Magaña, Cathcart & McCarthy (MC&M), a law firm specializing in aviation liability cases, announced today that the U.S. Supreme Court’s recent ruling in Olympic Airways vs. Husain has given a boost to the firm’s efforts to make international air carriers liable for passengers who develop Deep Vein Thrombosis (DVT), the potentially deadly blood clots linked to long flights.  The Court’s milestone ruling, which says an “accident” is not just limited to affirmative acts that result in injury but can also apply to a carrier’s failure to act, is directly applicable to the firm’s DVT cases currently awaiting a hearing in the Ninth Circuit Court of Appeals. 

“Airlines have denied DVT’s risks even though they’ve known about them for nearly 30 years,” said Clay Robbins III, MC&M’s lead attorney on DVT cases. “This ruling puts them on notice that they will be held accountable for failing to give passengers timely and adequate information about DVT’s symptoms and how to avoid life-threatening medical conditions during a flight.”

The DVT condition, also known as “the economy class syndrome” because it is caused by hours of sitting in cramped conditions, causes leg pain and swelling and can become fatal if a clot breaks loose from the veins in the legs and travels toward the chest.   Most at risk are pregnant women, those over the age of 40, and passengers who have undergone surgery.  A study conducted by medical researchers in New Zealand reveals as many as one in 100 passengers are likely to develop blood clots on long-haul flights.

In Husain, the Supreme Court ruled that under the Article 17 of the Warsaw Act, which governs international travel and holds airlines liable for damages in cases involving bodily injuries, an “accident” is not limited to the “injury producing event” but can involve any link in the causal chain that is unusual or unexpected.  It rejected the reasoning behind recent United Kingdom and Australian DVT court rulings that an injury resulting from an “inaction” cannot be an “accident” under the Warsaw Convention. 

The flight attendant’s refusal to help a passenger avoid a medical crisis constituted an “accident.”  Her unusual and unexpected refusal to move the passenger, who had asthma, away from the smoking section was a link in the causal chain of events that led to the passenger’s death.

Robbins says that airline carrier’s conduct in DVT cases is even more unusual or unexpected than the “accident’ referred to in Husain.  “Their failure to provide timely and adequate warnings of DVT’s risks prior to a flight and give passengers the opportunity to take preventative measures is the causal link in these claims,” says Robbins.  “The airline carrier’s inexcusable inaction for so long is a disgrace.  But now, because of the Supreme Court ruling, we believe U.S. and international victims and their families will finally be compensated for their terrible losses.”

The EPP protection program has two parts. When a qualifying dislocation occurs and a protected employee loses his or her job, the employee purportedly attained both a right of first hire at other certified airlines and a right to receive monthly compensation. Congress assigned to the Department of Labor (DOL) the responsibility for the EPP’s implementation. In essence, the EPP created a hiring preference for covered displaced employees within the airline industry.

The effectiveness of the EPP was hampered from its beginning. The DOL’s ability to make monthly assistance payments to displaced employees was nonexistent without congressional appropriation of the program and such funding has never occurred. Nearly twenty years after Congress signed the EPP into law the EPP’s compensatory aspects remain unfulfilled. To date, the Secretary has made no monthly assistance payments under the EPP’s financial assistance provisions.

A question also remains regarding the EPP’s duration. At least one court that has considered this issue reasoned that because the Secretary had not made any payments under the EPP, the "later" of the two sunset provision dates controls, that which specified that the EPP would terminate when the Secretary made the last payment under the Act. Thus, the court held that at least for those dislocated prior to December 31, 1988, the rights and duties under the first-hire provisions of the EPP remain effective beyond 1988, perhaps indefinitely. In so ruling, the court noted that the eligible pool of covered employees is narrowing and aging and the duty to hire will eventually end, absent congressional amendment. Thus, it remains to be decided just how far beyond 1988 the rights of first hire actually extend.

There was no legislative scheme of enforcement of the EPP. Neither was there any express authority for a private right of action. In an effort to obtain protection, covered displaced employees urged that a private right of action should be inferred from the statutory language. A private claim for violation of the EPP includes injunctive relief to compel the airlines to comply with the preferential hiring mandate of the ADA, as well a monetary relief to compensate for lost benefits in the event of airline non-compliance. Additional damages may also be recoverable under state law theories of recovery. As it turned out, this avenue was the only means to obtain any of the benefits promised by Congress.

The reasons why the EPP’s first-hire protections did not provide the expansive blanket of protection that Congress had intended should serve as the foundation for the design of future protective endeavors. The next time Congress seeks to protect employees, it should learn the lessons from the failure of the EPP. Only by identifying shortcomings in past efforts can Congress hope to provide meaningful protection in the future.

Congress must fund the program that it creates and provide the implementing agency with an authoritative means of enforcement. Many current programs provide guidance. For instance, the National Labor Relations Board possesses very strong enforcement power. Conversely, if Congress concludes that the statute can be reasonably enforced through private causes of action, then the statute should create this cause of action. In the EPP’s circumstances, where the size and wealth of the potential defendants in EPP suits is extraordinary, Congress should have concluded that the government’s enforcement resources would be required.

CONCLUSION

The Airline Deregulation Acts Employee Protection Program did not provide displaced airline employees with the benefits that had been promised by Congress. It was only by the filing of private civil actions that some employees were able to secure any of the rights they purportedly had been guaranteed by Congress. Any future legislation must contain clear and concrete procedures for enforcement, as well as an agency with the funds, authority and personnel to carry through on the promises made by Congress. Future employee protection endeavors must not be allowed to become a source of frustration for those who truly require such protection.

I had been the proverbial ostrich, with my head stuck far into the sand, when the head of a charitable flying organization gave me a call a few days ago. He questioned me about an article he had read concerning the legality of pilots flying charity missions. The article in General Aviation News & Flyer discussed the case of a private pilot who used his Baron to perform a charitable mission. He could not deduct the costs involved because he had already exceeded the permissible amount. Thus, he considered it a gift, and sought nothing in return. Nonetheless, the FAA went after him tooth and nail, and sought an emergency revocation. After a hearing, the Administrative Law Judge found the pilot guilty, but reduced the sanction to a six month suspension.

The FAA took the position that since the flight could have been used for a charitable deduction, then the flight was for "compensation or hire", and required a commercial pilot’s certificate, plus a Part 121 or 135 operating certificate. Fortunately for the pilot, the sanctions was overturned on appeal. However, the reversal was due to a procedural defect, and the NTSB never reached an opinion on the merits of the case.

Since I, and many other pilots, volunteer their time and aircraft to perform missions for charitable organizations such as Angel Flight, I became concerned, and decided to look into the matter. At first, I considered calling the local Flight Standards District Office for an opinion. But when I have done so in the past, my questions always seemed unanswered. Instead, I went directly to the applicable FAR in an attempt to understand where the FAA may be coming from.

FAR §61.118 states:

"Except as provided in paragraphs (a) through (d) of this section, a private pilot may not act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may he, for compensation or hire, act as pilot in command of an aircraft.

(a) A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if the flight is only incidental to that business or employment and the aircraft does not carry passengers or property for compensation or hire.

(b) A private pilot may share the operating expenses of a flight with his passengers.

(c) A private pilot who is an aircraft salesman and who has at least 200 hours of logged flight time may demonstrate an aircraft to a prospective buyer.

(d) A private pilot may act as a pilot in command of an aircraft used in a passenger-carrying airlift sponsored by a charitable organization, and for which the passengers make a donation to the organization

if:

(1) The sponsor of the airlift notifies the FAA Flight Standards District Office having jurisdiction over the area concerned, at least seven days before the flight, and furnishes any essential information that the office requests;

(2) The flight is conducted from a public airport adequate for the aircraft used, or from another airport that has been approved for the operation by an FAA inspector;

(3) He has logged at least 200 hours of flight time;

(4) No acrobatic or formation flights are conducted;

(5) Each aircraft used is certificated in the standard category and complies with the 100 hour inspection requirement of §91.409 of this chapter; and

(6) The flight is made under VFR during the day."

The purpose of regulations which require more stringent qualifications for those pilots flying paying customers, is to make certain that those actually parting with compensation for a flight are protected. It strikes me as odd, however, that a person who shares the expenses of a flight with his pilot, is not entitled to the same assurances of protection had he paid for the fuel, and some of the pilot’s time as well. Nonetheless, laws are laws, and one must read them as they are written.

As §61.118 is written, a private pilot flying for an organization such as Angel Flight, which provides for the free transportation of underprivileged patients, can do so without fear of FAA sanctions. Subsection (d) specifically refers to charitable flights for which the "passengers make a donation to the organization." There is no Federal Aviation Regulation that specifically pertains to flights for charitable organizations, and for which the passengers make no donation to the organization. This is the type of flight which most organizations, such as Angel Flight, sponsor.

The acting Chief Counsel of the Federal Aviation Administration made clear as of April 23, 1993, that the mere deduction of costs would not make a pilot susceptible to FAA enforcement. He stated:

"As a matter of policy, taking into consideration the fact that Congress has specifically provided for the tax deductibility of some costs of charitable acts, we will not consider charitable deduction of such costs, standing alone, as constituting ‘compensation or hire’ for the purpose of enforcing [Paragraph] 61.118 or Part 135. If taking a charitable tax deduction for transporting persons or property is coupled with any reimbursement of expenses, or other compensation of any kind, then this policy does not apply.

In 1995 the FAA made its "Angel Flight" policy clear:

"Recently, the FAA published change 10 to its Air Transportation Inspectors Handbook (FAA Order 8400.11). That change included new guidance for our inspectors concerning Angel flights. Included below, is the full text of guidance. What it says, basically, is that if a person takes a charitable tax deduction for the costs associated with the operation that does not constitute a for hire or compensation operation.

FAA POLICY REGARDING ‘COMPENSATION OR HIRE’ CONSIDERATIONS:

FOR CHARITABLE FLIGHTS OR LIFE FLIGHTS. Various organizations and pilots are conducting flights that are characterized as ‘volunteer’ ‘charity’ or ‘humanitarian.’ These flights are referred to by numerous generic names, including ‘Life Line Flights,’ ‘Life Flights,’ ‘Mercy Flights,’ and ‘Angel Flights.’ These types of flights will be referred to as ‘Life Flights’ in this section.

A. Purposes for Life Flights. The types of organizations and pilots involved with or conducting Life Flights vary greatly. The most common purpose of Life Flights is to transport ill or injured persons who cannot financially afford commercial transport to appropriate medical treatment facilities, or to transport blood or human organs. Other ‘compassionate flights’ include transporting a child to visit with a dying relative, or transporting a dying patient to return to the city of the patient’s birth.

B. FAA Policy. The FAA’s policy supports ‘truly humanitarian efforts’ to provide life flights to needy persons (including ‘compassionate flights’). This also includes flights involving the transfer of blood and human organs. Since Congress has specifically provided for the tax deductibility of some costs of charitable acts, the FAA will not consider charitable deductions of such costs, standing alone, as constituting ‘compensation or hire’ for the purpose of enforcement of FAR 61.118 or FAR part 135. Inspectors should not treat the tax deductibility of costs as constituting ‘compensation or hire’ when the flights are conducted for humanitarian purposes."

Thus, pilots donating their time and aircraft for organizations such as Angel Flight, need not be concerned with the wrath of the FAA knocking at their hangar doors. However, pilots must be very careful on how they volunteer themselves and their aircraft for charitable purposes. For instance, assume a pilot wants to donate to a church, school, or other charitable event, a sightseeing flight. In that instance, the passengers would be making a donation to the organization, and a private pilot would be acting as pilot in command of an aircraft used in a passenger-carrying airlift sponsored by a charitable organization, pursuant to the language of FAR Section 61.118. If a private pilot is going to make such a donation, he best follow each provision contained within §61.118(d), lest he be the target of a zealous FAA inspector. The requirements are not overly burdensome, and should not deter any private pilot from offering his aircraft to be used for the purposes of charitable donations.

Last Friday a Los Angeles jury returned a verdict against an aviation insurer for over $9 million in compensatory and punitive damages. The jury in the case entitled National Test Pilot School, et al., vs. Ranger Insurance Company, Los Angeles County Superior Court Case No. LC042481, found that Ranger Insurance Company had acted maliciously and in conscious disregard of its insureds’ rights in its bad-faith handling of an aircraft property loss claim.

In October of 1995, the aircraft was damaged. The school sought to have the aircraft repaired and submitted a claim to its insurance company, Ranger Insurance Company, of Houston, Texas. At trial, the insurer was represented by Arthur Wasserman of Wasserman & Miller, 16380 Roscoe Boulevard, Suite 120, Van Nuys, California 91406-1221; (818) 895-8234. Notwithstanding the directions of the aircraft manufacturer and the FAA, the insurer’s adjusters insisted that the aircraft could and should be repaired without utilizing the manufacturer’s drawings by a repair station located in Northern California that had never even heard of a Firecracker before this claim, let alone worked on one. The bid submitted by the insurer’s selected repair station (incidentally, also a Ranger insured) was woefully lacking in detail and grossly underestimated in terms of the man hours required to do the job.

The insureds were very concerned about the qualifications of Ranger’s selected repair station, and were vehement that the repairs could only be undertaken if the repair station had in its possession the manufacturer’s drawings. The insureds persisted in the refusal to accept the insurer’s suggested repair plan that, in the insureds’ opinions, would have been inadequate, illegal and dangerous. The insurer failed to seek out information from the manufacturer or the FAA to assist in its evaluation. In fact, the insurer even refused to obtain bids/evaluations from any other repair station. Ranger flatly ignored and refused to acknowledge the insureds’ concerns, stating that aircraft are routinely repaired without manufacturers’ drawings. Although that may be the case with mass-produced aircraft, the insurer’s position was completely unfounded with respect to revenue-generating aircraft, used for hire, to train jet test pilots. The Firecracker was routinely operated in maneuvers, pulling up to 6 "G’s." The operating limitations issued by the FAA governing the use of a Firecracker mandated that the required repairs could only be undertaken by a qualified repair station that had the manufacturer’s drawings.

When attempts were made to obtain the manufacturer’s drawings for the repair station (since the foreign manufacturer was no longer in business, the drawings had to be obtained from a private person), the insurer intentionally interfered with the negotiations and ultimately terminated the effort to obtain the drawings. In the end, the insurer did nothing to effectuate the safe repair of the aircraft. Its adjusters refused to communicate further with the insureds and ultimately invited the insureds to sue the insurer.

On February 9, 2001, after a month-long trial, presided over by Judge Ernest G. Williams, the jury returned its unanimous verdict, finding that Ranger Insurance Company had not only acted in bad faith, but had done so maliciously and in conscious disregard for the rights and safety of its insureds, National Test Pilot School and Flight Research, Inc. The action could have been settled one year ago for $600,000.00. The settlement was frustrated by the insistence of the insurer’s adjuster that he maintain control over how the aircraft was to be repaired, as well as the distribution of money for that repair. The jury awarded compensatory damages in the amount of $1,803,014, and punitive damages in the amount of $7,222,500.

When asked about the verdict, Mr. Robbins replied that the individual jurors were outraged at the insurer’s stonewall claims handling tactics and wanted to be sure this conduct never happened again. "The claims handling decisions were made for no reason other than to try to force the test pilot school to accept a repair that would have been unsafe and illegal. Fortunately, the school had the tenacity and integrity to hang on the five years it took for this claim to be resolved." Mr. Robbins also remarked that the jury felt the adjuster had not been credible during trial.

When he questioned jurors concerning the amount of the punitive damage award ($7,225,500.00), they replied, "The sum of $225,500.00 was symbolic, and intended to send a message to Ranger and its adjuster that their bad-faith conduct and misrepresentations would not be countenanced." The sum of $225,500.00 represented what Ranger’s adjusters insisted was the cost to repair the aircraft. Evidence during trial established that a proper repair would have cost almost double that amount. "What this case was all about was how blind arrogance, if left unsupervised, can completely disrupt the insurer/insured relationship and, in the end, bring a verdict that cost the insurance company and its adjuster more than ten times what it would have cost had the insurance company treated its insureds in a reasonable, responsible fashion."

National Test Pilot School and Flight Research, Inc., look forward to having the Firecracker back in their fleet and operational within five months.

Any inquiries and requests for further information should be directed to Clay Robbins III of the law firm of Maga a, Cathcart & McCarthy, 1801 Avenue of the Stars, Suite 600, Los Angeles, California 90067-5899 (310) 553-6630; info@mcmc-law.com.

As the aircraft begins its final approach to the runway, air traffic controllers broadcast two warnings about windshear conditions to the left of the DC-9. Two other aircraft announce that they are postponing their takeoffs. Nonetheless, the DC-9 continues descending toward the runway.

Moments later, the captain notices a sudden increase in the plane’s airspeed. The rains increase obscuring visibility. The pilot orders a go-around with the command "Max power!" The aircraft briefly responds as the engines roar in a futile attempt to gain altitude. But then, the DC-9 slams into the ground carving a path through a grove of trees before the cockpit breaks free from the rest of the fuselage. The aircraft erupts into a huge fireball. Thirty seven of the passengers are killed. The remainder, including the pilots and flight attendants, survive with varying degrees of physical and psychological injury.

The Aftermath
Why did the aircraft crash? Who is responsible? These questions as well as others typically follow both commercial and general aviation accidents. The answers to these questions determine who may be liable to compensate those injured or the heirs of those who died. However, the scope of this article is limited to the airline employee’s ability to seek compensation in such an accident.

Does a pilot have the right to seek compensation when he is charged with causing the accident, either in whole or in part? What are the rights of the flight attendants when their co-employee (the pilot) has caused the accident?

The Role of the NTSB
Soon after the wreckage comes to rest, the National Transportation Safety Board (NTSB) moves to the scene of the accident in order to gather evidence to determine the cause(s) of the accident. The findings of the air safety investigator in charge will be submitted to the Safety Board for a determination of probable cause. While attorneys rely on the NTSB’s findings concerning evidence, the Safety Board’s determination of probable cause is not admissible in a court of law and is therefore not determinative of the cause of the accident nor the rights of the crew to bring a lawsuit.

Defense of the Pilot
The captain receives a call from an attorney who indicates that he has been hired by the insurance company providing liability coverage to the airline. It is his responsibility to defend the pilot and the airline against all claims for compensation. The captain asks about his personal exposure if he is found to be liable for the accident. It is explained that the airline carries limits which far exceed the potential damages to be awarded and therefore his personal assets will not be exposed to any judgment. The attorney also explains that since the captain was injured during the course and scope of his employment with the airline, he is entitled to make a claim for workers’ compensation benefits which will pay for all medical expenses incurred as a result of his injuries as well as disability benefits which will provide him compensation during the period of time he is unable to work. The workers’ compensation benefits are paid notwithstanding fault.

While the captain is relieved to hear that he will be defended, and that the insurance will indemnify him, he wonders about his own claim for the injuries sustained in the accident. The attorney advises that captain that he has only been retained to "defend" the pilot and that he is not in a position to seek any affirmative relief for his injuries and damages. The captain will need to retain his own personal lawyer, should he choose. The attorney also advises him that he is not entitled to sue the airline even though they may have been negligent in causing the accident since he is an employee of the airline and he is therefore limited solely to a workers’ compensation claim. He may not file a lawsuit against his employer.

Consultation With An Attorney
The captain calls the first flight attendant and advises her that his lawyer will not file any claim on his behalf. The flight attendant tells the captain that she has consulted with a lawyer who is going to take her case and suggests that the captain may want to consult with him for advice. The captain decides to call the attorney to discuss representing him as a plaintiff. The attorney discloses that he is already representing the flight attendant and is investigating the cause of the accident. He states that the pilot’s interests and the flight attendant’s interests would be aligned since neither are able to sue their employer and that both would be looking to a third party for compensation as a result of their role in contributing to the accident.

The captain asks the attorney how many of the passengers that he represents, thinking that it would be important for the attorney to represent a number of passengers to motivate the lawyer to act aggressively in prosecuting the claims. To his surprise, the lawyer says that he does not represent any passengers. The captain’s concerns are alleviated when the lawyer explains to him that he is not in a position to represent any passengers since a conflict of interest would exist. On behalf of any of the passengers, an attorney would be required to sue the airline as well as any others who are potentially liable. On the other hand, if an attorney represents any of the airline’s employees, the attorney’s role would be to negate any negligence on the part of the airline or any of its employees since the employees are not entitled to sue their employer. This creates a clear conflict of interest which precludes representation of both passengers and airline employees by the same attorney. Satisfied with the explanation, the captain decides to retain the attorney and now asks who will be sued.

Determination of Defendants
At this point in time, the investigation is ongoing. The investigation is conducted not only by the NTSB but also by aviation experts who are retained by the attorneys involved. The attorney states that the NTSB has not yet announced its probable cause finding but it appears from his own investigation that the following defendants should be named in a lawsuit:

1) United States of America. The attorney explains that his client’s decision to continue the approach was based at least in part on the weather information provided by the FAA. The attorney explains that the flight crew may not have been provided with updated weather information which reflected severe thunderstorms and rainshowers; that terminal Doppler radar had not been installed at the airport as scheduled which would have provided the air traffic controllers with information about the severity of the weather and such information would have been beneficial to his client. The windshear which was encountered was of 61 knots over a 15-second period. The attorney advises the captain and first flight attendant to file governmental claims against the FAA which will ultimately be denied. At the point of denial, a lawsuit against the USA can be filed.

2. Honeywell, Inc. The captain knows that the DC-9 which he was flying had been equipped with a windshear warning system. He nor the co-pilot recall hearing any warning prior to the crash. The attorney advises his clients that the NTSB investigation confirmed that the onboard windshear warning system failed to enunciate any warning to the flight crew. Why had the windshear warning system not activated? Was there a defect in design or manufacture? The pilot recalls that during the approach, with flaps extended to 40 degrees, the aircraft then encountered the heavy rainshowers. He called for the first officer to discontinue the approach, and in accordance with approved procedure, the flap handle was raised to the 15-degree position. It was later learned that Honeywell’s windshear alert system incorporated a flap-rate compensation feature that inhibited nuisance alerts generated by airflow anomalies when the flaps are in transit. As a result, during flap extension or retraction, oral windshear alerts are delayed until the flaps have reached their selected position. The device is designed to activate within five seconds of encountering windshear. Because of the moving flaps, the warning system would not have activated until about twelve seconds after the aircraft encountered the windshear which was approximately four seconds before impact. The attorney suggests that Honeywell should also be named as a defendant for a defect in design of the windshear warning system which should have activated seven seconds earlier and would have provided the crew with additional time to react.

3. McDonnell Douglas. The attorney explains to his clients that the manufacturer of an aircraft is also strictly liable for any defects that exist in any components of the aircraft even though those components are manufactured by others. If a defect exists in the Honeywell windshear warning system, McDonnell Douglas would similarly be liable.

Recoverable Damages
During their course of representation, the captain and first flight attendant inquire of their attorney as to what, if anything, they may be entitled to recover as a result of their lawsuit. They are informed that their ability to recover as well as the amount and type of damages can be evaluated once a decision has been made concerning which state’s law will apply. Each state will have its own laws concerning the impact of the employee’s negligence, the employer’s negligence and whether joint and several liability exists. The attorney states it is probable that the laws of the state in which this accident occurred will apply. Pursuant to these laws, his clients will only need to prevail against one defendant because of the existence of joint and several liability. Joint and several liability provides that each defendant is liable to the plaintiffs for all damages proximately caused whether that defendant is 1% at fault or 100% at fault. Each defendant is entitled to a reduction in the award to the plaintiff based on the plaintiff’s own negligence in causing the accident. In this respect, the evaluation of the captain’s case versus the first flight attendant’s case is different. The captain will be able to recover 100% of his damages if he proves fault on the part of one of the defendants less a percentage reduction in his damages for his own percentage of fault. For example, if the United States of America is found to be 75% at fault, and the pilot is 25% at fault, the captain will recover only 75% of his damages. On the other hand, the flight attendant will not have her damages reduced because she was not actively negligent in causing the accident. However, the flight attendant may be required to reimburse the workers’ compensation carrier depending on the percentage of the airline’s (her employer) fault.

With respect to the types of damages, the clients learn that they are entitled to recover the reasonable value of all medical expenses already incurred or to be incurred in the future as a result of their injuries; all lost income, past and future, or loss of earning capacity as a result of their inability to work due to the injuries sustained in the accident; and, finally, an amount to be determined by the trier of fact, whether a judge or a jury, to compensate each for general damages for the pain and suffering sustained.

The Outcome
The accident described above was the USAir crash at Charlotte-Douglas International Airport which occurred on July 2, 1994. The NTSB subsequently determined the probable cause of the accident as: 1) the flight crew’s decision to continue an approach into severe convective activity which was conducive to a microburst; 2) the flight crew’s failure to recognize a windshear situation in a timely manner; 3) the flight crew’s failure to establish and maintain the proper airplane altitude and thrust setting necessary to escape the windshear; and 4) the lack of real-time adverse weather and windshear hazard information dissemination from air traffic control, all of which led to an encounter with and the failure to escape from a microburst-induced windshear that was produced by a rapidly developing thunderstorm located at the approach end of Runway 18R.

Although not determined to be a cause of the accident, the NTSB also criticized the design of the DC-9′s Honeywell reactive-type windshear alert system and blamed its failure to warn the crew as a factor in the accident.

The majority of the USAir passengers or the heirs of those who perished in the subject accident sued USAir for compensatory and punitive damages on the theory that USAir’s conduct rose to a reckless disregard of passenger safety. The USAir flight attendants, precluded from suing their employer, filed claims against the FAA and subsequently sued the United States of America for negligence on the theory of air traffic controller error.

Prior to trial, the USA admitted liability on the flight attendant cases and agreed to pay all damages proximately caused in the accident as determined by way of settlement or by a federal judge sitting without a jury. In addition, the USA entered into an agreement with USAir where they would jointly pay compensation to each of the passengers for damages determined by way of settlement or trial before a federal jury.

The passenger cases did indeed go to trial against USAir where a jury found that USAir had been negligent in causing the subject accident; however, the conduct of USAir did not give rise to punitive damages.

_____________

About the Author
Peter T. Cathcart is a partner in the Los Angeles based firm of Magaña, Cathcart & McCarthy which specializes in aviation accident litigation. The firm has been involved in most of the major commercial air disasters and has been privileged to be involved in general aviation accidents including those which took the lives of Thurman Munson, Rick Nelson, KFI Traffic Reporter Bruce Wayne, and Michael Scully (son of Dodger announcer Vin Scully).

Exposure to wires, antennas or other obstructions to air navigation generally occurs within and around the airport environment for airplanes. For agricultural aircraft they are a fact of life; and wire strikes are the No. 1 cause of helicopter accidents.

Historically, pilots have borne the brunt of responsibility for wire strikes on the rather illusory assumption that pilots can see and avoid wires, towers and all measure of obstructions. Meanwhile, Utility Companies have largely stuck their heads in the sand while keeping a firm finger of blame pointed directly at the Pilots. Yet, the Utilities have always been well aware of Federal Aviation Regulation, Part 77 which sets forth the obstruction standards both around and away from airports; and have known of the need to notify the FAA about constructions or alterations which are more than 200 ft. in height or penetrate any imaginary safety surface of an airport.   

But things change, sometimes for the better, and the law presently sees the responsibility for wire strikes as more or less equally shared between the cockpit and the Utility Board Room. The reality of the situation is that wires, and often the towers that support them, are difficult and sometimes impossible to see, even if the general location of the wires is known. Their visibility and the ability to detect and locate them are affected by sunlight, masking terrain and changes in perspective (during climb or descent).

A pilot can mentally draw imaginary lines between towers; and, this can be helpful at times. When transiting an area, it is easy to stay above an imaginary line drawn from tower to tower. But what about landing or working at low altitude in an area where there are wires? Seeing real wires or avoiding imaginary lines are just not a viable solution to the hazard or risk of wire strikes. SPHERICAL MARKERS ON THE LINES ARE!

A visibility expert from the Scripps Visibility Laboratory in San Diego noted that: wires and towers are hard to detect when masked by surrounding terrain; it is impossible to judge distance from a wire, yet the mind will supply missing details and form conclusions, which are not likely accurate; accurate distance judgments can be made from a line marked with spherical colored balls; and, at 60 mph there is less than _ second to detect and avoid an unmarked power line. Whereas at 60 mph more than 20 seconds is available to detect and avoid a marked power line. Few would dispute that marker balls are helpful. Most agree this Is a reasonable way to deal with the wire strike problem.

BOTH THE UTILITY AND AIRCRAFT have a right to use the airspace above the ground. Utilities purchase this right with an easement or right-of-way. Aircraft have freedom of movement within navigable airspace, according to our government, which regulates this airspace.

Helicopters can operate anywhere, even as low as the ground under the regulations governing navigable airspace [14 CFR 91.119(d)]. But a Utility must tell the government before putting up any span of wires more than 200 ft. above ground level [14 CFR 77.11 and 77.13].

The Utility has a right to expect aircraft will operate carefully around their wires, but they also have a responsibility to do what is reasonable to help aircraft avoid those wires. How? Notify the FAA as the regulations require. And, evaluate for marking those wires which are difficult to detect and located where low flying aircraft work. This is the responsibility Utilities share with aircraft to prevent and avoid wire strikes. Both depend on each other for their mutual safety and protection.

In July 1992, representatives from the aviation community, the electric utility industry and government agencies convened as a task force to develop a comprehensive program to improve low level flight safety throughout California. In mid-1993, major California utilities field tested the validity of a wire marking criteria and methodology at about 100 transmission lines statewide. Evaluators included utility engineers, pilots, FAA inspectors and State aviation officials.

After the field evaluation, researchers found a significant degree of consistency in the risk level determinations among all evaluators, regardless of background. Seeking an even greater degree of consistency, the task force revised the guidelines to more precisely focus the evaluator’s attention on two key factors: wire visibility and likelihood of aircraft at the wire’s elevation. In October 1993, Assembly Bill 1017 implemented a statewide program of pilot education and further evaluation of criteria developed for marking wires. The heart of the Wire Strike Education & Prevention Program was the procedure for requesting marking and evaluating a particular span of wires or supporting structure for marking according to established criteria.

Any person could request that a Utility mark a wire or a supporting structure. The Utility was then required to evaluate that wire or tower using the Wire Strike Risk Assessment Criteria. Within 90 days of the request, the Utility was required to notify the requestor whether the wire or tower would be marked. This Wire Strike Education & Prevention law sunset as of 1 January 1996. But, to an extent, this program continues today on a voluntary basis. The Wire Strike Risk Assessment Criteria, still exists in the hands of the electric utility industry in the State of California and likely throughout the United States. The assessment criteria for evaluating wires focus on the two primary considerations that common sense suggests define a hazardous wire location, namely, the visibility or detectability of the wires and the likelihood or foreseeability of aircraft at that location and altitude. It is an effective criteria which is numerically graded, such that the scores are then placed upon a matrix to determine the degree of risk as high, medium or low.

The pilot of a low flying aircraft need only contact the Utility responsible for the wires and report the hazard or ask that they be evaluated for marking. With the Wire Strike Risk Assessment Criteria in hand, the Utility can readily go to the scene and address the hazard posed by any particular span of wires. If it’s low risk, there is no need to mark the wires and the evaluation can be filed as protection against any legal or non-legal future complaints. On the other hand, if the risk is high, the Utility now has both the knowledge of the risk and a reason to place spherical markers on the line in order to do their fair share to minimize that risk.

William H. Wimsatt is a partner of the law firm of Magaña, Cathcart & McCarthy. He is aircraft and helicopter rated and has successfully represented clients in wire strike cases throughout California.

Navigable airspace is defined as "Air space at and above the minimum flight altitudes prescribed by or under this Chapter, including air space needed for safe take off and landing." [14 CFR 1.1] For aircraft other than helicopters, FAR 91.119(c) states, "Over other than congested areas. An altitude of 500 ft. above the surface except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 ft. to any person, vessel, vehicle or structure. [14 CFR 91.119(c)] There are many situations where an aircraft would be within the exception noted in FAR 91.119(c). Search and rescue, police patrol, aerial survey, lake patrol, amphibious operations and patrol search for illegal aliens all require low level operations. Although it might be pointed out that power lines and their supporting towers are structures, the pilot still has to be able to see them to avoid them. That’s where the marking, or lighting at night, becomes necessary.

The September 11, 2001 air tragedies involving four airliners which were hijacked and then used as human bombs on the Trade Center buildings and Pentagon will cause all of us to re-think air travel security. The people in a position to bear this responsibility most effectively are those both on the ground and in the air. Government plays a role in providing advance warning, which is sometimes available and sometimes not. The agencies in the government most concerned are the Department of Transportation (DOT), which includes the Federal Aviation Administration (FAA), our National Security Agency (NSA), Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI). All of these governmental agencies have a role to play in the prevention of in-flight hijacking and bombing.

Others who also play a preventive role are the airport authorities, states, counties and municipalities, which operate airports for commercial air travel. Air travelers have grown familiar with the metal screening devices, the x-ray machines, random luggage checks and explosive sniffing dogs. None of the security in place prior to September 11th, however, was effective in deterring or preventing the four aircrashes that ensued from the terrorist hijacking of four airliners.

Heightened attention to this fact will result in analysis, study, recommendations and implementation of new procedures to secure the safe air travel of people in commerce within and outside the United States. The analysis begins with an understanding of how the terrorists gained access to and control of the airplanes which were then turned into human bombs directed at two of our nations most obvious symbols.

As events become more clear in the following days, there will certainly be additional information. What seems to be known presently is that three to five hijackers per airliner, armed with crude but effective weapons which may not have been shaped like knives o r cutting objects as they were carried on the aircraft, and without the need of any explosives, overpowered the cabin crew and cockpit crews, removing, incapacitating or killing them in a rapid rush through the cabin toward the cockpit and through the door between the cabin area and the cockpit, which was never designed to stop anything other than impolite interference or nuisance. The speed with which the takeover of the airplanes occurred confirms the number of terrorists likely onboard each airliner, a minimum of two and possibly as many as five. The terrorists having commandeered the aircraft immediately installed their own pilot or person sufficiently trained to operate in the air the aircraft. It is surprisingly simple how easily an airplane, no matter the size, can be steered toward objects on the ground in clear skies. Of course, the "terrorist pilots" did not even need to know how to land the airplane or take it off. We may never know whether these were qualified pilots in service of the terrorists or simply people who trained on a personal computer using flight simulation to gain a knowledge of how an airplane is controlled, the use of the instrumentation and how the avionics may be used to navigate the airplane to the target. It is clear that these people knew enough to locate the transponder on the instrument panel of the airplane and simply turn it off.

At this point in the hijacking neither the government through any of its agencies, nor the airport security personnel, nor the port authorities, nor the cabin or flight crews onboard the airplanes were trained or even capable of changing the course of events. Indeed the flight crew may no longer have even been alive. As more information becomes clear this analysis can grow and more lessons learned, but for now, a couple of things are immediately clear:

1. We need to protect the cockpit flight crew from terrorists; and,

2. Train and make more capable our commercial air crews to combat the kind of direct and rapid assault that occurred shortly after take-off while these airplanes contained enough fuel to damage huge structures and cause untold millions or billions of dollars worth of carnage.

Do you remember when there was a spate of initial hijackings experienced in the United States during the 1970s? Recall that these hijackings were initially occurring outside the United States, but then suddenly there were hijackers who wanted to go to Cuba or some other location, happening within the United States. The immediate solution was to implement air marshals whereby armed security was placed on the airplanes to protect the flight crews and hopefully remove the threat of a hostage crisis. Also, it was the hostage scenario that was being pursued by the terrorists at that time, which in itself is a serious problem. Now, however, it is the human bomb scenario, which as we have all seen from yesterday’s catastrophes, is a much more severe threat.

Why weren’t the air marshals still onboard the airplanes in this day and age? Were they too expensive? Was some better alternative implemented? After awhile, the air marshals were taken off of the airplanes when it appeared no one was making further hijack attempts after a time. At the same time, it was thought that our airport security had improved with the implementation of metal detection and x-ray devices to protect against weapons and bombs being carried on the airplane. Some profiling and survey of passengers that might match up with known or suspected terrorist activity has been performed . Explosive sniffing dogs have been used along with full luggage searches and body searches on a random and rare basis.

Have the implementation of these security measures by the airport authorities been financed by the taxpayer? By the passengers? By the airlines? Who has borne the financial responsibility for these ground security operations? Have they been effective or even adequate? It immediately appears worth considering whether the level of education, training, immediate supervision and oversight of our ground security has been anywhere near close to an acceptable level of competence. Whether ground security alone could have deterred or prevented the four hijackings that occurred September 11th will only be determined satisfactorily after additional information is learned about what led up to the events which stunned us all. The possibility seems real that no amount of ground security may have been able to detect, deter or prevent the human bomb scenario that resulted. Which highlights an essential point. Effective security must once again be placed onboard the commercial air carrier, as presently the only effective means likely to prevent what has occurred. But it also seems clear that our ground security, as well as the flight security provided by the air marshals, must be improved and made more effective.

In Re Lockerbie Aircrash was the lawsuit which resulted from the crash of Pan Am Flight 103 over Scotland as the result of a terrorist bombing in 1988. The passengers onboard that airplane were engaged in international air travel and the families who lost their loved ones were eventually compensated within the legal system pursuant to the Warsaw Convention, as then modified. While some of the passengers onboard the four airplanes on September 11th may also have been engaged in international air travel, these were domestic flights within the United States and most of the passengers were likely engaged only in domestic air travel. The Warsaw Convention as currently modified by the IATA Accords will not play a role in determining the legal resolution of this matter on behalf of most families who have now been forced to suffer the brunt of the present catastrophe. While it is possible that the United States government through one of its agencies may be sued, it seems unlikely that any such lawsuit would be successful, given the exceptions under the Federal Tort Claims Act (FTCA) of discretionary function, misrepresentation and the war clause. The most likely people to be sued as a result of the four airlines crashes, by people and property both on the ground and in the air, are those who provided or failed to adequately provide the ground security and the in-flight security to detect, deter or prevent these four aircrashes. Claims will likely be necessary against the airport authorities which are governmental or quasi-governmental entities, and require compliance with administrative claim statutes before suit is filed. Basically the airport authorities and the airlines are those in the best position to prevent such harm occurring again. They will, hopefully, have effective assistance from the Department of Transportation by way of the Federal Aviation Administration.

MAGAÑA, CATHCART & McCARTHY

1801 Avenue of the Stars, Suite 810
Los Angeles, California 90067-5899
(310) 553-6630 mcmc-law.com
Presented by William H. Wimsatt

Introduction

In this air tragedy case, Article 28 of the Warsaw Convention prevented many of the plaintiffs from being able to sue Korean Air Lines Co., Ltd. ("KAL") in the United States. As this audience undoubtedly knows, Article 28(1) provides that "An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination." The domicile and principal place of business of KAL is Korea. And the majority of the injured or decedent passengers in this case were Korean nationals who had purchased their tickets in Korea, with a final destination of Korea on round trip tickets. Therefore, those plaintiffs could not bring suit against KAL in the U.S., but only in Korea.

In spite of the fact that the business activities of KAL did not qualify it to be sued in the U.S. by most of the foreign plaintiffs in this case, those plaintiffs were able to bring the question of KAL’s liability into the U.S. federal district court by a less direct means. First, the plaintiffs filed suit in federal district court against the U.S. for the FAA air traffic controllers’ negligence, and against Serco Management Services, Inc. ("Serco"), for negligently operating the control tower on behalf of the FAA.

In turn, those defendants filed cross-complaints for indemnification against KAL. When the district court allowed the original defendants to seek indemnity from KAL in the U.S. court, the question of KAL’s liability suddenly became a question to be addressed by the U.S. courts. This ruling, along with other crucial rulings, helped induce the three defendants, the U.S., KAL, and Serco, to enter into agreements that both admitted and apportioned liability.

Once liability was admitted and apportionment agreed among defendants, the court appointed a mediator, Justice Robert Feinerman. The parties then settled the majority of the cases in California, under U.S. damage standards, despite the fact that most of the injured and decedent passengers were foreign nationals from Korea with no jurisdiction under the Warsaw Convention to sue KAL in the U.S.

The Accident

On August 6, 1997, at approximately 1:42 a.m., a Boeing 747-300 aircraft crashed into a hillside on approach to the Guam International Airport. The flight was operated by Korean Air Lines as KAL Flight 801 from Seoul, Korea, to Agaña Guam. The crew consisted of two pilots, one flight engineer, one purser, 13 flight attendants and 231 passengers. Of the 254 people aboard, 228 died as a result of the crash.

On the night of the crash, the glide slope for the instrument landing system to the target runway, runway 6L, was out of service, and thunderstorms were in the area.

Causation and Defendants’ Liability

1. Korean Air Lines

KAL’s flight crew did not follow the published and prescribed flight procedure for the approach into the airport. As stated, the glide slope was not working, and consequently the pilots used a Localizer/DME approach. The flight crew did not follow the step-down procedure on the Localizer approach, but rather descended in a straight line, and crashed into Nogomo Hill, about three miles short of the runway.

Darkness and rain showers severely inhibited visibility of the runway environment for the KAL flight crew. These conditions increased the flight crew’s reliance on the air traffic control system to help land the airplane safely.

2. FAA Air Traffic Control Facility, Guam (a U.S. Territory)

The agents of the air traffic control system failed to fulfill many of their duties. Every failure is not included here. Of particular significance, the CERAP (combined center and radar approach control) controller failed to monitor the progress of the flight on the radar scope that would have allowed him to see that six miles from the runway, the airplane had descended below a safe altitude. Because of that inattention, he failed to see its dangerous descent and failed to call the flight crew and issue the required "low altitude alert" to KAL 801. That controller also failed to request a read back that the glide scope was unusable.

Another significant failure of the FAA’s agents was that the Minimum Safe Altitude Warning System (M-SAW) was not operating. The FAA personnel responsible for maintaining safety critical equipment had failed to correctly install the M-SAW. What’s more, there was evidence that FAA personnel had deliberately turned off M-SAW.

M-SAW is critical safety equipment that would have provided aural and visual alarms to the controller when KAL 801 descended below the minimum safe altitude. Because of the lack of M-SAW alarms, the air traffic controller was not alerted, and did not communicate a low altitude alert warning to KAL 801. Such a warning would certainly have caused the flight crew to abandon their Localizer/DME approach to the airport and execute a missed approach.

3. The Air Traffic Control Tower, Operated by Serco Corporation

The air traffic control tower was operated by Serco Corporation for the FAA. The local traffic controller in the tower at the Agaña airport failed to communicate vital information to the flight crew. He did not timely update the ATIS (Airport Terminal Information Service) to reflect that the weather had changed and that KAL 801 might encounter a thunderstorm on its approach. Nor did he radio the crew that thunderstorms were in the area, although that information was available to him for nine minutes before he first spoke to KAL 801′s crew. Controllers are required to issue "special weather observations" to pilots as soon as possible. This incorrect information about the weather gave the pilot of KAL 801 a false expectation that he would have good visibility on approach.

Most strikingly, although the controller could not see the Boeing 747, he cleared KAL 801 to land. Using binoculars, the tower controller would normally expect to see a large jet at night with all its lights on, about six miles from touchdown. When he did not see the aircraft at that point, he was required to inform the crew that it was: "not in sight." The controller failed to do this, which in turn failed to alert the pilot to check his altitude.

Jurisdiction in the Federal District Courts in the Actions Against the U.S. and Serco

All the plaintiffs, whether they had Article 28 jurisdiction or not, were able to file suit in the federal district courts against the U.S. for the alleged negligence of the FAA air traffic controllers and the alleged negligence of Serco. The Federal Tort Claims Act ("FTCA") waives sovereign immunity and grants exclusive jurisdiction to the federal district courts over covered tort actions. The FTCA imposes liability on the U.S. for the wrongful act or omission "of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. . . ." Specifically, the U.S. can be held liable for the failure of air traffic controllers to provide their services with due care.

Plaintiffs filed their cases in various locations in the U.S. district courts, including Guam (a U.S. Territory), California, New York and New Jersey.

The Multidistrict Litigation panel ordered more than 80 different lawsuits consolidated. All of the cases were eventually sent by the Multidistrict Litigation Panel to the U.S. District Court, Central District of California, for coordinated pretrial proceedings.

The U.S. Code provides that civil actions pending in different districts and involving one or more common questions of fact, may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers are made by the Judicial Panel on Multidistrict Litigations. The purpose is to effect judicial economy and to eliminate the potential for conflicting contemporaneous pretrial rulings by different district courts.

It is important to note that the Central District of California had no power to retain the cases for trial. All of the cases not originally filed in the federal district court in California were subject to the Multidistrict Litigation statute: 28 U.S.C §1407(a). That statute provides that cases sent to a particular courtroom for pretrial proceedings must be remanded to their original location at or before the conclusion of the pretrial proceedings. It is up to the transferor court to make any further transfers of venue for trial.

But in these consolidated cases, many parties signed settlement agreements before the conclusion of the pretrial proceedings. This result flowed directly from the court’s rulings on key issues.

The Court Ordered that the IATA Agreements Applied, Thus KAL Was Presumptively Liable for Full Compensatory Damages Without Limit Unless it Could Prove Freedom

From Negligence

The plaintiffs brought a motion for partial summary judgment, asking the district court to determine certain issues. Plaintiffs argued that KAL had signed the International Air Transport Association (IATA) Agreements of 1996, and that they applied to the subject crash. (The IATA Agreements consist of the Intercarrier Agreement on Passenger Liability (IIA) and the Agreement on Measures to Implement the IATA Intercarrier Agreement (MIA).)

The passenger liability limits for signatories to the Warsaw Convention have increased over the years. In 1929, the Warsaw Convention set forth uniform rules for passenger liability:

(1) it limited liability of the international carrier to about $8,300 (Article 22);

(2) this was subject to the defense that the carrier was not negligent (Article 20(1));

(3) the limitations may be waived in favor of a higher limit by "special contract" between airline and passenger (Article 22(1)); and

(4) all limits are inapplicable in the event of airline "willful misconduct" (Article 25(1)).

These provisions have undergone changes over the years, some by intergovernmental agreements and some by airlines contracting with each other to waive rights under the Warsaw Convention, with governmental approval. Changes include the Hague Protocol (1955), the Montreal Agreement (1966), and the IATA Agreements of 1996.

KAL was a signatory to the Montreal Agreement. That Agreement raised the limit of liability to $75,000 and waived the non-negligence defense for amounts up to $75,000. Plaintiffs could recover full compensation above $75,000 only if they could prove "willful misconduct."

But according to the IATA Agreements of 1996, an international carrier is strictly liable to each passenger for up to 100,000 SDRs. Carriers also are presumptively liable for full compensatory damages above that amount unless they prove freedom from negligence. In other words, the IATA Agreements reinstated the "all necessary measures" (or non-negligence) defense for carriers that had been done away with in the Montreal Agreement.

Most favorable of all, under the IATA Agreements, it is no longer necessary for the plaintiff to prove "wilful misconduct" to escape the damages limitation of the Convention.

Thus, Plaintiffs urgently desired that the IATA Agreements would be considered applicable to KAL.

Although KAL admitted signing the IATA Agreements in October 1995, the question for the district court to determine was when the agreements became effective. The MIA stated that the IATA Agreements would become effective when "[t]he Director General of IATA shall declare the Agreement effective on November 1st 1996, or such later date as all requisite Government approvals have been obtained. . . ." The U.S. Department of Transportation (DOT) approved the Agreements in January 1997, and the European Commission approved them in February 1997. The Director General of IATA declared the Agreements to be in effect on February 14, 1997.

KAL contended that the Agreements were not applicable to it until the Korean government approved the Agreements (which it did after the KAL crash). Indeed, the Agreements do not specifically define the "requisite Government approvals." Contrary to KAL’s argument that the term "requisite Government approvals" meant the approval of the tariff by the Korean government, the district court found that the Korean government’s approval was not required. The court stated that the conduct of the parties to IATA revealed an intention that their waivers of prior limits would take effect after approval by the DOT and the European Commission, and when the Agreements were declared effective. There was no indication that any signatory had taken the position that each country’s tariff authority had to give approval before the IATA Agreements became effective.

Another argument raised by KAL was that the Agreements were not "special contracts" with the passengers as provided by the Warsaw Convention, Article 22(1). KAL stated that the Agreements were between carriers, and did not bestow new legal rights on the passengers until Korean government approvals were obtained and the new terms were incorporated into contracts of carriage and tariffs. The district court rejected KAL’s argument, finding that the practical interpretation of the airlines and the governments of the phrase "special contracst" includes agreements among carriers. The court reiterated that KAL had waived its Warsaw Convention defenses and limits, and that its failure to seek approval of its changed tariffs before the crash was irrelevant to the issue of waiver.

The court granted the plaintiffs’ motion in part and determined that the IATA agreements of 1996 came into effect on February 14, 1997 — the date of promulgation of effectiveness of the agreements following approval by the U.S. and the European Commission.

The initial emphasis of the investigation and news media has been on the maintenance history, procedures and practices for the accident aircraft and Alaska Airlines. Indeed, an early and perhaps premature lawsuit filed within weeks of this aircrash premised liability on the airplane’s overflight of several airports while experiencing pitch trim or control difficulty.

Any liability of Alaska Airlines will likely be governed by the Warsaw Convention and its progeny, to include the International Air Transport Association (IATA) Agreements. Flight 261 was a flight engaged in international transportation. Jurisdiction under the Warsaw Convention is found primarily in the country where the tickets were purchased or the ultimate destination of the ticket. Round-trip tickets have the same destination as the first point of departure. For most, if not all of the passengers onboard, this will be the United States.

Liability of Alaska Airlines is absolute up to 100,000 Special Drawing Rights (SDRs), approximately $135,000 to $140,000 depending upon the exchange rate. The Airline will also be responsible for any damages proven greater than this amount, unless it is able to prove that it exercised "all necessary measures" to avoid and prevent the accident and fatal injuries to its passengers. The Warsaw Convention will also likely be found to be the exclusive basis for any airline liability and recovery of punitive damages against the airline is questionable since United States courts have previously disallowed punitive damages in Warsaw cases. The airline may, however, be able to "lay off" or spread around any responsibility that it may have to others deemed responsible in whole or part for the aircrash.

The Death on the High Seas Act (DOHSA) may or may not come into play. The accident certainly would appear to be within a marine league (3 statute miles of Anacapa Island, California.)

But what about the manufacturer of the airplane? And what would cause the horizontal stabilator jack screw to strip the threads from the gimbal nut that it rotates within?

An experienced pilot and accident investigator has related a significant history of stabilator jamming incidents on another type of aircraft built by the same manufacturer. The pitch control system was much like that on the MD-83 which crashed. A lengthy investigation and numerous tests eventually determined that the stabilator bearings were freezing at higher altitudes due to a breakdown in the grease used to lubricate the bearings. Seized stabilator bearings immobilize the stabilator; and, electrical-mechanical attempts to move them strip the stabilator/gimbal plus strip the jack screw/gimbal-nut threads which form the actuating mechanism to move the stabilator on its bearings.

Neither the NTSB nor the media have addressed the stabilator bearings! Whether the bearings have been located, recovered and examined will only be learned or become clear as the investigation continues and becomes more thorough than just visual examination. Should lubrication of the stabilator bearings prove to be a cause, however, questions about the stabilator design, manufacture, lubrication, maintenance and inspection procedures, maintenance and publications by the manufacturer, service history and the prior known service difficulties with the stabilator must be asked and addressed.

Any liability of the overall or component manufacturer for the stabilizer assembly or the entire pitch control system would be based on ordinary negligence principles and strict liability for a defective product. Depending on the choice of law to be applied, i.e. California, Washington, Mexico or some other state, punitive damages may be an element of recovery. The burden of proof regarding these issues will, however, rest upon the families which have already needlessly sacrificed so much.

As can be seen by the recent crash of Singapore Airlines Flight 006, no matter how safe airline travel has become, there are occasional accidents which tragically alter the lives of innocent passengers and their families. It may be months before the causal chain of events leading to Flight 006′s explosive demise will be analyzed so that fault be determined. In the meantime, injured passengers, or the family members of those who perished in the flames, should know their rights.

The Warsaw Convention:
International air travel is governed by the Warsaw Convention, a treaty dating back to 1929 devised to protect the financial viability of the global airline industry, then in its infancy. Since its inception, the Warsaw Convention has acted to limit the liability of airlines engaged in international air travel. The Convention has been the bane of many crash victims and their families by often limiting financial recovery from the airlines to amounts far less than the true value of a case. However, in 1996 the International Air Transport Association (IATA) set forth a plan to increase the amount of damages available to international air travelers and their families. Almost all major airlines agreed that if they were proven negligent, their liability would be for the entire amount of damages allowable in the country in which the passenger resided, unless the airline could prove it took all necessary measures to prevent the accident.

The Montreal Convention:
In 1999, an entirely new treaty was drafted, which incorporated over seventy years of changes and modifications to the Warsaw Convention. When ratified it shall effectively change the rules of international aviation accident law. Most notably, the previous limitations on damages have disappeared. Article 17 of the Montreal Convention states a:

"carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

Under Article 21 of the Montreal Convention the airline is obligated to pay passengers or their family members up to 100,000 Special Drawing Rights, presently the equivalent of about $135,000 – $140,000 U.S.:

"1. For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:

(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b) damage was solely due to the negligence or other wrongful act or omission of a third party."

Thus, unless the airline can prove it was not negligent, or that others caused the accident, its liability is not limited as it previously was under the Warsaw Convention.

When Must a Lawsuit Be Brought:
Under the Convention, suit must be brought within two years of the accident.

Where Can a Lawsuit Be Filed:
Legal actions may be filed in one of the following places:

1. Where the airline has its principle place of business;
2. Where airline is incorporated;
3. Where the airline has a place of business through which the ticket was purchased;
4. Where the final destination on the ticket is located; or
5. Where the passenger has or had his or her principal and permanent residence at the time of the accident, provided the carrier provides service to that location with its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement.

What To Do After An Accident:
When it appears an airline is negligent, insurance company representatives will often attempt to negotiate directly with injured passengers, or the families of those who perished. It is not unusual to see this done soon after the accident and before those affected have had sufficient time to know the full nature and extent of their injuries, or for the families of those who died to appropriately mourn for their loved ones. It is best to take sufficient time to consider all options, and not rush to accept the offers made by the airline or its insurance representatives. It is always best to discuss the matter with experienced aviation litigation attorneys before finalizing any agreement with the airline or its insurance company.

Nor is it unusual to have attorneys flock to the scene of an airline accident in an effort to quickly sign up clients. While it is probably best to have an attorney working with passengers or their families, it is imperative that the attorneys have the background and experience necessary to deal with the airline and its insurance representatives so damage awards may be maximized.

***

(Charles M. Finkel is associated with the law firm MAGAÑA, CATHCART & McCARTHY. Mr. Finkel has been a pilot for 33 years, and has Airline Transport and Flight Instructor ratings. He has taught aviation law, and authored numerous articles on the subject. He has acted as attorney for injured passengers and their families on numerous major aviation accidents. MAGAÑA, CATHCART & McCARTHY’S experience has been gathered over decades of advocating victim’s rights. The firm has been involved in many landmark cases, including the first crashes of a 747, DC10, and the first fatal disaster of an MD11. Though success is not judged solely on the basis of monetary awards, the firm has obtained hundreds of multi-million dollar results for clients. Charles M. Finkel and MAGAÑA, CATHCART & McCARTHY have successfully represented clients on such notable cases as the China Eastern Airlines MD11 incident, the KAL 747 crash on Guam, the Egypt Air 767 crash, the crash of a Pakistan International Airline 767 in Nepal, and numerous other cases throughout the world)