Strict Liability for International Aviation Disasters

AVIATION LAW Asiana Airlines Flight 214, Malaysia Airlines Strict Liability Flight 370 and Flight 17 for International By Jonathan S. Ziss Aviation Disasters Under the applicable Within a span of just eight months, the international international treaties, aviation community experienced the tragic loss of three the only way in which large commercial aircraft resulting in hundreds of deaths either Asiana or Malaysia and injuries. Last July, Asiana Airlines Flight 214 crash- landed in San Francisco. Malaysia Airlines took off from Seoul’s Incheon International Airlines could escape Flight 370 quite literally was lost—disap- Airport, about 30 minutes later than sched- pearing from radar and presumably ending uled. The weather was clear as the Boeing liability is by proving in disaster. And shortly before this article 777 began its planned 10-hour voyage to went to press, Malaysia Airlines Flight 17 San Francisco International Airport. Four that these accidents was shot out of the sky by a missile over crewmembers, 12 flight attendants, and 291 Eastern Ukraine, and area in which mili- passengers were on board the plane, which were caused solely by tary forces are engaged in active aggression. had accumulated 36,000 flight hours since While technical and forensic investiga- its first voyage in February 2006. the neglect of other tions continue in all three instances, the The flight itself was uneventful. Accord- legal framework for liability is already well ing to the National Transportation Safety parties and that the developed. This article will review these Board (NTSB), as the plane began its tragic events and will explain the unique descent into San Francisco the autopi- respective airlines took legal environment in which liability claims lot was switched off, and Flight 214 was are made in the aftermath of an interna- cleared for a visual approach. A pilot who all possible measures tional aviation disaster. The article will was in transition training for the 777—he also spotlight the uniquely modern chal- had 9,684 total flight hours but had logged to avoid the losses. lenges faced by corporate defendants in just 43 hours as pilot-in- command of a 777 the age of instantaneous, crowd- sourcing, since beginning his training on March 25, social media. 2013—was in the left seat, with an instructor pilot to his right. While this was the lat- Asiana Airlines Flight 214 ter pilot’s first trip as an instructor, he had It was 5:04 p.m. Korean Standard Time on logged roughly 3,000 hours in the 777. A July 6, 2013, when Asiana Airlines Flight 214 relief first officer sat in the cockpit jump ■ Jonathan S. Ziss is the chair of Goldberg Segalla’s Aviation Litigation Practice Group and a member of the steering committee for DRI’s Aviation Law Committee. He represents regional, national, and international air carriers, as well as under wing service providers, municipal authorities, general aviation owners and pilots, and fixed base operators, in connection with property and casualty liability litigation. In addition to handling disputed matters, he counsels commercial airlines in connection with industry- related consumer compliance and contractual matters. 54 ■ For The Defense ■ August 2014 seat during the approach and landing, flights stuck on the tarmac, others from “The crew is required to maintain a safe while a fourth pilot was seated in the cabin. travelers in the airport and residents liv- aircraft. One of the very critical things that For roughly 42 seconds, the plane ap- ing nearby. The first photos showed dark needs to be monitored on approach to land- peared to descend normally to 500 feet and smoke billowing from the wreckage, fol- ing is speed.” Meanwhile, the trainee pilot’s slow at a proper rate to 134 knots. Over the lowed by the decimated remains of Flight significant lack of experience flying a 777 next 18 seconds, the plane slowed below the 214. The stated numbers of unaccounted- was deemed by the NTSB to be particularly target speed for such a landing. Roughly eight for passengers, fatalities, and injured were noteworthy and would become a recurring seconds later, at 200 feet, the pilot attempted varied and changed as the afternoon and issue throughout the investigation. to increase the aircraft’s speed. A “stick evening wore on. On March 17, 2014, Asiana filed its shaker” stall warning was triggered about At around midnight, local time, the accident investigation submission report four seconds before impact, followed by a NTSB arrived on the scene to start its inves- with the NTSB. The document includes crew member’s call for a “go- around”—an tigation. The NTSB began tweeting about Asiana’s analysis of the accident, including attempt to abort the landing—at the three- the crash even before arriving at the crash the following summary statement from second mark. Another call for a “go- around” site. In fact, between July 6 and July 17, the the airline: was made about 1.5 seconds before the crash. @NTSB account posted 86 tweets, with The crash of flight 214 was the result of It was too late. At 11:28 a.m. Pacific Day- many of these including photos. Complete a unique and complex chain of inter- light Time, Flight 214 struck the seawall in videos of the media briefings conducted by related events. The record makes clear front of the runway, and subsequently the NTSB Chair Deborah Hersman were also that the flight crew members were thor- runway itself, causing the engines, landing tweeted to followers, and the account even oughly trained and well- equipped to gear, and tail section to separate and the replied to questions and comments from complete the approach to SFO with- remainder of the plane to cartwheel before Twitter users. This served the objective of out incident. Nevertheless, the accident coming to a stop on runway 28. The wreck- the NTSB to be open and transparent by flight crew did not ensure a minimum age soon burst into flames and an evacu- disseminating accurate information about safe airspeed. The investigation also ation began. To make the situation even the state of its investigation. reveals, however, a number of other more difficult, the emergency slides did not Asiana’s first tweet about the crash came contributing causes of the accident, in- deploy properly due to the severe force of roughly six hours after it occurred: “Thank cluding inconsistencies in the B777’s the impact—with two slides deploying in- you for your concern and support at this automation logic that led to the unex- side the aircraft cabin. Two passengers— time. We are currently investigating and pected disabling of airspeed protection, 16-year-olds—were found dead at the scene, will update with news as soon as possible.” a low airspeed alerting system that acti- and a third, also age 16, died several days By that time, social media had taken the vated too late to permit recovery of the later from her injuries after reportedly be- story in directions that the airline could flight, and air traffic control demands ing run over by an airport crash tender, her never have imagined. An initial Asiana that led to excessive pilot workload dur- body possibly having been obscured by fire- Airlines press release deemed cold and ing final approach. fighting foam. A total of 181 of the 307 indi- unsympathetic did not help matters. Asiana Airlines Accident Investigation viduals on board were reportedly injured. Submission, NTSB Accident File: DCA “We’re Not Talking About 13MA120 (Mar. 17, 2014). “Haven’t Felt This Way Since 9/11” a Few Knots” Boeing’s submission to the NTSB included News of the crash traveled quickly. Cru- As Hersman stated at an NTSB news con- a statement that “all airplane systems were cially, some news emanated from the air- ference, no distress calls had been issued functioning as expected prior to impact plane’s passengers. Samsung executive before Flight 214’s approach, and no “air- and did not contribute to the accident.” David Eun tweeted about the crash at craft anomalies” were detected. One pas- The NTSB convened in Washington, D.C. around 1 p.m.: “I just crash landed at SFO. senger said that the pilot gave no warning on June 24, 2014, to determine the probable Tail ripped off. Most everyone seems fine. of a possible crash landing in the seconds cause of the disaster, concluding: I’m ok. Surreal.” Later, Eun tweeted the before impact. During the approach, how- … the probable cause of this accident following: “Fire and rescue people all over ever, the plane was coming in too slow, was the flight crew’s mismanagement of the place. They’re evacuating the injured. well under the target airspeed of 137 knots: the airplane’s descent during the visual Haven’t felt this way since 9/11.” Another “We’re not talking about a few knots,” approach, the pilot flying’s unintended Twitter user, Eunice Bird Rah, told CNN Hersman said. deactivation of automatic airspeed con- shortly after the crash that her father was Months later, the flying pilot told the trol, the flight crew’s inadequate moni- on the plane and said that it was obvi- NTSB that he had been “very concerned” toring of airspeed, and the flight crew’s ously approaching the runway too low about landing without an airport navi- delayed execution of a go-round after and missed the end before skidding out gation system: the airport’s Instrument they became aware that the airplane was of control. Landing System was not functioning. How- below acceptable glidepath and airspeed Meanwhile, eyewitnesses began posting ever, as Hersman stated at a post-crash tolerances.

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