Tompkins Publishes Authoritative Book on Impact of United States Jurisprudence on Air Carrier Liability Involving International Air Transportation

June 2010 Aviation

Tompkins publishes authoritative book on impact of United States jurisprudence on air carrier liability involving international air transportation

George N. Tompkins Jr. (Of Counsel-New York) has authored “Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States, From Warsaw 1929 to Montreal 1999.” The book, which is part of Kluwer Law International’s Aviation and Policy Series, was released in April 2010. As a leading authority with worldwide recognition on the interpretation and application of international private air law agreements – and himself among the drafters of the 1999 Montreal Convention (MC99) – George lays out his vast personal experience in handling cases and controversies in United States courts involving the application of the liability rules of the Warsaw Convention and now MC99. He explains the required particulars for establishing the liability of the air carrier in detail under a wide variety of circumstances. George provides a thorough summary and critique of the interpretation and application of the 70-year body of Warsaw Convention jurisprudence and the basis for the development of a body of MC99 jurisprudence.

The book is an incomparable practical guide that may be helpful to anyone involved in the practice or study of international private air law, including lawyers, airline in-house counsel, international aviation organizations, aviation liability insurers and reinsurers, aviation insurance brokers, aviation-related departments of national governments, judges, law clerks, students and teachers.

This article does not constitute legal advice. Before implementing a policy seeking to comply with all applicable law, employers are advised to consult with legal counsel. Contact us at [email protected]. © 2010 Wilson Elser Moskowitz Edelman & Dicker LLP. All Rights Reserved.

June 2010 Aviation

Case updates

New York/New Jersey/Pennsylvania - In re Air Crash Over the Hudson River, New York, NY on August 8, 2009; MDL No. 2152. Nearly 20 lawsuits have now been filed in the State of New Jersey and the Commonwealth of Pennsylvania. Notices of Claim were also filed in New York. The actions arise from the midair collision between a fixed-wing private aircraft and a tourist helicopter. Nine fatalities resulted from the incident. Wilson Elser filed motions to dismiss the two complaints brought against its client in the Commonwealth of Pennsylvania.

Gary A. Gardner (Partner-New York) and Jonathan Dryer (Partner-Philadelphia) obtained a pre-answer dismissal in the Hudson River case from the Court of Common Pleas, Philadelphia County, Pennsylvania. Moreover, following receipt of Wilson Elser’s moving papers in the companion federal district court action, counsel for the groups of plaintiffs voluntarily dismissed all claims without prejudice.

Counsel for a group of plaintiffs in the Eastern District of Pennsylvania subsequently moved the Multidistrict Litigation Panel to transfer all pending cases pursuant to USC §1407 to the Eastern District of Pennsylvania for all pretrial litigation purposes. Numerous parties opposed the move, including counsel for the Italian tourists onboard the helicopter, the U.S. Department of Justice, and Wilson Elser, prior to dismissal of its client.

Although opposition to the transfer was grounded in various arguments, the primary issues addressed by the panel were (1) whether transfer is appropriate under USC §1404(a), and (2) whether, if the matters are transferred pursuant to USC §1407, the District of New Jersey is the appropriate forum. Oral argument was held before the Multidistrict Litigation Panel on May 27, 2010, in the Middle District of Illinois, Chicago.

A. Ernest Tonorezos (Associate-New York) appeared for the MDL hearing in order to preserve all interests and keep Wilson Elser’s client from litigating in Pennsylvania. The MDL panel issued a quick opinion and followed Wilson Elser’s line of reasoning in holding its decision in abeyance. The panel agreed that USC §1404(a) was the more appropriate statute for transfer of the cases and provided the Eastern District of Pennsylvania with 60 additional days to rule on the pending motions in that court.

Western District, New York - In re: Air crash near Clarence Center, New York, on February 12, 2009; MDL- 2085. Parties in this matter have battled over whether the cockpit voice recording of Continental Connection Flight 3407 must be turned over to families seeking damages in a suit stemming from a commuter crash. The plaintiffs argued that, without the unedited recordings, they will not receive a fair trial because “the transcripts do not provide sufficient information to provide a full understanding of the egregious behavior of Flight 3407’s flight crew.”

Colgan Air Inc. and parent company Pinnacle Airlines Corp. argued that the plaintiffs failed to show that the written transcript of the last moments of the flight was insufficient. The transcript was drafted by consensus of a group that included representatives of the defendants, but not the plaintiffs. The plaintiffs said the group’s conclusions may not be accurate and an independent expert may determine that a word or noise in the recording is different from what the group transcribed. In addition, the plaintiffs argued, the transcript contained significant gaps and edits that did not adequately portray the atmosphere in the cockpit. Colgan and Pinnacle said the plaintiffs failed to show that the transcript was insufficient to provide insight into the crew’s state of mind and the decedents’ preimpact terror, as all cockpit voice recordings lack tone of voice, pitch and inflection.

An official ruling has not yet been entered by Judge William M. Skretny.

June 2010 Aviation

Select recent national decisions impacting aviation law

New York - U.S. Magistrate Judge Henry Pitman has refused to allow Cirrus Design Corp. to reference U.S. National Transportation Safety Board (NTSB) findings and conclusions relating to the crash that killed New York Yankees pitcher Cory Lidle.

Lidle and his flight instructor were killed in October 2006 when their Cirrus aircraft flew northbound up the East River in a corridor of uncontrolled airspace. The aircraft was unable to complete the turn and crashed into an apartment building on East 72nd Street in Manhattan. The plane did not have a flight data recorder or cockpit voice recorder, and there were no radio transmissions from the pilot right before the crash.

Lidle’s family filed suit, arguing that certain deformations in parts of the aircraft’s control system caused the controls to jam. Cirrus countered that pilot error caused the accident. The defense moved for summary judgment and included in its briefs and submissions, references to NTSB findings. At the request of Lidle’s family, the Magistrate struck Cirrus’ references to NTSB findings that the company made in support of its motion for summary judgment.

Magistrate Pitman said the NTSB produces several different types of reports in the course of its investigations. However, 49 U.S.C. § 1154(b) provides that no part of an NTSB report “related to accident or investigation may be admitted into evidence.” The factual report NTSB investigators developed can be used in civil damages proceedings, but the agency’s overall conclusions cannot, Judge Pitman clarified. Lidle v. Cirrus Design Corp., No. 08 Civ. 1253 (S.D.N.Y. Apr. 22, 2010).

Florida - U.S. District Judge Alan S. Gold denied Teledyne Continental Motors Inc.’s summary judgment motion under the General Aviation Revitalization Act (GARA) as foreign law applied to the claims.

The lawsuit was filed following a June 2006 air crash near Peten, Guatemala. The Cessna aircraft took off for Peten from Guatemala City. The aircraft had two people onboard and was scheduled to return with three more, two of whom had been seriously injured in a traffic accident and would be receiving medical care in the city. The Cessna experienced engine failure on the return trip, killing all five people onboard. The plaintiffs sought damages from Teledyne for negligence and strict liability.

Judge Gold rejected the defense’s motion, noting that Teledyne relied on several unsworn documents that were not based on the witnesses’ personal knowledge in attempting to establish the essential elements of its GARA defense. Judge Gold further noted that even if Teledyne presented evidence to support its GARA claims, the statute would not apply to the plaintiffs’ tort claims because they were governed by foreign law. “Guatemalan law governs ‘all substantive issues’ in this tort action … and statutes of repose are considered ‘substantive’ for choice-of-law purposes pursuant to Florida law.” Castillo v. Cessna Aircraft Company, Teledyne Technologies Company, and Teledyne Continental Motors, Inc., No. 08-21850, (S.D. Fl. April 26, 2010).

Alabama - U.S. District Judge Ira DeMent of the Middle District of Alabama transferred a plaintiff’s suit to the U.S. District Court for the Middle District of Pennsylvania following dismissal of one defendant, because defendant Lycoming Engines designed, manufactured and tested the engine at issue in the Commonwealth of Pennsylvania.

The plaintiff, an Ohio resident, was injured when the Piper/PA-32R-301T airplane he was flying crashed near Tazewell, TN, in June 2005. Claiming the accident was caused by a defective engine, the plaintiff sued several companies, including Lycoming and Alabama-based turbocharger manufacturer Kelly Aerospace Inc.

Following the dismissal of Kelly Aerospace from the suit, the plaintiff sought transfer to Pennsylvania (personal jurisdiction over Kelly in the commonwealth was no longer an issue). He argued that the Middle District of Pennsylvania would be a more convenient forum for the parties and that transfer was in the interest of justice. Lycoming countered that the transfer request was untimely, would delay the litigation, and lead to additional costs.

Judge DeMent agreed with the plaintiff in that a substantial number of witnesses lived in Pennsylvania and neither remaining party in the suit was an Alabama resident. The judge also noted the significance of the Middle District of Pennsylvania since it “is now the plaintiffs’ choice of forum and that deference should be given to that choice.” Pease et al. v. Kelly Aerospace Inc., No. 2:07-CV-0340, (M.D. Ala. Apr. 19, 2010).

California - The California Court of Appeal recently held that a 1975 helicopter maintenance manual could be admitted into evidence, as it was not deemed to be “part” of the aircraft as per the General Aviation Revitalization Act (GARA), 49 U.S.C. § 40101.

The plaintiff alleged negligence on the part of the helicopter manufacturer and originally brought the suit after she was injured in a 2005 crash. The plaintiff claimed that the maintenance manual contained improper instructions as to balancing the helicopter’s tail rotor blades. Bell Helicopter Textron, Inc. (Bell) manufactured the aircraft.

The trial court initially granted Bell’s motion in limine to exclude this evidence, finding that the maintenance manual was “part” of the helicopter and therefore within the purview of GARA. GARA prescribes an 18-year limitation period with respect to claims that place fault on “components, systems, subassemblies, and other parts of such aircraft.” 49 U.S.C. § 40101(3)(3).

The Court of Appeal however, found that the maintenance manual was not part of the aircraft for purposes of the GARA statute. The court examined the legislative intent and scrutinized the language of the statute. In so doing, the court reasoned that a “part” of an aircraft, pursuant to GARA, would be one that is initially delivered with the aircraft. The defense attempted to analogize findings of flight manuals to be within the scope of GARA, to the maintenance manual in question. However, there is a federal statutory mandate that requires a flight manual to be furnished with every helicopter sold. A maintenance manual, admittedly, does not carry with it such a requirement. As per this line of reasoning, the court determined that a maintenance manual is outside the fetters of GARA and may be admitted into evidence. Rogers v. Bell Helicopter Textron, Inc., No. 06AS02842 (Cal. Ct. App. 2010).

Stephen Nelson (Partner- San Francisco) represented the helicopter owners, the certified flight instructor, the mechanic, and the fixed based operator that rented the plaintiff the helicopter. Wilson Elser prevailed on a motion for summary judgment based upon the owner/lessor not-in-possession defense under 49 USC § 44112.

June 2010 Aviation

New filings and recent incidents

Injured Army pilots sue DynCorp for $10 million - A personal injury lawsuit against DynCorp was filed in early June 2010 regarding a military helicopter crash in Iraq in 2008 that resulted in serious injuries to two former U.S. Army pilots. According to the complaint, the helicopter’s main rotor drive shaft failed moments preceding the crash. The two pilots sustained severe bodily and emotional injuries, incurring substantial medical bills.

Virginia-based DynCorp, at the time, was charged with maintaining the helicopter in an airworthy condition. It is alleged, however, that DynCorp was negligent in doing so.

Investigation of Air India crash continues as National Aviation Company of India experiences labor unrest - An Air India Boeing 737-800 flight from Dubai to Mangalore crashed on May 22, 2010, at the Mangalore International Airport. Despite clear visibility, the pilot overshot the runway and careened over the hilltop upon which the Mangalore airport is situated. The body of the aircraft was completely dismembered, partially splitting in two. Of the 160 passengers and six crew members, eight survived the deadly crash. T he fatality count is the highest India has experienced in the past 14 years.

The Mangalore airport’s runway had been criticized previously, as the safety area that pads the end of the runway only measures at 90 meters. This deviates from the normal 300-meter area that is typical at other airports around the world. Unable to stop within the 90-meter threshold, the Air India flight careened off the end of the runway. Although both the Directorate General of Civil Aviation (DGCA) and the Civil Aviation Ministry have ordered two separate investigations, the general public has been quick to point a finger at pilot error. However, the two pilots of the flight had amassed 85 landings at the Mangalore hilltop in previous flights.

The Civil Aviation Ministry has come under fire as a result of the magnitude of the disaster and the sluggish pace of the investigations thus far. Subject to harsh derision, Civil Aviation Minister Praful Patel has offered his resignation in hopes of calming the critical storm the ministry has had to weather. This has proved ineffective. A team of air safety experts has been established in the aftermath of the crash in order to reassess the current Indian aviation safety regulations and suggest any reform deemed necessary.

Aside from the sociopolitical consequences the crash has brought to bear, National Aviation Company of India, LTD (NACIL), the conglomerate under which Air India falls, has experienced flash strikes from two of its labor unions in the week immediately following the Mangalore crash. Although the strikes dissipated after an Indian court ruled that they were illegal, 138 flights were canceled in the interim and the threat of future strikes has been looming on the horizon.

Massachusetts helicopter crash kills federal aviation inspector - Authorities are investigating the cause of a helicopter crash that occurred on May 26, 2010, outside of Boston, killing a federal aviation inspector and injuring his student. The student told authorities that they were practicing a maneuver that simulates an engine stall on the Schweizer 269C, only to have the engine not restart after it was cut. They attempted to land the helicopter in an open field, but instead crashed into the adjacent woods.

Plane crash carrying Polish President is likely due to pilot error and oversight - Preliminary findings of an ongoing investigation into the crash that took the life of Polish President Lech Kaczynski and 95 others, including several top Polish officials, are strongly demonstrative of pilot error.

The joint Polish and Russian probe has determined that unauthorized people were in the cockpit and several passengers were chatting on their cell phones, which can interfere with navigation equipment, during flight time. The Tupelov Tu-154 crashed April 10, 2010, outside the Russian city of Smolensk during its final descent.

As to pilot error, investigators have found that the pilots aboard the flight ignored repeated warnings from air traffic control regarding the visibility of the Smolensk airfield. Further, air traffic control cautioned the pilots that their descent speed was far above what was deemed necessary for a safe landing and ordered them to pull up and fly to either Minsk or Moscow. The pilots of the ill-fated flight did not heed this advice.

Investigators speculate that the Polish political cohort onboard may have pressured the pilots and crew to land the plane in order to attend an important engagement in Russia. However, this theory has not been substantiated.

Although the precise cause of the crash has not yet been uncovered, initial findings of the investigation have quelled accusations of terrorism coming from a grieving Poland. Both Russia and Poland have decidedly maintained that the investigation into the crash be conducted in a manner that is transparent, so the Polish people will have a thorough resolution to this tragedy.

June 2010 Aviation

Aviation news

Wilson Elser - Stephen Nelson (Partner- San Francisco) was recently voted Director-Elect of the Aviation Insurance Association’s (AIA) Attorney Division. Mr. Nelson will become active director during next year’s AIA meeting. He will also serve on the advisory board of the new AIA alternative dispute resolution program.

NTSB determines turbine fatigue as the cause of 2008 California helicopter crash - On May 10, 2010, the National Transportation Safety Board (NTSB) issued a probable cause report detailing the cause of an air taxi helicopter accident occurring in Avalon, CA. The May 24, 2008, accident resulted in three deaths, including that of the pilot, with the three remaining passengers suffering serious injuries. The NTSB cited turbine fatigue as the root of the fatal crash. As per the probable cause report, the Aerospatiale AS-350-D helicopter was hovering above the tarmac at approximately 200-400 feet, when several witnesses reported hearing a loud “pop,” and then flames engulfing the rear end of the helicopter. The helicopter subsequently crashed into the terrain below. A surviving passenger recalled the pilot informing those on board that he was going to autorotate after the loud pop had occurred. Autorotation is normally warranted when an aircraft loses engine power. The NTSB’s inspection of the turbine engine uncovered fatigue fractures to two power turbine blades across the airfoil, with the other two turbine blades suffering ancillary damage. Although the platinum pins that held the blades to the power turbine wheel were intact, the casting pins were cracked in a way that was deemed to be consistent with fatigue. An analysis of both the cracked pins and the fractured blades did not yield any evidence that the microstructure of the airfoil suffered any sort of temperature abnormality that would result in the damage that was manifest on the blades and platinum pins. The maintenance records of the helicopter determined that the engine had properly complied with inspection requirements, service bulletins and airworthiness directives. The maintenance records germane only to the turbine rotor and blades similarly attested to a prior history of satisfactory compliance with the manufacturer’s requirements and other safety mandates. New and advanced GPS satellite transmits first signals - The U.S. Air Force recently launched a highly advanced GPS satellite, the GPS IIF-1, into orbit from Cape Canaveral, FL. The GPS IIF-1 satellite system promises to transmit signals that are more powerful and precise than the current GPS satellite constellation that is used by more than 1 billion people worldwide. The first in-orbit signals received by the Air Force indicate that the GPS IIF-1 system is functioning normally and is in position to begin orbital maneuvers and necessary testing. The GPS IIF-1, designed by Boeing’s Space and Intelligence Division, touts several attractive features for governmental usage, and for civilian and commercial travel as well. The II-F boasts a jam-resistant military signal, increased signal strength in assisting commercial aviation and search-and-rescue operations, and overall enhanced accuracy for the everyday GPS patron. Before the GPS IIF-1 becomes universally functional, it must undergo a thorough and lengthy regimen of testing. In the meantime, Boeing continues to develop a fleet of IIF satellites, to accompany the IIF-1, that will be launched in the coming years. United and Continental airlines tell U.S. Senators: Merger is good for consumers and employees - The top CEOs of both United and Continental met with several Senators in Washington, D.C. last week to discuss the proposed merger of the two airlines. The top executives from both companies firmly maintained that the deal would be beneficial to the public at large. A United official held steadfast that the airline would commit to increasing profitability of the historically financially unstable airline by not raising fares, but by promoting efficiency. An executive from Continental Airlines – which has taken pride in servicing smaller markets, assured that the smaller communities will not be bereft of service in the aftermath of the merger. If the merger is approved, Continental would be reorganized under the United name. Continental would bring its fleet of more than 700 airplanes under the United umbrella, presenting opportunities for further expansion in the overseas travel market. Statistics regarding the 158,000 full-time jobs that have been shed within the last 10 years in the airline industry spawned the most difficult questions from the Senate subcommittee. Both executives from United and Continental were in tandem in maintaining that the transition will not yield many job cuts on the “front line.” However, administrative personnel in Continental’s Houston headquarters will likely find themselves redundant in the coming months if the merger is approved, as the headquarters of United will remain in Chicago. The Senate subcommittee merely functions in a fact-finder role in the merger approval process; the Department of Justice must ultimately green-light the merger. The DOJ is currently examining the competitive effects the merger would have upon air travel. If approved, the proposed transaction would position United as the largest airline carrier in the world, with a ubiquitous presence in all major U.S. cities.

June 2010 Aviation

Verdicts/Settlements

Pennsylvania - An $89 million total verdict was decided against Avco Corporation. Of this total, $25 million was awarded in compensatory damages, and $64 million in punitive damages was awarded in a separate jury deliberation. The verdict stemmed from a plane crash caused by a defective carburetor that killed three people and severely injured a fourth. The court deemed Lycoming Engines, the carburetor manufacturer, negligent in its design, thus justifying the imposition of punitive damages.

Florida - A $2.5 million settlement was reached in March 2010 following an Air Tahoma cargo plane crash that claimed all three lives onboard in 2009. Lead pilot Urs Anderegg declared the aircraft safe for take-off after completing a route systems check; Anderegg failed to notice two vital cables had been reversed. The plane crashed shortly after take-off. The co-pilot’s widow sued Air Tahoma for failing to execute proper maintenance and falsifying records to cover up its shortcomings. The NTSB confirmed that Air Tahoma did not have the aircraft examined by a special inspector, pursuant to aviation regulations. Further, the FAA published a report shortly after the crash criticizing Air Tahoma’s maintenance procedures.