We don’t know much yet about the plane crash in Alaska that killed the pilot and 8 tourists from the MS Westerdam.  But the crash looks eerily similar to the Alaskan crash that killed Senator Ted Stevens and three others in 2010.

Like the plane that was involved in the Westerdam crash, the plane that crashed with Stevens Otter Senator Stevens Crashaboard was a de Havilland Otter retrofitted with floats and a turboprop engine. Both tour pilots encountered adverse weather that is common in Alaska:  Low Ceilings. Fog. Gusty winds.  

In the Steven’s crash, instead of turning around when he encountered the low clouds, the pilot pressed on.  Unable to see where he was going, he inadvertently flew into the side of the mountain. (The local papers were calling the pilot a "hero" because not everyone aboard was killed. I had to disagree.)

In last week’s crash at Ella Lake, the weather conditions were similar.  It looks as though the pilot,Promech Air Otter employed by tour operator Promech Air, inadvertently flew into the clouds and struck the side of a cliff.  

This sort of accident is not uncommon, particularly in Alaska and Hawaii.  The type of accident is called "controlled flight into terrain."  It is almost always due to pilot error. 

Blue Hawaiian helicopters was probably the last tour operator that flew a perfectly good aircraft into the side of a mountain due to low clouds.  Compare the photo of the weather conditions that contributed to the Blue Hawaiian crash (left) with the photo of the weather conditions that the Promech Air pilot tried to fly through.  Note how, in both photos, the clouds obscure the mountain tops.

Otter Crash near Ella Lake Alaska weather

 

 

 It looks as though the Germanwings first officer intentionally crashed the aircraft, killing all aboard.  Reporters are asking about the airline’s obligation to provide the passengers’ families monetary compensation.  Here are some answers:

The airline must compensate the families for any "accident."  Because Flight 9525 was angermanwings international flight, all the families’ claims are governed by a treaty called the Montreal Convention.  The treaty makes the airline automatically liable to the families for any "accident."  It doesn’t matter whether the airline was negligent or did anything wrong.

The crash was the result of an "accident."  Even if, as it appears, the first officer intentionally crashed the plane, it was still an "accident."  Most courts define "accident" for the purposes of the Montreal Convention to be any "unexpected or unusual event or happening that was external to the passenger."  The pilot’s decision to crash the plane would certainly qualify.

The Montreal Convention’s limits of liability will not apply.  An airline can avoid paying to the families of those lost in an accident any amount over 113,100 Special Drawing Rights (a sum equal to about US$160,000) if it can prove that it was in no way at fault for the crash.  Generally, it’s very difficult for an airline to make that showing.  It’s the problem of proving a negative.  In this case, of course, it will be impossible for the airline to prove it was completely free of fault.  So the Convention will impose no limit on the airline’s obligation to compensate the families for their loss.

The Airline is off the hook for punitive damages.  Though the airline will have to compensate the families for their losses, even if it turns out that the airline knew or should have known that the first officer presented a danger, the Montreal Convention prohibits a court from awarding punitive damages, or money designed to punish the airline rather than compensate the families.

The amounts that the families will receive depends upon where they sue.  The Montreal Convention leaves it to the courts of the country in which the passenger sues to decide how much money is appropriate compensation for the loss of a loved one.   Every country is different.  In the United States, certain families of those lost could expect payouts to exceed $10 million, depending on the circumstances.  In France and Germany, the payouts would be much, much lower.

Few passengers, if any, will be able to sue in the US.  The Montreal Convention allows families to sue in the United States only in certain limited circumstances.  For example, a family might be able to sue in the US if the passenger happened to purchase his tickets in the US, or if he was planning to continue on after landing to a destination in the United States, or perhaps if the passenger was US resident.

Eddie Andreini’s plane slid to a stop at show center and caught fire.  Eddie was trapped inside. The crowd watched, prayed, and waited for fire trucks to arrive. Some bystanders wanted to rush to the plane to help Eddie get out, but the announcer warned everyone to stay back and "let the firefighters do their job."

But the firefighters didn’t do their job. By the time the trucks showed up, almost 5 minutes had passed and it was too late. Eddie survived the impact unharmed, but died of burn injuries.

The Travis Air Force base fire trucks were supposed to be positioned at show center so that, in case of a crash, they would have immediate access to the runway.  Where were they? Those who were at last year’s "Thunder Over Solano" air show want to know and so does Eddie’s family.  But within hours of Eddie’s death the Air Force closed ranks.  Since then, it has simply refused to explain itself to anybody.

  • The Air Force declined to answer any questions at all from the family in the days and weeks following the accident.
  • Though it had by law only 20 days to respond to our formal request under the Freedom of Information Act, the Air Force ignored that deadline altogether and gave us nothing.
  • The Air Force had six months to respond to the family’s official claim under the Federal Tort Claims Act. That deadline has also long passed.  The Air Force hasn’t offered so much as a phone call in response.

So what is the Air Force hiding?

It looks as though there are three three things the Air Force doesn’t want to talk about.  

First, Travis didn’t place its trucks at show center as it was supposed to.  Instead, it parked them more than a mile away. 1.3 miles away, to be exact. 

Second, Travis brass told the firefighters that, in responding to any fire, they could drive their trucks down the taxiways no faster than 25 miles per hour.  That speed limit applied to all the fire trucks, including the Air Force’s so-called "Rapid Intervention Vehicle," designed and built to get to the scene at top speed and start applying foam before the big trucks arrive.  

Third, the Travis firemen may not have been in their station and ready to respond like they were supposed to be.  Rather, it looks as though they may have been out across the field taking pictures of airplanes parked on the grass.

Today we filed suit against the Air Force on behalf of Eddie’s family.  The Air Force has 60 days to respond. 

Andreini vs. Air Force

Dr. Ken Gottlieb’s Cessna 182 took off from Napa Airport with only Dr. Gottlieb aboard. As the Cessna climbed from the runway, it turned in the wrong direction. It collided with high terrain just north of the airport. Dr. Gottlieb was killed on impact. His body was ejected and the aircraft exploded and burned.

The NTSB ruled the crash was caused by pilot error, finding that Gottlieb encountered poor weather, became confused, and failed to follow the correct instrument departure procedure.Dr. Ken Gottlieb

The family asked us to investigate. We learned that Gottlieb’s instructor had flown with Gottlieb a few days before the crash. The instructor found Gottlieb (pictured right) to be well-versed in the Napa departure procedure and otherwise meticulous in his flying. The instructor felt it unlikely that Gottlieb would become confused and turn in the wrong direction. As far as the instructor was concerned, whatever caused the crash was “out of Ken’s control.”

Faride Khalaf (pictured below) was the plane’s mechanic.  We learned that Khalaf began working on general aviation aircraft only after he was fired from United Airlines. We uncovered evidence that Khalaf had performed maintenance on Gottlieb’s aircraft without properly recording the work in the aircraft’s logs. In fact, Khalaf performed undocumented repairs on the pilot’s seat just a few weeks before the crash.

We examined what little remained of the wreckage and found two things that were unusual. First, we saw evidence that, at the moment of impact, the pilot seat was in the full aft position. Second, the pilot’s seat belt was unbuckled.

Based on their forensic work, our experts testified that as Gottlieb climbed away from the runway, his seat suddenly and unexpectedly slid to its full aft position and jammed. Gottlieb’s hands and feet could not reach the aircraft’s controls and the aircraft flew off course, out of control. Gottlieb unbuckled his seat belt so that he could scoot on his knees up to the aircraft’s control wheel.  But before Dr. Gottlieb could regain control of the aircraft, it crashed into the hillside.

Faride KhalafThe pilot seat slid back and jammed because Khalaf’s undocumented work was improperly performed.  He charged the aircraft owners for new seat parts, but did not install them. Instead, he illegally jury-rigged the existing seat release mechanism. The faulty repair held up for a while, but failed just as Gottlieb took off, causing the seat to slide back and jam in place.

Making matters worse, we found emails from Khalaf on Gottlieb’s hard drive. Gottlieb had asked Khalaf to perform an annual inspection of the aircraft just days before the crash.   Khalaf’s emails confirmed that he had in fact "finished with the annual" and that the plane was "good to go."  Based on Khalaf’s confirmation that the plane was safe to fly, Gottlieb departed on his flight from Napa. But, in fact, Khalaf never inspected the plane at all. All he did was change the oil, to make it appear as though he had serviced the aircraft when in fact he had not.  Had Khalaf performed the inspection, he might have learned that his previous improper repairs were about to fail.  

Earlier this afternoon, the jury entered its verdict against Khalaf for $13,360,000. The verdict is believed to be a record amount in California for the death of someone over age 65.

Khalaf’s attorney quit the case one year before the trial was set to begin. Khalaf elected to representCessna 182 N23750 himself during the 7 day trial. Adbi Anvari of Air West Aircraft Engines testified as Khalaf’s expert.  Khalaf called Dr. John Kane to testify about medical issues that Khalaf contended afflicted the pilot, but the judge ruled the doctor to be unqualified and refused to allow him to take the stand.

Dr. Gottlieb was a prominent San Francisco forensic psychiatrist.  He left his wife Gale, daughter Tamar, and son, Mike who is a lawyer and special assistant to President Obama.

Before trial, Gottlieb’s family offered to drop the suit entirely if Khalaf agreed to surrender his mechanic’s license. Khalaf refused.  That means despite the verdict, Khalaf is still legally entitled to work on aircraft and return them to service.

 

 

Khalaf Verdict

Here are six ways an aircraft owner can be found liable even if he was not on board when the plane crashed:

  1. Vicarious liability for acts of permissive user.   In many states, an aircraft owner is liable by statute for any injury caused by a pilot who was flying the aircraft with the owner’s permission. The owner need not have done anything wrong — the owner’s liability is automatic.  But that liability is generally capped.  For example, in California, the aircraft owner is automatically liable for death or injury resulting from the pilot’s negligence, but that liability is  limited to $15,000 per person killed or injured, up to a total of $30,000.
  2. Liability as Partner or Joint Venturer.  In some circumstances, if the pilot was the owner’s partner or was engaged with the owner in a joint venture, the owner can be held fully responsible for any accident caused by the pilot’s negligence.
  3. Owner’s negligent conduct. Of course, if the aircraft owner was himself negligent, he may be held liable for the accident, once again without regard to any cap.  For example, if the owner performed maintenance on the aircraft (as permitted by FAA regulations), but didn’t perform it properly, the owner can be held fully responsible for any accident that results.  Even if the owner never touches the aircraft, he might still be held responsible if he makes unreasonable maintenance decisions that, though permitted by FAA regulation, were not those that a reasonably careful owner would have made. One  such maintenance decision might be running the aircraft past TBO. 
  4. Non-delegable duty.  Mechanics are typically independent contractors.  Generally, we aren’t responsible for their negligence.  But the federal aviation regulations make the owner of an aircraft primarily responsible for its airworthiness, That means the owner may be held responsible even when the accident was solely the mechanic’s fault.
  5. Negligent entrustment.  An owner can be held liable for an accident if he allows a pilot to use an aircraft when he knows the pilot isn’t competent to complete the planned flight safety.  For example, an owner may be held liable to those injured for allowing a pilot to fly to a high-density altitude airport if that pilot hasn’t had a high-density altitude checkout. In the negligent entrustment context, the "permissive user" liability caps don’t apply.  
  6. As the manufacturer of an amateur build aircraft.  Needless to say, if the owner was the builder of the aircraft that is involved in the accident, he can expect to be held liable, at least if the accident was the result of faulty workmanship.

Following up on my recent posts on the incident, I had the opportunity to discuss the crash of AirAsia QZ8501 with Colin O’Keefe of LXBN. In the interview, I share my thoughts on the potential cause of the incident and what that might mean as far as compensation for families. 

//www.youtube.com/embed/1VXd_cNNk0c

Because AirAsia Flight QZ 8501 was an international flight, the airline’s obligation to compensate the passengers’ families is governed by a treaty known as the Warsaw Convention.  Here are some of the Convention’s important points, as they apply to Flight 8501:

Airlines Must Compensate Families for "Accidents"

AirAsia must compensate the 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. It would seem the loss of Flight 8501 will qualify as an "accident."  The exact cause of the accident doesn’t matter. The families do 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 the families, unless the airline proves it took "all necessary measures" to avoid the accident — a showing which is for all practical purposes impossible. 

Avoiding the Convention’s Cap

The cap on an airline’s liability under the Warsaw Convention is about US$23,000 (16,600 SDRs).  But families may avoid that limitation if they can prove that the accident was caused by AirAsia’s "wilful misconduct."  That means that they must prove that AirAisa or its pilots did something wrong that, at the time, they knew was wrong.  

Compensation Will Be Determined By Local Courts

Assuming that the families can prove that the accident was a result of the airline’s wilful misconduct, the court system where the family sues will limit the family’s recovery, not the Warsaw Convention.  For example, a US court might set fair compensation for the loss of a spouse at several million dollars.  But an Indonesian court is likely to set fair compensation at far less.  That makes “where to sue” a critical decision for each family.  And the Warsaw Convention strictly limits where suits against airlines such AirAsia may be brought.

 

Let’s get it out of the way: there is little in common between the apparent loss of AirAsia Flight QZ 8501 and the disappearance of Malaysia Airlines Flight MH 370.  

But Flight 8501’s disappearance does have at least some resemblance to the 2007 loss of Adam AirAirAsia A320 Flight 547.  Both Indonesian airliners disappeared shortly after contact was lost in bad weather. Both disappeared in Indonesian airspace — the AirAsia flight over the Java Sea; the Adam Air Flight over the Makassar Strait.

Bad Weather vs. Pilot Inputs

The speculation after the Adam Air crash was that the flight was brought down by severe weather — weather that the crew had been warned about.  But that turned out to be wrong. Adam Air Flight 547 went down because the crew fixated on troubleshooting a problem with the aircraft’s navigation system, not because of weather.  The crew became so preoccupied withthe navigation system that they allowed the aircraft to slowly roll into a steep bank.  They allowed the nose to point down and the aircraft to build too much speed.  When the pilot figured out was going on and tried to recover, his control inputs broke the wings.

But the AirAsia Crew Had Requested a Deviation for Bad Weather

Unlike the Adam Air crew, the AirAsia pilots had requested from Air Traffic Control a clearance to climb to a higher altitude but didn’t immediately get it.  A short time later, all contact with the airliner was lost. Isn’t that a strong indication that rough weather may have been a factor?  

First, while small aircraft are often brought down by rough weather, it’s extremely rare for an airliner to be.  Airliners avoid rough weather largely for comfort rather than for safety.  Second, although Air Traffic Control delayed in giving the AirAsia flight a clearance to climb, the pilots were free to do so immediately in the unlikely event the weather posed a risk to the aircraft’s safety.

But while it’s rare for an airliner to be brought down by turbulence, it’s quite possible for an airliner to be brought down by a pilot’s reaction to that turbulence.  

Airbus Rudder System

That’s exactly what happened to American Airlines Flight 587 in 2001.  The aircraft encountered turbulence climbing out of JFK.  The co-pilot tried to correct by pushing on the rudder with his foot. He pushed too hard and the aerodynamic forces caused structural failure.  The airliner crashed and killed all 260 aboard and 5 on the ground.

American Airlines 587 was an Airbus A300. More then 10 years after that crash, the FAA required all 300 series aircraft to be modified to warn the pilot to "stop rudder inputs" when structural damage becomes a risk, a modification that I felt was inadequate.  Flight 8501 was an Airbus A320.  That’s the same model which the NTSB called flawed because its rudder system was too sensitive:

The Airbus A320 family is . . .susceptible to potentially hazardous rudder pedal inputs at higher airpeeds. 

The air ambulance industry has a poor safety record.  Most of the industry crashes involve EMS helicopters rather than airplanes.  The EMS helicopter fatal accident rate is 6000 times that of commercial airliners.  As it turns out, flying an EMS helicopter is one of the most dangerous jobs inSkyHealth America.

The industry tries to justify the poor safety record by pointing to the “need for speed.”  While acknowledging that the risk of a crash is many times greater for a patient traveling in an EMS helicopter than a ground ambulance, the industry argues that the additional risk is justified because the patient riding in a helicopter usually gets to the hospital sooner.  

That argument has always been questionable. Now, however, it seems that at least one operator is dropping the pretense altogether.  According to SkyHealth, a brand new contractor providing helicopter services to Yale-New Haven hospital patients, it’s really not about speed at all.  It’s really about the equipment on board the helicopter.

When you’re talking about using the helicopter for critical-care patients, people think it’s all about speed. . .  But it’s not about getting to the hospital faster.  It’s really about being able to provide care during transport from one hospital to another.”

The new operator reports that it is flying patients every other day.  But it’s not rushing trauma victims from accidents sites to emergency rooms as you might expect.  Instead, it is moving stable patients from one hospital to another.

With the copter, ‘you don’t have out of hospital time because the crew in the hospital can do the same things as the [ICU]. . .It’s a higher level of care than our ground transport.

Wouldn’t it be safer for these patients and cheaper to simply upgrade the care available in a ground ambulance?