazard. What else explains the night vision goggle debacle?

The Yemenia Airline flight that crashed near Moroni three years ago didn’t involve an aircraft built in the U.S. The flight had no Americans on board, and no part of the flight was through U.S. airspace.

The families filed suit in California against International Lease Finance Corporation (ILFC), the Los Angeles company that had leased the accident aircraft to Yemenia Airlines.  Not surprisingly, ILFC asked the court to move the case to France, arguing that the crash happened closest to French territory, many of the passengers had ties to France, and it made little sense to try the case here.  This month, the court denied that request, meaning that the suit can proceed in the United States.

Of course, the families would prefer the suit to stay in the U.S.  As discussed here, they have a better chance of obtaining meaningful compensation for their loss here than elsewhere.

The families sued  on the theory of "negligent entrustment."  In short, they alleged that ILFC should never have leased the accident aircraft to Yemenia Airlines because it knew that Yemenia Air was not competent to operate it safely.  Given that Yemenia Airlines had been banned from operating in European Union airspace due to various safety violations, those charges seem solid.

ILFC’s request to boot the case from the U.S. courts was a big hurdle for the families.  In similar cases, courts have dismissed the families’ lawsuits.  Here, though, the court ruled that it wouldn’t be fair to make the families sue the U.S. company in France because, if they won, it isn’t clear how they would enforce a French judgment against the U.S. company.  

 

Stephen Stock, an investigative reporter for NBC, talks about the hazards posed by night vision goggles improperly installed in much of the nation’s EMS helicopter fleet. I was happy to offer Stock my thoughts. The FAA refused to comment on camera.

Imagine how difficult it must be for Rand Foster to go to work each day.

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https://www.nbcbayarea.com/investigations/Questions-about-FAA-Fixing-Emergency-Helicopter-Safety-Problems-165868166.html?amp=y