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*** this is a draft.  If you want to turn it in for credit you’ll have to work on it.

Introduction 1

Hypothetical One-General Aviation 2

General Aviation Revitalization Act 2

Prima Facie Case- Standard of Care 3

Choice of Forum 4

Choice of Law 5

Variation- Sea Plane 6

Death on the High Seas Act (DOSHA) 6

State Territorial Waters 7

Variation- Home Built Aircraft 8

Hypothetical Two- Domestic Commercial Charter 9

Weather Issues 10

Foreign Sovereign Immunities Act of 1976 (FSIA) 11

Hypothetical Three- Regular Commercial International Flight 11

The Warsaw Convention and Montreal Accord 11

Damages Covered 13

Exceptions to the Damage Cap 15

Introduction

Aviation tort law touches on almost every other aspect of the law, including forum shopping, choice of law, international treaties, federal preemption, and many others. This paper will point out some of the situations where aviation torts differ from normal land-based torts, and introduce some aviation only laws and situations. I make no attempt to provide a complete guide to the practice of aviation tort law, only to offer some insight so that you can appreciate the differences and know which direction to start looking if you become involved in an aviation tort.

There are two broad areas I will cover. The first is general aviation(1), in which I include all aviation activities except common carrier aviation. The second, common carrier aviation, will include all aviation activities relating to carrying the general public for hire, including regularly scheduled flights by airlines and charter operations. Generally a common carrier will carry virtually any member of the general public who asks, just as in land based common carriers. Regularly scheduled airlines include not just the well known airlines like TWA and Pan Am, but also the smaller operations like the one that flies people out to Block Island in a single engine propeller plane carrying six people.

There are two major federal agencies that an aviation practitioner will need to be familiar with. The National Transportation Safety Board (NTSB), a part of the Department of Transportation, investigates the cause of an airplane crash. Depending on the rules of evidence in the forum an aviation crash case is brought, this report may be admittable into evidence to show the cause of the crash, or disprove your opponent's theory.

The second is the Federal Aviation Administration (FAA), created by the Federal Aviation Act.(2) The FAA creates and enforces Federal Aviation Regulations (FARs). These regulations cover almost every aspect of the aviation world including the operation of aircraft, the so called "rules of the road" for the air, and the design and construction of aircraft. Where in a car crash you would look to see if a driver violated a motor vehicle operation, in a car crash you need to know the FARs to see if a pilot has violated any of them. The FARs also cover aircraft mechanics who are tested and receive an Airframe and Power plant certificate (A&P certified), and spell out very specific procedures for some repairs and inspections, as well as some mandatory modifications required on certain aircraft to correct safety defects (***get initials). Additionally they cover operations of aviation common carriers. The FARs are extensive and difficult to master without an understanding of aviation terminology and practices.

***Facts and Figures

Hypothetical One-General Aviation

The easiest way to introduce aviation tort law is by presenting some hypothetical fact patterns and identify the issues that are raised. For hypothetical one assume the following facts. A general aviation aircraft crashes in Vermont. All three people on board are killed. The pilot is a young neurosurgeon from Connecticut. The NTSB determines that the crash was due to a faulty propeller which lost one blade, and the resulting imbalance caused the engine to seize up. the propeller was manufactured in Ohio and was the original propeller installed on thee airplane when it was sold new. The plane was manufactured in Kansas and was built in 1970. Eye witnesses saw the plane coming down. It appeared in a controlled glide with the engine off. It had enough altitude to circle a farm field three times before making a final approach. The plane touched down after gliding over most of the length of the field and ran off the end of the field into a barn, starting a fire that destroyed the barn and the owner's prize bull, worth $20,000 was killed.

General Aviation Revitalization Act

The first thing you might say is that this is a products liability case. The propeller came apart, it must be of defective design or manufacture to fail like that. Being the original propeller the parties most likely responsible are the aircraft and propeller manufacturers. Here is an area where aviation law is different from general tort law. The congress passed the General Aviation Revitalization Act of 1994 (GARA)(3). It provides that a manufacturer cannot be held liable for a defect in an aircraft over 18 years old as long as the aircraft has seating capacity of twenty or less persons and the aircraft is not used in scheduled passenger carrying operations. It provides exceptions for knowingly deceptive practices when the manufacturer knowingly misrepresents or conceals information in regard to an aircraft's performance or maintenance,(4) if injured party is being flown for emergency medical or other emergency reasons,(5) if the injured party is not a passenger on the aircraft,(6) or if the action is on an otherwise valid written warranty.(7) A manufacturer is responsible for replacement parts installed on an aircraft however, as long as the part is not over eighteen years old. This can lead to situations where an aircraft manufacturer is responsible for certain specific parts of the aircraft under theories of product liability, but not for the entire aircraft. Obviously crash investigation and reconstruction will play a critical role in litigating crash cases.

In the hypothetical presented, the passengers on the airplane do not have a case against the manufacturer of the aircraft or the propeller unless they can fit into one of the exceptions. The farmer whose property was destroyed is not limited by the GARA however, because he was not a passenger on the airplane. The GARA will have a major impact in general aviation crash cases. Figures from the *** show that *** percent of the general aviation fleet is more than eighteen years old.(8) Additionally, because many older aircraft are basically simple machines, and maintenance is frequent(9), older aircraft continue to be offered on the used aircraft market at relatively inexpensive prices. Because it is new legislation, there have not been any significant cases reported that interpret the GARA and it will be an area that aviation practitioners need to watch in the future.

Prima Facie Case- Standard of Care

Aviation cases, like any other tort cases, require a prima facie case, Duty, Breach of Duty, Causation, and Damages. Looking at the hypothetical from the point of view of the estates of the passengers killed, there are several people who might owe a duty towards them that might have been breached by the crash. First is the pilot of the plane. Generally in operation of a private aircraft, the standard of care a pilot must exercise is the same for the operator of a vehicle on the ground, ordinary care.(10) However, some cases have held pilots of private aircraft to the highest standard of care.(11)

Remember that eyewitnesses saw the pilot circle the field in a controlled glide three times prior to landing. This is evidence that he was in control of the aircraft, that the aircraft was capable of being controlled, and that he had sufficient time to plan the aircraft's decent. In flight training every pilot is taught emergency procedures, including forced landings.(12) It is not impossible to argue that the pilot should have been able to touch down at the beginning of the field and avoid hitting the barn, making a safe landing. Under a highest standard of care this argument would be easier than under an ordinary standard of care.

Who was actually flying the plane could be problematic. Most airplanes are equipped with duplicate control wheels and rudder pedals on both sides of the plane and are capable of being flown from either side. Normally the pilot in charge sits in the left seat, but if the right seat passenger is also a pilot, it may be impossible to determine exactly who was flying. Some jurisdictions allow a presumption that the pilot in charge was in control of the aircraft,(13)

others do not.(14) There are always possibilities that the left seat pilot was overcome by sudden illness or that a right seat passenger interfered with the pilots ability to control the plane.

Choice of Forum

These issues point out an aspect of aviation law that is crucial. In instituting a suit for the passengers of the plane in this case, a lawyer would have several forums to look at. The first is Vermont, where the crash occurred. The second is Connecticut, where the pilot lived and the fight originated. Imagine if the propeller had just been rebuilt with parts from a company in Ohio, by a mechanic who lives in Massachusetts working in a repair facility in Rhode Island, working for a company whose primary headquarters are in New York. A careful practitioner will have to research all the possible forums, first to see what law their choice of law rules will embrace, then to see what that law says. The standard of care is only one issue that might be effected. One forum may offer more attractive damages, and another has more favorable rule of evidence. In essence, a lawyer will have to "add up" the case in each forum, balance the pluses and minuses of each, and make a decision on where to file. Because aircraft are highly mobile by their nature, more forums are likely to be involved than in a land based tort.

The standard of care a pilot owes to those on the ground, in this case the farmer, is more varied. A few states, including Vermont, hold a pilot strictly liable for damage done on the ground by his aircraft,(15) but the general rule is ordinary care and negligence.(16) Once again the practitioner will have to research the issues forums involved.

***

Choice of Law

Some states still use "lex loci deletci", or place of the wrong, which used to be the majority approach. In 1961 however, the New York courts decided Kilberg v. Northeast Airlines.(17) A plane from New York crashed on Nantucket attempting to land. Kilberg had a round trip ticket bought in New York. On a breach of contract of safe carriage claim the New York courts held that since it was a new York contract, they would not enforce Massachusetts' low wrongful death limit. This was followed by Babcock v. Johnson, also in New York.(18) In a car crash in Ontario, Canada, the local law didn't permit a guest to sue a host. The New York court looked at the interests of the various states (and provinces) involved to see which had the greatest interest in that particular issue, deciding that New York's interest outweighed Ontario's. Most other states have abandoned Lex Loci and have some type of interest analysis.(19) A lawyer will have to look at the various possibilities and analyze the respective laws to see which will benefit his client most, then advocate for that choice.

The situation becomes more confused under the concept of Dépeçage. Under current schemes, a court, especially a federal court sitting in diversity over a consolidated case, may apply the laws of one state to one issue, and another state to another issue.(20) This is a fluid and changing area of the law and a lawyer may have to not only study current law, but try and ascertain what the law will be by the time the trial is held.

Another factor that can affect the case is the effect of removal to a federal court. The Erie Doctrine mandates a federal court in a diversity action to apply the substantive law of the forum state, including that state's choice of law rules.(21)

Variation- Sea Plane- Maritime Jurisdiction

To illustrate some other differences you will find in aviation cases, let us assume that the airplane involved was a Sea Plane, capable of landing in the ocean, it is en route to Block Island and it crashes more than three miles from shore while attempting to land after propeller failure. The first question is whether Maritime jurisdiction is invoked. The US Supreme Court ruled on this question in Executive Jet v. City of Cleveland.(22) In that case a jet taking off from an airport in Cleveland hit birds and crashed into Lake Erie in navigable waters. In deciding that the case did not invoke admiralty jurisdiction, the court required an aviation case to not only involve a location in navigable waters, but also an element of a traditional maritime activity before it can be heard in admiralty. The court said that a land based plane flying between two points in the continental United States did not invoke maritime jurisdiction, even though it did crash into navigable waters.(23) The court called the chance of a jet bound from Boston to Philadelphia crashing into navigable waters instead of land "fortuitous", and did not feel that a locality only test made foe uniform, predictable law.(24) Since that case, however, there are at least three different tests used, all based on lower court attempts to interpret Executive Jet, and the line is not clear and bright.(25)

Our new hypothetical involves a seaplane en route to an island, however. The US District Court looked into such a case in Hubschman v. Antilles Airboats, Inc.(26) That case involved a seaplane over international waters which took off from the water and intended to land in the water at it's destination, and the pilot attempted an open sea landing after the engines failed. The court looked to the fact that the intended island destination could only be serviced by boat or plane, as well as the fact that once landed, the airplane was in most respects a boat and that the pilot was attempting a landing rather than the plane simply crashing, in holding that the case was squarely under admiralty jurisdiction.(27) That court also discounted the possibility that admiralty jurisdiction would fail if the cause of the eventual crash into the ocean occurred on land.(28) Under this rationale it would seem that our seaplane crash would properly fall under admiralty jurisdiction.

Death on the High Seas Act (DOSHA)

Another Federal issue that could effect our case is The Death On the High Seas Act (DOSHA).(29) Prior to this act in 1920 there was no common law cause of action for a death that occurred on the high seas, although some state courts attempted to extend their wrongful death statutes to maritime situations.(30) DOSHA covers deaths more than 3 miles from shore (Not territorial waters).(31) Beneficiaries are limited to a wife, husband, parent, child or dependant relative.(32) There is a three year statute of limitations(33) and contributory negligence does not bar recovery.(34) Compensation is to be fair and just for pecuniary loss of those for whom the suit is brought.(35) There is no provision for putative damages.

The Supreme Court looked at DOSHA in Offshore Logistics, Inc. v. Tallentire,(36) looking at a case concerning a helicopter carrying workers from an offshore oil drilling platform to shore that crashed 30 miles from the coast killing two workers. The plaintiff's case included an action under a state wrongful death statute, as well as DOSHA. The court held "neither OCSLA [Outer Continental Shelf Limits Act] nor DOHSA requires or permits the application of Louisiana law in this case..."(37) On this precedent it is clear that DOSHA preempts state law in aviation crashes occurring over 3 miles from shore. The Court does allow state courts to hear cases involving DOHSA as long as they adhere to the substantive maritime law.(38)

State Territorial Waters

The situation changes once again if the crash occurs within 3 miles of shore, that is to say, in a states territorial waters. DOSHA does not apply. Prior to 1970 there was no federal cause of action for a wrongful death which occurred in a state's territorial waters.(39) In that year the Supreme Court decided Moragne v. States Marine Lines. Inc,(40) and held "an action does lie under general maritime law for death caused by violation of maritime duties."(41) Thus, in an aviation crash that otherwise fulfills the elements necessary to establish maritime jurisdiction, occurring in state waters, if the state's laws do not provide a wrongful death action, the federal courts do. Nothing in the case limits it's application to territorial waters not covered under state law either. It seems there could be the option of forum theory to attempt recovery, state or federal.

The Supreme Court further clarified this federal cause of action in Sea-Land Services, Inc. v. Gaudet,(42) holding that damages could include loss of society awards,(43) and later in Mobil Oil Corp. v. Higginbotham(44) stated that DOSHA claims were limited to those specified in the statute.(45)

As a final note, remembering the recent crash of a seaplane that crashed into a restaurant on Block Island after attempting to land in the ocean, in Jerome B. Grubart, Inc v. Great Lakes Dredge & Drydock Co.(46) the Supreme Court held that damages that occur on land arising from a tort that takes place in navigable waters and is related to a traditional maritime activity can be brought in admiralty.(47) There might be an argument in this case that the tort was caused while the seaplane was in the act of landing and was properly within admiralty jurisdiction even though the plane crashed on land.

*** Section on Non-owner pilot-do more research

***Next section- Find sources for what I know

Variation- Home Built Aircraft

As a final variation, Imagine that the aircraft is once again a land plane en route to Vermont, no maritime issues. Instead of a factory built plane, it is a Lancair IV, a home built aircraft. Home built aircraft can be built either from plans only, or from plans and materials provided together in a kit. The builder assembles at least 51% of the aircraft himself, it is inspected by the FAA, and an airworthiness certificate is issued for the aircraft. It is registered as an experimental aircraft, and with some restrictions as to use, is allowed to fly anywhere a factory built aircraft can. These aircraft range from simple wooden aircraft with motorcycle engines that carry one person at 40 or 50 miles per hour to Complex instrument rated airplanes constructed of modern composite materials, with pressurized cabins and turbo charged engines, capable of flying 350 miles per hour at altitudes of 26,000 feet. There is even a supersonic jet kit that resembles a shrunken jet fighter available at a cost of half a million dollars. More of these aircraft are flying every year, with approximately *** registered today.

There is very little case law dealing with these types of aircraft. It is possible that since most manufacturers of these types of aircraft kits are undercapitalized, there can be serious question as to their ability to pay a judgment, holding down litigation levels.(48) One case is Mullan v. Quickie Aircraft Corp. from the tenth circuit Court of Appeals(49) The court reversed a lower's court decision to strike a disclaimer of liability provision in the sales agreement entered into by Mullan and Quickie aircraft, pointing out that Mullan was familiar with the product, modified portions of the preprinted sales agreement, and had alternative sources to purchase a similar plane kit.(50) It did not rule on whether there could be a waiver of strict product liability, instead certifying the question for the Colorado Supreme Court.(51) One sentence of the decision does stand out, " The nature of the contract between Mullan and Quickie Aircraft Corporation is for the sale of unassembled goods,..."(52)

Hypothetical Two- Domestic Commercial Charter

A second hypothetical will assist in shifting the emphasis away from general aviation and onto Common Carrier aviation. A commercial charter leaves Bradley en route to San Diego. The aircraft crashes upon landing in San Diego because of wind shear. 23 of the 126 people on board are killed and many others suffer severe and permanent injury. Records show that the control tower in San Diego did not warn the flight crew of the possibility of wind shear in the area, although the pilot was informed of thunderstorm activity. Without going into detail, windshear is a situation where there can be a strong down draft with no visible sign. An aircraft that hits a windshear condition unexpectedly can crash if it is near the ground.

The first issue is whether an airline running charter flights is a common carrier. In Woolsey v. NTSB(53) the fifth circuit pointed out there is no statutory or regulatory definition of common carrier for air carriers under federal law,(54) going on to say:

[T]he crucial determination in assessing the status of a carrier is whether the carrier has held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately. The test is an objective one, relying upon what the carrier actually does rather than upon the label which the carrier attaches to its activity or the purpose which motivates it.(55)

The determination is one to be made on a case by case basis from the facts as they present themselves. Under that test we will assume our hypothetical charter is a common carrier.

The duty of a common carrier on land and in the air is the same,(56) although what that standard is can vary from jurisdiction to jurisdiction. While some states have a lessor standard(57), most require a common carrier to exercise the highest degree of care.(58) Just as in general aviation, the lawyer handling a common carrier tort case will need to carefully investigate the rule for the different possible jurisdictions and choose carefully.

Weather Issues

The next issue is what is the duty of the charter airline in regard to weather knowledge? The FAA has proposed a rule dealing with training for pilot awareness of windshear conditions.(59) It has not been adopted yet, but if it is then there will be changes in the near future regarding a situation like this. If a pilot has gone through mandatory training, it is much easier to say that there was a breach of duty in a situation like this one.

It is not entirely possible to separate the duty of the pilot and the control tower in a case like this. As early as 1962 the second circuit discussed the pilot relying on the tower for weather information, which if faulty could place the aircraft at risk, but also maintained that the pilot makes the final decisions on how to fly the plane in Ingram v. Eastern Air Lines.(60) The courts will look at FAR 91.3 which places the ultimate burden for making command decisions on the pilot in command.(61) Many cases will have results like Ingram where fault is found on both the tower personnel and the pilot.(62)

An action made against the tower personnel will be governed by the procedures of the Federal Tort Claims Act (FTCA).(63) Without going into detail, this act allows a party to sue the federal government in U.S. District court without a jury for torts committed by the federal government or it's civilian employees, if a private citizen could be held liable for those same actions.

There are cases going totally against the government. In Martin v. United States(64) the control tower personnel were found to be the cause of an aircraft crash. First the tower at the airport where the twin engine general aviation aircraft was landing supplied erroneous data that caused the altimeter, the instrument that tells the pilot how high off the ground he is, to read 100 feet higher than he actually was.(65) Then the tower did not tell the pilot that the weather was deteriorating. The last weather briefing the pilot received was for one mile visibility and 100 foot ceilings. The tower knew that a new weather briefing that would indicate a ceiling of zero was about to be issued, but never informed the pilot, nor did they do so during communications two minutes after the advisory was issued.(66) The court found the government totally liable and did not find the pilot liable because they were justifiably relying on information supplied by the tower.(67)

The crux of the problem will be in causation. While the tower and air traffic controllers have a duty to provide accurate information, the pilot has a duty to be aware of the conditions that he is flying into. When does the breach of one duty relieve the other party of their duty? what proportion of the damage is attributable to each? The causation portion of the tort case is the element that will be heavily contested, and discovery and development of evidence will play a viral role.

Foreign Sovereign Immunities Act of 1976 (FSIA)

If the jetliner is owner by a foreign government, the Foreign Sovereign Immunities Act of 1976 (FSIA)(68) becomes part of the equation. In a nutshell, the FISA tells a plaintiff when and how they may sue a foreign government in a U.S. court. It starts with the basis that a foreign government is immune to suit unless there is an exception in the FSIA.(69) The exception that applies in a case like this is the commercial activities exception. Under 28 U.S.C. § 1605(a)(2) a foreign government will not be immune from suits arising from it's commercial activities in the United States. In this case, as long as the charter flight was a commercial activity, for instance if the government of Mexico owned the airline that chartered the plane, there would be no immunity. Some circuits require a nexus between the commercial activity which gave arise to the tort and the United States, but others are more liberal.(70) The FSIA still will govern some procedural aspects of the suit, and the practioner handling a case like this better be ready to do some research.

Hypothetical Three- Regular Commercial International Flight

Turning to more international law, our third hypothetical will deal with a regularly scheduled flight out of Bradley en route to England. It crashes just after take off due to a id air collision with an Air Force F-16 fighter aircraft, which was approaching Bradley in an attempt to make an emergency landing after suffering engine failure. The pilot of the F-16 and all 126 people aboard the airliner are killed.

The Warsaw Convention and Montreal Accord

The Warsaw Convention(71) is an international treaty dealing with international air travel.

Originally enacted in 1929 to protect the then infant airline companies from excessive tort liability, the convention limited recovery to less than $10,000 per passenger and the airline could avoid liability all together if it proved it had done everything possible to avoid the harm. There are other provisions dealing with baggage and freight also, but those issues will not be covered here.

The Montreal Agreement(72) modifies the convention by raising the damage cap to $75,000 per passenger and eliminating the airline's "everything possible to avoid the harm" defense, in essence providing strict liability. Any airline making international flights to or from the United States must agree to abide by this agreement. Although it is proper to say "The Warsaw Convention as modified by The Montreal Agreement," since I will only be discussing modern cases involving the United States I will simply say the Warsaw Convention or the convention.

In order for a tort to be governed by the convention, the injury must result from an "air accident" which has been defines as " an unusual or unexpected event or happening, external to the passenger, that causes injury."(73) Under this definition a passenger who became deaf in one ear because of the normal pressure changes was held not to have suffered an air accident because "the injury indisputably result[ed] from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft ..."(74)

If there is contradictory evidence on whether the operation of the aircraft was normal the determination on whether or not an air accident occurred is left to the trier of fact.(75)

The air accident does not have to occur on the plane. The convention covers embarking and disembarking also.(76) A passenger who slips and falls in a puddle of water on the steps used to board an airplane was covered under the convention.(77) This also points out that even small injuries are covered by the convention. Because of the strict liability aspects of the treaty, it can be beneficial to the person who has suffered a smaller injury, because the airlines are more likely to settle knowing the passenger only has to prove the place of the injury and damages.

Additionally, the flight must be an international one.(78) The courts traditionally look to the intent of the parties (the airline and the passenger) to see if the flight in question is international, as evidenced by their tickets. Lemy v. TWA,(79) decided by the Second Circuit, looked at the fact that the ticket for the domestic flight Lemy was injured on was bought in a separate transaction from the international flight the following day on another airline, focusing on TWA's lack of knowledge that Lemy was continuing her travel internationally.(80) This can lead to unequal result for different passengers on the same aircraft. If a flight originates in Bradley, stops in New York to discharge some passengers and pick up others, then continues on to England, the passengers flying only to Bradley would not be governed by the Warsaw Convention on that leg, but other passengers flying onto England would. The convention also allows that successive flights on different carriers is a single transportation if that is the intent of the parties.(81) So if an airline sells one ticket for it's flight domestically and a connecting flight on another carrier, it is one transportation under the convention.

Under the Warsaw Convention, Article 28(1):

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either [1] before the court of the domicile of the carrier or [2] of his principal place of business, or [3] where he has a place of business through which the contract has been made, or [4] before the court at the place of destination.

In Swaminathan v. Swiss Air Transport Co., LTD.(82) the court dismissed a case for lack of subject matter jurisdiction because round trip ticket the plaintiff purchased listed Dakar, Senegal as both the place of origin and destination when the plaintiff tried to sue in Texas. The plaintiff argued that the return date was open and that he never intended to use the return portion of the ticket and only purchased it because it was cheaper that way.(83) The court held that the instrument alone is used to determine the intent of the parties in an unambiguous contract,(84) and ruled against him.

Damages Covered

There has also been considerable litigation on what types of damages the convention covers. Eastern Airlines, Inc. v. Floyd dealt with an airliner which lost power on all engines and managed to restart one just in time to avoid a crash, followed by several passengers filing suit solely for mental distress.(85) Since the official language of the Warsaw CONVENTION is French, the Supreme Court turned to that language to interpret the phrase "lesion corporelle," which is sometimes translated as "bodily injury."(86) After exhaustive research into French legal works of the 1920's, the notes of the delegates to the convention, other treaties of the time written in French, and foreign cases, the court concluded "an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury."(87)

Pre-impact pain and suffering is compensatable under the convention under Hollie v. Korean Airlines Co. Ltd.,(88) holding that under evidence that the passengers on board KAL flight 007 suffered pain in the ears, sinuses and abdomen from changes in cabin pressure and altitude in te twelve minutes that the aircraft took to spiral into the sea after being hit by a Soviet air-to-air missile, damages for that pain and suffering were appropriate.(89) This is the same result reached in Zicherman v. Korean Airlines Co.,Ltd.(90) Neither case makes mention of pre-impact emotional distress suffered by passengers on the plane.

Both cases followed the lead of In Re Disaster at Lockerbie Scotland on December 21, 1988 (Lockerbie II)(91) in limiting recovery to those survivors who can prove dependancy on the decedent, and the existence of dependancy is a matter for the trier of fact.(92) Lockerbie II also took the lead on The proposition that although federal maritime law provided the frame work that Warsaw convention cases would be tried by, the DOHSA would not be part of that frame work. The Second Circuit cited American Export Lines inc. v. Alvez,(93) Miles v. Apex Marine Corp. ,(94) and Sea-Land Servs. Inc v. Gaudet(95) for the proposition that loss of society damages are allowed under the general federal maritime common law.(96) In Lockerbie II the plane crashed on land, and each of these cases dealt with a maritime issue that occurred in territorial waters, excluded from DOSHA's 3 mile limit.

In Tallentire, discussed earlier, the U.S. Supreme court held DOSHA to control a wrongful death action when a helicopter crashed carrying workers to shore from an offshore drilling rig and the crash occurred over three miles from the coast. Remember that DOSHA denies recovery for loss of society. The two KAL cases mentioned reject that standard. Hollie makes no mention of DOSHA in the decision, merely stating that the standard was that of federal maritime law, and that loss of society damages are allowable citing Lockerbie II and Zicherman.(97) Zicherman explicitly states it is following Gaudet in holding that loss of society is recoverable, and establishes the same standard for a crash into navigable waters in the interest of uniform law governing Warsaw Convention cases.(98) The court distinguished Tallentire by saying that was a case to establish if federal or state law applied and the present situation was to determine which federal law applied.(99)

A writ of certiorari to the Supreme Court has been granted in Zicherman, but no decision has been published yet. The likely issues are whether DOSHA controls a Warsaw Convention flight that crashes on the high seas and if survivors must prove dependancy to recover damages.(100) Because the case will be decided shortly, and set the law in this area, further speculation on these issues will be curtailed.

There are no punitive damages in a Warsaw Convention case. In In re Korean Air Lines Disaster of September 1, 1983,4(101) the same incident referred to in Zicherman and Hollie, the court looked to the fact that the convention limits damages to "damages sustained", and held that term to refer to actual physical damages, not to legal damages, and refused to allow an award of punitive damages.(102)





Exceptions to the Damage Cap

There are exceptions to the Warsaw Convention's damage cap of $75,000. The first is for non-delivery of a ticket. In the past some courts stretched this to include "constructive nondelivery" of the ticket by giving it to the passenger at a time so close to boarding that he was unable to look at it, or after he boarded the plane.(103) They also considered the damage cap waived when the notice required by the Montreal Accord was supplied in less that the required 10 point type.(104) Chan v. Korean Airlines, Ltd.,(105) another case involving the KAL flight 007 shot down, changed that. Holding that delivery of an inadequate ticket under Article 3(2) of the convention has no sanction in law, the court overturned the inadequate delivery cases and held that airlines do not loose the protection of the damage cap unless they fail to deliver a ticket of any type.(106)

The second exception to the damage cap is when an airline engages in willful misconduct. " Wilful misconduct under the Convention means that a carrier must have acted either 1) with knowledge that its actions would probably result in injury or death, or 2) in conscious or reckless disregard of the fact that death or injury would be the probable consequence of its actions. "(107) It can be either an act or a failure to act.(108) It is impossible to say exactly what is or isn't willful misconduct as a matter of law, but normally it will be a fact specific problem and left in the hands of the jury.

In Ospina v. TWA the plaintiff's decedent was blown out of a commercial airliner when a bomb exploded near Athens, Greece, the plane was able to make a safe landing and the jury in the lower court found willful misconduct on the part of TWA in the manner they conducted their inspections of the plane for explosive devices.(109) Refusing to discuss the actual details of TWA's security procedures because of the sensitive nature of anti-terrorist measures, the court did stress that TWA complied with all of the FAA's requirements and all the requirements of the countries that TWA operates in and held that a reasonable jury could not have found TWA's actions willful misconduct.(110)

The first of two cases to be discussed in which the courts did find misconduct is In Re Korean Air Lines Disaster of September 1, 1983, which was the case discussed above in relation to punitive damages. In that case the court upheld the jury's finding of willful misconduct.(111) Apparently the jury felt the flight crew entered data into the navigation system incorrectly, then should have known about the error, and chose to cover it up because previous flight crews who had made similar errors had been harshly discipline. When shot down, the airliner was almost 200 miles off course and in soviet airspace when shot down.(112) Also mentioned was another KAL flight in 1978 that strayed 1000 miles off course into soviet airspace in Europe, was fired upon, and forced to land on a frozen lake with several fatalities, and the fact that this issue was discussed in KAL's training of pilots.(113) Looking from the standard of review, that no reasonable jury could have reached that verdict, the court found no error.

The second case where a jury found willful misconduct, and was upheld on appeal is Lockerbie II. This case deals with an aircraft that took off from London en route to New York and exploded in the air, crashing near Lockerbie, Scotland. Expert witnesses testified that a bomb was inside a suitcase, that was put on Pan AM 103 from a connecting flight without a passenger accompanying it; that Pan Am violated FAA regulations dealing with unaccompanied baggage; that Pan Am had been previously warned by experts in counter terrorism that they were extremely vulnerable to a terrorist act; That Pan Am was warned by the FAA in a security bulletin that a Pan Am flight from Frankfort to London and then onto New York would be bombed two weeks before the bombing; that Pan Am's baggage screeners were woefully under trained; That Pan Am used trickery to make the FAA think they had more security personnel that actually were employed; and others.(114) It should be noted that Judge Van Graafeiland wrote a vigorous dissent, saying "Pan Am did not receive a fair trial,"(115) and that the lower court improperly excluded testimony that Pan Am intended to offer to deny they were willful.(116)

The Hague Convention and Other Efforts at Reform

The are two other aspects of international air travel a practioner needs to be aware of. The Hague Convention(117) was a treaty that modifies the Warsaw Convention. It was signed in 1955 and raises the damage cap, although not by much, and makes some other changes, including redefining willful misconduct. It was not signed by the United States, but U.S. citizens flying between two signing countries could find themselves bound by it's terms. I will not discuss the details here, but be aware it exists. There are also proposals to modify the Montreal Accord,(118) but they are not in force.(119) The Japanese airlines have adopted a policy of strict liability up to 100,000 Special Drawing Rights(120) or about $135,000 and unlimited liability above that amount based on negligence.(121)

The F-16 Pilot and the Military Claims Act

Since the pilot of the F-16 fighter is an employee, the first instinct is to think a claim can be made against the government under the FTCA, but it only applies to civilian employees. The Military Claims Act (MCA)(122) provides a vehicle for the survivors of airliner. The Warsaw Convention deals with the relationship of an airline and it's passengers. It does not cover a separate tort feasor. The MCA covers the acts of military or civilian employees of the armed services while acting within the scope of their duties in noncombat activities. It is an administrative remedy, there is no limit to damages and it covers personal injury, death, and property damage. In this case the MCA would seem to be the vehicle used to settle the claims of the airliner passengers, but there are no reported cases involving a

mass tort of this type.

As an attorney for the pilot's family, you would deal with the Feres Doctrine. In Feres v. United States(123) the Supreme Court held that the FTCA does not cover active duty personnel of the military and their only recourse is through service related benefits, so the estate of the pilot would have to make claim through those channels.

The Government Contractor Defense

If the F-16 suffered engine failure, there might be a claim against the manufacturer of the fighter. Since there are manufacturers of fighters (General Dynamics), jet engines (Pratt and Whitney) and helicopters (Sikorsky) all located in Connecticut, this is a valuable subject to have at least minimal knowledge in.

In Boyle v. United Technologies Corp.(124) the Supreme Court held that if a contractor provides military equipment to the government, and the government exerts a high degree of control of the design and production of the item, the manufacturer can claim immunity from product liability claims. A marine helicopter copilot drowned after his aircraft crashed and his father sued Sikorsky, a division of United Technologies. The reasoning was two fold, first, if there is an impermissible interference in the relationship between the Government and it's contractors, which could cause the contractors to either raise prices or to refuse to do business with the Government.(125) The second, and more detailed involves bringing the contractor under the umbrella of the discretionary function area of governmental immunity. The court said "[l]iability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States."(126) Note that a design defect is covered, but apparently not a manufacturing defect.

The Connecticut Supreme Court looked at some of the same issues in Miller v. United Technologies Corp.(127) In this case the equipment, F-16 fighters, were bought by the U.S. government for resale to a foreign government, in this case Egypt. The court held that the fact that the aircraft were to be resold to a foreign government made no difference regarding the government contractor defense.(128) Then it looked to specifics. One of the F-16 aircraft crashed after a failure of the fuel pump, a very complex piece of machinery on the F-16. First it held that the design itself, was covered under the government contractor defense,(129) and remanded for determination on wether the pump met those specifications.(130) It spent a little more time expounding on the third prong, failure to warn. The court went into detail of how the Government also strictly controlled the content of the manuals for the aircraft and restricted what information United Technologies was able to pass on to the Egyptians, and for those reasons the failure to warn claim was also negated by te Governmental contractor immunity defense.(131)

One last case I will touch on is Bentzlin v. Hughes Aircraft Corp.(132) It deals with a situation where some marines were killed in a friendly fire incident during desert storm and suit was instituted against the manufacturer of the Maverick air-to-ground missile that hit their vehicle. The plaintiffs claim was that the missile was defectively manufactured, and requested discovery to gain knowledge of the specifications of the missile.(133) The court refused discovery and dismissed the suit because of the classified nature of the materials.(134) Part of the courts reasoning also dealt with the Maverick missile being a high-tech instrument of warfare with no civilian equivalent, as opposed to the helicopter in Boyle which was very similar to civilian aircraft.(135) The court then made mention of the fact that the Government exerts significant control over the manufacture of products like the Maverick, so as to be intimately involved in quality control decisions, and that these decisions cannot be investigated without divulging classified secrets.(136) The plaintiffs could not even develop their prima facie case without penetrating a states secrets barrier. As a last basis the court held the "plaintiffs' suit alternatively must be dismissed because it necessarily raises nonjusticiable "political questions."(137) There are very real obstacles that must be overcome in a case that involves a military aircraft of this kind. It is also easy to imagine the problems in a case like this when a plaintiff sues the airlines, and the airlines attempt to sue the manufacturer of the F-16 and are unable to effectively bring the suit.

You should also be aware there have been attempts to use the government contractor defense in non-military situations.(138) Many of the navigation aids and other equipment used in aviation is specified by the FAA. It is an area with possibilities to be explored.

The National Guard Claims Act

As a last variation, consider if the F-16 was being operated by the Air National Guard, which has a wing of F-16s stationed at Bradley. The National Guard Claims Act(139) provides coverage for National Guard personnel who are not on federal duty. It is set up very similar to The MCA in the type of damages it covers and the procedures that must be followed.

Conclusion

As I said in the beginning, I was not attempting to go into great detail in many areas. I hope I have been able to point out some of the directions a lawyer must look if an aviation tort case comes into the office. The aspect that struck me is that it is such a large area of the law, and if you want a successful practice in aviation, you need to master many different areas, not just the aviation aspects. Some issues I stayed away from entirely, like how most major air disasters end up in federal court under the complex litigation rules and are handled by a plaintiff's committee where your ideas and desires might not count for as much as you'd like. If the tort occurs overseas, you will be dealing with international discovery treaties. Both the KAL disaster and the Lockerbie crash involved both these factors. It can be an immense undertaking, and as a lawyer you must realize just how big it is before you decide if it is a type of case you can devote the resources it might require to.



1. From the General Aviation Revitalization Act:

"(c) General aviation aircraft defined.--For the purposes of this Act, the term 'general aviation aircraft' means any aircraft for which a type certificate or an airworthiness certificate has been issued by the Administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations as defined under regulations in effect under the Federal Aviation Act of 1958 (49 U.S.C.App. 1301 et seq.)

2. Get cite for FAA***

3. 49 U.S.C.A. § 40101 (1995).

4. Id. at §2(b)(1).

5. Id. at §2(b)(2).

6. Id. at §2(b)(3).

7. Id. at §2(b)(4).

8. Get authority for figures

9. FAR **** requires that aircraft be inspected ***.

10. ALL §4.01

11. Redhead v. United States, 686 F.2d 178 (3rd Cir. 1982), Cert. denied 103 S.Ct. 1190 (1983).

12. Get FAR for required pilot training

13. Ohio Revised Code § 4561.23 (1995) provides:

4561.23 PRESUMPTION OF PILOT IN COMMAND

In the event of an airplane crash involving personal injuries, death, or property damage, it is rebuttably presumed that the airplane was being flown at the time of the crash, and immediately prior thereto, by the pilot-in-command of such airplane when the airplane is occupied by more than one person.

The "pilot-in-command" is rebuttably presumed to be:

(A) The occupant of the left front seat in airplanes having side-by-side and fore-and-aft seating;

(B) The occupant of the left seat of an airplane which has only one transverse seat;

(C) In a tandem seated airplane, the occupant of the seat recommended by the manufacturer of such airplane when the airplane is flown solo.

(D) Notwithstanding divisions (A), (B), and (C) of this section, the occupant of the airplane possessed of an instructor's rating is rebuttably presumed to be the pilot-in-command when any part of the flight is for the purpose of instructing another in any phase of flying or navigating.

(E) Notwithstanding divisions (A), (B), (C), and (D) of this section, in all flights conducted under instrument flight rules the pilot-in-command is rebuttably presumed to be the pilot whose name appears on the flight plan.

(F) In the event that the occupants and their positions in the airplane at the time of the crash cannot be established otherwise from the evidence with reasonable certainty, it is presumed that the airplane was being flown at the time of the crash, and immediately prior thereto, by the person occupying the pilot-in-command seat, as designated above, during or immediately before take- off.

14. Lisa-Jet, Inc. v. Duncan Aviation, Inc., 569 F.2d 1044 (8th Cir. 1978)(No presumption of who was flying aircraft when both front seat occupants were pilots and capable of flying aircraft under Nebraska law).

15. Vt. Stat. Ann. tit. 5 § 224. ***include text?***

16. AAL § 6.01[5].

17. 172 N.E. 2d 526 (1961)

18. 191 N.E. 2d 279 (1963).

19. AAL §2.02.

20. Reyno v. Piper Aircraft CO., 630 F.2d 149 (3rd Cir. 1980), rev'd, 454 U.S. 235, reh'g denied, 455 U.S. 928, and reh'd denied sub nom. Hartzell Propeller, Inc v. Reyno, 455 U.S. 928.

21. get cite.

22. 409 U.S. 249 (1972).

23. d. at 274.

24. Id. at 266.

25. Lin, Albert, Jurisdictional Splashdown: Should Aviation Torts Find Solace in Admiralty? 60 J. Air L. & Com. 409 ,418. (1994)

26. 440 F.Supp. 828 (1977).

27. Id. at 840.

28. Id. at 841.

29. 2946 USC §761 et seq

30. 30 See generally Offshore Logistics, Inc v Tallentire, 477 US 207 (1986) at 212-18 for a discussion of the development of DOHSA in a historical perspective.

31. Get statute reference

32. Id §761

33. §763a

34. §766

35. §762.

36. 477 U.S. 207(1986).

37. Id. at 212.

38. Id. at 222.

39. Brown, William C. III, PROBLEMS ARISING FROM THE INTERSECTION OF TRADITIONAL MARITIME LAW AND AVIATION DEATH AND PERSONAL INJURY LIABILITY, 68 Tul. L. Rev. 577,581.

40. 389 U.S. 375 (1970).

41. Id. at 409.

42. 414 U.S. 573 (1974).

43. Id. at 584.

44. 436 U.S. 618 (1978).

45. Id. at 625-26.

46. ___ U.S. ____, 115 S.Ct. 1043 (1995).

47. Id. at 1049-50.

48. Lange, Paul A., Tort Liability Surrounding Home built, Amateur-built, and Experimental Aircraft,l 60 J. Air L. & Comm. 575,580 (1995).

49. 797 F.2d 845 (1986).

50. Id. at 853.

51. Id. at 854.

52. Id.

53. 993 F.2d 516 (5th Cir. 1993).

54. Id. at 517.

55. Id. at 523 internal cites and quotes omitted.

56. AAL §3.07

57. Get cite***

58. get cite***.

59. 60 Fed. Reg. 41,160 (to be codified at 14 C.F.R. 61.125)(proposed August 11, 1995).

60. 373 F.2d 227 (2d Cir. 1962), cert. denied, 389 U.S. 931 (1967).

61. Federal Aviation Regulation 91.3 provides in pertinent part:

(a) [t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft[;] (b) [i]n an in- flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency. 14 C.F.R. § 91.3 (1994).

62. Ingram at 235-6.

63. 28 U.S.C. § 2674 (1988).

64. 448 F.Supp. 855 (E.D. Ark. 1977), aff'd in part, rev'd in part, 586 F.2d 1206 (8th Cir. 1978).

65. Id. at 867.

66. Id.

67. Id. at 870-1

68. 28 USC §§ 1602-1611 (1995).

69. 28 U.S.C. 1604 (1995).

70. Thorton, J. Thompson and Ares, Aurora A., The Foreign Sovereign Immunities Act of 1976: Misjoinder, Nonjoinder and Collusive Joinder, 58 J. Air L. & Com. 703, 704 (1993).

71. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 USC § 1502 note (1976).

72. Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, Agreement CAB 18900, May 13, 1966, 31 Fed. Reg. 7302(1966).

73. Air France v. Saks, 470 U.S. 392, 405(1985).

74. Air France v. Saks, 470 U.S. 392,406 (1985).

75. Id.

76. Warsaw Convention, Article 17.

77. Gezzi v. British Airways, Inc., 991 F.2d 603 (9th Cir. 1993).

78. Article 1(2) of the Warsaw Convention defines international transportation as "any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention."

79. 807 F.2d 26 (2nd. Cir. 1986).

80. Id. at 28.

81. Transportation to be performed by several successive air carriers shall be deemed, for the purposes of this convention, to be one undivided transportation, if it has been regarded by the parties as a single operation, whether it has been agreed upon under the form of a single contract or a series of contracts.... Article 1(3)

82. 962 F.2d 387 (5th Cir. 1992).

83. Id. at 389.

84. Id.

85. 499 U.S. 530,533 (1991).

86. Id. at 536.

87. Id. at 552.

88. 60 F.3d 90 (2nd Cir. 1995).

89. Id. at 93.

90. 43 f.3d 18, 20-1 (2nd Cir. 1994),cer't granted 115 S.Ct. 1689 (1995).

91. 37f.3d 804 (2nd Cir. 1994) cert denied 115 S. Ct. 934 (1995).

92. Hollie at 94, Zicherman at 22, Lockerbie II at 830.

93. 446 U.S. 274 (1980).

94. 498 U.S. 19 (1990).

95. 414 U.S. 573 (1974).

96. Lockerbie II at 829.

97. Hollie at 92.

98.

98 Zicherman at 21.

99. Id. at 22.

100. Respondents' Supreme Court brief at i, Zicherman, 1995 WL 390634, and Petitioners' Supreme Court brief at i, Id., 1995 WL 330611.

101. 932 F. 2d 1475 (DC Cir. 1991).

102. Id. at 1485-6.

103. Martens v. Flying Tiger Line, Inc., 341 F.2d 851, 856-8 cert. denied, 382 U.S. 816 (1965).

104. Here is an example of the first part of the Montreal Agreement Notice in ten point type:

"ADVICE TO INTERNATIONAL PASSENGER ON LIMITATION OF LIABILITY

"Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination.

Here it is again in eight point type as will be discussed in Chan:

"ADVICE TO INTERNATIONAL PASSENGER ON LIMITATION OF LIABILITY

"Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination.

And here it is again in four point type as discussed in Lisi v. Alitalia-Linee Aeree Italiane S.p.A., 370 F.2d 508 (2nd Cir. 1966) aff'd per curiam by equally divided court, 390 U.S. 455 (1968) :

"ADVICE TO INTERNATIONAL PASSENGER ON LIMITATION OF LIABILITY

"Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination.

105. 490 U.S. 122 (1989).

106. Id. at 128.

107. Lockerbie II at 812.

108. Id. at 813.

109. 975 F.2d 35,36 ( 2d cir. 1992), cert. denied 113 S.Ct.1944 (1993).

110. Id. at 37.

111. In Re Korean Air Lines Disaster of September 1, 1983 at 1481.

112. Id. at 1477-9.

113. Id. at 1478.

114. Lockerbie II at 811-24.

115. Id. at 830.

116. Id. at 840.

117. Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage of Air, The Hague, Sept. 28, 1955, 478 U.N.T.S. 371.

118. Additional Protocols 1- 4 to Amend the Convention for the Unification of Certain Rules Pertaining to International Carriage by Air, Montreal, Sept. 25, 1975, ICAO Docs. 9145, 9148 (not in force).

119. Although the Senate approved the Protocols on March 19, 1983, by a vote of 50 to 42, the Protocols did not come into effect because the required two-thirds majority was not obtained. 129 Cong. Rec. 4133 - 4147 (1983).

120. Special Drawing Rights are a means of international exchange not tied to any specific currency, conversion to U.S. currency fluctuates with the value of the dollar.

121. Japan's Carriers Announce They'll Scrap Treaty's Liability Limits, Air Safety Week, December 7, 1992,1992 WL 2252742

122. 10 U.S.C.A. § 2733.

123. 340 U.S. 135 (1950).

124. 487 U.S. 500 (1988).

125. Id. at 507.

126. Id. at 512.

127. 233 Conn. 732 (1995).

128. Id. at 748.

129. Id. at 762.

130. Id. at 779.

131. Id. at 784-5.

132. 833 F. Supp. 1486 (C.D. Cal. 1993).

133. Id. at 1489.

134. Id. at 1487.

135. Id. at 1490.

136. Id. at 1491-2, 1496.

137. Id. at 1497.

138. See Loy, Steven Brian, The Government Contractor Defense: Is it Only a Weapon for the Military?,83 Ky. L. J. 505 (1995).

139. 32 USC §715.