The pilot’s original destination was Bozeman, Montana.  But the pilot amended his flight plan and diverted to Butte.  The pilot did not tell air traffic control why he was diverting.  About 25 minutes later, as the aircraft approached for landing at Butte, it went out of control and crashed. 

The NTSB is now investigating two things: (1) why the pilot diverted to Butte, especially when he was so close to Bozeman, and (2) why the pilot lost control and crashed so near the runway at Butte.

Some possible explanations for diverting include:

Continue Reading Pilatus Crash at Butte Montana and Occam’s Razor

Tim Vasquez is a meteorologist with Weather Graphics in Oklahomoa.  He has plotted Flight 447’s flight path against GOES-10 satellite and other weather data. Vaquez’ work suggests Flight 447 penetrated two thunderstorm cells.

The image below, according to Vasquez, is similar to what the Flight 447 crew would have seen on its weather radar screen, assuming its radar was working. The black line in the image represents the aircraft’s flight path.  "ACARS Position" represents the aircraft’s position when it sent it’s last ACARS message.

 Vasquez Figure 12

This next diagram is a cross section of Flight 447’s track through the thunderstorm cluster.  According to Vasquez, instead of fying around these two cells, Flight 447 flew through the top of the first cell and then continued on through the middle of the second.

Vasquez Figure 13

 

Not surprisingly, Vasquez concludes the aircraft encountered severe turbulence that may have damaged the aircraft.  The question of why Flight 447 failed to avoid the storms (theories discussed in a previous post) remains unanswered.  Vasquez’s full report can be found here.

 

Are the passengers’ families entitled to compensation for their loss? From whom? Does it matter what caused the crash? Can the families sue in the United States?

Air France is Responsible Regardless of the Cause of the Accident. 

The Montreal Convention requires Air France to compensate the families as long as the crash was caused by an accident.  The Convention defines "accident" to include any unexpected event, from an encounter with severe weather, to mechanical failure, to a terrorist attack.

Air France must compensate each passenger’s family:  

  • For all recoverable damages suffered up to $155,000; and
  • For all recoverable damages suffered in excess of $155,000, unless Air France proves it was not in any way “negligent or otherwise at fault."

In addition, Air France must advance $25,000 to cover each family’s “immediate economic needs” within 15 days of identifying who the proper claimants are. The $25,000 payment is credited against Air France’s ultimate obligation to the family.  

As a practical matter, Air France will be liable for all legally recoverable damages without regard to the $155,000 limit. That’s because to avoid liability, Air France has to prove a negative — that it was not in any way “negligent or at fault.” Regardless of whether it is ultimately determined that the crash was caused by weather, equipment failure, or even terrorism, Air France will not be able to demonstrate that its own negligence did not somehow contribute to the accident.  There are just too many possibilities for Air France to disprove.

The Final Amount of Compensation to Which a Family is Entitled Depends upon Where the Particular Family may Sue.

U.S. law is most favorable for the families, as the laws of other countries severely limit compensation in wrongful death cases. For example, unlike the United States, many countries do not allow families to be compensated for loss of a loved one’s "care, comfort, or society."  But the Montreal Convention will permit a family to sue Air France in the U.S. only if: 

  1. The United States was the passenger’s ultimate destination, or
  2. The passenger’s ticket was issued in the United States, or
  3. The passenger’s “principal and permanent residence” was in the United States.

The first two grounds are relatively straightforward. The passenger’s travel documents will determine whether the family meets the applicable requirement. The third ground, however, might well be hotly contested in at least some of the families’ cases. For example, two Flight 447 passengers were U.S. citizens from Texas who were living in Brazil. But was the U.S. their "principal and permanent" residence? That may depend upon whether they intended to return to their home in Texas and, if so, when. These details may need to be litigated.

Compensation from the Manufacturers.

If the crash was caused by a product defect – such as a problem with the Airbus’ weather radar, its flight control system, or a pitot tube — then the families would be entitled to pursue a product liability claim. Many of the Airbus’ components parts are manufactured by U.S. companies.  If  a U.S. manufacturer was responsible for the defect, the families would be permitted to sue the manufacturer here, even if the Montreal Convention did not allow them to sue Air France here.  A family that successfully sues in the United States may be compensated under U.S. law rather than the more restrictive foreign laws. 

Forum Non Conveniens is an Obstacle to Suing Manufacturers in the U.S.

The doctrine of forum non conveniens allows a U.S. court to decline jurisdiction and transfer a case to a foreign country if it decides that, all things considered, the foreign court would be more convenient for all involved.  U.S. courts frequently invoke the doctrine to avoid hearing cases involving foreign aviation accidents. Flight 447 may be one case, however, that a U.S. court may well decide to hear.  After all, the U.S. would be most convenient for the manufacturers because their engineers, their engineering documents and test data are undoubtedly here. There are no eyewitnesses to the accident who would need to be inconvenienced by traveling to the U.S. from abroad to testify. Finally, unlike disasters occurring on foreign soil, it makes no sense to have the case heard near the crash site because there is nothing at the crash site for any judge or jury to see.    

Did the Pilots Attempt to Fly Through a Thunderstorm Intentionally? That’s very unlikely. Pilots avoid thunderstorms at all costs, because they know a thunderstorm can destroy any aircraft. Pilots use the aircraft’s on-board weather radar system to make sure they keep a safe distance. During the day, they can see the towering thunderstorms rising up to 50,000 feet and avoid them that way as well.

Did Lightning Destroy the Aircraft? Probably not. Lightning strikes are common. On average, each airplane is the US commercial fleet is stuck by lightning once per year. To protect against strikes, airliners are designed to route the electrical charge along the aircraft’s outer skin from one end of

Continue Reading Air France Flight 447: Lightning, Thunderstorms, and the Airbus

What does the aviation accident lawyer need to prove in order to win a "design defect" lawsuit against the manufacturer of the aircraft that injured his client?   

It varies from state to state. But it’s never enough simply to prove that the aircraft‘s design caused the accident or injury.  The victim’s lawyer always has to prove more than that.  One way for the aviation lawyer to win the lawsuit under California law is to prove to the jury all of the following things:

  1. That the pilot did not misuse the aircraft, but instead operated it in a way the manufacturer could have anticipated;Zodiac CH 650
  2. That the aircraft’s design presented a real risk of injury, and not just a remote possibility of injury; 
  3. That a different, safer design would have avoided the accident or injury, and
  4. That the safer design was “feasible.”  In other words, a safer design would not have been too expensive, been too difficult, made the aircraft too heavy, significantly detracted from the aircraft’s performance or usefulness, or presented other serious drawbacks.

To support the case, the victim’s lawyer can present to the jury evidence such as the testimony of expert engineers, pilots or eyewitnesses; documents from the manufacturer’s files; pieces of the aircraft wreckage; “mock-ups” of safer, alternative designs; and laboratory test results.  He cannot, however, use any of the conclusions or opinions contained in the National Transportation Safety Board report concerning the accident.  That’s because the NTSB’s opinions are inadmissible in court.

After all the evidence has been presented, the judge explains to the jury exactly what the victim’s lawyer needed to prove in order to win. The explanation is called the "jury instructions."  The judge gets the instructions from standard, pre-published forms that he modifies as needed for the particular case. 

For the victim to win, the jury must agree, after reviewing all the evidence, that his lawyer proved his case by a "preponderance of the evidence."  That means that the evidence, taken together, showed that each element of the victim’s case was “more likely than not” true.  The lawyer need not prove his case “beyond a reasonable doubt.” That standard of proof applies only in criminal cases.  

The General Rule

Mechanics are required by regulation to follow the instructions set forth in the manufacturer’s maintenance manuals when working on an aircraft.  The mechanic is not allowed to deviate from the instructions covering the work he undertakes.  If he does deviate, and someone is injured as a result, the mechanic is liable.

Service Bulletins

Sometimes, a manufacturer learns of a problem with the way its product is performing in the field.

Continue Reading A Mechanic’s Liability for Failure to Comply with a Manufacturer’s Maintenance Instructions

I blogged here on whether it was icing that caused the crash of Flight 3407, or whether the pilot simply pulled back on the yoke when he should have pushed forward.  The NTSB’s animation, using data gathered from the aircraft’s black boxes, makes a strong case for the latter.

The video is 2 minutes 39 seconds long.  Watch the airspeed drop dangerously low by 2:04 and the stick shaker activate at 2:07.  The pilot should have immediately pushed the yoke forward, which would have pointed the nose down and allowed the aircraft to regain airspeed.  Instead, he pulls the yoke back.

Cory Lidle’s wife and Tyler Stanger’s family are suing Cirrus Design, alleging that a problem with the plane’s flight controls caused Lidle and Stanger’s plane to crash into a Manhattan hi-rise.

Miles O’Brien, a former CNN correspondent, calls the lawsuit frivolous, because the NTSB concluded the cause was pilot error.  According to O’Brien, "in our litigious society, the facts don’t matter for much."

O’Brien is missing the fact that the NTSB’s conclusion is marred by a built-in conflict of interest.

Continue Reading Is Lidle Suit against Cirrus Frivolous?

The Cirrus is a “new generation” aircraft loaded with safety features. For example, if a pilot flying after dark gets too close to a ridge line, the Cirrus’ on-board Terrain Awareness Warning System generates a voice urging him to “Pull Up! Pull Up!”  The plane’s wings secrete fluid that helps prevent them from icing up in poor weather. The cockpit has airbags, and its seats protect the passengers in a crash by absorbing 26 times the force of gravity.  The Cirrus is the only aircraft of its kind that comes with a rocket propelled parachute that can shoot out of the back of the plane in an emergency. Partly as a result of all its safety features, the Cirrus has become the most popular general aviation aircraft, with sales surpassing long-time industry leaders Cessna, Beechcraft, and Piper.

Critics, however, say that the aircraft has a lousy safety record, with a fatal accident rate significantly higher than the “old style” Cessnas and Beechcrafts. They say that the Cirrus, made mostly of fiberglass rather than the traditional aluminum, is not crashworthy. Not only does the

Continue Reading Recent Crashes Stoke Debate on Cirrus Safety

The National Transportation Safety Board doesn’t have the engineering expertise or financial resources to investigate an accident on its own. So it asks industry representatives for help.  In almost every case, it turns to the manufacturer of the aircraft component that failed or malfunctioned.  In other words, the NSTB asks the entity most likely to have caused the crash for NTSB Investigator Gathers Data at Crash Sitehelp investigating it. The NTSB calls this method of investigation the "party system."

Can we really expect a manufacturer to point out to the NTSB evidence suggesting that it may have been at fault?  Of course not.  Asking industry representatives to help determine the cause of an accident is like asking the fox to help figure out what happened to the chickens.

Victims’ families are not allowed to participate in the NTSB’s accident investigations. Nor are experts hired by the families or by the families’ attorneys. So the investigation is necessarily one-sided, with the NTSB’s final report heavily "influenced" by the very corporations whose products or services are being investigated. The NTSB has recognized the conflict of interest inherent in its "party system" but, unfortunately for victims and their families, continues the practice in just about all of its investigations.