Aviation Law Monitor

Suing the Foreign Air Carrier in the United States

Mike Danko — Sun, 07 Mar 2010 20:46:14 -0800

Other countries severely limit compensation that may be awarded in wrongful death lawsuits arising from airline accidents. For example, many other countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society." As a result, in almost all situations, the best venue for a family's lawsuit against an airline is the United States.

If the airline passenger's trip included an international stop, then the proper venue for the lawsuit is controlled entirely by international treaties known as the Warsaw and Montreal Conventions. The Warsaw Convention permits the passenger (or the passenger's family) to sue in the United States, even though the accident happened on foreign soil, if and only if:

The passenger's ticket was issued in the United States;
The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States;
The airline is incorporated in the United States; or
The airline's principal place of business is in the United States.

The Montreal Convention has replaced the Warsaw Convention in most situations. The Montreal Convention adds to the list what has been called a "fifth jurisdiction." Regardless of where the accident occurred, or where the passenger began or ended his trip, the international traveler or his family may sue the foreign airline in the United States if the United States was the passenger's "principal and permanent residence." For this fifth option to be available, however, the airline must maintain some sort of presence in the United States.

NTSB Preliminary Report on Saratoga Crash at Pine Mountain Lake in Groveland, California

Mike Danko — Thu, 25 Feb 2010 14:35:16 -0800

The NTSB released its preliminary report on the Pine Mountain Lake crash. As usual, the preliminary report contains no conclusions concerning the cause of the crash. For that, we'll have to wait up to 4 years. The preliminary report does, however, hint that the NTSB's investigation will focus on whether the pilot pressed on into weather beyond what the regulations allowed.

The full text of the report is here. Some excerpts:

Instrument night meteorological conditions prevailed at the accident site, and no flight plan had been filed.

Instrument weather conditions are those that require a pilot to fly by reference to his instruments rather than by looking out the window. To fly in instrument conditions, a pilot must be instrument-rated, his plane must be properly equipped, and he must have a clearance from air traffic control. He is not necessarily required to file a flight plan. For example, instead of filing a flight plan, the pilot may have departed San Carlos in good weather and then obtained a "pop-up" clearance from air traffic control before entering instrument conditions at Pine Mountain Lake. Nothing unusual or unsafe about that.

A pilot, who stated that he flies to the airport most weekends, reported attempting to land a Cessna 510 while on an instrument flight plan, about 1 hour prior to the accident. He reported that throughout the instrument approach he was unable to identify the runway environment. He performed a missed approach, and diverted to Modesto where he landed uneventfully. He stated that he has flown into the airport utilizing the instrument approach regularly over the last few years, and this was the first time he had to divert to an alternate airport.

As discussed in this post, crash, a pilot on an instrument approach to runway 27 must "go missed" if he descends in the clouds to the minimum allowable altitude -- in this case 770 feet above the ground -- and still can't see the runway. Instead of going missed as required, some pilots will descend "just a little further" believing that, in just a few more seconds, they will break out of the clouds and the runway will appear before them. Descending below the minimum altitude set forth in the instrument approach procedure is a violation of FAA regulations and a leading cause of instrument approach-related accidents. The NTSB seems to suggest that the pilot of the accident aircraft, N4175A, must have ventured below minimums to get beneath the clouds because the Cessna jet had to go missed. However, the fact that the Cessna was forced to execute a missed approach at the airport one hour before the accident means little. Weather can change in an hour.

The remaining two propeller blades were attached at the hub. All of the blades exhibited leading edge gouges, and varying degrees of tip twist.

Gouges and blade twist is an indication that, the time of impact, the engine was developing power. Engine trouble can likely be ruled out.

A third witness, located 1/2 mile northeast of the approach end of runway 27, heard a low flying airplane, which he presumed was flying directly over his house, with engines running "full bore."

What was the pilot doing 1/2 mile northeast from the runway? (See image below.) As discussed in this post, the pilot should have been lined up for a straight-in approach. And during the approach procedure, the pilot should have been throttled back for descent. A pilot typically applies full throttle only when going missed.

San Jose Mercury News Coverage of the the Cessna 310 (Tesla) Crash at East Palo Alto

Mike Danko — Thu, 25 Feb 2010 11:56:08 -0800

Lisa Krieger of the San Jose Mercury News writes on a variety of issues related to this crash:

Pilot's Insurer Meets with East Palo Alto Residents. Residents who suffered property damage can make a claim against the pilot's estate or his insurance policy. The families of his passengers, however, probably cannot. Workers compensation laws prohibit a passenger's family from suing the passenger's co-employee (in this case, the pilot) or, for that matter, the passenger's employer (Tesla). The families are, however, permitted to sue anyone else who may be responsible for the crash, such as a negligent mechanic or a manufacturer of a defective aircraft part.
Palo Alto Airport Proposes New Routes to Avoid East Palo Alto. The airport can suggest that pilots avoid over-flying hours near the airport, but it cannot require them to. Only the FAA can do that.
Palo Alto Plane Crash Likely Caused by a Lethal Combination of Factors. A pilot flying a heavily loaded twin-engine piston aircraft from a short runway in the fog is unlikely to be able to avoid disaster when one engine fails.

Tesla Crash: The Paradox of the Twin

Piper Saratoga Crash at Pine Mountain Lake Airport in Groveland, California

Mike Danko — Mon, 22 Feb 2010 12:29:36 -0800

The runway at Pine Mountain Lake is oriented east-west, and is surrounded by rugged terrain. In poor weather, pilots are permitted to execute instrument approaches to the airport. The approach procedures guide pilots as they descend through the clouds to the runway. The procedures, flown properly, will place the pilot in a position to land straight ahead without having to maneuver. When the pilot pops out of the clouds after flying the instrument approach to Pine Mountain Lake, his view out of the windshield should be something like this:

The procedure the pilot must follow when approaching from the east is set forth below. A pilot may descend in the clouds no lower than 770 feet above the runway. To descend further, the pilot must be clear of the clouds and have the runway in sight. If he cannot see the runway, he must "go missed." That means he must abort the landing, and climb straight ahead by reference to his instruments until reaching a safe altitude.

Once the pilot has reached a safe altitude and has established radio contact with air traffic control, the pilot may attempt the approach procedure again. He may obtain a clearance to fly a different approach procedure from the opposite direction, or he may opt to fly to a different airport where the weather is better.

Investigators report that the accident aircraft, N4175A, "went missed" on his first approach to the airport, and that the accident occurred near the completion of its second approach. On the second approach, the aircraft had successfully descended beneath the clouds. We know that because

a witness on the ground saw the aircraft maneuvering. The witness saw the aircraft suddenly burst into fire, and then saw the aircraft crash. Investigators say that the aircraft exploded in flight because it hit a tree while maneuvering, and the tree ruptured a fuel tank.

The question is not why the aircraft hit a tree. Rather, the question is why the aircraft was maneuvering at all. The approach should have lined up the pilot for landing straight ahead. No turns should have been necessary.

It is true that pilots are permitted, once the runway appears before them, to circle around to land in the other direction if the surface winds require it. But this accident occurred after dark. "Circling to land" in poor weather at night is a challenging undertaking. There is a risk of losing sight of the runway, becoming disoriented in the dark, inadvertently re-entering clouds, or hitting obstacles that are hard to see. That's why the "night circling approach to minimums" is considered the most dangerous of all instrument approaches. Most pilots will not attempt a circling approach at night unless there is no other option. Here, there was an option. If the winds required landing in the other direction, the pilot could simply have flown the other available approach procedure which brings the aircraft straight in to the runway from the west.

The NTSB will now take over the accident investigation. It will be difficult. Air traffic control tapes are often useful in reconstructing accidents such as this one. But there is no control tower at Pine Mountain Lake, and so the pilot would not have been communicating with any air traffic control facility in the final stages of the flight.

The NTSB will also be interested in the weather conditions that the pilot encountered. In particular, it will try to determine the altitude of the cloud bases, the direction and strength of the surface winds, and how far the visibility was. But there isn't any weather recording equipment at Pine Mountain Lake, either. The closest equipment is 15 miles away, at Columbia Airport.

Photograph of the accident aircraft, Piper Saratoga N4175A, departing Oshkosh last summer.

Update: NTSB Releases Prelimary Report

Cessna 310 (Tesla) Crash at East Palo Alto: NTSB Probable Cause Investigation

Mike Danko — Sat, 20 Feb 2010 11:53:32 -0800

The initial investigation was conducted by local law enforcement in conjunction with the FAA. Now the National Transportation Safety Board will take over.

The NTSB’s job will be to examine the wreckage and attempt to determine if the crash was caused by a defective aircraft part, negligent maintenance, or pilot error. The NTSB concedes, however, that it lacks the manpower, the technical expertise, and the funding to do that job properly on its own. Therefore, as a matter of long-standing policy, it will seek engineering assistance from the companies that manufactured the aircraft components in question. In this case, the NTSB will recruit the help of Cessna Aircraft, which manufactured the aircraft involved in the accident, Cessna N5225J, and Teledyne Continental Motors, which manufactured each of the aircraft’s two 260 horsepower engines. The NTSB will exclude members of the victims’ families and their technical representatives from the investigation, feeling that they have nothing to offer. (Sad but true.)

Of course, the NTSB’s practice of asking the manufacturers for help – a practice it calls “the party system” -- presents a conflict of interest. After all, the manufacturers themselves might be the ones responsible for the accident. Some say that the NTSB’s party system is akin to asking the suspects for help in solving a crime. Nonetheless, the conflict – discussed further here – is ingrained in all NTSB investigations.

It’s no surprise that most NTSB final reports often favor the manufacturers who have “assisted” the NTSB investigators in their work. But perhaps it doesn't make any difference because, by federal regulation, the NTSB’s probable cause findings are not binding on anyone. The families are free to conduct their own investigation, and in the event of a lawsuit, the NTSB’s conclusions are given no deference whatever. In fact, in the event of litigation, the NTSB conclusions are not even admissible. Aviation attorneys who conduct their own independent investigations find that the NTSB’s conclusions are wrong about 50% of the time.

In one recent example, a Teledyne Continental engine similar to those installed on N5225J quit

and the plane crashed. The NTSB asked Teledyne Continental Motors to participate in its investigation and help it determine why the engine failed. Not surprisingly, after hearing only Teledyne's side of the story, the NTSB determined that the engine failed because of poor maintenance, and not because of anything that Teledyne did. In fact, the NTSB cleared Teledyne completely of any blame. After hearing all the evidence in the case -- not just the evidence favorable to Teledyne -- the jury disagreed, determining that it was an error in Teledyne's maintenance manuals that caused the failure.

Though it takes the NTSB from 18 months to 4 years or more to release its report of an accident’s probable cause, the NTSB is typically finished with the wreckage in just a few months. At that point, the NTSB will release the wreckage to whoever owns it. The owner – usually an insurance company at that point – is then free to sell, salvage, or destroy the wreck, unless the families or their attorneys have interceded. More on that here.

Some basic things that should be looked into when examining 5225J’s wreckage:

Flight Control (steering) system:

Is there system continuity? In other words, do all the cables leading from the control yoke connect where they are supposed to connect?
Are the controls “correct”? Or were they inadvertently reversed around a pulley during maintenance, causing the aircraft to turn in a direction opposite to the pilot’s inputs? (Not uncommon; example here.)

Instruments (used for keeping the plane straight and level in fog or clouds):

Disassemble the Attitude Indicator ('artificial horizon") and Heading Indicator (similar to a compass) to determine whether either failed in flight.
Disassemble the vacuum pumps used to power the gyroscopic instruments to determine whether one or both failed before impact.

Engines:

Look for rotational damage on spinner, propellers and associated surfaces that would indicate that engines were turning on impact.
If crankshaft can be turned by pulling on the propeller, determine whether engine will operate on a test stand. If so, look for evidence that the engine, as installed in aircraft, had been deprived of the fuel, air, or electrical spark needed to support combusion.
If crankshaft cannot be turned, disassemble engine to identify the internal damage that prevents rotation. Determine if damage was the result of impact forces (for example, bent crankshaft) or rather, instead, whether the damage was the cause of the engine failure (for example, failed piston).
Send questionable parts to appropriate laboratories to assist in failure analysis.

The NTSB investigator will not necessarily take all of even these basic steps if he or she feels that they are not necessary. For example, in the case involving the failure of the Teledyne Continental engine mentioned above, the NTSB didn’t even bother to disassemble the engine, apparently relying on Teledyne's view that it wouldn't be productive.

Related Articles:

Tesla Crash: The Paradox of the Twin

San Jose Mercury News Coverage of the Tesla Crash

Tesla Cessna 310 Crash at East Palo Alto: The Paradox of the Twin

Mike Danko — Thu, 18 Feb 2010 13:47:52 -0800

One might think that a twin-engine aircraft is safer than a single-engine aircraft. After all, if one engine fails, you still have the other to bring you home safely. That's the whole point of the second engine, right?

If one of the twin engines fails in cruise flight, maybe that's true. But if it quits right after takeoff, the twin can be extremely difficult to handle. With its landing gear down, its flaps set, and its airspeed just above the minimum flying speed, the asymetric thrust generated by the operating engine can flip the aircraft onto its back and out of control. A "Vmc roll", as it is called, is almost always fatal. When an engine quits during the critical takeoff phase of flight, a pilot -- even one who does everything right -- may not be able to land the twin-engine aircraft safely. Fog and a short runway (such as Palo Alto's) make matters only worse.

It's too early to tell, but it's possible that the Twin Cessna in which the Tesla employees were flying experienced an engine failure. First, a witness at Palo Alto Airport reported hearing the unmistakable thrumming sound of two engines as Cessna N5225J rolled down the runway. That was followed by what sounded like just one engine running, and then an impact.

Second, having flown out of Palo Alto many times, I know that Air Traffic Control instructs pilots flying on instruments to proceed straight out, then turn right to a heading of 060 degrees within one mile from the airport. (The airport was fogbound when N5225J took off, so the pilot would have been making an instrument departure.) But as depicted below, the aircraft crashed well left of the expected course. That's consistent with a loss of control following an engine failure on takeoff.

Because it's so hard to fly a twin-engine aircraft after one of its engines fail, many pilots feel safer taking off in a single-engine aircraft. First of all, the chances of a single-engine aircraft experiencing an engine failure on takeoff is only half that of a twin. Second, if the single engine does fail, the aircraft can still be flown like a glider. Its heading is just as easy to control as if its engine were running normally. In this case, a landing straight ahead onto the mud flats, or even a right turn toward the water, might have been accomplished successfully in a single-engine aircraft. Either path would have provided a better chance of survival than the Twin Cessna's turn to the left.

February 20 Updates:

Tesla Crash: NTSB Probable Cause Investigation

Crash Likely Caused By Lethal Combination of Factors (Merc News)

Eurocopter EC135 Crash at Cave Creek, Arizona (Food Service of America): Possible Tail Rotor System Malfunction

Mike Danko — Wed, 17 Feb 2010 23:58:35 -0800

A tail rotor system malfunction may have caused the crash of the EC135 helicopter that killed five on board the Food Service of America EC135 helicopter at Cave Creek, Arizona. At least, that's where the current information seems to point.

Here are the key bits from an MSNBC report:

Witnesses saw parts flying off the stricken aircraft just before it crashed. Parts of the helicopter's rotors were found more than a half-mile from the main wreckage. . . witnesses reported hearing a popping sound, then seeing the helicopter rotate at least three times before the nose pointed down and it crashed.

The rotor parts that were found must have been tail rotor parts. The helicopter could not have continued in flight for another half mile if it had lost any part from one of its main rotor. Instead, it would have crashed immediately.

The main rotors keep the helicopter in the air. The tail rotors keep it from spinning in a direction opposite to the rotation of the main rotors. Reports that the helicopter rotated are therefore consistent with a malfunction of the tail rotor or the tail rotor drive system.

The weight of the helicopter is balanced under the main rotor mast. The fact that the helicopter suddenly pointed down indicates that a heavy part, such as a tail rotor transmission, fell off the tail, thereby rendering the helicopter too "nose-heavy" to remain in the air.

Investigators will be looking closely at the helicopter's maintenance history. In 2007, another EC 135 crashed in Japan. That crash was attributed to a failure of a tail rotor drive component. As a result, the FAA issued an emergency airworthiness directive (reproduced below), requiring that all EC135's be inspected and that parts be replaced as necessary to prevent similar tail rotor failures and loss of control.

This Emergency Airworthiness Directive (EAD) is prompted by a report of a fatal accident involving the failure of a tail rotor control rod (control rod). This condition, if not corrected, could result in the failure of a control rod and subsequent loss of control of the helicopter.

AD2007-26-51

Cirrus FIKI Marketing Irresponsible?

Mike Danko — Thu, 11 Feb 2010 11:53:38 -0800

Cirrus aircraft are now available with "flight into known icing" (FIKI) capability. That's a great feature. I've written before, however, that Cirrus is asking for trouble with its marketing. Cirrus sells the feature as one that both enhances safety and increases the aircraft's utility. But Cirrus can't have it both ways. If a pilot uses the FIKI capability by, for example, flying in conditions that would otherwise keep him on the ground, he necessarily undermines that feature's safety benefits. I discuss why Cirrus' marketing is a problem here.

Steve Wilson, who is an air safety investigator (among other things), now slams Cirrus' marketing even harder. According to Wilson, some aspects of Cirrus' marketing encourage pilots to use the FIKI capability to take risks that are simply foolish.

Some say that Wilson's criticisms should be discounted because he sells Cessna aircraft and Cessna competes with Cirrus. But Wilson isn't criticizing Cirrus' product, just its marketing. It seems hard to argue with him.

Cirrus - Pawnee Mid-Air Collison Near Boulder, Colorado

Mike Danko — Mon, 08 Feb 2010 21:18:34 -0800

Updated February 12:

A Cirrus SR-20 single engine aircraft collided with a Pawnee tow plane that was pulling a glider. The Cirrus reportedly ran into the Pawnee's tow line. The Pawnee crashed and the pilot was killed. The occupants of the Cirrus were also killed. The glider pilot, however, recognized the impending collision, released his aircraft from the tow line, and landed without injury to himself or his two passengers.

Each Cirrus aircraft is equipped with a rocket-propelled parachute. One purpose of the parachute is to safely return the aircraft to earth if it is damaged in a mid-air collision. Unfortunately, the parachute didn't help in this case. Video of the Cirrus wreckage, on fire, descending beneath its canopy is here.

Some questions:

Who had the right of way?

Gliders and tow planes have the right of way over other aircraft.

Why couldn’t the Cirrus pilot see and avoid the Pawnee's tow line?

The tow lines are nearly invisible in the air. But despite the news reports, the Cirrus most likely collided with the Pawnee tow plane itself, not with the tow line. [The glider pilot has now confirmed to the NTSB that the Cirrus collided with the Pawnee’s fuselage, not the towline.] That explains the tremendous damage to the Cirrus and the Pawnee, and the immediate fireball that resulted, as reported by the glider pilot.

Doesn’t the Cirrus have radar to help avoid other aircraft?

No radar, but some Cirrus aircraft are equipped with other devices to detect and help avoid other traffic. That equipment is optional, however, and may not have been installed in this particular Cirrus. [Reports are that the Cirrus was not so equipped when it left the factory.] Even if it was installed, it only detects aircraft that have an operating transponder. Most gliders don’t have transponders. We don’t know whether the Pawnee’s transponder was on.

What good is the Cirrus parachute if the aircraft burns after a mid-air collision?

Some argue that the Cirrus is not crashworthy because it is prone to post-impact fires. That's because it is made largely of fiberglass rather than aluminum.

It is true that aircraft should be designed so as not to burn after an accident. However, that standard applies only when the crash is otherwise survivable. The impact forces in this accident appear to have been so great that the accident was not survivable. That makes it hard to blame the design of the aircraft for the post impact fire. In fact, the occupants were likely killed on impact, making the fire irrelevant to the tragic outcome. (The parachute was likely deployed as a result of impact forces acting on the parachute's igniter cable, not by the aircraft's occupants.)

Was this a freak accident?

Maybe, maybe not. Here is a video of a remarkably similar accident. The camera plane hit a tow plane's cable, rather than the tow plane itself. The camera plane was equipped with a parachute, like the Cirrus was in this case. The pilot deployed the parachute and ultimately walked away from the crash.

Aviation Attorneys Convene in Hawaii

Kristine Meredith — Thu, 04 Feb 2010 09:41:41 -0800

This week, aviation accident attorneys from across the country met on Maui to discuss current topics in aviation law. This was part of the American Association of Justice's Winter Convention. I was honored to have been asked to speak. My talk was on Hawaii helicopter crash litigation -- a topic with which we are -- unfortunately -- perhaps too familiar.

I covered the profits, accident statistics, the poor safety record, lack of insurance, the popular equipment (including the Eurocopter AStar); and the FAA's unfortunate lack of heli-tour industry oversight. Powerpoint available here.

As it turns out, my presentation was a bit controversial. The tour industry was a sponsor of the convention. And I ripped into it. On the flight back to San Francisco, someone asked me whether that made me uncomfortable, given that AAJ actually promoted the tours. In fact, the blogosphere was chiming in about it before I even spoke. Carter Wood, blogging on PointofLaw.com, questions the appropriateness of my topic:

That's the way you pay back Hawaii's hospitality? 'Fly like a tropical bird, and then sue!'

First, the risks are, for the most part, unknown. Unknown to people travelling to Hawaii, and unknown even to the AAJ, a group which is, generally speaking, keenly aware of industries that place profits over consumer safety. Thus, the title, "Under the Radar."

Second, I want to get the word out. It's too important. Too many people's lives have been torn apart by this industry. I really don't care what “sponsors” I offend.

NTSB Finds Probable Cause of Crash of Continental (Colgan) Flight 3407: No Surprises

Mike Danko — Wed, 03 Feb 2010 10:14:49 -0800

Icing or pilot error?

Last April, the NTSB released the data from Flight 3407's FDR. I blogged about that here. Despite wide spread speculation that icing brought down the aircraft, it looked to me like pilot error -- not weather -- was to blame.

Then, in May, the NTSB released an animation derived from the aircraft's flight data recorder, its cockpit voice recorder, and ATC transcripts. I blogged about that here. The animation, like the raw data from the FDR, made a strong case for pilot error. From the animation, it appeared to me that an inattentive pilot allowed the aircraft to get slower and slower, until it became dangerously close to the speed at which the aircraft would stop flying altogether and simply fall from the sky. Then, when the critical moment came, the pilot pulled back on the control yoke instead of pushing it forward, thereby inducing an aerodynamic stall.

The NTSB made public its official probable cause finding at a hearing yesterday. No surprises to anyone who has studied the data. According to an article in today's Buffalo News, the NTSB summed it up as follows:

The plane got so slow that the "stick shaker" — a device that helps to prevent stalls — activated. But Renslow [the pilot] mistakenly pulled back on the plane's controls at that point, which is exactly the opposite of what he should have done.

In total, Renslow pulled back on the controls three times in response to the stick shaker and "stick pusher," forcing the nose upward. That caused and then exacerbated the stall.

It's almost unimaginable that a professional pilot would make the series of mistakes that the pilot did in this case. Even a new student pilot would know better. But that's what he did.

The NTSB played its animation for those who attended the hearing. The animation shows the pilot's errors mount. The activation of the "stick shaker" is depicted 2 minutes and 8 seconds into the animation. The shaking control yoke was a final warning to the pilot that he must immediately push the yoke forward. But instead of pushing forward, the pilot pulled back. Three times. After the third time, the aircraft stalled and crashed.

There were countless points at which this aircraft could have been saved but, inexplicably, the pilot failed to take appropriate action.

Hawaiian Helicopter Air Tour Crashes: On the Rise or Decline?

Kristine Meredith — Mon, 25 Jan 2010 10:05:08 -0800

In 1994, the FAA -- hoping to reduce the number of helicopter tour crashes in Hawaii -- promulgated a controversial rule that set minimum altitudes for Hawaiian sight seeing flights.

According to an article appearing this spring in Aviation, Space and Environmental Medicine, after the rule went into effect the overall number of helicopter crashes in Hawaii decreased, but the number of crashes resulting from improper VFR flight into instrument conditions increased. That means fewer overall crashes (especially ocean ditches), but more crashes into mountainsides hidden in the clouds. The number of fatal crashes remained the same.

Although its data and methodology may be questionable, the recent report concludes:

the FAA should reconsider the Rule's clause that established a minimum flying altitude of 1,500 feet, as we know higher altitudes are associated with more cloud cover.

This conclusion delighted the helicopter industry which opposed the new minimum altitude requirement. And a possible increase in weather-related accidents was one of the FAA's concerns from the outset. Requiring helicopters to maintain more clearance from terrain features, and more altitude to deal with engine failure, makes it harder for them to remain clear of the clouds. But the report fails to consider the "deviations" the FAA has issued to air tour operators that allow them to fly lower than the established minimums. Depending on the number of deviations that the FAA issued, it may be unfair to blame the rule for the increased number of mountainside collisions.

It’s a modern day Scylla and Charybdis. (OK, you'll have to indulge me, my favorite mythical allusion because it's more accurate than saying "catch-22” or "caught between a rock and a hard place.") Is the danger posed by the close proximity to the terrain more daunting than the unpredictable cloud cover? When it spoke in 1994 the FAA said, “No -- higher altitude is safer".

Who is the Pilot in Command During an FAA Check Ride?

Kristine Meredith — Tue, 19 Jan 2010 17:39:54 -0800

The easy answer: the applicant is the Pilot in Command and is fully responsible for the safe operation of the aircraft, not the FAA check pilot. But what about when the check pilot attempts to simulate an engine failure by chopping the throttle? At that point, hasn’t the check pilot assumed control of the aircraft?

Well, that’s what happened recently when another AS350 helicopter accident occurred during a check ride in Maui. The applicant pilot, a commercially certificated air tour pilot working for Sunshine Helicopters, made a forced landing after the helicopter experienced a total loss of engine power. The helicopter was destroyed and both the pilot and the FAA check pilot suffered serious injuries.

The FAA defends the check pilot, explaining that it is routine to simulate the loss of engine power during a check ride. The air tour operator, Sunshine Helicopters, claims that while a simulated loss of engine power may be routine, the check pilot's actions resulted in an actual engine failure over terrain unsuitable for an emergency landing. Causing an actual engine failure is anything but routine.

The F.A.A. regulations require that, to pass a check ride, an applicant must demonstrate that he is the “obvious master of the aircraft.” It follows that the applicant is presumed to be the pilot in command and responsible for the safe outcome of the flight. But if the applicant pilot can prove that the check pilot improperly interfered with his ability to control the aircraft, then he may successfully overcome such presumption and hold the FAA check pilot responsible.

Compensating the Families of the Mountain Lifeflight EMS Helicopter Crash at Doyle, California

Mike Danko — Thu, 14 Jan 2010 19:49:01 -0800

Who can be held responsible for compensating the Mountain Lifeflight families, and who is immune from suit?

Maintenance. If faulty maintenance is proven to be the cause of this helicopter crash, the families can recover against the maintenance company, provided that the families can prove that the maintenance company was negligent. There is an important exception, however. The families cannot sue the company that performed the maintenance if that company was Mountain Lifeflight itself. That's because the worker's compensation laws immunize a crew member's employer from suit brought by the crew member's family. More on that here.

Pilot error. There is no reason to believe that the crash was caused by pilot error. To the contrary, as discussed here, it looks as though the crash was likely caused by a mechanical failure. However, assuming for argument's sake that the crash was caused by pilot error, the workers' compensation laws prohibit the families from suing either the pilot's estate or the pilot's employer.

Design defect. Other A-Star accidents similar to this one raise the question of whether the crash was caused by the helicopter's faulty design. The families are entitled to sue the aircraft's manufacturer, Eurocopter, and get to the bottom of the design defect issue. If the families prove that the crash was in fact caused by a defect in the design of the helicopter, then they can hold Eurocopter responsible.

But there is one hurdle the families must overcome before winning a design defect suit. The accident helicopter, N5793P, was manufactured in 1982. The General Aviation Revitalization Act, or GARA, immunizes manufacturers from liability from lawsuits arising from aircraft that are older than 18 years. At first blush, it would seem that the families have no recourse against the manufacturer at all. But there is an important exception to GARA. If the accident occurred as a result of a new part that was installed on the aircraft less than 18 years before the accident, the manufacturer can't assert the defense, no matter how old the aircraft. And it has been reported that N5793P had been completely rebuilt only a few years before the crash. Therefore, even though the helicopter was manufactured more than 27 years ago, it's likely that most critical parts on the aircraft were less than 18 years old, and that GARA won't protect the manufacturer.

Feres Doctrine Protects U.S. Military From Lawsuits

Mike Danko — Thu, 07 Jan 2010 20:47:27 -0800

The Federal Tort Claims Act allows citizens who have been injured by the federal government to sue the United States. But there's an important exception. No suit against the government is allowed when the victim is a service member injured by the negligence of the United States military.

The rule protecting the military is called the Feres Doctrine. In aviation accident cases, the doctrine bars service members from suing the government regardless of whether the crash was caused by the negligence of a military mechanic, air traffic controller, dispatcher or pilot.

Not surprisingly, the Feres Doctrine is controversial. It allows the military to avoid responsibility for not just simple negligence, but for gross negligence as well. Because of its unfairness, Congress has repeatedly been asked to abolish the rule, or at least limit it. (Large pdf of Congressional Hearing here.) But the Feres Doctrine remains the law. As long as the victim was an "active" service member, and the injury or death was "incident to service," the military is immune from suit.

That doesn't mean that injured soldiers or their families cannot sue others who may have contributed to a military aircraft accident. For example, if a defect in the design of the aircraft contributed to the crash or to the injuries the crew member received, the crew member can still sue the aircraft's manufacturer. The aircraft manufacturer may be able to assert defenses of its own, such as the "government contractor defense," but not the Feres Doctrine.

The military prepares an investigative report after every accident involving one of its aircraft. The report focuses on the military's role in the accident. It seldom addresses whether a manufacturer or other civilian contractor may have been at fault. In fact, as discussed in this article concerning a military helicopter crash off the California coast, sometimes the report provides no answers at all. Families will often need to enlist an aviation accident attorney to conduct an investigation on their behalf. The attorney may need to file suit against the manufacturers just to obtain access to the evidence bearing on who, other than the military, may be responsible for a service member's injury or death.

Montreal Convention Governs American Airlines' Obligation to Compensate the Passengers of Flight 331

Mike Danko — Sat, 26 Dec 2009 10:00:35 -0800

American Airlines Flight 331 was an international flight between Miami and Kingston, Jamaica. Because the flight was international, the airline's obligation to compensate its passengers for their injuries is governed by an international treaty known as the Montreal Convention. Here are some of the Convention's important points, as they apply to Flight 331:

The Airline must compensate its injured 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. The exact cause of the accident doesn't matter. The passenger does 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 any injured passenger.
A passenger who was physically injured is entitled to compensation for his or her emotional distress as well as for the physical injuries. However, a passenger who was not physically injured is not entitled to compensation for emotional distress, no matter how severe the emotional distress may be.
American Airlines may avoid liability for amounts exceeding US$155,000 only if it proves that it was not in any way "negligent or at fault." Experienced aviation lawyers know, however, that in a case like this, that will be impossible for the airline to prove. Therefore, there will be no artificial "cap" on American Airline's obligation to compensate the passengers who were physically injured in the accident.
To obtain fair compensation, the injured passenger may sue the airline in the United States, regardless of the passenger's citizenship.

Avoiding the Empty Chair Defense

Mike Danko — Sun, 13 Dec 2009 10:19:23 -0800

In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident. But as the case progresses, evidence may point to one defendant over another. When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, and to proceed to trial against the defendant who appears blameworthy. Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.

Let's say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible). But let's say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer. It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer. Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom -- someone who should be seated in the "empty chair," but whom the victim decided not to bring into court.

This strategy is called "blaming the empty chair." Of course, the "empty chair" cannot defend itself. Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether.

New Rules To Keep Tour Helicopters Apart From Airplanes Transitioning Through Hudson River Corridor

Mike Danko — Sat, 12 Dec 2009 12:24:52 -0800

The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty. The San Francisco Daily Journal, California's largest legal newspaper, published this column on how the new rules came to pass, and why they aren't enough.

FAA and NTSB Battle Over Aviation Safety

Mountain Lifeflight EMS Helicopter Crash Update

Mike Danko — Sun, 06 Dec 2009 22:27:16 -0800

The NTSB's preliminary report on the crash contains little more than what was in the news accounts. The report does, however, offer one bit of new information. The helicopter impacted on a magnetic heading of 230 degrees. That heading is not in line with the route from Reno to Susanville. While that might ultimately prove to be important, little can be made of that information without a careful examination of the layout of the terrain near the accident site and the roadway that the pilot might have been using to aid in his navigation.

Though the information in the NTSB's official report is sparse, an NTSB spokesman did offer his expanded comments to Mary Pat Flaherty, a reporter for the Washington Post who has been following the poor EMS safety record during the past months. The NTSB's Ted Lopatkiewicz told Flaherty that the Mountain Lifeflight helicopter didn't have certain important safety equipment. Lopatkiewicz was referring to the helicopter's lack of an autopilot, a ground proximity warning system, night vision goggles (discussed in this post), and other equipment necessary to navigate in poor weather.

But in this case the pilot was flying in good weather. He did not collide with the ground because he could not see it. Rather, as discussed here, it appears that the pilot crashed because of some type of mechanical problem with the helicopter. It's unlikely the helicopter's lack of advanced equipment played any role in the accident at all.

Compensating the Families of the Mountain Lifeflight EMS Crash

Mountain Lifeflight EMS Helicopter Crash at Doyle, California

EMS Helicopter Safety: NTSB Pushes the Envelope

OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity

Running Past TBO: Smart Economics or Owner Negligence?

Mike Danko — Fri, 04 Dec 2009 21:44:08 -0800

Aircraft engine manufacturers recommend that owners overhaul their engines when they accumulate a certain amount of operating time, usually between 1200 and 2400 hours depending on the engine's make and model. For example, Teledyne Continental Motors suggests that owners overhaul its IO-550 model engine at 2000 hours. Textron Lycoming suggests that owners overhaul its O-235 engine, like the one pictured, at 2400 hours.

Overhauls are expensive. Some can cost $40,000 or more. An increasing number of owners opt to run their engines 200, 400 or more hours past the manufacturer's recommended "time between overhauls," or TBO. Once past TBO, they may take extra precautions by, for example, regularly sending out engine oil samples for spectrographic analysis, checking the engine’s compression, and looking inside certain parts of the engine with a boroscope to insure that things look good. They feel the manufacturer's TBO recommendations are somewhat arbitrary. By running their engines past TBO they are squeezing more life out of them, and that just makes good economic sense.

The FAA does not require private owners to comply with the manufacturer’s stated TBO interval. The manufacturer's TBO is therefore advisory only. As long as a properly certified mechanic has

within the previous twelve months certified that the engine is airworthy, then the owner is, from a regulatory standpoint, free to operate the engine as many hours as he wishes.

But if an owner does operate past TBO, and the engine fails, and a passenger is hurt as a result, could the owner be held accountable despite the fact he was in compliance with all FAA regulations?

You bet.

An owner can be held accountable for an accident after TBO if a judge or jury decides that:

1. in not complying with the manufacturer's overhaul recommendations, the owner was negligent (not "reasonably careful" under the circumstances) and

2. the negligence was a cause of the accident.

The FAA regulations are minimum standards only. Many would argue that more can and should be expected of a reasonably careful owner or operator. If a judge or jury agrees, then the operator would be held responsible for the harm resulting from running the engine past TBO, even though the regulations allowed him to.

How would the aviation attorney representing the injured passenger establish the owner's liability? Through expert testimony. Let's say that at 100 hours past TBO an exhaust valve failed, the engine lost power, and an accident resulted. It wouldn't be difficult to establish a causal link between the owner's decision to run the engine past TBO and the engine failure.

Q: Mr. Metallurgist, did you find any defect in the exhaust valve?

A: No, it was manufactured properly and was a fine example of an exhaust valve in all respects.

Q: Then why did it fail?

A: It failed in fatigue. It took all the vibration, bending, and heat that it could and then it finally quit.

Q: Would it have broken if the owner had not continued to run the engine past the manufacturer's 2000 hour overhaul interval?

A: No, sir, it would not have broken had the owner followed the manufacturer's recommendation.

Q: How do you know that?

A: Well, for one thing, it completed the manufacturer's service interval without breaking. It broke only when the owner asked more of it than the manufacturer recommended. Certainly, had the engine been overhauled at 2000 hours and a new valve installed, one would not expect it to have failed in fatigue 100 hours later. Rather, one would have expected the valve to continue in service well beyond that.

The injured passenger's attorney would next call to the stand the owner of an FBO (aircraft rental agency). The FBO owner would testify that he never runs engines beyond TBO because he doesn't assume that he is smarter than the manufacturer. He would testify that some things, like whether internal parts are worn beyond safe limits, cannot be determined without tearing down the engine. The witness might then suggest that the costs saved by running an engine beyond TBO are marginal and just aren't worth the risk to human life.

With the testimony of those two witnesses, a judge or jury could well decide that the owner was negligent in operating his engine past TBO and that the negligence caused the passenger's injuries.

Some proponents of running an aircraft engine beyond TBO downplay the risks. They argue that the manufacturer's TBO is a "made up" number, and few engine failures have actually been attributed to the owner's decision to run past it. One prominent aviation maintenance expert even suggests that there have been no cases where running past TBO resulted in an owner being held responsible for a passenger's resulting injuries.

Not so.

There may be good economic reasons to run an engine past TBO. But an owner who does so should expect to be held responsible if an accident results.