Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS

Accidents

Every operator of business or commercial aircraft should have an accident response plan in place for guidance in the event of an aircraft accident

Statements made and actions taken in the minutes, hours, and days following the accident by all of those involved will have far-reaching consequences in many areas

Develop that portion of your accident response plan now, before the accident happens

 

Controlling the release of information - damage containment effort

- rescue survivors

- secure and preserve accident scene and wreckage

- notify those who must be notified in a timely manner

- assure that any facts released are accurate

 

Excited utterancesUnder the Federal Rules of Evidence, an excited utterance is defined as a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event. An excited utterance is admissible under an exception to the hearsay rule.

The law bestows a special aura of truthfulness on excited utterances made by persons involved in the accident immediately after the accident.

Anything you say at this point may be used later by the FAA, a plaintiff, or prosecuting attorney with devastating effect as an admission against your interest (and your employer's) in an FAA enforcement action, civil litigation, and even criminal prosecutions which may arise out of the accident. 

 

 

Admissions against your interestAn out-of-court statement by a party that, when uttered, is against the party's pecuniary, proprietary, or penal interest and that is admissible under both an exclusion (admission by a party-opponent) and an exception (statement against interest) to the rule against hearsay. Such a statement is admissible even if the declarant is available, because an admission by a party-opponent is non-hearsay and, thus, does not require unavailability.

 

Although rare in the US, state or local prosecuting attorneys may even bring criminal charges such as murder or manslaughter against individual crew members or others involved in the accident, seeking imprisonment.

 

Your accident response plan should initially focus on precluding people under your influence or control, such as employees, from making any initial statements about what happened, then assuring that only verified facts, not speculation, are released.

Required notices and reports should be given no sooner and in no greater detail than required.

How to deal with the media, spoken in a patient response: "the accident is being investigated by the NTSB, who are the federal government's experts in aircraft accident investigation and who will determine the probable cause."

 

Notifications and reports required

Accident: DO NOT file a NASA report - as immunity benefits DO NOT apply if an aircraft accident was involved - if NASA receives a report of an aircraft accident, the report is NOT held in confidentiality but immediately forwarded to the NTSB, where it becomes a matter of public record that can then be used against you in FAA enforcement action and civil litigation

 

Your accident response plan should designate a specific person or office in the company to be notified first in the event of an accident and a person to whom all inquiries about that accident are to be directed - this enables the company to put its accident response plan into effect immediately

 

YOU ARE NOT REQUIRED TO REPORT ACCIDENTS OR INCIDENTS TO THE FAA 

NOR ARE YOU REQUIRED TO NOTIFY THE NTSB OF EVERY MISHAP INVOLVING AN AIRCRAFT

THE NTSB SHOULD BE NOTIFIED AND WRITTEN REPORTS FILED ONLY WHEN REQUIRED BY LAW

 

Valerie H. Saks, Plaintiff-appellant, v. Air France, a Corporation, et al., Defendants-appellees,

724 F.2d 1383 (9th Cir. 1984)

Air France v. Saks, 470 U.S. 392 (1985)

 

49 CFR PART 830

 

- operator of a civil aircraft (including public aircraft operated by a federal or state agency) is required by law to notify the nearest NTSB field office immediately and by the most expeditious means available

after an accident or certain types of incidents - the operator is required to file a written report with the NTSB on a form provided by the board within 10 days after an accident BUT ONLY if requested for one of the incidents listed - crewmembers are required to attach a statement setting forth the facts, conditions, and circumstances of the accident or incident at the same time if they are physically able - if incapacitated then as soon as they are able

 

Aircraft accident means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage. For purposes of this part, the definition of “aircraft accident” includes “unmanned aircraft accident,” as defined herein.

 

Serious injury means any injury which:

(1) Requires hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received;

(2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose);

(3) causes severe hemorrhages, nerve, muscle, or tendon damage;

(4) involves any internal organ; or

(5) involves second- or third-degree burns, or any burns affecting more than 5% of the body surface.

 

Substantial damage means damage or failure which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and which would normally require major repair or replacement of the affected component. Engine failure or damage limited to an engine if only one engine fails or is damaged, bent fairings or cowling, dented skin, small punctured holes in the skin or fabric, ground damage to rotor or propeller blades, and damage to landing gear, wheels, tires, flaps, engine accessories, brakes, or wingtips are not considered “substantial damage” for the purpose of this part.

 

Fatal injury means any injury which results in death within 30 days of the accident.

 

Incident means an occurrence other than an accident, associated with the operation of an aircraft, which affects or could affect the safety of operations.

 

§830.5   Immediate notification.

The operator of any civil aircraft, or any public aircraft not operated by the Armed Forces or an intelligence agency of the United States, or any foreign aircraft shall immediately, and by the most expeditious means available, notify the nearest National Transportation Safety Board (NTSB) office1 when:

1NTSB regional offices are located in the following cities: Anchorage, Alaska; Atlanta, Georgia; West Chicago, Illinois; Denver, Colorado; Arlington, Texas; Gardena (Los Angeles), California; Miami, Florida; Seattle, Washington; and Ashburn, Virginia. In addition, NTSB headquarters is located at 490 L'Enfant Plaza, SW., Washington, DC 20594. Contact information for these offices is available at http://www.ntsb.gov.

(a) An aircraft accident or any of the following listed serious incidents occur:

(1) Flight control system malfunction or failure;

(2) Inability of any required flight crewmember to perform normal flight duties as a result of injury or illness;

(3) Failure of any internal turbine engine component that results in the escape of debris other than out the exhaust path;

(4) In-flight fire;

(5) Aircraft collision in flight;

(6) Damage to property, other than the aircraft, estimated to exceed $25,000 for repair (including materials and labor) or fair market value in the event of total loss, whichever is less.

(7) For large multiengine aircraft (more than 12,500 pounds maximum certificated takeoff weight):

(i) In-flight failure of electrical systems which requires the sustained use of an emergency bus powered by a back-up source such as a battery, auxiliary power unit, or air-driven generator to retain flight control or essential instruments;

(ii) In-flight failure of hydraulic systems that results in sustained reliance on the sole remaining hydraulic or mechanical system for movement of flight control surfaces;

(iii) Sustained loss of the power or thrust produced by two or more engines; and

(iv) An evacuation of an aircraft in which an emergency egress system is utilized.

(8) Release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact;

(9) A complete loss of information, excluding flickering, from more than 50 percent of an aircraft's cockpit displays known as:

(i) Electronic Flight Instrument System (EFIS) displays;

(ii) Engine Indication and Crew Alerting System (EICAS) displays;

(iii) Electronic Centralized Aircraft Monitor (ECAM) displays; or

(iv) Other displays of this type, which generally include a primary flight display (PFD), primary navigation display (PND), and other integrated displays;

(10) Airborne Collision and Avoidance System (ACAS) resolution advisories issued either:

(i) When an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or

(ii) To an aircraft operating in class A airspace.

(11) Damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s);

(12) Any event in which an operator, when operating an airplane as an air carrier at a public-use airport on land:

(i) Lands or departs on a taxiway, incorrect runway, or other area not designed as a runway; or

(ii) Experiences a runway incursion that requires the operator or the crew of another aircraft or vehicle to take immediate corrective action to avoid a collision.

(b) An aircraft is overdue and is believed to have been involved in an accident.

Initial notification to NTSB should contain no more information than is required - see below!

§830.6   Information to be given in notification.

The notification required in §830.5 shall contain the following information, if available:

(a) Type, nationality, and registration marks of the aircraft;

(b) Name of owner, and operator of the aircraft;

(c) Name of the pilot-in-command;

(d) Date and time of the accident;

(e) Last point of departure and point of intended landing of the aircraft;

(f) Position of the aircraft with reference to some easily defined geographical point;

(g) Number of persons aboard, number killed, and number seriously injured;

(h) Nature of the accident, the weather and the extent of damage to the aircraft, so far as is known; and

(i) A description of any explosives, radioactive materials, or other dangerous articles carried.

 

 

§ 830.15Reports and statements to be filed.(a) Reports. The operator of a civil, public (as specified in § 830.5), or foreign aircraft shall file a report on Board Form 6120.1/2 (OMB No. 3147-0001) 2 within 10 days after an accident, or after 7 days if an overdue aircraft is still missing. A report on an incident for which immediate notification is required by § 830.5(a) shall be filed only as requested by an authorized representative of the Board.


Footnote(s):2 Forms are available from the Board field offices (see footnote 1), from Board headquarters in Washington, DC, and from the

Federal Aviation Administration Flight Standards District Offices.


(b) Crewmember statement. Each crewmember, if physically able at the time the report is submitted, shall attach a statement setting forth the facts, conditions, and circumstances relating to the accident or incident as they appear to him. If the crewmember is incapacitated, he shall submit the statement as soon as he is physically able.(c) Where to file the reports. The operator of an aircraft shall file any report with the field office of the Board nearest the accident or incident.

§91.3   Responsibility and authority of the pilot in command.

(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. 

(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency. 

(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.

§91.123   Compliance with ATC clearances and instructions.

(a) When an ATC clearance has been obtained, no pilot in command may deviate from that clearance unless an amended clearance is obtained, an emergency exists, or the deviation is in response to a traffic alert and collision avoidance system resolution advisory. However, except in Class A airspace, a pilot may cancel an IFR flight plan if the operation is being conducted in VFR weather conditions. When a pilot is uncertain of an ATC clearance, that pilot shall immediately request clarification from ATC.

(b) Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised. 

(c) Each pilot in command who, in an emergency, or in response to a traffic alert and collision avoidance system resolution advisory, deviates from an ATC clearance or instruction shall notify ATC of that deviation as soon as possible.

(d) Each pilot in command who (though not deviating from a rule of this subpart) is given priority by ATC in an emergency, shall submit a detailed report of that emergency within 48 hours to the manager of that ATC facility, if requested by ATC. 

(e) Unless otherwise authorized by ATC, no person operating an aircraft may operate that aircraft according to any clearance or instruction that has been issued to the pilot of another aircraft for radar air traffic control purposes.

Nearest NTSB field offices

 

Outside the US - notify the NTSB-equivalent officials of the country in which the accident occurred - required under international agreements as well as local law

ICAO Annex 13 - provides general framework for aircraft accident investigations worldwide

 

Flight crew who are members of a union should immediately notify their union of the accident - union personnel can be of tremendous assistance in diplomatically protecting crew members from the press and preventing uncontrolled release of rumors, speculation, potentially damaging admissions, and inaccurate statements of fact

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The operator's aircraft insurance policy must be consulted to determine the required time and procedure for reporting the accident to the insurer

 

Sample Accident Response Plans

- Corporate Aircraft Accident Response Plan - United States Aircraft Insurance Group (USAIG)

- Emergency Response Manual - Air Charter Safety Foundation (ACSF)

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NTSB additional tasks from Congress:

- coordinator between federal government and other organizations (like Red Cross)

- family counseling

- victim identification and forensic services

- communicating with foreign governments

- translation services 

Joint Family Federal Support Operations Center (JFSOC)

What happens after a crash - Geri Silveira - Flying Magazine May 2017

 

Case 39: Crosby v. Cox Aircraft Co. of Washington, 746 P.2d 1198 (Wash. 1987)

1. Define the following terms in preparation of reading Crosby v. Cox Aircraft Company of Washington: (a) intentional tort; (b) negligence; (c) strict liability; (d) absolute liability; (e) respondeat superior; (f) third party complaint; (g) amicus curiae.

2. What standard of liability is established by the RESTATEMENT (SECOND) OF TORTS § 520A (1977)? Does the court adopt this—explain.

3. Describe the doctrine of res ipsa loquitur. What does it mean, what are its elements, and who bears the burden of persuasion? Finally, why might it be “frequently used in aviation crash cases,” as the court suggests.

4. Explain the central concern expressed by the dissenting judge. Is this position persuasive? Explain.

5. After Crosby v. Cox Aircraft Company of Washington, is airplane travel an “abnormally dangerous activity” as a matter of law?

 

Case 40: Graham v. Teledyne-Continental Motors, 805 F.2d 1386 (9th Cir. 1986)

1. Describe the accident at the center of Graham v. Teledyne-Continental Motors and identify the most likely cause of the crash, according to the court’s understanding of the event.

2. What is an “executrix”?

3. Explain what authority the National Transportation Safety Board has under 49 C.F.R. § 831.9. How was that power was exercised in this case, according to the executrix?

4. According to the court, what is the primary purpose of NTSB accident investigations? What is it not?

5. The executrix asserted several property-based rights. How does the court decide each of the following claims: (a) Due Process violation related to contribution or indemnity cause of action; (b) deprivation of evidence; (c) alteration or destruction of vital evidence; and (d) inverse condemnation.

 

Case 41: Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249 (1972)

1. What is federal admiralty jurisdiction under 28 U.S.C. § 1333?

2. What is the “locality test” and identify the legal problems it has presented for courts?

3. Explain the concept of “a significant relationship to traditional maritime activity” for purposes of jurisdiction over an airplane accident.

4. State the holding of Executive Jet Aviation, Inc. v. City of Cleveland, Ohio.

5. What role, according to the court, has (and perhaps, should) Congress play in establishing admiralty jurisdiction for aviation accidents? 

 

Case 42: Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)

1. Create a chart modeled detailing which parties, events, and things were located in the United States and which were located in the United Kingdom. Do your results suggest where venue should lie? If so, where? And, why?

2. What is an administratrix? Who is she and what role did she serve in this litigation?

3. Why was this lawsuit filed in the United States according to the plaintiff?

4. Detail the analysis set out in Gulf Oil Corp. v. Gilbert with respect to forum.

5. What error did the Supreme Court in Piper Aircraft Co. v. Reyno find in the underlying opinion by the Court of Appeals for the Third Circuit?

 

Case 43: Air France v. Saks, 470 U.S. 392 (1985)

1. The facts of Air France v. Saks are not complicated, but they are striking to many students. What are they?

2. Identify where in the Warsaw Convention the word “accident” is defined. Is it synonymous with “occurrence”?

3. What definition of “accident” does the court announce in Air France v. Saks? How is it to be applied to different factual scenarios; for example, are torts committed by terrorists or fellow passengers encompassed by Article 17 of the Warsaw Convention. Why or why not?

4. According to the court, is the focus of Article 17 on the accident which causes the passenger’s injury or the accident that is the passenger’s injury. What is the difference?

5. Using the definition from Question 3, supra, did an accident occur in this case? Explain.

 

Case 44: Olympic Airways v. Husain, 540 U.S. 644 (2004)

1. Detail the procedural history of this case, focusing on how the lower courts ruled.

2. Explain the burden shifting procedure set out by the court under Article 17 of the Warsaw Convention.

3. Identify the several “link[s] in the chain” causing the respondent’s death, according to the majority opinion?

4. Justice Thomas suggests that inaction or failure to act can be an “unusual event or happening” under the Warsaw Convention? Give an example and discuss whether this is persuasive or not.

5. In a dissenting opinion, Justices Scalia and O’Connor criticize the majority in three main ways, below. Elaborate on each: a. Departure from international precedent. b. Wrongly assuming that the Warsaw Convention must provide relief whenever traditional tort law would do so. c. Failure to remand the issue of flight attendant misrepresentation about the airplane being fully occupied.

 

Case 45: Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991)

1. What is “lesion corporelle” and why is it significant under Article 17 of the Warsaw Convention?

2. What is the “narrow” issue presented in Eastern Airlines v. Floyd?

3. To what three sources of French civil law does the court turn to decide if “bodily injury” includes mental injuries in addition to bodily injuries? What does the court conclude about each source?

4. What two explanations are commonly offered for why the subject of mental injuries did not arise during the drafting of the Warsaw Convention? Did this represent a pro-carrier or pro-passenger perspective?

5. Explain the purpose of each of the following international agreements and what each provides with respect to the recovery of psychic injuries related to aviation accidents: (a) Hague Protocol; (b) Montreal Agreement of 1966; and (c) Guatemala Protocol of 1971.

 

Case 46: Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017)

1. Detail the factual allegations in Doe v. Etihad Airways, P.J.S.C. and identify the specific type of damages sought.

2. Summarize Etihad’s arguments as presented by the court and discuss how the court decided each issue.

3. The court examines Ehrlich v. American Airlines extensively. Discuss how the court applied this precedent to the facts of the case before it.

4. In what way does the court apply foreign law to the issue before it.

5. Explain what choice-of-law question arose in this case for damages purposes and how the court resolved it.

 

Case 47: Aziz v. Air India, Ltd., 658 F. Supp. 2d 1144 (C.D. Cal. 2009)

1. Air India operates under Part 129 of the Federal Aviation Regulations (“FARs”), according to the court. Briefly summarize this part of the FARs. See

https://www.gpo.gov/fdsys/pkg/CFR-2012-title14-vol3/pdf/CFR-2012-title14-vol3-

part129.pdf

2. Was the airline’s decision to stock (or not) its aircraft with AEDs something “external” to its passengers under the Montreal Convention, according to the court? Is this conclusion persuasive?

3. What is “ICAO”? Is the failure by Air India to heed the recommendations of ICAO an “event” or an “unusual or unexpected” happening under the Montreal Convention, according to the court? Explain.

4. The court seems to leave open the possibility that the plaintiffs could have defeated the airline’s motion for summary judgment. How?

5. What is the holding of the case?

 

Case 48: Watts v. American Airlines, Inc., 2007 WL 3019344 (S.D. Ind. 2007)

1. Detail the allegations of plaintiff’s complaint. How does it compare with Aziz v. Air India, Ltd.?

2. Did an “accident” occur here, according to the court?

3. Would the Montreal Convention apply if the event at issue took place on the Indianapolis-Chicago leg of the trip? Why or why not?

4. What defenses might be available to the defendant?

5. Given the court’s ruling, who “won,” what did they “win,” and what is the next step in the litigation process?

 

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Sarah Nilsson, J.D., Ph.D., MAS

 

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The information on this website is for EDUCATIONAL purposes only and DOES NOT constitute legal advice. 

While the author of this website is an attorney, she is not YOUR attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

 

 

 

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