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Aviation Attorney: An aviation attorney or aviation
lawyer is someone who by training and experience is
capable of effectively representing a party in
litigation arising from an aviation disaster or
aviation accident.
There is no certification or degree for the title of
aviation attorney (or aviation lawyer), and many
more attorneys claim the title than actually deserve
it. An aviation attorney or aviation lawyer is
someone who understands aviation — how airplanes and
helicopters work — and is able to investigate highly
technical issues relating to the design, manufacture
and assembly of airplanes and helicopters, the
relevant piloting and maintenance issues, airplane
and helicopter aerodynamics and a variety of other
issues relevant to the cause of an aviation
disaster. Many aviation attorneys are also airplane
or helicopter pilots, aerodynamic engineers or
aviation mechanics. For example, the aviation
attorneys at Kreindler & Kreindler LLP include
attorneys who are also pilots, engineers, mechanics
and trained aviation accident investigators.
There are a number of professional legal
organizations, including the American Association
for Justice (formerly the American Trial Lawyers
Association) and the American Bar Association that
have aviation law sections. Most aviation lawyers
will participate in these sections and will have had
leadership positions.
An aviation attorney must also know aviation law,
which as addressed below deals with a wide range of
state, federal and international laws and
regulations.
Finally, an aviation attorney or aviation lawyer
must be a trial lawyer, which means that he or she
is able to present the facts of the airplane or
helicopter accident to a Jury in a manner that
favors the victims case. The aviation attorney or
aviation lawyer must also be able to present the
applicable aviation law to the court, both at trial
and, if necessary on appeal.
Aviation attorneys are also alternatively referred
to in various articles or on the internet as airline
disaster lawyers, aviation plaintiff lawyers,
airplane crash lawyers, airplane accident lawyers,
plane crash lawyers, plane crash attorneys,
helicopter crash lawyers, helicopter accident
lawyers, and by an almost endless list of names that
attempt to describe the practice of a particular
aviation law firm. In order to determine whether a
particular "aviation lawyer" or "aviation law firm"
is legitimate, an aviation accident victim should
look at the qualifications of the supposed aviation
lawyer or aviation law firm. Among other things, an
aviation law firm will employ a number of qualified
aviation lawyers. A victim of an aviation accident
should look at the background and experience of the
aviation attorneys. An aviation law firm should have
sufficient resources to effectively prosecute an
action against large aviation defendants, and large
aviation defense law firms. An aviation accident
victim will want to look at the success rates of
various aviation plaintiff firms in similar cases.
Aviation Lawyer: See Aviation Attorney.
Aviation Law: "Aviation law" concerns flight, air
travel and associated legal issues. Aviation law is
comprised of both domestic U.S. law and
international law. In the United States, the Federal
Aviation Administration (FAA), governs applied
aspects of aviation flight. Internationally, the
International Civil Aviation Organization (ICAO)
provide general rules and mediates international
concerns to an extent regarding aviation law. The
ICAO is a specialized agency of the United Nations.
Aviation law includes the following:
- The Aviation and Transportation Security Act: was
enacted by Congress in the immediate aftermath of
the September 11, 2001 attacks. The Act led to the
development of the Transportation Security
Administration (TSA) within the Department of
Homeland Security.
- The Aviation Disaster Family Assistance Act of 1996
and the Foreign Air Carrier Family Support Act
places the airline, as well as other support
organizations, in a more collaborative relationship
with victim families. The Federal Family Assistance
Plan assigns responsibilities and describes the
airline and federal response to an aviation crash
involving a significant number of passenger
fatalities and/or injuries. Information concerning
these plans may be found on the National
Transportation Safety Board's website. See
www.NTSB.gov.
- The Chicago Convention established the International
Civil Aviation Organization (ICAO), a specialized
agency of the United Nations charged with
coordinating and regulating international air
travel. The Convention establishes rules of
airspace, aircraft registration and safety, and
details the rights of the signatories in relation to
international air travel.
- Choice of Law Rules determine what substantive law
will be applied to a case. Aviation lawyers will
consider each potential forum's choice of law rules
before deciding where to bring an aviation case.
- The Death on the High Seas Act is a federal law that
applies in deaths that occur on the high seas. The
Death on the High Seas Act is often implicated in
international aviation accidents such as the TWA 800
disaster. The aviation lawyers at Kreindler &
Kreindler LLP have won important legal decisions
regarding the Death on the High Seas Act.
- The Federal Aviation Act: created the Federal
Aviation Administration, provides for the regulation
and promotion of civil aviation in such manner as to
best foster its development and safety, and provides
for the safe and efficient use of the airspace by
both civil and military aircraft.
- The General Aviation Revitalization Act ("GARA")
provides immunity to aviation manufacturers for
airplanes and helicopters that are over 18 years
old. GARA immunity is for general aviation aircraft
only under the following conditions: 1. A general
aviation aircraft is any aircraft for which a type
or an airworthiness certificate has been issued by
the FAA; 2. At the time the airworthiness
certificate was originally issued, the aircraft had
to have a maximum seating capacity of fewer than 20
passengers. 3. At the time of the accident the
aircraft cannot be engaged in "scheduled" passenger
carrying operations. Because GARA only applies to
aircraft or components over 18 years old, the
replacement of an aircraft's component part can
re-start the clock. GARA contains four exceptions to
immunity: 1. the knowing misrepresentation or
concealment exception; 2. The medical passenger
exception; 3. It does not apply to the claims of
persons not on board the subject aircraft, and 4.
The warranty exception – it does not do away with
contractual obligations.
- Government Contractor Defense: "[S]tripped to its
essentials," the government contractor defense is to
claim that "[t]he Government made me do it." In re
Joint Eastern and Southern District New York
Asbestos Lit., 897 F.2d 626, 632 (2d Cir. 1990). The
government contractor defense confers immunity to
private manufacturers of products produced for the
government, including airplanes, helicopters and
other products. The government contractor defense
has important exceptions and government contractors
may be held liable to victims of airplane and
helicopter accidents under various situations. The
aviation lawyers at Kreindler & Kreindler LLP have
successfully presented litigation arising from
airplane and helicopter crashes involving products
designed for the government.
- Jurisdiction and Venue Laws determine where a
litigation may be brought. Aviation attorneys must
consider the connection of the aviation accident to
a particular forum, but also must examine the ties
that aviation defendants have to a particular
jurisdiction.
- The Montreal Convention is a treaty adopted by a
diplomatic meeting of ICAO member states in 1999 and
amended provisions of the Warsaw Convention's regime
concerning compensation for the victims of air
disasters. Under the Montreal Convention, air
carriers are strictly liable for proven damages up
to 100,000 Special Drawing Rights (SDRs), a mix of
currency values established by the International
Monetary Fund (IMF) (approximately $149,000.) For
damages above 100,000 SDRs, the airline must show
the accident that caused injury or death was not due
to their negligence or was attributable to the
negligence of a third party. The Montreal Convention
also amended the jurisdictional provisions of the
Warsaw Convention and now allows the victim or their
families to sue foreign carriers where they maintain
their principal residence, and requires all
international air carriers to carry liability
insurance.
- Multi-District Litigation Rules determine where many
complex litigations, including aviation cases, will
be heard. The Judicial Panel on Multi-District
Litigation has the authority to transfer civil
actions, involving one or more questions of common
fact are pending in different districts, to any
district for coordinated or consolidated pretrial
proceedings.
- Negligence Laws are generally established by state
law. A typical formula for evaluating negligence
requires that a plaintiff prove the following four
factors by a "preponderance of the evidence": 1. The
defendant owed a duty to the plaintiff (or a duty to
the general public, including the plaintiff); 2. The
defendant violated that duty; 3. As a result of the
defendant's violation of that duty, the plaintiff
suffered injury; and 4. The injury was a reasonably
foreseeable consequence of the defendant's action or
inaction. In aviation cases, pilot negligence and
aviation mechanic negligence are often the basis of
claims that an aviation lawyer will bring against
aviation defendants.
- Products Liability Laws govern the liability of
manufacturers, wholesalers, distributors, and
vendors for damages caused by dangerous or defective
products. The purpose of products liability laws is
to protect consumers from dangerous products, while
holding manufacturers, distributors, and retailers
responsible for putting into the marketplace
products that they knew or should have known were
dangerous or defective. Products liability law is
almost always state law, and aviation lawyers must
understand each potentially applicable products
liability law in order to properly represent victims
of aviation accidents.
- Survival Actions: Federal or state law that provides
a right of action for the recovery of damages for
injury to a fatally injured person that is brought
by his or her personal representative. A survival
action depends on the existence of a cause of action
that the decedent would have had if he or she had
survived.. In contrast, a wrongful death action (see
below) looks to the losses of the decedent's
survivors.
- The Warsaw Convention: is an international
convention which regulates liability for
international carriage of persons, luggage or goods
performed by aircraft. The Warsaw Convention has
been modified, most significantly by the Montreal
Agreement, which among other things raised airlines'
limit of liability to $75,000. The Warsaw Convention
has been substantially superceded by the
Montreal
Convention.
- Wrongful Death Law: Federal or state law that
provides a right of action to the survivors of a
person killed because of the negligence of a
defendant or where the defendant is otherwise liable
for the death. See, e.g., Death on the High Seas
Act.
The Federal Aviation Administration is the federal
agency responsible for aviation safety in the United
States. The FAA provides air traffic control, pilot
and aviation mechanic licensing and oversight,
airport safety and a variety of other services
related to aviation and aviation safety. The FAA
will assist the NTSB in its investigations of
airplane or helicopter crashes. The FAA will also
investigation incidents that may potentially impact
on aviation safety.
The FAA has an important oversight responsibility
for the design and certification of aircraft,
including all airplanes and helicopters. Before
introducing a new airplane or helicopter, an
aviation manufacturer must obtain certification by
FAA that the aircraft meets safety standards. In
order to do so, the aviation manufacturers must
supply FAA with detailed analyses and produce a
prototype of the aircraft. The FAA, however,
delegates much of its responsibilities to approved
individuals employed by aircraft manufacturers.
Although paid by the manufacturers, these designees
act as surrogates for FAA in examining aircraft
designs production quality, and airworthiness. FAA
is responsible for overseeing the designees' work
and determining whether the designs meet FAA's
requirements for safety. Aviation lawyers must
examine the testing and research that went into the
original certification of an airplane or helicopter
to determine whether it was properly certified
because aviation defendants will argue to the court
in aviation cases that the certification of the
airplane or helicopter meant that it was safe.
National Transportation Safety Board is an
independent Federal agency charged by Congress with
investigating every civil aviation accident in the
United States and significant accidents in the other
modes of transportation — railroad, highway, marine
and pipeline — and issuing safety recommendations
aimed at preventing future accidents. The Safety
Board determines the probable cause of all U.S.
civil aviation accidents (including airline
disasters, airplane crashes, helicopter crashes) and
certain public-use aircraft accidents; selected
highway accidents; railroad accidents involving
passenger trains or any train accident that results
in at least one fatality or major property damage;
major marine accidents and any marine accident
involving a public and a nonpublic vessel; pipeline
accidents involving a fatality or substantial
property damage; releases of hazardous materials in
all forms of transportation; and selected
transportation accidents that involve problems of a
recurring nature. The NTSB's probable cause
determinations are not admissible into evidence in
aviation litigation. Accordingly, an aviation law
firm or aviation lawyer must be able to conduct
independent investigation and have aviation experts
provide opinions regarding the cause of the aviation
accident at issue.
Notice of Claim Requirements are time limits that
apply to certain claims arising from aviation
accidents. Very often, where a governmental entity
is a potential defendant, an aviation victim will
need to file a notice of claim in order to preserve
a potential right of action. For example, if the
government air traffic controllers are responsible
for an airplane or helicopter crash, an aviation
attorney will file a claim with the government.
Failure to file such a claim may result in the loss
of an aviation victim's right of action.
Statute of Limitations limit the time in which to
bring an action. In aviation cases, the statute of
limitation is usually the applicable state or
federal wrongful death or personal injury statute of
limitation. Statute of limitations may be tolled
under certain circumstances. For example, where a
minor is injured in an aviation accident, the
statute of limitations may be tolled until the minor
becomes an adult. An aviation lawyer must be
familiar with all of the potentially applicable
statutes of limitations and the choice of law rules
that will determine which statute may apply to the
aviation litigation.
Statute of Repose differs from the statute of
limitations in that it cuts off the potential
products liability of an aviation manufacturer (or
other product manufacturer) after a given time
following the products manufacture and sale. The
General Aviation Revitalization Act establishes a
statute of repose in certain aviation crash cases.
(See the brief explanation of the general Aviation
Revitalization Act) above.
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