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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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