Serious Litigators for Serious Injuries

AN AVIATION LAW PRIMER: "WHAT GOES UP..."

GTLA Seminar
May 10, 2003

Andrew M. Scherffius

Scherffius, Ballard, Still & Ayres, LLP
1201 Peachtree Street, N.E.
Suite 1018
Atlanta, Georgia 30361
404-496-5628
email

1. INTRODUCTION
2. STATUTORY AND REGULATORY CONSIDERATIONS
3. POTENTIAL DEFENDANTS
4. THE INVESTIGATION OF AN AVIATION CASE
5. SUMMARY AND CONCLUSIONS

I. INTRODUCTION

This paper is intended to be as entitled - a "brisk" overview or introduction to the world of aviation cases. Aviation cases involve a multitude of sub-categories that in combination give this litigation its fascinating complexity. This paper emphasizes the plaintiff's point of view, but the discussion is adaptable to the defense perspective.

II. STATUTORY AND REGULATORY CONSIDERATIONS

Every aspect of aviation is "controlled" by specific laws, treaties, statutes, and regulations. In the United States, the Federal Aviation Act of 1958 (hereinafter referenced as "the Act") is the Congressional authority underwriting the operation of our aviation system. ¹ Pursuant to the Act, Federal Aviations Regulations (FARS) have been promulgated to guide the myriad activities associated with the details of practically all aspects of flying. ² The Federal Aviation Administration, an executive agency within the Department of Transportation, is charged with the duty of enforcing the Act and the FARS.³

In addition to regulating aviation operations, the Act sets the parameters for the investigation of aircraft accidents. ⁴ The National Transportation Safety Board (NTSB), an independent governmental agency, is charged with the duty of investigating every aircraft crash that occurs in the United States. ⁵ One can be assured that every aviation case will involve some aspect of the Federal Aviation Act and the regulations promulgated pursuant thereto, as well as the NTSB. Thus, a thorough knowledge of the Act, the FARS, and the role and operation of the NTSB is essential.

The FARS cover every phase of aviation: pilot training, licensing, and currency requirements; aircraft development and manufacturing; aircraft maintenance; the operation of commercial airlines, private operators, air taxi operators, and charter operations-nothing is left to regulatory chance and the FAA has broad enforcement powers. Together, the Act and the FARS generally results in federal preemption of aviation-related statutory and legislative control. ⁶

Aviation cases often involve issues of international law and treaties. The most commonly involved treaty is the Warsaw Convention, and the most discussed proposed agreement is the Montreal Agreement. ⁷ The International Air Transport Association (IATA), a trade association of international carriers, has also promulgated inter-carrier agreements (approved in this country by the Department of Transportation) that may impact issues relating to international accidents. ⁸ Significantly, the IATA agreement waives Warsaw Convention liability limits for member air carriers (practically all international carriers are members). American carriers belonging to the Air Transport Association (ATA) also have implemented inter-carrier agreements that may be applicable in certain cases.⁹

Particularly with the strengthening of international economies and globalization, the Foreign Sovereign Immunities Act (FSIA) may be significant in a given case.¹⁰ Generally, the FSIA bars suits against state-owned foreign air carriers, aircraft, and component manufacturers. One must be cautioned that these cases may involve extremely complex issues and must be carefully analyzed and pursued.

In cases invoking international agreements and treaties, as well as the FSIA, great care must be exercised to analyze applicable law as the prevailing law at the time of the crash may differ substantially from the present terms of the various treaties, agreements, or conventions as adopted.

In many instances the very nature of the claims is defined by specific claims or is so impacted by statutory limitations that one must carefully study particular acts or laws to ascertain the substantive and procedural scope of permissible action.

An excellent example involves aviation-related claims against the United States. Such actions are largely controlled by the Federal Tort Claims Act (FTCA).¹¹ The Death on the High Seas Act (DOHSA) (as amended in 2000) governs actions arising from commercial air carrier crashes occurring more than twelve miles from the shores of the United States. ¹² The General Aviation Revitalization Act (GARA) imposes an eighteen-year statute of repose on actions against manufacturers. ¹³ Following the terrorists' attacks of September 11, 2001, Congress passed and President George W. Bush signed into law the Air Transportation Safety and System Stabilization Act. ¹⁴ Intended to address feared adverse safety and financial consequences of terrorism, the Act also establishes the framework for the Victim Compensation Fund of 2001. (An excellent discussion of the VCF appears in a paper presented by GTLA member Mark L. Stuckey at the February, 2003, ICLE Aviation Law Seminar, and attached by permission of the author and ICLE as an Appendix to this paper.) In very brief summary, the VCF creates a fund to compensate victims of The September 11, 2001 attacks through an extra judicial procedure intended to avoid the expense and delays that would result from litigation. Of course, one will commonly face complicated issues of choice of law and forum, and a review of a potential jurisdiction's product liability law, wrongful death statutes, and state aviation statutes is prudent.

III. POTENTIAL DEFENDANTS

Of course, the specific facts of any aviation-related case will dictate the defendants who may be ultimately responsible, but as an overview, potential "classes" of defendants in aviation litigation are numerous. In a "typical" general aviation aircraft crash, responsibility may lie with the pilot and/or his or her employer, the aircraft owner, the aircraft manufacturer, one or more maintenance facilities, aircraft component manufacturers (for example, propeller, engine, avionics, and parts such as landing gear, tires, fuel systems, etc.), pilot training facilities, chart suppliers, the United States of America, fixed base operators (fbo), airport operators and facilities, as well as contractors. In any crash case, the point is to understand what role each potential defendant may play within the contexts of the both the aviation system and the specific facts of the case. As noted above, the rules and regulations relating to each defendant may differ in the particulars but will appear (usually) within the FARS.

IV. THE INVESTIGATION OF AN AVIATION CASE

Most of the investigation of an aviation case involves the same type of fieldwork as other cases but there is the overriding framework of the National Transportation Safety Board and the Federal Aviation Administration. By law, the NTSB is charged with the responsibility of investigating every aircraft accident or incident in the United States. Procedurally, each accident is assigned an investigator, and particularly in commercial cases, "groups" will be established in such areas as human factors, operations, power plant, avionics, or others.

The NTSB is authorized to invite the participation of other organizations or entities to assist in its investigation. Examples include the FAA, pilot unions, aircraft or component manufacturers, and specialists having expertise in particular areas. However, a claimant (injured person, estate representative, or lawyers representing such parties) is specifically excluded and barred from participation. ¹⁵

An NTSB investigation proceeds typically along the following (very summarized) lines: After an investigator is assigned, and the investigation is initiated, a "preliminary accident report" will be released promptly. It is usually only an outline of the event and contains practically indisputable facts. Most uncomplicated general aviation cases (as contrasted with commercial cases or complex cases such as mid-air collisions) will result in the release of a Factual Report incorporating details of the investigation. Either at the time of issuing the Factual Report or within a reasonable period of time thereafter, the Board will issue its "probable cause" findings which constitute its determination of the factors that caused or contributed to the crash.

In more complex cases, each group that has been assigned to the investigation will release its own report. In many commercial cases, public hearings will be held to assist in the creating of a full record. These hearings are fact-finding rather than adversarial and are conducted by a hearing officer. Again, claimants and their legal representatives are excluded as parties to the hearing but, of course, may attend. After the hearing and upon reaching its conclusions, the NTSB will issue an Accident Report containing factual determinations and the Board's probable cause conclusions.¹⁶

In terms of litigation surrounding aviation crashes, an admissibility issue (both of preclusion and of extent) surrounds the NTSB documents. Under Federal Rule of Evidence 803(8), which creates a hearsay exception for the admissibility of public records, the factual findings of the investigation are generally held to be admissible.¹⁷ Many states also have a so-called public records exception to the hearsay rule that permits or requires admission of Board investigative fact-findings. However, a continuing split of authority exists as to whether Federal Aviation Act § 701(e) (codified as 49 U.S.C. § 1441(e) impacts the admission of NTSB documents. The majority view appears to favor admissibility of factual findings, precluding, however, the admission of the NTSB probable cause findings. As noted, this interpretation is a majority rule, and the law of each jurisdiction and circuit must be determined.¹⁸

A second legal issue that must be considered in connection with the NTSB investigation is the permissible scope of its investigators' testimony. It is the rule that NTSB investigators' testimony is limited to matters of fact, and opinions and conclusions are inadmissible. ¹⁹ As a practice tip, one should keep in mind that the distinction may be "razor sharp."²⁰ Generally, the courts accept deposition testimony of NTSB personnel rather than requiring the attendance of the witness at trial, and a deposition procedure (in lieu of the appearance of the witness) appears in the NTSB rules. ²¹

Much of the investigation will be similar to any tort case. However, there are many sources of information that may have unique application to aviation cases. The government (FAA) maintains extensive documents relating to such matters as maintenance records, pilot records, manufacturer's service bulletins and service letters, Technical Standard Orders (TSOs), Airworthiness Directives (Ads), Cockpit Voice Recorder (CVR) transcripts, Flight Data Recorder (FDR) readouts, "other accidents" reports, and the sale and transfer of title of aircraft. All aircraft must have a Pilot's Operating Handbook (POH, a/k/a Approved Airplane Manual) approved by the FAA and a current airworthiness certificate. All development (certification) and manufacturing of aircraft and parts are subject to stringent record-keeping requirements. Tapes of Air Traffic Control (ATC) activities (voice transmissions, radar data, and other data) are kept, usually in a "rolling" erasable format, but in the event of an accident are preserved. Air traffic controllers must perform according to a published, detailed series of manuals. Pilots must maintain logbooks, meet training requirements, undergo periodic medical examinations, complete insurance questionnaires, and meet currency requirements, all generating discoverable information. Maps, charts, and approach "plates" are published both by the government and private suppliers.

Numerous organizations (governmental and private) are excellent resources for safety analysis and statistical data. Both the FAA and the NTSB keep exhaustive aviation-related statistics on many different subjects. Private groups such as the Aircraft Owners and Pilots Association (AOPA) and the Air Safety Foundation (ASF) are valuable general aviation-oriented resources. Weather information is readily available through both the government and private companies.

Affirmative steps need to be instituted promptly to preserve evidence, primarily the aircraft wreckage. Initially, the NTSB assumes control of the aircraft and other evidence such as logbooks. Often, the airframe may be separated from components. For example, the engine and/or propeller may go to a manufacturer's facility for teardown inspection, or parts may be sent to the NTSB lab for metallurgical analysis. In the early stages of the investigation it is important to track the location of evidence. Usually, all parts will be returned to a central location when the NTSB has completed its investigation. The owner (or in most cases the owner's insurance company) will then be the custodian. It is critical that at this point clear arrangements be made to preserve the evidence.

All participants in the NTSB investigation generate paper, and much of the paper will not be made a part of the formal record of the NTSB. For instance, an engine manufacturer "invited" to participate in the inspection will invariably maintain its own, separate records of its involvement, including photographs and/video. All is or should be discoverable.

One must be forever vigilant regarding the fact that opinions and conclusions reached by the NTSB will generally not be admissible. Independent experts must be retained in almost every case. However, particularly in view of the so-called "Daubert" standard of review in federal court, the private expert cannot just mimic the NTSB's opinions.²² An independent analysis that will meet the Daubert standards must be conducted. Similar but usually less stringent considerations apply to state court cases. ²³

As a practice pointer, think "internet" to access many sources of information. For instance, the NTSB maintains sites that permit the close following of an investigation's progress. ²⁴

Foreign aircraft crashes and military aircraft accident investigations involve complexities that move these types of cases beyond the scope of this overview. However, excellent sources are available to assist in analyzing these types of claims. ²⁵

V. SUMMARY AND CONCLUSIONS

Aviation cases have the potential to involve everything from state products liability law to administrative law practice to international law. The cases are fact intensive and expert dependent, demanding much of the advocate in terms of preparation and presentation. However, the complexities and challenges make the practice of aviation law a rewarding, satisfying undertaking to the dedicated lawyer.

1. 28 U.S.C. § 1346 et seq.
2. See, e.g., Tillery v. United States, 375 F.2d 678 (4th Cir. 1967).
3. See Pub.L.No. 89-670, 80 Stat. 931, 938.
4. See Federal Aviation Act of 1958, supra, as amended by the Department of Transportation Act of 1966, 49 U.S.C. § 1651 et seq.
5. Independent Safety Board Act of 1974, 49 U.S.C. § 1901.
6. See United States Constitution, Art. VI, Cl. 2, (Supremacy Clause); see also Airline Deregulation Act of 1978 (ADA), Pub.L. 95-504, 92 Stat. 1707 (specific federal preemption of laws relating to air carrier operations); but see ADA at 49 U.S.C. § 41713(b)(3) relating to a local government's limited rights to regulate air service at its owned or operated airport.
7. The Convention for the Unification of Certain Rules Relating to International Transport by Air (Warsaw Convention), 49 Stat., Part II, p. 3000; The Montreal Agreement, reached at the Montreal Convention of 1999. See Kriendler, "Aviation Accident Law," Primary Source Pamphlet at 39 (2000 ed.) for a copy of the text.
8. International Air Transport Association Agreement Relating to Liability Limitations of Pre-Warsaw Convention, issued by the Department of Transportation, Docket OST-95-232 (October 3, 1996).
9. Air Transport Association of America: The Warsaw Convention, Docket OST-96-1607 (October 3, 1996).
10. Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq.
11. 28 U.S.C. § 1346.
12. 46 U.S.C. § 761.
13. 46 U.S.C. § 40101 et seq.
14. 49 U.S.C. § 40101.
15. See 49 C.F.R. § 831.11(c); see also Graham v. Teledyne-Continental Motors, 805 F.2d 1386 (9th Cir. 1986) (court rejected constitutional challenges to the excluding of an estate's expert at an engine teardown done at the manufacturer's facility).
16. See 49 C.F.R. Part 831 (NTSB rules applying to "Accident Investigation Reports").
17. Federal Rules of Evidence 803(8); see also Gentile v. County of Suffolk, 129 F.R.D. 435, 448 (E.D.N.Y. 1990); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439 (1988).
18. See Kreindler, "Aviation Accident Law," § 19.01 et seq. (Lexis Publishing and others - updated annually).
19. See 49 C.F.R. § 835.3; Swett v. Schenk, 792 F.2d 1447 (9th Cir. 1983).
20. See, e.g., Jet-Air, Inc. v. Epps Air Service, Inc., 194 Ga.App. 829, 392 S.E.2d 245 (1990).
21. 49 C.F.R. § 835.1-835.9.
22. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1983); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
23. See White v. Orr Leasing, Inc., 210 Ga.App. 599, 436 S.E.2d 693 (1993).
24. www.ntsb.gov.
25. See, e.g., Kreindler, "Aviation Accident Law," §§ 4.06, 4.07, and 20.06 and Ch. 21 (Lexis Publishing and others).