A view from the cockpit: everything you need to know about air accident litigation

If you want to grasp the essence of air accident litigation in ten minutes, then read on. This is a specialist area; fatal air accidents are statistically rare, but generally devastating when they do occur. Having been involved in aviation litigation relating to accidents on all seven continents (even Antarctica, a National Geographic chartered DC-6 crash in 1993) over the past 31 years, certain themes become simpler to spot. However, it is still a specialist practice area with many traps for the unwary. As a silver-haired United Airlines Captain once said, “Good judgment comes from experience, and experience comes from bad judgment.”

If you were expecting an erudite recitation of international air law, you are reading the wrong article. Simply go to the four weighty volumes of Shawcross and Beaumont on Air Law, where 500 hours of research will give you an idea of the basics. This article is a ten-minute read that touches on nine areas that you should be aware of – in the unlikely event that someone you know, or a client, is involved in an air accident. It is family/client centric in its focus as that has been my specialty for the past 17 years, bolstered by the prior 14 years representing aviation insurers on behalf of airline and aviation manufacturer defendants.

Families who lose loved ones in air accidents have a simple hierarchy of needs: firstly, they want to know how and why their loved one died – the causes of the accident. Secondly, they want to prevent other families from going through the same experience – through the prevention of future accidents. Thirdly, they want compensation, especially where there is financial dependency – no amount of money ever replaces a loved one but our imperfect system of rules-based compensation is the only method available.

Fatal air crashes are statistically unlikely

Flying is safe and has been progressively safer for decades. In simple statistical terms, the chances of being killed in an airline accident is around 1 in 11 million. The chances shorten for light aircraft and helicopters, in some scenarios reducing to around 1 in a million. As a qualified helicopter pilot, I can tell you with authority that helicopters are less forgiving than aeroplanes, and they also often operate in a more challenging environment. A recent helicopter accident killing five British tourists in the Grand Canyon in Arizona is a grim reminder of that. Obviously, the statistical odds are cold comfort to those who lose loved ones in air crashes.

Importance of the coroner’s inquest

The international nature of air travel means accidents happen worldwide. There are mechanisms for official accident investigations in most cases, but these can be lengthy, imperfect and politicised. Families in this jurisdiction have the added protection of a coronial inquest, so long as the body of the deceased is repatriated to England and Wales. Coronial inquests can be powerful public platforms for families to establish how their loved one died. Examples over the past 15 years are the 2007 Kenya Airways crash in Cameroon, the 2006 One Two Go airline crash in Thailand, the 2009 Air France Flight 447 crash over the Atlantic Ocean, the 2014 shooting down of Malaysian Airlines Flight 17 over eastern Ukraine and the 2019 Ethiopian Airlines Boeing crash. Overseas fatal air accidents often result in remains being cremated, and ashes returned to families back home. Cremation ashes do not trigger the coronial jurisdiction, as they do not constitute a body, so there will be no investigation and no inquest. This is often (understandably) overlooked by grieving families who learn too late that they will not get an inquest. Coroners also have powers under Regulation 28 of the Coroner and Justice Act 2009 to make public reports to prevent future deaths.

Compensation arbitrage

It has always been a challenge to explain to grieving families that the valuation of their claim for their loved one is viewed very differently in the various available legal jurisdictions for redress. This is compounded by the fact that compensation will vary considerably amongst any manifest of passengers. Different legal systems provide widely (and sometimes wildly) varying amounts of compensation on a country-by-country basis. A single non-dependent fatality case (typically a child/student/retiree) would rarely be worth more than £50,000 in this jurisdiction, however in the United States it could conservatively be valued in excess of £5,000,000 (there are significant differences between the 50 states in the USA on heads of damage, and generosity of juries). Aside from the USA, civil law jurisdictions tend to be far more generous than this jurisdiction when awarding damages for bereavement and emotional suffering: compare £15,120 for qualifying deaths here compared to £100,000 in Ireland and c £1,000,000 in Italy. I have yet to meet a British family who understand why this jurisdiction is Victorian in its attitude to compensating bereavement. Having worked at the heart of the aviation insurance market in London for 15 years, it has nothing to do with lower aviation insurance premiums.

Jurisdiction and forum

Airlines (and commercial operators) under international law (the Montreal Convention 1999) are strictly liable for the death or injury to passengers for provable damages (purists will know that liability is absolute for proven damages up to 128,821 Special Drawing Rights. In an airline disaster, the airline is overwhelmingly on the hook for liability under applicable principles of international law. There is a qualified defence available to the airline that it can exclude liability only if it proves that the damage was not caused by the airline or it was caused solely by the fault of a third party. For reasons outlined below, the defence is available in a vanishingly small amount of circumstances. Technically there are five potential jurisdictions for the family to bring an action.

Interestingly, the identity of those five jurisdictions normally varies on any given passenger manifest due to different ticketing arrangements (per passenger) and the different domiciles of those passengers. Hence, a detailed understanding of a variety of potential jurisdictions is necessary before sensible advice can be given to a bereaved family about the most favourable jurisdiction to bring a claim against the airline. This requires an international network of local lawyers willing and able to provide relevant and succinct advice. One week it could be Lebanon, another it could be Indonesia. Lawyers advising families need to be wary of thinking that their local jurisdiction is more favourable simply because it is the lawyers’ home jurisdiction. However, just because there may be an available jurisdiction does not mean that the court in that jurisdiction will accept it is the appropriate forum. The 11^th Circuit Court of Appeals in the US ruled sometime ago that procedural rules of forum non conveniens were still available under the Montreal Convention. The aviation insurers controlling the handling and payment of claims by an airline will inevitably have their sights set on the most convenient jurisdiction and forum for them. That of course is a euphemism for paying less in compensation. Hence, this issue is somewhat of a tangled legal web and requires considerable care to be taken by anyone advising a bereaved family. This area is particularly prone to friction and litigation between claimants and airline (and their aviation insurer) defendants.

Multiple causes of action in different jurisdictions

Aviation accidents generally have a chain of causes. Rarely does just one factor prove to be the cause of a fatal accident. Hence, there are possible claims on different causes of action against multiple defendants in a variety of jurisdictions. There may be a claim against an airline in one set of jurisdictions, and a claim against an aviation manufacturer in another jurisdiction. For the virtual duopoly of airliner manufacturers, that means Airbus in France and Boeing in the United States. Drilling down further into the technical detail, most aircraft and helicopters will also have some US manufactured components and sub-components. By way of example, a European manufactured helicopter may crash in this jurisdiction due to both pilot error and an issue with the flight control system, which itself is a US manufactured component. That gives rise to two different causes of action by a claimant estate of a passenger, in both this jurisdiction and the US courts. Again, any competent legal adviser to a family would need to understand the interplay between these cross-border claims.

I have encountered numerous lawyers in various jurisdictions that have struggled with this concept of bringing multiple claims on different causes of action in multiple jurisdictions. However, happily, this has never been an impediment to multiple successful settlements arising from pilot error and a defective aviation product, in different jurisdictions.

Time limits and limitation

Professional indemnity insurers have been continually involved in picking up cases where the family’s lawyers have forgotten that fatal and personal injury claims against airlines have a two-year time limit under the Montreal Convention. Similarly, wrongful death and personal injury limitation periods in the USA are typically two years for actions against any aviation related entity – whether a commercial operator or aviation manufacturer. Indeed, some states have a one-year limitation period (e.g., Louisiana and Tennessee). I have seen examples of law firms in this jurisdiction fall foul of properly advising family clients of potential legal avenues of redress in the US courts, having taken advice on applicable US domestic limitation periods, then failing to ensure their clients protect their interests accordingly. This shortened limitation period does present a challenge if one simply relies upon the publication of an official accident investigation report – as these can easily take more than two years to emerge.

Independent investigation and disbursements

One of the key factors to this specialist area of practice, is an intellectual and financial willingness to conduct an independent investigation into the technical causes of the aviation accident. Most of the time there will be a government (or intergovernmental) level investigation (under the auspices of Annex 13 of the Chicago Convention 1944), where the industry stakeholders are represented (but the families not). These tend to take longer than two years, so that limitation periods have quietly passed before publication. Hence, the fairly obvious need to conduct a private independent investigation, using aviation experts and airline/aircraft/helicopter simulators to establish the likely causes of any given accident. Experience has proved that these are expensive and are ongoing exercises, especially where the facts of the accident point to complex technical product liability issues, for example software problems with fly-by-wire flight control systems.

The digitisation of aviation systems is now endemic in both the civil and military aviation spheres. This means that further expensive expertise is required in avionics systems to layer the knowledge in order to understand the sequence of the events leading to the accident. Typically, the cost of these exercises can easily run to in excess of £250,000 and this is all upfront disbursement cost borne by the law firm. Factor in additional costs for expert witness evidence, and the pre-settlement costs easily exceed £500,000. Make friends with your finance partner should you wish to tread this path!

Law firm competition and sky-high legal fees

While this legal practice area is necessarily specialist, there is considerable international competition amongst law firms seeking to represent families who lose loves ones in air accidents. In larger airline type accidents with multiple fatalities, it is common to see a variety of US law firms offering their services to families across the globe. The less reputable firms tend to suggest unrealistically high potential settlements, linked to contingent fee retainers of 33 to 40 per cent of any settlement. Some US states (e.g., Texas) also permit law firms to extend ‘cash advances’ to clients, where US$50,000 is offered to the potential family client at the point of signing the retainer. That cash advance is only repayable by the client if the case is won. Some families have their heads turned by these potential large settlement values and cash inducements, and agree to arguably excessive contingent fees to pursue those claims. When those settlements turn out to be inevitably lower than first promised, some years later, the families are unhappy with the fees they face. I have frequently been contacted by concerned families for an independent view on whether those retainers can be unwound. Sadly, by then, it is usually too late to be able to assist in a meaningful way.

Solicitor and counsel fees in England and Wales

The standard fee basis for claimants in this jurisdiction in air accident cases is by way of a conditional fee agreement (CFA). The majority of law firms also levy a limited success fee on top of the hourly charges. This can result in a portion of the family client’s damages being eaten into to pay their legal fees. This has always struck me as curious in relation to strict liability claims against airlines.  Given that airline disasters inevitably have a chain of causes, usually including some form of pilot error, inadequate training, poor flight planning or operational risk assessment, it is virtually guaranteed that the airline will not be able to rely successfully on any available defence under international law. So, what rational basis could there be to charge family clients a success fee when actual success was pretty much guaranteed? To some extent, protected parties in this jurisdiction are assisted by High Court approval under the Civil Procedure Rules Part 21 (the White Book). Airlines very rarely get to rely upon a defence to liability.

When I lectured on international air law some time ago at Cranfield University, I used to give the example of a potential airline defence in the event an airliner was shot down by a surface to air missile. The US Navy shot down an Iranian Airliner in 1988 by mistake (the USS Vincennes mistook the Iran Air Airbus for a military fighter and launched a missile attack, killing all 290 on board, resulting in a claim by Iran to the International Court of Justice against the USA, resulting in a half apology and an ex gratia compensation payment in 1991 of US$62m), and there was precious little that the airliner could have done to prevent that accident. However, when Malaysian Flight 17 was shot down in July 2014 over eastern Ukraine, with the loss of all 298 on board, an obvious immediate question was why an airline had decided to transit over a war zone, where some airlines had already conducted comprehensive risk assessments and decided to fly around the hostile area. Having represented a large group of international families who lost loved ones on MH17, the matter settled on confidential terms. The short point here is that success fees should be resisted by families in strict liability claims against airlines and commercial air operators.

Conclusion

Hopefully this brief synopsis of some of the challenges of air accident litigation has highlighted some practice points to reflect upon. In the lexicon of Rumsfeldian logic: you now have the known knowns and some of the known unknowns. Each air accident is a tragedy with its own particular facts that usually contains significant unknown unknowns.

James Healy-Pratt is a partner at Keystone Law
keystonelaw.com