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.

An aircraft owner loans his plane to a friend. The plane crashes and a passenger is injured. It turns out the crash was caused by the negligence of the aircraft’s mechanic. Can the crash victim hold the aircraft owner liable for the mechanic’s faulty work?

This question comes up a lot. In fact, it comes up in almost every case where the mechanic doesn’t have adequate insurance to cover the passenger’s medical expenses. 

Ask the owner’s insurance company whether the owner can be held liable, and they will always say “no.” Their argument is that the owner didn’t perform the work and, in fact, without a mechanic’s license was legally prohibited from doing so. The owner trusted the mechanic, as the regulations required him to, and so did nothing wrong. According to the owner’s insurance company, the passenger must look to the mechanic for compensation, and not to the owner. 

There are a couple of court opinions that seem to go along with the insurance company’s reasoning.  But none of those opinions applies in California.  

In California, unlike in some other states, an owner of a machine that can seriously injure someone if not properly maintained is responsible to those injured as a result of faulty maintenance. It doesn’t matter that the owner didn’t actually perform the faulty maintenance. 

Why does this make sense? Because, according to the Supreme Court’s opinion in Maloney v. Rath, it is the owner who decides who the mechanic will be.

the owner selects the [mechanic] and is free to insist upon one who is financially responsible and to demand indemnity of him.

In other words, the injured party had no say in what mechanic did the work, or whether the mechanic carried insurance. But the owner who selected him did. So the accident victim can hold the owner financially responsible, and leave it to the owner to try to obtain reimbursement from his mechanic.

The Maloney case didn’t involve airplanes. It involved a car crash caused by improperly maintained brakes. But the reasoning applies to airplanes too. After all, improper aircraft maintenance is just as dangerous as improper car maintenance. Maybe even more so.

The federal aviation regulations make the owner responsible for maintaining the aircraft in airworthy condition. The owner can’t necessarily avoid that responsibility by hiring a good mechanic. Despite what the insurance company says, the owner may still be on the hook.  At least in California.

An instrument rating entitles a pilot to legally navigate an aircraft when the weather is bad enough that he can’t see outside.  A pilot who is not instrument-rated must always stay out of the clouds. If the weather is such that he can’t do that, he must stay on the ground.  

The training required to obtain an instrument rating is extensive.  In most cases, it takes a pilot longer and costs him more to obtain the rating than it did for him to get his pilot’s license in the first

Continue Reading Cirrus Crash Near Agua Dulce: Pilot Not Instrument-Rated

According to the NTSB, most aviation accidents are caused by pilot error. But avNTSB Investigates for Probable Causeiation lawyers know that as many as half the cases that the NSTB says were the result of "pilot error" simply weren’t.

The NTSB does its best to get an accident’s probable cause right. The trouble is that, in almost every one of its cases, the NTSB turns to the manufacturer of the aircraft for help in figuring out what happened. In other words, the NSTB asks one of the entities who may have caused the crash for help investigating it. The NTSB calls this method of investigation the "party system."  It presents an unavoidable conflict of interest.  It’s like asking the fox for help in figuring out what happened to the chickens.  

More often than not, the "party system" results in the pilot taking the blame, even when the accident may really have been the manufacturer’s fault. I’ve seen this happen dozens of times. I’ve written about it here and here and here. 

NTSB investigators don’t disagree.  Well, at least one doesn’t. From an anonymous email:

[W]e rarely, if ever, can exclude the manufacturers’ representatives from access to every part and detail of an investigation. We (NTSB investigators) are open and forthright with these people. Unfortunately, such a candid exchange is rarely a two-way communication…And the process gets pretty cloudy when we send the wreckage, or part, to that manufacturer for teardown and examination. Sure, we’re there ‘in-charge’ of the process…but that’s just a formality.

But isn’t the NTSB watching everything that the manufacturer is doing?

NTSB investigators ‘observing’ may be more like a dog watching television when it comes to the latest technology that is known only by those experts who made it in the first place. And it’s even worse if an FAA Inspector stands in for the NTSB investigator.  Then our ‘eyes’ may be almost an in-house friend of the manufacturer…

Predictable Probable Cause Findings

So, what do you expect as a result? ‘Nothing wrong with our engine! (or accessory) (or special part)’…and that’s what goes down in the report…That’s the simple reason that ‘statistics’ cite 80% pilot error…This high rate is simply not accurate, it’s far more often a system failure… but the NTSB cannot buck industry when we have to use the ‘party system.’

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.

Many think that, after it completes an investigation, the NTSB can order a stop to the dangerous practice that it determined was the cause of the aviation accident.  Not so.  The NTSB has no regulatory power at all. The only thing the NTSB can do after an investigation is make a safety recommendation and hope that the FAA will adopt it.  As the NTSB puts it:

Our effectiveness depends on our reputation for . . . producing timely, well-considered recommendations to enhance transportation safety.  

There is, however, a problem.  The FAA is free to simply ignore the NTSB’s recommendations.  And it usually does just that.

I’ve written before about the FAA’s failure to implement the NTSB’s safety recommendations aimed at improving the safety of  the air ambulance industry, reducing accidents from turboprop icing,  and grounding dangerous and defective aircraft.  Now the Washington Post has picked up on story.

Why do the NTSB’s recommendations simply languish?  According to the Post, it’s because the FAA’s rule change process is complex, and because the aviation industry fights change.  But the Post notes that 

. . .many believe that the biggest cause of delay lies with the FAA itself.

Count me among them.

Unfortunately, to get the FAA to implement the NTSB’s safety recommendations, it seems as though there must first be some sort of public outcry followed by an act of Congress.  At least, that was the case with the NTSB’s recent recommendation aimed at reducing the number of accidents caused by pilots flying without adequate sleep.

There has to be a better way.  

The Cirrus aircraft is loaded with advanced safety features lacking in older "legacy" aircraft.  Yet, the Cirrus safety record appears to be no better — and perhaps even worse — than that of the legacy fleet.  How can this be? 

I’ve written before that "risk homeostasis" may be one factor at work.  I suggested here and here that pilots might tend to use the advanced features of the aircraft to fly into more challenging conditions than they otherwise would.  While using the features in that fashion might increase the utility of the aircraft, it necessarily undercuts many of the features’ safety benefits.  

It turns out that that three human factors experts have published a short article (see below) on risk

Continue Reading Cirrus Safety and Risk Homeostasis

I was sitting in my aircraft at the approach end of the runway at San Carlos, waiting to be issued an instrument clearance. A Beech BE65 Queen Air taxied down to the runway and took off ahead of me. Sadly, it crashed 30 seconds later into a lagoon north of the airport, killing the three aboard. 

Some questions raised in the various news accounts:

Why was the aircraft headed north on the “Bay Meadows” departure, when its ultimate destination was to the south?

I heard the pilot – or whomever was handling the radios — tell the ground controller that he was going to fly along the ridge line west of the airport and then to South County airport. The

Continue Reading Witness to the Final Flight of Queen Air N832B

Bill King
Vice President of Business Administration
Cirrus Aircraft
Duluth, Minnesota 55811
 

Dear Bill: 

I own one of your aircraft. There are some nice things about the Cirrus. But a few things, from a safety standpoint, really suck. First, the doors don’t stay closed. Second, too many pilots and passengers are getting killed when pilots try to land the thing. Third, the fuel gauges don’t work.

I read your comments on each of these issues in today’s Duluth News Tribune. Considering that they come from a company that prides itself on “celebrating safety,” I found some of the comments disturbing.

The doors.

Bill, they pop open. A lot. It’s always a distraction when it happens. If they pop open at a bad time, it can spell real trouble. More on that here. 

I read how you flew from one airport to another a few weeks ago with a door that wasn’t shut, and

Continue Reading A Letter to Cirrus Aircraft: Please Fix Your Plane

The pilot of the Otter that crashed in Alaska on Monday, killing Senator Stevens and three other passengers, encountered some very bad weather.  Low ceilings.  Fog and rain.  Gusty winds.

Rugged terrain only complicated things.  Fortunately, the pilot had tons of experience  — tens of thousands of hours.  According to the Alaska Dispatch, had any less talented pilot been at the controls, the death toll surely would have been higher.

The fact there were four survivors is testament to [the pilot’s] skills. [He] maneuvered that plane like no other mere pilot to save lives.

So is the pilot a hero?  No.  Not quite.

There’s an old saying in aviation: "a superior pilot is one who exercises superior judgment so as toN455A by jkero avoid having to exercise his superior skills."  In this case, a pilot exercising superior judgment might have turned around before tangling with the worst of the weather.  Or, better yet, never left the comfort and safety of the lake lodge in the first place.

The Weather was Bad 

When the pilot took off from the lake where the lodge was located, the weather was bad.  It was bad at nearby Dillingham airport.  It was bad at the river camp that was to be their destination.  And it was bad everywhere between.

A pilot who flew the same valley where the crash occurred confirmed to the LA Times that it was bad there too.  "It was just awful weather. . .I came through that valley at about 100 feet off the ground with about a mile of visibility."

Now, bad weather doesn’t mean a good pilot must stay on the ground.  For example, the airport at Dillingham has various instrument approach procedures that will allow planes to land safely in some pretty crappy weather. No undue risk. No sweat.

But this pilot wasn’t headed to Dillingham.  He was headed to a fishing camp on a nearby river.  No instrument approach procedure would guide him through the clouds.  If this pilot was going to get there, he’d have to do it without instruments. He’d have to do it by looking out the window.  Seat of the pants stuff.  All perfectly safe, as long as the weather is good enough for you to see where you are going.

Controlled Flight into Terrain

So what exactly happened?  What we know about the accident is consistent with "controlled flight into terrain."  Opting out of the instrument flight system, the pilot had to stay under the Senator Stevens Plane Crash Wreckageclouds.  He couldn’t go through them because once inside, he wouldn’t be able to see and might bump into something hard and pointy.  So he had to stay in the clear and visually pick his way around the terrain in his path.  But as he maneuvered under the low clouds and around the fog, he suddenly came upon a mountain’s steep up-slope.  He shoved the throttle forward, pulled the nose up and began a climb.  But the terrain rose faster than could his aircraft.  He bellied onto the rising slope while in full control of a perfectly functioning aircraft.

At least that how it looks.

According to John Bouker, the pilot who found the wreck: 

The Otter had plowed into the hill. He bounced up the mountain. He looked like he was in a full-power climb. . the plane appeared mostly intact.

That’s a classic "controlled flight into terrain” scenario.

Poor Decision Making   

This morning a pilot who used to fly search and rescue out of Dillingham called me to talk about the crash.  He pointed out that the state of Alaska accounts for more than a third of all commuter and air taxi crashes in the entire country.  That’s right: one state accounts for a third of all the nation’s crashes.  And more than 80 percent of those crashes are due to poor decision-making.

Alaskans seem to accept aviation tragedies as part of life in the wilderness.  My caller suggested that poor decision making seems to be not just tolerated, but sewn into the very fabric of Alaskan aviation community. 

The question is not the whether the pilot had the skills to “maneuver” the aircraft around difficult terrain. Or whether he had the experience necessary to pick his way around the obstacles along the route. Or whether he brought the aircraft down with the least impact possible.  The question is whether, given the weather, he should have attempted the flight at all.

I can easily imagine that a nice fire was burning in the lodge fireplace when the pilot loaded up his passengers. If ever there was ever a flight that didn’t need to be made, it was this one. 

Yet it was.