INTRODUCTION
This Aviation Law Newsletter is designed to explain areas of
practice to interested parties, who are involved with aviation accidents,
incidents or business disputes. While the Newsletter emphasizes
Aviation Accident Law, FAA Regulatory Matters and Business Disputes,
helpful information is provided concerning Mr. Kolczynski's other
practice fields: Federal Litigation, Insurance, Product Liability,
Admiralty and Military Mishaps. Please send proposed topics and
comments by e-mail
(phil@aviationlawcorp.com) Also, you can request to receive this quarterly
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AVIATION ACCIDENT LAW
Contrary to the impression created in the media, the majority of experienced
and ethical aviation litigation specialists do not approach accident
victims or potential defendants after disasters. Aviation Law Specialists
are retained by family representatives, company lawyers, insurers
or other knowledgeable professionals. These people search out aviation
lawyers because we are known to have the necessary technical expertise
in the aeronautical sciences, and the legal experience to take the
steps necessary to protect our clients' rights.
Immediately following an aircraft accident, an aviation attorney
should preserve wreckage, acquire radar data, interview witnesses,
retain consultants, ensure that all pertinent FAA Air Traffic Control
tape recordings are preserved, etc. (This should be done well before
any government accident reports are compiled and released). Skilled
aviation accident lawyers protect client rights during initial interviews,
locate key witnesses, identify choice of law and jurisdictional issues
and evaluate the liability exposure of parties responsible.
Commercial air crash cases often involve Federal Court litigation
and multi-state issues due to the national, and frequently international,
scope of the aviation transportation industry. There are many reasons
why air crash cases may be filed in places other than where the crash
occurred. Thus, aviation attorneys often handle aviation accidents
in different states around the country through the use of local counsel.
In this fashion, they provide their clients with the dual benefits
of a knowledgeable aviation lawyer coupled with a local attorney familiar
with local courts and procedures.
Many top aviation lawyers are more than lawyers with a pilot's license.
True Aviation Specialists are experienced in dealing with: 1) the
FAA - which heavily regulates the aviation industry, 2) the NTSB -
which controls the investigation of all serious civilian accidents
in the United States, 3) aviation insurers -who provide the money
to settle these cases and 4) experts - who are knowledgeable and credible
in the fields of metallurgy, accident reconstruction, meteorology,
air traffic control, aeronautical engineering, avionics, etc. Remember,
while an attorney's aviation credentials are important, it is his
or her specialized skill as a lawyer, coupled with experience and
hard work, that will get results.
Helpful Tip: You can obtain a copy of the NTSB Accident Report
of any serious air crash accident in the United States through The
public Inquiry Section of the NTSB in Washington, D.C.; (202) 382-8735.
You simply need the date and nearest city where the crash occurred,
and the name of the owner or operator involved. Alternatively, call
General Microfilm, a government contract provider, at (301) 929-8888.
(NTSB factual reports are also available on the NTSB web site: www.NTSB.gov).
PRODUCT LIABILITY
In most states, if a product is found to be defective, and the defect
causes injury, the manufacturer and other organizations in the distributive
chain can be held strictly liable to the victim, even without proof
of negligence. Courts have developed such laws in the belief that
the victims would be hard pressed to prove negligence in technical
cases involving engineering design and manufacture. Many courts have
also held that manufacturers are best able to bear the monetary losses,
if their product proves to be defective and causes injury.
Product liability cases can be complicated because issues invariably
arise as to misuse, as well as whether the operator of an airplane,
helicopter, vessel, train, bus or machinery, complied with federal
and state standards or the manufacturers instructions and warnings
for use. Product liability lawyers specialized in certain industries,
are familiar with the manufacturers' requirements for design, manufacture
and warnings, and their responsibilities to comply with applicable
federal, state and industry standards. Experienced product liability
lawyers know how to supervise technical accident reconstruction, product
failure analysis and are skilled in the use of demonstrative evidence.
My In Depth Articles discuss an area where many manufacturers
have exposure - inadequate instructions and warnings. Outside counsel
experienced in litigating Products Liability cases, can help manufacturers
by performing a Risk Audit to cure these deficiencies. Plaintiffs'
counsel should focus discovery in this area to develop causes of action
for their clients.
Helpful Tip: Some states law like California, use a
Risk/Utility Balancing Test to determine where a product is
defective in design. The test asks whether the risk of harm from using
the product correctly, outweighs the utility , the usefulness of the
product in society? If so, the product should have been more safely
designed or adequate warnings issued regarding the risks. How does
a product you're concerned about balance out?
FAA LICENSE VIOLATION DEFENSE
Aviation professionals and organizations such as pilots and mechanics,
commercial carriers and manufacturers are licensed by the FAA. Their
license is viewed as a privilege by the Government which can be revoked
or suspended for violations of the Federal Aviation Regulations. A
company's reputation can be destroyed or a professional aviation career
can be severely damaged by such an enforcement action. Persons and
businesses that rely on their licenses for their livelihood may need
aviation defense counsel to protect their reputation and license.
The majority of FAA Enforcement Actions for alleged license violations
result from simple mistakes. Often no one is hurt in such incidents;
nevertheless, these mistakes are prosecuted as "violations" by the
FAA to promote safety. Frequently, aviation specialists should be
retained before giving statements or responding to "Letters of Investigation"
so that more mistakes are not made. A red flag should go up if you
receive a "Notice of Proposed Certificate Action" or "Notice of Civil
Penalty Action."
If the FAA seeks to revoke or suspend a license, they will offer
an "Informal Conference" so that the airman can attempt to persuade
the FAA prosecutor not to pursue the alleged FAA violation. An experienced
aviation lawyer can be helpful in this regard.
If the FAA issues a non-emergency "order," revoking or suspending
a license, the airman can continue to fly as long as he/she appeals
the FAA Order to the National Transportation Safety Board. The appeal
acts as a stay, postponing the enforceability of the Order, until
the matter is resolved. An Emergency Order "grounds" the pilot or
operator immediately.
If the Proposed Certificate action is not resolved informally, the
matter will go through formal discovery and a full evidentiary hearing
before an Administrative Law Judge of the National Transportation
Safety Board. Even if the airman is not successful at the hearing
before the Judge, he has a right to appeal the decision to the full
5-member National Transportation Safety Board and eventually to the
United States Circuit Court of Appeals.
Civil Penalty Actions may be brought against carriers for fines up
to $10,000 per violation and individuals up to $1,000 per violation.
The FAA itself, can only impose dollar penalties up to a total of
$50,000. Higher penalties can be sought through the United States
Attorneys in Washington D.C. Hearings are held before Department of
Transportation Administrative Law Judges and are prosecuted by the
FAA, with appeals to the FAA Administrator.
Another Newsletter discusses
the dilemma of an owner or operator Who must deal with interrogation
by FAA personnel. What's the difference between an inspection and
an investigation? How do Aviation Professionals employ a lawyer to
protect their rights, without antagonizing the regulatory "watch dog"?
Helpful Tip: If you suspect a violation may have occurred,
file a confidential Aviation Safety Report
with NASA, within 10 days of the violation. The penalty will not be
imposed even if the FAA takes enforcement action; however, this protection
is not available for deliberate or criminal violations, repeat offenders,
or where an accident has occurred.
AVIATION BUSINESS DISPUTES
Aircraft, components and equipment are sold or leased pursuant to
contracts. Numerous contractual disputes can arise not only over the
sale and lease of the aircraft, but with regard to overhaul, maintenance
and use. These disputes are often international and interstate in
nature due to the mobility of aircraft. Aviation lawyers experienced
in handling business disputes are knowledgeable regarding the aviation
industry and are familiar with the appropriate federal and state laws
which control the rights and liabilities of the parties to the dispute.
The resolution of aviation business disputes, often requires creativity
in using various alternative dispute resolution techniques, and pre-litigation
negotiation strategy. Business relationships must be taken into account
when handling current problems, so as not to endanger future dealings.
Even though aviation industry professionals are quite sophisticated
in resolving their problems, they can often benefit from the assistance
of an experienced aviation lawyer.
Future Articles will illustrate the use of alternative dispute
methods (negotiation/mediation/arbitration) to resolve a hypothetical
aviation business dispute.
Helpful Tip: After engaging an aviation attorney to resolve
a business dispute, request an agenda and budget to resolve the problem
with litigation. then ask for an agenda and budget outlining how the
matter might be resolved without litigation.
DEATH OR SERIOUS INJURY LITIGATION
Commercial aviation transportation, although safer than most forms
of public transportation, involves a high risk of serious injury and
death in the event of an accident. Lawyers who regularly handle air
crash accidents are usually very knowledgeable regarding the verdict
or settlement potential of claims of the heirs.
There is much controversy as to whether insurance companies will
fairly settle claims without plaintiffs' attorney representation,
whether plaintiffs' attorneys abuse contingency fee arrangements,
and what constitutes an appropriate monetary award for the loss of
life or for a permanent disability? Indeed, the loss of life or injury
to a loved one is so severe that a value cannot be placed on it.
How do Courts and juries go about awarding damages for death and
injury? The laws varies among states but usually, recovery is possible
for lost future wages and for medical expenses. These are called economic
damages. In addition, most jurisdictions allow for the recovery of
non-economic damages in the form of pain and suffering for someone
who is seriously injured, or the loss of care, comfort and society
for the heirs of a loved one who has been killed. There are other
elements of damage which vary by jurisdiction. There is also the issue
of punitive damages, which may be appropriate in some cases.
A lawyer who represents the family of the victim from such an accident,
must not only be technically and legally capable sorting through these
problems, but have the compassion and ethical commitment to insure
the victims of the accident are not further victimized by the legal
system.
My Next Newsletter will answer questions about what
constitutes a fair and proper contingent fee, in cases where the victim
was an innocent passenger, and comparative fault or contributory negligence
is not an issue.
Helpful Tip: In many states, the contingency fee contract
can be negotiated by the client. Factors to be considered include:
the likelihood of comparative fault by plaintiffs' decedent, the expenses
to be advanced by the attorney, the complexity of the case, and the
risk of noncollectability.
MARITIME LOSSES
Maritime or Admiralty litigation is primarily handled in Federal
Court with the exception of those cases permitted to be filed in State
Court under the "Savings to Suitors" Clause. Admiralty litigation
requires knowledge of the marine industry, nautical science and Admiralty
Law which bears many parallels to Aviation Law. In fact, the author
was a Trial Attorney in the Aviation/Admiralty Department of the United
States Justice Department and handled both air crash and admiralty
tort cases in that capacity.
Maritime actions involve injuries to seamen who work in the Maritime
industry, longshoremen and harbor workers and victims of recreational
boating accidents. There are also numerous property damage actions
resulting from collisions, product defects, and hazardous cargo spillage.
A lawyer experienced in this field can help preserve the necessary
evidence, retain appropriate experts, evaluate the existence of insurance
coverage to pay for losses and file or defend actions in appropriate
Courts.
My Next Newsletter will discuss how many fatal air
crash cases must be handled in Federal Court under Admiralty Law when
they result from accidents on or over the "high seas."
Helpful Tip: Accidents on water do not always fall within
Admiralty Jurisdiction; however, Admiralty Law may apply if they occur
on "navigable" waters traditionally used for maritime commerce.
TRANSPORTATION DISASTERS
Public transportation normally involves the carriage of passengers
by what are called common carriers. These commercial carriers, such
as railroad trains, buses, subways, limo services, etc. are treated
under most laws as having the "highest duty of care" for their passengers,
in that they hold themselves out to the public as being able to provide
safe transportation. Often these matters include issues of product
liability and the question of whether the public agencies are liable
with regard to the design of facilities for transportation and the
issuance of permits to conduct such activities. Frequently, there
are special immunities involved in such cases.
Immediately after the accident, it is critical to preserve any form
of computerized, tape recorded, photographic or eye witness information,
concerning the accident. Care must be taken to preserve the actual
components of the vehicles or machinery involved, so that accident
reconstruction experts can be brought to bear to study this material.
Interested parties cannot rely on governmental agencies or insurance
companies to collect all necessary evidence. Government and Insurance
Companies have a specific investigative agenda, collecting only what
is necessary for their own purposes. They are not in the business
of developing evidence for victims. Eye witnesses are particularly
valuable and should have their statements taken while recollections
are clear.
In The Future, we will discuss how insurance companies handle
the investigations and claims adjusting after major transportation
accidents.
Helpful Tip: If you've been injured in a transportation accident,
have the emergency room health care professionals make written notes
of all of your injuries, symptoms and pain. They may be extremely
busy, but follow-up at an appropriate time to ensure that the best
possible record is created.
MILITARY MISHAPS
A military air crash or other military accident results in an ironic
injustice given the fact that the service person has given the most
for his country. There is a special governmental immunity which prevents
the survivors from suing the United States Government for the death
of their loved ones. The United States Supreme Court has ruled that
the government is immune from suit for injuries to service personnel
which occur as a result of activities which are "incident to service."
Feres v. United States, 340 U.S. 135 (1950). Normally, the
only monetary compensation which can be collected from the United
States Government for the death or serious injury of a serviceman
or woman is through a payment of their Veteran's benefits. Many view
these benefits as very inadequate by comparison to the settlements
and verdicts their civilian counterparts can recover in some cases.
The justification for denying the survivors the right to sue, has
to do with the fact that the Supreme Court feared that military discipline
would be disrupted if the servicemen's family could sue his superiors.
The Supreme Court also believed that Veteran's benefits were adequate
to compensate for the loss. As a consequence of the Feres Doctrine
and other special immunities, the only legal alternative available
to the survivors is an expensive investigation to determine if a civilian
contractor such as a manufacturer or service provider is partly or
wholly at fault for the accident.
If there is evidence that a military contractor sold a defective
product, a product liability lawsuit can be considered against a major
defense contractor. However, the contractor enjoys another special
immunity called, "The Government Contractor's Defense." This defense
is available to the contractor if: 1) that contractor sold a product
to the government after the government approved reasonably precise
specifications for the design of the product; 2) the equipment conformed
to those specifications (no manufacturing defect); and 3) the contractor
warned the United States about the dangers associated with the use
of the product that were not obvious to the government. Thus, it can
been seen that the Government Contractor's Defense can create an enormous
hurdle that must be overcome by anyone who considers a lawsuit against
the manufacturer of military products. There is reason for optimism
however, due to recent decisions that create new hope that if a defective
product kills or seriously injures a serviceman, his family may be
able to successfully sue a manufacturer.
Helpful Tip:The military accident investigation which is conducted
after a military air crash or other major disaster, results in the
creation of a releasable accident report. The various branches prepare
this releasable report primarily for the purpose of deciding whether
further administrative or military action should be taken as a result
of the accident. The report is not created for the purpose of determining
whether a civilian contractor or service provider can be sued. Thus,
any family member who wishes to investigate the possibility of a lawsuit
must do so with the aid of a specialized attorney and expert consultants.
Claimants cannot depend on the military accident investigative report
to answer all of their questions.
Newsletter DISCLAIMER: This
newsletter does not provide legal advice or legal opinions
on any particular matter or case. An attorney must retained and all
relevant facts be provided to obtain advice on a particular case.
