Aviation Accidents

Aviation Attorney: An aviation attorney or aviation lawyer is someone who, by training and experience, is capable of effectively representing a party in litigation arising from an aviation disaster or aviation accident.

An aviation attorney or aviation lawyer is someone who understands aviation - how airplanes and helicopters work - and is able to investigate highly-technical issues relating to the design, manufacture and assembly of airplanes and helicopters, the relevant piloting and maintenance issues, airplane and helicopter aerodynamics, and a variety of other issues relevant to the cause of an aviation disaster. Many aviation attorneys are also airplane or helicopter pilots, aerodynamic engineers or aviation mechanics. For example, the aviation attorneys at Kreindler include attorneys who are also pilots, engineers, mechanics and trained aviation-accident investigators.

There are a number of professional legal organizations, including the American Association for Justice (formerly the American Trial Lawyers Association) and the American Bar Association that have aviation law sections. Most aviation lawyers will participate in these sections and will have had leadership positions.

An aviation attorney must also know aviation law, which as addressed below deals with a wide range of state, federal and international laws and regulations.

Finally, an aviation attorney or aviation lawyer must be a trial lawyer, which means that he or she is able to present the facts of the airplane or helicopter accident to a jury in a manner that favors the victim’s case. The aviation attorney or aviation lawyer must also be able to present the applicable aviation law to the court, both at trial and, if necessary on appeal.

Aviation attorneys are also alternatively referred to in various articles or on the internet as airline disaster lawyers, aviation plaintiff lawyers, airplane crash lawyers, airplane accident lawyers, plane crash lawyers, plane crash attorneys, helicopter crash lawyers, helicopter accident lawyers, and by an almost endless list of names that attempt to describe the practice of a particular aviation law firm. To determine if an “aviation lawyer” or “aviation law firm” is legitimate, an aviation accident victim should look at the qualifications of the supposed aviation lawyer or aviation law firm. Among other things, an aviation law firm will employ a number of qualified aviation lawyers. A victim of an aviation accident should look at the background and experience of the aviation attorneys. An aviation law firm should have sufficient resources to effectively prosecute an action against large aviation defendants and large aviation defense law firms. An aviation accident victim will want to look at the success rates of various aviation plaintiff firms in similar cases.

Aviation Lawyer: See Aviation Attorney.

Aviation Law: “Aviation law” concerns flight, air travel and associated legal issues. Aviation law is comprised of both domestic U.S. law and international law. In the United States, the Federal Aviation Administration (FAA) governs aspects of aviation flight. Internationally, the International Civil Aviation Organization (ICAO) provides general rules and mediates international concerns to an extent regarding aviation law. The ICAO is a specialized agency of the United Nations. Aviation law includes the following:

• The Aviation and Transportation Security Act was enacted by Congress in the immediate aftermath of the September 11, 2001 attacks. The act led to the development of the Transportation Security Administration (TSA) within the Department of Homeland Security.
• The Aviation Disaster Family Assistance Act of 1996 and the Foreign Air Carrier Family Support Act places the airline, as well as other support organizations, in a more collaborative relationship with victims’ families. The Federal Family Assistance Plan assigns responsibilities and describes the airline and federal response to an aviation crash involving a significant number of passenger fatalities and/or injuries. Information concerning these plans may be found on the National Transportation Safety Board’s website. See www.NTSB.gov.
• The Chicago Convention established the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations charged with coordinating and regulating international air travel. The Chicago Convention establishes rules of airspace, aircraft registration and safety, and details the rights of the signatories in relation to international air travel.
• Choice of Law Rules determines what substantive law will be applied to a case. Aviation lawyers will consider each potential forum’s choice of law rules before deciding where to bring an aviation case.
• The Death on the High Seas Act is a federal law that applies to deaths that occur on the high seas. The Death on the High Seas Act is often implicated in international aviation accidents such as the TWA 800 disaster. The aviation lawyers at Kreindler have won important legal decisions regarding the Death on the High Seas Act.
• The Federal Aviation Act created the Federal Aviation Administration, provides for the regulation and promotion of civil aviation in such manner as to best foster its development and safety, and provides for the safe and efficient use of the airspace by both civil and military aircraft.
• The General Aviation Revitalization Act (GARA) provides immunity to aviation manufacturers for airplanes and helicopters that are over 18 years old. GARA immunity is for general aviation aircraft only under the following conditions: 1. A general aviation aircraft is any aircraft for which a type or an airworthiness certificate has been issued by the FAA; 2. At the time the airworthiness certificate was originally issued, the aircraft had to have a maximum seating capacity of fewer than 20 passengers; 3. At the time of the accident, the aircraft cannot be engaged in “scheduled” passenger-carrying operations. Because GARA only applies to aircraft or components over 18 years old, the replacement of an aircraft’s component part can re-start the clock. GARA contains four exceptions to immunity: 1. The knowing misrepresentation or concealment exception; 2. The medical passenger exception; 3. It does not apply to the claims of persons not on board the subject aircraft; 4. The warranty exception - it does not do away with contractual obligations.
• Government Contractor Defense when ”[S]tripped to its essentials,” claims that “[t]he Government made me do it.” In re Joint Eastern and Southern District New York Asbestos Lit., 897 F.2d 626, 632 (2d Cir. 1990). The government contractor defense confers immunity to private manufacturers of products produced for the government, including airplanes, helicopters and other products. The government contractor defense has important exceptions, and government contractors may be held liable to victims of airplane and helicopter accidents under various situations. The aviation lawyers at Kreindler have successfully presented litigation arising from airplane and helicopter crashes involving products designed for the government.
• Jurisdiction and Venue Laws determine where litigation may be brought. Aviation attorneys must consider the connection of the aviation accident to a particular forum but also must examine the ties that aviation defendants have to a particular jurisdiction.
• The Montreal Convention is a 1999 treaty that was adopted by a diplomatic meeting of ICAO member states, and the treaty amended provisions of the Warsaw Convention’s regime concerning compensation for the victims of air disasters. Under the Montreal Convention, air carriers are strictly liable for proven damages up to 100,000 Special Drawing Rights (SDRs), a mix of currency values established by the International Monetary Fund (IMF) (approximately $149,000.) For damages above 100,000 SDRs, which has since increased to 113,100 SDRs, the airline must show the accident that caused injury or death was not due to their negligence or was attributable to the negligence of a third party. The Montreal Convention also amended the jurisdictional provisions of the Warsaw Convention and now allows the victim or their families to sue foreign carriers where they maintain their principal residence and requires all international air carriers to carry liability insurance.
  
• Multi-District Litigation Rules determine where many complex litigations, including aviation cases, will be heard. The Judicial Panel on Multi-District Litigation has the authority to transfer civil actions, involving one or more questions of common fact that are pending in different districts, to any district for coordinated or consolidated pretrial proceedings.
• Negligence Laws are generally established by state law. A typical formula for evaluating negligence requires that a plaintiff prove the following four factors by a “preponderance of the evidence”: 1. The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); 2. The defendant violated that duty; 3. As a result of the defendant’s violation of that duty, the plaintiff suffered injury; 4. The injury was a reasonably foreseeable consequence of the defendant’s action or inaction. In aviation cases, pilot negligence and aviation mechanic negligence are often the basis of claims that an aviation lawyer will bring against aviation defendants.
• Products Liability Laws govern the liability of manufacturers, wholesalers, distributors, and vendors for damages caused by dangerous or defective products. The purpose of products liability laws is to protect consumers from dangerous products, while holding manufacturers, distributors, and retailers responsible for putting into the marketplace products that they knew or should have known were dangerous or defective. Products liability law is almost always state law, and aviation lawyers must understand each potentially applicable products liability law in order to properly represent victims of aviation accidents.
• Survival Actions is a federal or state law that provides a right of action for the recovery of damages for injury to a fatally injured person that is brought by his or her personal representative. A survival action depends on the existence of a cause of action that the decedent would have had if he or she had survived. In contrast, a wrongful death action (see below) looks to the losses of the decedent’s survivors.
• The Warsaw Convention is an international convention that regulates liability for international carriage of persons, luggage or goods performed by aircraft. The Warsaw Convention has been modified, most significantly by the Montreal Agreement, which among other things raised airlines’ limit of liability to $75,000. The Warsaw Convention has been substantially superseded by the Montreal Convention but will often till govern claims between nations that have not ratified the Montreal Convention.
• Wrongful Death Law is a federal or state law that provides a right of action to the survivors of a person killed because of the negligence of a defendant or where the defendant is otherwise liable for the death. See e.g. Death on the High Seas Act.

The Federal Aviation Administration (FAA) is the federal agency responsible for aviation safety in the United States. The FAA provides air traffic control, pilot and aviation mechanic licensing and oversight, airport safety, and a variety of other services related to aviation and aviation safety. The FAA will assist the NTSB in its investigations of airplane or helicopter crashes. The FAA will also investigate incidents that may potentially impact aviation safety.

The FAA has an important oversight responsibility for the design and certification of aircraft, including all airplanes and helicopters. Before introducing a new airplane or helicopter, an aviation manufacturer must obtain certification from the FAA that the aircraft meets safety standards. To do so, the aviation manufacturers must supply the FAA with detailed analyses and produce a prototype of the aircraft. The FAA, however, delegates much of its responsibilities to approved individuals employed by aircraft manufacturers. Although paid by the manufacturers, these designees act as surrogates for the FAA in examining aircraft designs, production quality and airworthiness. The FAA is responsible for overseeing the designees’ work and determining whether the designs meet the FAA’s requirements for safety. Aviation lawyers must examine the testing and research that went into the original certification of an airplane or helicopter to determine whether it was properly certified because aviation defendants will argue to the court in aviation cases that the certification of the airplane or helicopter meant that it was safe.

The National Transportation Safety Board (NTSB) is an independent federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents in the other modes of transportation - railroad, highway, marine and pipeline - and issuing safety recommendations aimed at preventing future accidents. The NTSB determines the probable cause of all U.S. civil aviation accidents (including airline disasters, airplane crashes, helicopter crashes) and certain public-use aircraft accidents; selected highway accidents; railroad accidents involving passenger trains or any train accident that results in at least one fatality or major property damage; major marine accidents and any marine accident involving public and nonpublic vessels; pipeline accidents involving a fatality or substantial property damage; releases of hazardous materials in all forms of transportation; and selected transportation accidents that involve problems of a recurring nature. The NTSB’s probable cause determinations are not admissible into evidence in aviation litigation. Accordingly, an aviation law firm or aviation lawyer must be able to conduct an independent investigation and have aviation experts provide opinions regarding the cause of the aviation accident at issue.

Notice of Claim Requirements are time limits that apply to certain claims arising from aviation accidents. Very often, where a governmental entity is a potential defendant, an aviation victim will need to file a notice of claim in order to preserve a potential right of action. For example, if the government air traffic controllers are responsible for an airplane or helicopter crash, an aviation attorney will file a claim with the government. Failure to file such a claim may result in the loss of an aviation victim’s right of action.

Statute of Limitations limits the time in which to bring an action. In aviation cases, the statute of limitation is usually the applicable state or federal wrongful death or personal injury statute of limitation. Statute of limitations may be tolled under certain circumstances. For example, where a minor is injured in an aviation accident, the statute of limitations may be tolled until the minor becomes an adult. An aviation lawyer must be familiar with all of the potentially applicable statutes of limitations and the choice of law rules that will determine which statute may apply to the aviation litigation. The Montreal and Warsaw Conventions do not have statutes of limitations but rather a two-year strict limit (condition precedent) to bring claims.

Statute of Repose differs from the statute of limitations in that it cuts off the potential products liability of an aviation manufacturer (or other product manufacturers) after a given time following the product’s manufacture and sale. The General Aviation Revitalization Act establishes a statute of repose in certain aviation crash cases. (See the brief explanation of the General Aviation Revitalization Act above.)