New York Law Journal Online
Printed from: http://www.nylj.com
Steven R. Pounian and Justin T. Green
While the history of aviation is replete with stories of planes lost at sea, modern commercial aircraft with satellite GPS navigation, weather radar and redundant flight systems have a remarkable safety record on ocean crossings. An airline disaster at sea, particularly involving a plane flying at its cruise altitude, is now a highly unusual occurrence and presents unique challenges for investigators and potentially for litigants.
Air France Flight 447 took off from Rio de Janeiro at 7 p.m. on June 1, 2009, carrying 216 passengers and 12 crew members bound for Paris. The plane's planned flight route of about 5,000 nautical miles included a long segment across the Atlantic Ocean. Most of the ocean crossing was outside of ground radar coverage, and air traffic controllers relied on the pilots to radio position reports at various assigned waypoints. About four hours after takeoff, the pilots failed to make such a report and the controllers were unable to communicate with the plane. A massive search was initiated which eventually located the remains of some victims and several items of wreckage, including a large portion of the plane's vertical tail, floating in the Atlantic over a large area hundreds of miles from shore.
The search continues for the main wreckage, including the airplane's digital flight data and cockpit voice recorders, commonly called the "black boxes," which taped a history of key flight information and on-board communications. French and U.S. teams are using submarines loaded with sophisticated equipment to locate the wreckage and the black boxes on the ocean floor, which is about two miles deep in the area where the crash occurred. Searchers are racing against the clock because the locator devices in the black boxes will continue to "ping" for only about 30 days until their batteries expire. The manufacturer of those black boxes has said that absent unusual currents and temperatures, the ping can be picked up through water for at least 20,000 feet. 1
The black boxes are not the only available source of actual information from the Air France flight, however, because the Airbus A330 was equipped with an Aircraft Communications Addressing and Reporting System (ACARS), a digital data link that transmitted messages regarding the plane's performance to Air France ground operations stations via radio or satellite. About four hours into the flight, the plane's ACARS transmitted several reports of, among other things, a failure in the pilot system which senses the plane's airspeed, a disengaged autopilot, a failure in the Air Data Inertial Reference Unit and depressurization of the aircraft cabin.
The evidence so far, including the discovery of the vertical tail, the scattering of wreckage over many miles, the ACARS reports and the lack of any distress call, shows that the Airbus A330 broke apart in mid-air at or around its cruising altitude of 35,000 feet. The events that precipitated the plane's structural failure remain a mystery.
One scenario, suggested by the ACARS reports, is that ice formed a partial blockage in the pilot tube pressure sensors that measure the plane's airspeed. If this happened, the onboard flight computer could have indicated to the pilots that the aircraft was flying too slow, leading them to fly the plane too fast and placing excessive stress on the aircraft structure. Before the disaster, Air France was in the process of replacing the pilot tubes on its A330 fleet, but it had not yet replaced the tubes on the Flight 447 aircraft. Air France has now replaced the pilot tubes on all of its A330 aircraft with new model tubes reportedly less susceptible to icing.
An alternate theory is that the flight computer itself malfunctioned. In October 2008, another A330 operated by Qantas almost crashed after its flight computer initiated two nose down maneuvers because of an erroneous indication that the airplane was at a dangerously high angle of attack. The computer, "thinking" that the airplane was going to stall, pushed the nose of the airplane over to decrease the angle of attack. The airplane reportedly had the same flight computer system used on Flight 447. 2 The false indication was caused by a malfunction in the aircraft's Air Data Inertial Reference Unit, a component of the airplane's Air Data Inertial Reference System, which supplies all air data, airspeed, angle of attack and altitude as well as the aircraft's attitude to the cockpit displays. 3
In the Qantas incident, the pilots regained control of the aircraft, but many passengers on board sustained serious injuries. If a similar event happened to Flight 447, the aircraft's structural integrity may have been compromised.
The investigators are also considering whether the pilots flew the plane into an area of thunderstorms that precipitated the mid-air breakup. Thunderstorms bring turbulence with significant updrafts or downdrafts-pockets where the wind direction shifts to straight up or straight down, often at speeds in excess of 50 miles per hour. Experts are focusing on the possibility that the plane encountered winds of up to 100 miles per hour. 4
Aviation regulations require that commercial airliners such as the A330 be designed to withstand a great deal of turbulence, and pilots are instructed to avoid thunderstorm activity if possible because of the risk that severe turbulence can damage an aircraft. In addition, pilots are instructed to remain at or below an established airspeed when penetrating areas of significant turbulence to avoid excessive stress on the plane's structure. But if Flight 447 had a malfunction in its airspeed indication system that caused the plane to be flown above the plane's maximum penetration airspeed, the combinations of stresses involved may have exceeded the plane's capabilities.
The investigators are also considering whether a lightning strike could have triggered a massive system malfunction, but airplanes are frequently struck with lightning and are designed to withstand lightning strikes.
Finally, since the plane broke apart in mid-air and no distress call was issued, the possibility of terrorism cannot be entirely discounted until the investigation is completed. It is possible that at the end of the day the Air France investigators may be unable to determine the precise cause of the disaster.
The wreckage and the black boxes are key evidence in any legal proceedings arising out of the disaster. Inspection of the vertical tail section that has already been recovered may or may not uncover important clues. The prompt recovery from Jamaica Bay of the vertical tail that broke off an American Airbus A300, which crashed shortly after takeoff from Kennedy Airport in 2001, provided key evidence that the tail was overloaded by rudder inputs made by the plane's co-pilot. After TWA flight 800 crashed in the Atlantic Ocean off Long Island in 1996, the investigators were able to recover nearly the entire wreckage of the Boeing 747 from a depth of 120 feet. The wreckage was then reassembled in an airport hangar, which demonstrated that the disaster was caused not by any external act such as a terrorist bomb but by an explosion of the fumes inside the plane's fuel tank sparked by faulty wiring or a fuel pump.
After Korean Air Lines flight 7 was shot down by the Soviet military and crashed in the Sea of Japan, portions of the wreckage together with the black boxes were secretly recovered by the Soviet Union and withheld from the official international investigation. Nevertheless, the investigators concluded from the circumstantial evidence that the pilots made serious navigational errors over several hours by flying the plane toward and then over Soviet airspace. After the fall of the Soviet Union, the Russian government released information from the black boxes which confirmed the flight crew's numerous errors.
The potential legal claims against Air France and manufacturing defendants are subject to completely different legal standards.
The claims against Air France are governed by the Montreal Convention treaty, the successor treaty to the Warsaw Convention. In November 2003, the United States became the 30th nation to ratify the Montreal Convention, bringing the treaty into force. Ninety- one nations have now ratified the Montreal Convention to date, including France and Brazil.
The Montreal Convention dictates the jurisdictions where a death or injury claim can be brought against an airline. Significantly it added a "fifth jurisdiction" to the four available jurisdictions under the Warsaw Convention: the place of incorporation of the carrier, its headquarters, the place where the ticket was purchased, provided the carrier is doing business there, and the final destination stated on the passenger's ticket. 5
The fifth jurisdiction provides the option of suit in the place of the passenger's permanent residence as long as the airline operates flights, either on its own or through a code- sharing or similar agreement, in that jurisdiction. Accordingly, every passenger's family will have the option of suing Air France in France, because that is its place of incorporation and headquarters. Some families will also have the option of suing in Brazil or another nation as the place of destination or the place of ticketing. And families will also be able to sue in the country where their passenger maintained his or her permanent residence-as long as Air France operates in the country.
For example, the families of the U.S. resident passengers can sue Air France in the United States because the airline regularly flies to and from the U.S. Other passengers, however, would be barred from suit in the U.S. against the airline unless their ticket was purchased there or their flight ended there.
The Montreal Convention makes Air France strictly liable for proven damages for injury or death up to a limit of 100,000 Special Drawing Rights, currently about $154,000. The Montreal Convention overturns the harsh Warsaw Convention system (which required the passenger's representative to prove "willful misconduct" of the carrier to recover above the damage limit) and places the burden of proof on the airline to establish its lack of negligence to avoid paying damages above the "limitation." The airline is liable for unlimited proven damages unless it can prove that the death or injury was not due to the negligence or other wrongful act or omission of the airline.
Since the burden of proof lies with Air France, should the investigation fail to yield sufficient evidence regarding the cause of the disaster, plaintiffs could still recover all of their damages against the airline.
The Montreal Convention does not control claims against Airbus or any other product defendant. Such claims would be governed by ordinary tort law, which places the burden of proof of a product defect or negligence and causation on the shoulders of the plaintiff. Absent additional proof from the investigation, plaintiffs would be forced to establish a circumstantial evidence case based on the ACARS reports, the recovered debris and service history of the aircraft. The defendants could attack such a case by arguing that opinions regarding the cause of the crash are unreliable because of the missing evidence, 6 or claims that the missing evidence prevents them from mounting a defense.
The Air France disaster raises a new challenge to aviation safety because it occurred suddenly on a relatively new and well-equipped plane at cruise altitude with no distress call from the crew. At first glance, the disaster does not readily fit into the pattern of knowledge learned from prior accidents. And the loss of the plane at sea substantially increases the risk that key evidence of the cause will remain hidden from view.
Because of the Montreal treaty, the victims' families have a solid claim for recovery against Air France with no damage limit unless new evidence is found establishing that the airline is not negligent. Suit against the airline in the United States is barred in the vast majority of claims. There appears to be some circumstantial evidence to establish a product claim against the manufacturer, but the viability of such a claim must await the conclusion of the crash investigation.
1. http://www.cbc.ca/world/story/2009/ 06/10/air-france-sub-black-box-search375.html
2. http://www.timesonline.co.uk/tol/news/world/europe/article 6414805.ece
5. Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, ICAO Doc. 8740, reprinted in S. Treaty Doc. No. 106-45, 1999 WL33292734 (2000).
6. Cooper v. Toshiba Home Tech, Corp. , 76 F.Supp.2d 1269 (Sept. 23, 1999).