Air Safety And Law

As we have noted on several occasions, the disconnect between the NTSB and the FAA on the subject of safety recommendations has long been a problem and concern for aviation safety advocates. Too often the FAA’s dual mandate to both promote aviation and police it are at odds, and the result is safety delayed which of course means — safety denied! That said, we were pleased to see the FAA implement new flight crew rest requirements. While we think greater measures could have been implemented it is a start in the right direction and will hopefully result in pilots who are more alert, attentive and better able to react to emergency situations in the cockpit. The specific regulations can be found at:

http://www.faa.gov/regulations_policies/rulemaking/recently_published/media/2120-AJ58-FinalRule.pdf

In sum the regulations provide a more realistic method of calculating pilot flight time, duty periods and crew rest. The regulations provide hard maximum duty days, minimum rest periods and cumulative calculations which better address recent science on fatigue. The regulations also shift the burden to individual pilots and airlines to create an environment where pilots can report fatigue without repercussions and where airlines develop risk management systems designed to specifically address fatigue issues (sleep, nutrition, etc.). On balance these changes are positive and we support the FAA’s efforts to implement these throughout the commercial fleet. Oddly, the regulations do not apply to the cargo fleet. We think this is a mistake and support those advocates pushing for extension of these regulations to cover all commercial operations, including cargo flights. To not do so endangers the entire aviation system and the flying public.

Signs that the aviation industry continues to put “Safety First” and seek zero tolerance with respect to accidents are evident in data released today by the National Transportation Safety Board (NTSB). This year’s numbers indicate another step in the right direction for aviation safety. According to the NTSB, the majority of aviation deaths occurred in the general aviation category where there were 450 fatalities, down about 6% from 478 in 2009. By comparison, fatalities in commercial aviation dropped dramatically from 52 to 2 while air taxi deaths remained the same.

These trends highlight improvements in the safety practices of our major US carriers, but also underscore the need to improve pilot training and maintenance in general aviation. As aviation advocates we are very pleased that safety remains a priority and that the many recommendations which have been implemented as a result of the work done by the NTSB, the carriers, safety groups and plaintiff’s attorneys are making a difference. That said, we remain concerned that the present economic pressures (like the American bankruptcy)in the aviation marketplace may erode the gains of the past few years. Accordingly, we will continue to advocate for more oversight by and adequate funding of the FAA as well as seek improvements to safety through our work on behalf of passengers and other victims of aviation accidents. Regardless of affiliation, government, private industry or safety advocate, we must all do our best to continue to make aviation safer for the flying public.

It was one of those days that I was thinking how fortunate I was to be a pilot… It was this past Saturday and I was lying on State Beach on Martha’s Vineyard soaking in the sun thanks to the only hole in the sky that existed from the Hamptons to Nantucket. I had left Westchester County Airport that morning and picked up some friends in Farmingdale and headed east planning to go to Block Island.   But as we approached West Hampton at 7,500 feet, a marine layer was visible along the shorelines eastward… As we approached Block Island, that marine layer had made its may over the Block Island airport.  I listened to another plane fly a missed approach after trying to fly into Block Island.  A re-check of the weather showed that the marine layer was also “socking in” all the choice beach destinations in the Cape Cod area and would likely take a couple of more hours to burn off — except that the Martha’s Vineyard airport (MVY) was reporting clear.  So we overflew Block Island and headed to Martha’s Vineyard.  When we got in sight of MVY, it was evident that the favorite southern beaches were also under a marine layer, but the eastern side of the island, the State Beach area, was clear!  We decided to land at MVY, check in with the FBO (Fixed Base Operator – where I parked the plane and bought gas – at over $6/gal!!!   ), and got in a cab.  A quick stop at the sandwich shack and we were on the beach in 15 minutes.   Every hour or so, while on the beach, I’d check the blackberry to see if the marine layer had burned off at Block Island yet. On the third check, it had finally burned off.  I smiled and told my friends we just bought 2 hours of extra beach time… It was a good day to be a pilot…

But on that third check, I also saw 3 voicemails and a couple of emails from friends asking me to reply back…. I had a feeling that something bad had happened and when I listened to the first voice mail from my mom, I knew from her voice that I was right… Before I called her back, I wanted to know what was going on… I quickly googled “plane crash” and the first hit explained it… a plane had taken off from Westchester County airport (HPN) just a few hours after I had; but it experienced some kind of an emergency (probably engine related) and tried to return to the airport, but was unable to reach the runway and crashed in one of the heavily wooded areas surrounding HPN… No one survived the crash or the ensuing fire… I called my mom back.  I would know, from unfortunately way too many prior occasions, how to handle the call…  Whether it was during my Navy career, when a Navy plane crashed near where I was stationed or at sea when I was on a carrier, or after the Navy when I started flying general aviation aircraft in and around the New York area, I would simply have to let her know in a calm, matter-of-fact manner that I was okay, and let her think/believe that it could not/would not happen to me…

Like all pilots, at least part of me has to believe/think that too… but there is a part of me that knows otherwise…. There is only so much we as pilots can reasonably be expected to handle… Others have to do their jobs as well; aircraft manufactures, aircraft maintainers, air traffic controllers and others each play a distinct and critical role in aviation safety.  After turning the conversation with my mom to the more mundane, I could sense her voice becoming more relieved.   After we hung up, I thought about those that had just perished near my home airport… and their loved ones… surely there were frantic calls being made trying to find out what happened… trying to confirm that their worst thought/belief/fear was not true… but they never got that call that my mom just did…

On Sunday, I celebrated father’s day and was still learning more about Saturday’s tragedy.  I learned the horrific news that an entire family, the Weiner family, was on board.  Keith and Lisa Weiner, their 14 year old daughter, Isabel, and a family friend, Lucy Walsh, another 14 year old girl all perished.  Keith Weiner was the pilot and was very seasoned and a highly experienced flight instructor.  He kept the plane he was piloting at the time of the crash, a Cessna 210 N210KW, at the same FBO I use at Westchester County airport, Panorama.  I recall seeing him around the FBO, but I never knew him.  I have been used to losing friends and to others losing loved ones for over twenty years as a result of my flying career and my work as an aviation attorney, but this was a particularly tragic result…

As I contemplated the prior day’s tragic events, I learned of yet another tragic general aviation crash that had local connections.  Dr. Viswanathan Rajaraman (Vishy) a renowned brain surgeon, and his wife, Mary J. Sundaram, also a doctor, were taking off from Rickenbacker Airport in Columbus, Ohio returning to Franklin Lakes, New Jersey when the Cirrus SR 22 aircraft, N526PG, that Dr. Vishy was piloting crashed, also, close to the airport.  Dr. Vishy flies the same type of plane I do and I remember emailing with him about a year ago about possibly forming a partnership in a plane.  That partnership never materialized, but when I heard the victims were Vishy and his wife, it triggered how small a community of pilots we are, especially local New York pilots.  Thinking about Keith Weiner and Vishy, I contemplated that no matter how experienced you may be as a pilot, there is only so far your skills can take you.  Ultimately you have to rely on others as well if we want to safely enjoy this avocation and passion we know as flying… 

As I sat on that beach in Martha’s Vineyard, I couldn’t help but think that man (and woman) have only been flying for slightly more than 100 years…  We are truly fortunate to live in a time where we can break the surly bonds of earth, but we can never forget with that privilege comes the responsibility for everyone involved in aviation to do their job to make it as safe as possible so that no loved ones’ telephone call goes unreturned…

The FAA and Congress need to quickly address a disturbing trend within the nation’s air traffic control system – controller errors are rising at an alarming rate. Recent data demonstrates an extraordinary increase in the number of operational errors. In 2010, the number approached an alarming 2,000 errors per year, more than double the errors last year and in 2008.

So while other recently released statistics suggest the aviation safety system seems to be improving overall, particularly with respect to incidents involving major carriers, the same is not true for air traffic safety as evidenced by the increase in the number of near misses. This is easily explained. In the last few years a mass exodus of thousands of seasoned controllers has left behind countless understaffed tower cabs and radar rooms, now forced to rely upon inexperienced controllers who have not had adequate and complete training.

Not surprisingly, poor planning and a lack of funding are at the core of the problem. However, as aviation safety advocates, we are certain this is an area all Americans recognize as being too important to ignore. Next to defense spending most Americans would undoubtedly agree this is a service that is vital to the American way of life and as such must be fully funded and staffed by qualified personnel who are trained to the highest standards. The flying public deserve nothing less. To allow this problem to languish unaddressed is inexcusable and creates a potentially catastrophic risk that must be avoided. Our politicians who control funding and the FAA which is responsible for staffing and training must remember that “safety delayed is safety denied.”

The final report on a hard landing of an Airbus A320 faults the pilots, but also points to known deficiences regarding the aircraft. The report highlights something that has been a subject of previous articles I’ve published — how modern automated flight-control systems sometimes confuse pilots and result in unintended hazards.

The A320 has wing surfaces called speed brakes or spoilers that deploy automatically at touchdown to reduce lift and help the airplane’s slow down.

A brand new A320, operated by a unit of Grupo SATA, had a hard landing after the pilots mistakenly did not reduce the thrust to idle, and accordingly the airplane’s flight-control computers didn’t order immediate spoiler deployment. This caused the airplane to become airborne after takeoff and then slam back on the ground.

Apparently Airbus received several reports of A320 hard landings caused by spoilers failing to deploy and it has reprogramed the flight computer to address this problem.

The National Transportation Safety Board has excluded American Airlines from participating in an accident investigation. The NTSB made the unusual decision because American Airlines improperly accessed black box information without the participation of the NTSB and other authorities.

Under the rules governing U.S. aviation accident investigations, the parties potentially responsible for an accident (e.g., the airplane manufacturer, the airline, the maintenance company, etc.) are permitted to participate in the investigation as “party representatives.” The rationale for this rule is that the NTSB must rely on the expertise of these parties. For example, the manufacturer of the airplane is able to identify components recovered in the wreckage and may be able to test the components to determine whether a mechanical failure caused the accident. If the NTSB suspects an engine failure, the engine manufacturer can take the engine and bench test it to see if it was capable of powering the aircraft. Of course, in doing the test the manufacturer may also destroy evidence that could identify problems with the engine and it is important that the NTSB fully document the condition of the wreckage before any testing is done.

The families of victims are not allowed to participate in the investigation, which is hard for many to accept because the families have the most vested interest in making sure the investigation is done properly and that the NTSB comes to the correct result about what caused the accident. No one cares more about the finding out what caused an accident than a family that lost a loved one. The representatives of parties permitted to participate in the investigations have conflicting interests. While they may be legitimately interested in the safety of their products or operations, a finding that something they did caused or contributed to an accident may have very serious financial implications.

By excluding American Airlines, the NTSB sent an important message to the parties permitted to participate in investigations. The NTSB should go one step farther and permit aviation victims’ to participate in the investigation. The oft-cited reason for not allowing the victims to have their representatives participate is that they do not have the “expertise” that the NTSB needs, but perhaps the “expertise” that they would bring is to help the NTSB ensure that the investigation is not wrongly influenced by participants who may steer the investigation in the wrong direction to avoid financial responsibility.

The Zadroga Bill, a long awaited federal law which will provide health care, medical monitoring and financial compensation for World Trade Center rescue and recovery workers, is about to become a reality.
The Bill will allow the 9/11 victims to file claims in a new Victims’ Compensation Fund where the claims will be adjudicated by a special master. While the Bill is a huge step in the right direction, it will likely limit what the victims will receive because it will not be an unlimited fund. The special master will not only have to determine what each victim will receive, but will also have to consider how best to allocate the fund’s resources. In this regard, the “new” fund is different from the original 9/11 victims’ compensation fund, which did not have an artificial limit. While Kenneth Feinberg fulfilled his obligations to the taxpayers in how he issued awards in the original fund, he did not have to artificially cap awards.
Victims need to protect their rights. The claims must be properly prepared, which may take months to do and aggressively presented to the fund. If you are suffering from exposure to toxins at ground zero, you should be taking the steps now to make sure your claim is timely presented to the fund and done in the best possible manner.

Today the Senate declared that it has not forgotten our 9/11 heroes.

The Senate has passed a bill that will provide much-needed money, $4.3 billion, to cover healthcare costs for first responders who became ill from working at the site of the Sept. 11, 2001, terrorist attacks in New York City.

It is now up to the House to act.

Under the bill, as many as 25,000 victims who died or had their health negatively affected by World Trade Center attack would be eligible to enroll in the program. Both physical and mental illness would be addressed.

The victims would be able to prepare and file claims in the Fund. From my experience representing claimants in the first Victim Compensation Fund, it is crucially important that the claims be properly prepared because the Fund administrators will require reliable information before making awards. If for example, a person is disabled from work, whoever prepares the claim must provide not only the proof that the person can’t work, but also the economic losses, both past and future, associated with the person’s disability.

I hope to hear that the House passes the bill and the President signs it before Christmas. It is the right thing to do.

Congress must act, and act now, to right a serious wrong.

Almost ten years ago, nineteen terrorists hijacked four airliners and murdered thousands of Americans. The very best of our citizens responded running toward the danger at ground zero. Many lost their lives that day. Others have lost their health, their welfare and are slowly and painfully losing their lives.

After the disaster, Congress acted quickly to protect the aviation industry which was in dire trouble because of the attacks and the industry’s general weakness at the time. Among other protections, Congress capped the liability of the aviation industry, including airlines and security companies, to whatever insurance they carried. Congress also set up a victims compensation fund, which ultimately provided much needed compensation to the families of the murdered. The compensation, although limited, provided financial security that was critically needed by the victims’ families. Setting up the victim compensation fund was the right thing to do and in a real way helped heal our nation after the horrible attacks. Imagine what it would have been like if we had turned our back on the victims’ families.

The suffering 9/11 first responders need our help. Congress needs to pass the Zadroga bill, which will provide critical medical benefits and compensations to the 9/11 responders, who were not covered by the first victim compensation fund. Passing the bill sends a message to the world that we have not forgotten the victims of 9/11, those that died that day and those that are dying today from illnesses contracted during heroic efforts.

Congress needs to pass the James Zadroga 9/11 Health and Compensation Act and should do it before Christmas.

After the Air France Flight 447 disaster, plaintiffs filed claims in the United States. The plaintiffs included U.S. families who lost loved ones in the disaster and victim families from outside the U.S. The defendants brought a motion to dismiss the actions based on the forum non conveniens doctrine.

It was no surprise that the defendants made the motion since the accident occurred outside the U.S. on a flight operated by a foreign airline between two foreign jurisdictions. Also, the airplane at issue was manufactured outside the U.S. by a foreign corporation, although component parts of the airplane had U.S. connections.

And it was no surprise that the court dismissed the claims of the foreign plaintiffs. What was surprising and wrong was the court’s dismissal of the claims of the U.S. plaintiffs against Air France.

The Montreal Convention provided the court with jurisdiction in the claims of the U.S. domiciled victims. The issue in the case mainly involved the damages suffered by the family. I can think of no justification for the court’s decision.

The claims of U.S. victims against Air France should have been handled separately than the foreign claims. Hopefully the court will see this and correct its ruling that, with regard to the U.S. claims, would increase the burdens of the litigation on both plaintiffs and the defendants. (Imagine trying to litigate what is essentially a U.S. damages claim in France.)