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Stevenson: Plane crash litigation may improve travel safety

July 31, 2013
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Indiana Lawyer Focus

Modern airliners are filled with technology that has made flying safer than ever. According to MIT statistics professor Arnold Barnett, in the last five years, the death rate for airline passengers in the United States has been one in 45 million flights. At that rate, a passenger could fly daily for an average of 123,000 years before being involved in a fatal crash. While technology such as GPS and auto-landing systems has minimized the chance for human error, especially in poor-visibility landing conditions, there is a drawback. Asiana Flight 214 is likely to become a prime example of how technology can actually cause aviation disasters instead of preventing them. Flight 214’s collision with the seawall just short of the runway at San Francisco International Airport demonstrates what can happen when technology does not work as intended.

stevenson Stevenson

On the day of Flight 214’s crash, the instrument landing system was out of service for runway 28 L at San Francisco. An ILS provides navigation guidance for airplanes which can automatically guide an aircraft to the proper touchdown zone on the runway. Due to the ILS being out of service, Flight 214 was cleared for a visual approach to land, which would require the pilots to use visual cues outside the cockpit to help safely guide the aircraft to the runway.

While all pilots should be able to manually fly the aircraft, Flight 214’s approach to landing was never stabilized. The aircraft began the approach high and fast and ended too low and much too slow, ultimately clipping the seawall short of the runway. The target airspeed for the approach was 137 knots. At 1,400 feet above the ground, Flight 214’s airspeed was 170 knots. At 500 feet above the ground it had slowed to 134 knots. At 200 feet above the ground it was traveling 118 knots, well below the approach speed. Just prior to clipping the seawall the aircraft stalled, which means it was going too slow to provide enough airflow over the wings to keep it in the air.

The obvious question is how did Flight 214 get so low and slow, especially in today’s world of advanced aviation technology. The flight data recorder stores information regarding many aspects of the Boeing 777’s flight, navigation, and engine parameters and settings prior to the crash. While the National Transportation Safety Board is still evaluating this data, it is apparent that the pilots were using an autopilot and auto-throttle setting during portions of the approach to land. Without an active ILS, the autopilot system could not have been used to automatically land the aircraft. However, the autopilot can still be used to automatically descend to a set altitude at a set rate. The auto-throttle system on the Boeing 777 is a complex system that adjusts engine settings and flight controls to maintain a set speed.

Flight 214’s auto-throttle setting was likely set at 137 knots during the approach. Depending on what autopilot mode is set, the auto-throttle is supposed to increase power as it approaches the set airspeed. Even if the auto-throttle is put into a hold by the pilot, it is designed to have a “wake-up” feature if it detects that the airspeed is too low.

During post-crash interviews, the pilots stated that they assumed the auto-throttles were maintaining speed. From this statement it is apparent that Flight 214’s pilots put too much trust in the auto-throttle technology. From the flight data recorder, the NTSB will be able to piece together exactly what inputs were made to the autopilot and auto-throttle.

Regardless of what the NTSB finds, the pilots had an obligation to monitor critical flight parameters, like altitude and airspeed, during a landing approach. It also appears that without the aid of the ILS, Flight 214’s pilots were not able to fly a stabilized visual approach. Again, over-reliance on auto-landing technology may be a factor in the pilots’ failure to fly a safe approach. Exactly why the auto-throttle did not increase engine thrust will be an issue addressed in detail by the NTSB and through the civil litigation process as the victims of Flight 214 bring their legal claims.

From a legal perspective, the passengers’ claims against Asiana will be governed by the body of law surrounding the Montreal Convention. The Montreal Convention is an international treaty, which controls air carrier liability for international flights. The Montreal Convention has a two-tiered approach to victim compensation. An airline is strictly liable for damages up to 100,000 special drawing rights. Special drawing rights are a measure of exchange for international currency. Currently 100,000 SDR equals approximately $150,000 U.S. dollars. A passenger may obtain a recovery greater than 100,000 SDR if the airline’s conduct was negligent. It is the airline’s burden to prove that it was not negligent or that some other entity caused the passenger’s injury.

The Montreal Convention also governs where a lawsuit may be filed. It gives the plaintiff several options, including the place of the flight’s contracted departure or destination, or the airline’s principal place of business. A plaintiff who has suffered injury or death also has the option of filing in a court where he or she has a principal and permanent residence. Because it is an international treaty, federal jurisdiction applies in the United States. The various options provided in the jurisdiction provision may lead to vastly different plaintiff recoveries, as passengers domiciled outside the United States may not be able to hold jurisdiction in the U.S. However, lawsuits brought directly against Boeing or other U.S. manufacturers would not be subject to the Montreal Convention, and if not dismissed for forum non conveniens, would provide a means for foreign citizens to bring claims in the United States.

Despite the tragedy of Flight 214, airline travel has never been safer. One of the reasons airline travel has become so safe is the comprehensive review of airline disasters and the attempt to learn how to prevent future catastrophes. Hopefully, the investigation and litigation process surrounding Flight 214 will not only lead to compensation for victims and their families, but also to safer air travel.•

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Chris Stevenson graduated from Purdue University’s flight program and began his professional career flying as a commercial pilot on Boeing 727s. He earned his J.D. at Indiana University Robert H. McKinney School of Law in 2003. As an attorney at Wilson Kehoe Winingham, Stevenson focuses on the firm’s aviation and product liability caseload. The opinions expressed are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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