Air Lawyer

Considering aviation was born in the USA, consider how the FAA reacts to Boeing’s continued failure to locate the problem to fix.   Did an entire 787 fleet have to be grounded because of one small fire in an unoccupied plane and a SOME smoke in another, from which passengers had to be evacuated? Certainly there are some problems with this newly designed airplane, which may still be on what the aviation people call the "learning curve," but so far no injuries, no deaths.     Now comes the news it wasn’t the battery.  Planes still grounded. Onward.     Contrast this with very same FAA which has over 20 years, taken pains to completely ignore one  of the most dangerous fleets of aircraft flying.  That would be the low cost, minimum design helicopters, made in and shipped to customers all over the world by an American company.   This America company now claims to be one of the largest helicopter manufacturers in the world, and reported record sales last year. The company boasts that 70% of its products are sold to overseas customers.       Two of its models, a two place and a four place have at least three serious built-in design flaws that have brought dozens, if not hundreds of these aircraft out of the skies, or have caused to burst into violent flames in minor impacts, or even rollovers.     Usually with total fatalities and or serious injuries.     There are some statistics on these incidents kept by the NTSB, and the NTSB has criticized these design flaws a numerous times.  But the FAA simply continues to ignore the entire issue.   The first problem is probably the most deadly: the propensity of the rigid metal tank fuel tanks and fuel lines break or rupture in a relatively low-impact,low G -force incidents.     The tanks are located directly above the passenger compartment and next to the high RPM mast, and quite near the red hot components; engine and transmission.   If a fuel tank or line is breached, it takes just seconds for escaped aviation fuel to find its way to the hot components. Same with rigid fuel lines.  Fuel can even escape from impact forces on an unbreached tank due to hydrostatic pressure.  Then, bang.  The entire mess pours into the passenger compartment.   In a matter of seconds bodies are reduced to "4th degree" burns and charring.     Avivation was born in the USA.  The FAA has done nothing about this.     Eventually, pressured by repeated multi-million dollar lawsuits and some strong government investigations and bulletins from overseas air authorities, the manufacturer finally came up with a long over due retro fix: replace the rigid tanks with flexible bladders and include in fuel lines, breakaway failsafe closures. Voila.  Fire resistant fuel system 101.  The company is now scrambling to get older aircraft owners to order and install the replacement kits. At owners expense.   As of 2010, the company changed the design for its new models, but according to the air authorities of one country, as of last count, only about 10% of the old fleet has been retrofitted.  This means as much as 90% of the flying public and crew, remain at risk.  At least in those areas.   We note the fire resistant design and flexible bladder technology for helicopters has been around for many years. We also note the military will not accept a machine without such, and has probably had that policy since the Viet Nam war, if not before.   The second problem is known by the term "debonding."  This means is that the rotor blade of either the two or four place model, suddenly and without warning, simply comes apart mid-air.  The skin, or thin metal cover of the blade quite literally "debonds" separating or delaminating from the strut to which it was glued. The naked blade now stops flying or providing lift, and flails wildly.     Usually the blade strikes some part of the helicopter or rips through the cabin.  The cause of the debonding is either one or both of a failure of the bonding agent, called "cohesive" or “adhesive" failure.  The short version is: the "glue" wears out.  Worse, in the certification process of the blades, no testing was ever done to determine how long the "glue" would last or hold.   No one knows when the glue might be expected to wear out.   The FAA the faa never required such testing or quality control measures.   The helicopter company is now busy here replacing blades almost 24/7.     What is the FAA doing?   Thanks for asking.  Not a thing.     The third problem uncovered, at least today, is their “mast bumping” phenomena. Unlike most small utility helicopters, these helicopters use only a two-bladed rotor, which has to in effect, balance at the top of its mast, in a teeter totter fashion.     One blade goes down, the other has to go up. This is called "underslung" and differs markedly from the technique used in other helicopters where each blade, usually at least three,  are independently bolted to the mast, so any up down motion in rotation is far away from the mast.     The "mast bump" comes in a situation where the helicopter, for whatever reason, goes into a "negative G" situation. This is similar to what one would feel in roller coaster that came to the top of the run at high speed, over top, and started down. that momentary lift, when one feels the seat seem to drop out from under, is negative G.   Negative G can be induced by control inputs, turbulence, coming over the crest of a hill and other maneuvers. Negative G is not uncommon for helicopters. Three blades, or non teeter-totter designs handle Negative G quite well.  But in the two-blade teeter totters, the action of the physical forces can cause the rotor to "unload" that is stop providing lift and the rotor blades to move away from the fuselage, since both are then "floating" in a negative G configuration.  The hull then rotates (rolls) away from the plane of the rotar, the rotating blades, not generating any rotor thrust or pulling the hull,  then swing closer and closer to the mast and the fuselage, until one of the blades actually strikes the mast (think massive "droop" of the blades).   When this happens, if the crew is lucky, the blade may be only damaged, and they may be able to land it safely. If not, the blade will detach, and hurl itself into the boom, the tail rotor, or the cabin.   All three of these conditions are very dangerous and can occur in seconds Without warning.  The manufacturer in its "safety bulletins" and publications, does talk about bumping and inspecting for worn blades (we have never found any warnings about the fuel system or the fire propensities.  The only mention is the retrofit option "to be safer," or some such) in its materials.  But in our opinion ALL these dangers are seriously understated and downplayed.   Back to the FAA.   The FAA has never issued an Air Worthiness Directive (AD) nor come close to grounding any of these helicopters.  See no evil, hear no evil, and certainly speak no evil. As we mentioned earlier, any and all pressure has come from aviation authorities outside the United States or in some court cases.   Many if not most of the accidents occurring overseas, which indeed are the majority (remember the 70% figure), can not stay in the United States courts even if the families or survivors seek redress here, where the machines are designed and made.     The American manufacturer has successfully HAD claims dismissed in U.S. courts stating the U.S. where these helicopters are manufactured, is not proper jurisdiction.   The American manufacturer claims the U.S. is an "inconvenient forum" for hearing cases involving American manufactured products.  The American manufacturer claims cases should go to the courts of the country the domicile of the victims or where the accident occurred.   Thus “Made in America” doesn’t mean “Accountable in America” as the manufacturer spends enormous sums to convince U.S. courts not to be held accountable.  Meanwhile, sales and profits, soar, unfettered by safety concerns.   In most all such cases, nothing is every heard again about that accident, legally speaking. There is no practical way to mount, finance, or prevail in this type of case in a non-US court.   Onward.  

Mexico and the State of Nevada might be problematic

Having litigated more than a few "star" crashes, we feel badly Jenni Rivera's surviving heirs will soon encounter an array of large scale problems.

Although NTSB will be involved (since the Lear 25 is a U.S. manufactured plane), the investigation will be headed by Mexican authorities.

Although Ms. Rivera lived in California, the State of Nevada is involved as the Lear 25 was owned by a Las Vegas talent management firm.  The State of Nevada (as well as Hawaii) have had issues with "Tourist" aircraft, insurance wise. 

Especially as reports are now surfacing this particular Lear jet had been in a prior accident.  The records of its most recent condition and maintenance and repair history will be a critical issue in the case.

As we earlier mentioned to one reporter, as with any crash with serious losses a host of legal issues are present.  Not the least of which will be what law will be applied to determine the quantification of losses. 

Mexico has a long history of allowing very little legal compensation for wrongful death, generally fraction of what applies by U.S. standards under the law.

Acquiring evidence from Mexico might also be problematic.  We suggest for many reasons, U.S. Courts.

It is well known Jenni was a mother of five and also a recent grandmother.  Because of her enormous earnings history, including future potential there are devastating economic losses for her dependents. 

Which doesn't mean there aren't problems

The application of a U.S. law of damages, either under Nevada Law, where owners of plane are based, California law, Jenni’s domicile, or some other U.S. state, as in maybe the location of the charterer or employer of the pilots, would be most necessary to the dependents recovering some of those losses.

Problems with insurance

One very important question will be the issue of insurance.

We have found over the years, indeed in some of these high profile cases noted above, the operator, owner, charterer or lessor of these sorts of planes that are so often used to ferry high profile entertainment or other celebrity personnel around quickly do not carry adequate liability insurance coverage, or sometimes none at all.”

There are no federal and few state laws that mandate such. Additionally the FAA rules and regulations as to what is a ”charter” as opposed to a “lease” are very murky, and this can make a huge difference as to who may be responsible.  If a “charter,” the charterer is responsible for the airworthiness of the plane and the competency of the crew. But if a “lease,: all that is entirely on the “lessee” the unsuspecting group who thought they had a charter and knew nothing about airplanes.”

One quick example; the managers of the Lynyrd Skynyrd band, in the middle of a most successful tour, decided that it would be more efficient and cost effective to have the band have its own plane to meet a rigorous schedule of gigs at various stops in the south. So they sought out what they thought was a charter operation to provide an old Conair passenger plane, with a new coat of paint, featuring the band logo. They did not understand the intricacies of charter v. lease nor the FAA rules. They took out no insurance to cover the trip or the band, as opposed to the plane.

After the crash (five killed; several with serious injuries) there were serious questions all around about coverage, finally resolved when we were able to bring in the bank that had financed the deal and should have known better.  Later, the manager for another very successful and high profile rock band, taking a page from the Skynyrd case, made sure they had a charter, and arranged for a fifty million dollar one time Lloyds policy to cover all risks on all trips.

As a footnote, we note that Lear Jet, originally of Nevada, now part of a larger corporation, cannot be held legally accountable for any defect in the design or manufacture of the Lear 25 that might be found to have been causally related to the crash.  I

It is protected by a US federal law known as the “General Aviation Restoration Act” (GARA), which established an absolute cut off of any claims vs. the manufacturer of a general aviation aircraft, which the Lear 25 is, at 18 years after it goes into service. That time would therefore have expired in 1987.  So any claim that might arise out of this crash against Lear would be barred before they existed.  A lot of people when confronted with this law are shocked, but this is well settled.

As the investigation continues, we hope the heirs of Jenni Rivera realize given so much at stake, the very challenging legal problems they will be presented with.

As stated earlier in a Wired article, about the crash of the Concorde, seconds after take-off, we were right.

On July 25, 2000, Concorde Flight 4590, the aircraft that was supposed to herald the onset of worldwide supersonic flight met a sad and ignominious end when a full passenger flight departing Charles De Gaulle Airport in Paris burst into flames just after takeoff and smashed into a nearby neighborhood, killing all aboard.

Investigators quickly determined that the cause had been a near improbable, if not bizarre scenario. a fire/explosion in a main fuel tank that had been struck by flying debris from a tire that burst during the takeoff run.  And that the tire had failed because it somehow had struck a short strip of metal that had fallen off the engine of a previously departing flight, and was lying on the runway as the Concorde passed over it.

The stripe, made of titanium, was traced to a Continental Airlines plane based in Houston, Texas, USA, and had detached from the engine, possibly/probably from some sort of mistake made during work on the engine by two Continental mechanics.

Circumstances such as this, of course, inevitably lead to lots of legal proceedings, claims and lawsuits. The families of the passengers (and crew) are looking for compensation for the loss of their loved ones, and in most cases, loss of financial support.  The Airline, or its hull insurer, looks for damages for the loss of its aircraft.  All the potential responsible parties are pointing the finger at each other, and cross- complaining against them in court.  These include the airline, the makers of the Concorde, the maker of the tire, Continental,  Air Traffic Control, the airport and others.  Also named in some suits were the two individual mechanics at Continental.

These were all civil suits; that is, claims and cross claims for damages. Many of the civil cases were filed here in the United States, because of the presence of the tire maker and Continental Airlines.  In some cases, the passenger plaintiff lawyers named the two US resident mechanics as additional defendants, not that they expected to collect any damages directly there from.  The employer, Continental, would be responsible in all cases for their actions, and it and they in turn were covered by insurance, both for the defense of the claim and payment of any damages.

But knowing in advance how the French system worked, naming the individual mechanics was a tactical move to try to prevent the US filed cases from being dismissed and forced to refile in France.  This would be standard strategy from any US based defendant: get the cases out of the US courts and somewhere else.  But the presence of US residents individuals in the case can make that process much more difficult for the corporate defendants, and because of the workings of the French legal system, which were discussed in detail in an earlier article on all this in “Wired,” (enter date) there is no way these mechanics would ever consent to move the case to France.

And in due time, probably within two and a half to three years, all the death claims were settled and cases closed.  The mechanics had that burden lifted from them, at least in the United States. There are no readily accessible hard numbers on such things because most settlements contain a confidentially clause and liability insurers do not make public what they have paid out in individual damage claims.  

In France, things work differently.   As explained in the “Wired” piece, an aviation accident of this magnitude is treated as a criminal matter.  In March of 2008, Pontoise deputy prosecutor Bernard Farret, petitioned a court to file manslaughter charges against the US airline, along with two people employed with the company at the time, as well as a former employee of airplane manufacturer EADS and a former official at France's civil aviation authority (DGAC).A judge presides over this; a special prosecutor is assigned; both are high profile positions, with many perks.  And the process can go on for a very long time.  The statute of limitations is over twenty years.

And so, eight years after the crash and a number of years after most if not all of the victims’ families had been paid and the civil cases closed,  the criminal proceedings began chugging along, with some passengers having hopes of joining in those proceedings, as is permitted by French law, in the hopes of recovering their damages in that fashion, perhaps to avoid lawyer and litigation fees, perhaps thinking they would recover more.

Special Prosecutor Farret announced with much fanfare that the two individual mechanics, still in the United States, and probably thinking that this whole ugly business was now long since behind them, would now be prosecuted for manslaughter.  Never mind the time that had gone by or evidence that may no longer be available and memories of witnesses which might have faded: Justice Must be Served.

We commented on all this extensively for the “Wired” article, in response to queries as to how can such be possible after so much time has passed.   In short, our observation then was that this is the product of the French process to intermix criminal and civil matters, as to provide for, in our view, a most unreasonable prolonged times for those involved in high profile matters to stay high profile.  But those are their rules, and so the process continued, and ended in a conviction.

But now, some four and half or so years later, a higher French court has ruled which seems should have been apparent from the outset.  Even granting that the Continental mechanics in Houston made a mistake, or even had been negligent, which could well have been the case: metal pieces should not spontaneously detach themselves from aircraft; but the “zone of danger” of such, which is a measure used by many US courts,  would not include a nightmare scenario such ensued some 5,000 miles away. Additionally, the fact that something may done negligently or carelessly in no way rises to the state of mind of criminal intent or reckless and willful.

We further commented then that the focus of any inquiry should have been on the design of the Concorde itself and its designers: a consortium of the UK and the government of France.  Tires on a multi-thousand pound fast moving machine may fail for many reasons and scatter tire debris is totally foreseeable.   When such tire is situated directly below fuel tanks, is it not logical to foresee that as well and design those tanks with a high level of protection?  What sort of metal was used? Were there joints or seams that may have more vulnerable to flying debris? Was there a tradeoff here, as can often be the case in aircraft design, of more protection, equating to more weight, for safety?

The French appellate court vacated the criminal charges against the mechanics.  Nearly 13 years after the occurrence.  It also, we note, either made or affirmed an award of something over 300,000 Euros as damages for some families.   It is not said whether interest will be added or not.  But even if so, such a sum equivalent to maybe 450,000 US dollars, is not much given today’s values for the loss of a breadwinner.  To the contrary, we are told now that the average compensation in a breadwinner airline crash is around two million dollars.  And that is usually paid within 18 to 24 months from the time of the crash, if not sooner.  Here, some families have waited 13 years. And what makes this huge delay even more painful is that such awards are inevitably paid by insurance; the carrier airline; Continental, whoever.  However, the interest earned on the sum ultimately paid: 300,000 or so Euros,, will more than pay the final sum.   This is due to the fact that the insurance companies “reserve” sums for payment of these losses at the start. But they keep the money, and keep it invested, so they collect and keep all that.  The longer it takes to get paid out, the better they do.  Sort of a reverse annuity for the victims.

The “Final Report” of the French BEA, who undertook the investigation of the Air France 447 crash into the Atlantic on 1 June 2009, comes to some very important and frankly frightening conclusions.  It is clear that what happened was a deadly combination of crew under training and several serious mechanical and design failures.  Some of these can be traced directly to U.S. companies who supplied components for the Airbus.

  In retrospect, the sequence of events is now pretty clear.  And even more clearly is that none of this needed to have happened.   Trouble started when the flight crew elected to continue on its initial course directly across and over the Atlantic, Brazil to Dakar, which would take it into an area of weather where icing could be expected.  The sensors on the aircraft then either did not pick up the fact of the icing, which, if severe enough, can disrupt the lift capability of the wings, but here apparently caused erroneous readings to be fed into the autopilot system by partial blocked pitot tubes,

  As a result of this, the autopilot got conflicting information, one source saying it was going to fast and needed to slow down, the other just the reverse.  In a situation such as this, the autopilot is supposed to disconnect itself, so that the fight crew can immediately take over and “hand tool” (fly manually) and act quickly to diagnose and deal with the situation.  They did not.  The captain, the senior pilot, was not at the controls, and the two junior officers did not respond correctly.  One read the aircraft as going too fast, which if continued, could itself be catastrophic.  The window of speed though which a swept wind modern jet aircraft must fly at high altitudes is really very narrow; too fast and there can be structural damage; too slow and the plane can stall.  (“Stall” here is in the aerodynamic sense, not referring to the engine power; that is. the wings cease to provide lift.)

  In the AF447 case, the pilot at the controls lifted the nose up, thinking he had to slow down the speed.  As it turns out, this is the worst possible thing that could have been done.  At that altitude, the swept wing 500mph plus jet will stall very quickly if what is called the angle of attack, that is the flow of air over and under the wing, is raised even bit too much.  The only way out is to drastically lower the nose and try to increase flying speed, but once the stall is incurred, it may not be possible to recover there from, especially in a high performance jet.  That is what happened here; the machine just keep sinking toward the water, but apparently never did roll over.

  A true tragedy.  There was litigation initiated in the United States against the US component manufacturers as well as AirBus.   In all but two cases, involving Americans, Air France could not be sued in the U.S. because of jurisdictional restrictions in the governing Aviation Convention.  However, a federal court in San Francisco dismissed all of the cases  in favor of a transfer to the French courts.

Why reporters should question “Class-Action” in the Dana crash

1. The Dana flight was a domestic flight.  Montreal Convention in 99 covers only international transportation.

2. Assuming Montreal has been incorporated into Nigeria domestic law by virtue of some carriage by air act, which could well be the case, this is common in former Brit colonies, then the rules are clear;

3.  Montreal provides for air carrier liability without fault for "provable damages" up to 100,000 "Special Drawing rights," not dollars.  Note the two huge conditions here (a) "up to" & (b) "provable damages,"  Oops.  There is no "automatic" payment.  No damages, no payment.  Little damages, little payment.  This is a common misconception.

4.  Also, there is a provision in Montreal for prompt payment of 25,000 either US dollars or SDRs to family of each victim, without proof of damage.  That provision is often ignored by airline insurers, or given only if Complete release is signed for all other claims.

5.  A "class action" will change None of this, including if a court certifies the class, which has never happened in an airline disaster case.  Class actions require large numbers of near identical claims & communality of issues.  There are no common issues on damages.  Each claim is unique.

6. Filing a suit & calling it a "class action," is something some reporters do not know to check out.  People hear “class action” and think “Bags of money” when the reality is nothing of the sort.  It only becomes a class action in fact when and if the court certifies it as such. Which it cannot do without extended hearings and a long & bitter fight: just what both the defense lawyers want (Hourly fees!  Hourly fees!) as do insurers (they pay out no money while any unfortunate, "class " business plays out in what could take years.  Last, but still bad?  Even if an order of certification is obtained, it can be appealed.

In 1995, there was a serious crash of a Nigerian Airways plane at Kaduna, in northern Nigeria. Fortunately no fatalities, but a large number of serious and other injuries were suffered by Nigerian passengers aboard.  The London insurers for the airway continued to give the victims the runaround, claiming that no more than a few thousand dollars (US equivalent) could be paid on any claim, no matter how serious the injury. There were burn cases and work career impairing injuries, where medical bills themselves were way in excess of any number suggested by London.   The insurers' position was that in 1953, while Nigeria was still a British Colony, Parliament imposed a "colonies and protectorates" edit on Nigeria, which established a "Carriage by Air Act," which among other things, limited airline liability payments to the low limits established by the Warsaw Convention back in 1929, a certain number of gold francs, which would have been equivalent to only about US$10,000 at the time of the 1995 crash.  Even thought Nigeria gained its independence in 1960, and in so doing, it seemed clear it understandably  abolished all of the then exisiting colonial British edicts and other imposed rules. Nigeria did not enact another Carriage by Air Act, but adhered to the International Warsaw treaty. But this applied only to international flights, which Kaduna was not.   The Nigerian victims and some forward looking lawyers there, attempting to cope with the high powered lawyers and claims people dispatched by the insurers to try to settle the cases on the cheap, looked to some American aviation experts for help.  A team was formed; most of the Nigerians agreed to the help; the US team, just as versed in International aviation law, if not more, as the London insurance lawyers, were convinced that no Carriage by Air Act or Warsaw limitations applied to Kaduna, and that the cases were to be valued and paid at full value, according the settled rules of the common law {no arbitrary limits on damages.)   There were arguments, there were court cases filed, but in the end there were negotiations, and the London insurers abandoned their strict low ball position, eventually to one that was fair and reasonable (all well above US$10,000) in all of the Nigerian cases.   Sterns said,

  “We may indeed face a similar situation today in the Dana Air case."

A team of U.S. attorneys, headed by Gerald Sterns have offered to assist their Nigerian brothers in the law to "level the playing field," so to speak, and to undertake to deal with the London interests.”

In the DANA Airlines crash in Lagos, Nigeria; we knew it would only be a (short) matter of time, before insurer Lloyd's press machine would begin issuing press releases regarding "offers" to those impacted by the crash.

Addressing these Lloyd's press releases, the insurance company handling DANA Airlines, the main thing to remember is whenever a press release is offered touting that the airline is “is ready to pay" in real “readiness” form; they are not.  Their small offer however, may be seen by some potential clients who assume it is literally true. Everybody gets big numbers, right way, no strings.  The insurers issue such press releases in every case making it sound as though the insurance man will be by shortly to fill up their stockings and bank accounts, no problem. 

Some additional thoughts concerning the death of Peter Oakley, the California resident and passenger on the maiden voyage, a la Titanic, of the Sukhoi Superjet 100 the new Russian, super-jet in Indonesia; after the plane crashed with no survivors.

In this instance the U.S. is not likely to gain jurisdiction unless Sukhoi was an airline based in Russia, that travels to the U.S., and if Russia was party to the Montreal International Air Convention (which replaced the Warsaw). 

Valuable information? 

An Oregon court threw out a suit against TSA by 15 men who found themselves on TSA's "No Fly" list, stating the court didn't have jurisdiction. 

Jet Blue’s erratic captain incident raises some serious concerns on two levels.

Sterns & Walker has been involved in litigation based by the behavior of the crew, towards passengers; and this is not the first time very bizarre and erratic behavior by a crew member could well have put many at risk.   

The public remains at significant risk in air travel from any bad act some determined or misdirected flight crew member might do.  Yes, pilots and co-pilots and crew must now pass through security, but potential situations where the risk of a deranged or Lord forbid, a pilot for a major airline turned terrorist, or one bribed to cause great damage for a large reward, remains. To do damage or destroy a plane, one doesn’t need to sneak a weapon through security. Consider the real life drama of El Batouty, the reserve captain who relieved flight crew, took over controls of an Egypt Air 767, which shortly after went out of control & plunged into Atlantic.  Rumors continue concerning the cause.