Saturday, April 16, 2011

Losing Control?

This particular post follows one of the most actively strange weeks in aviation. 

Only readers living under the proverbial rock missed disturbing stories of air traffic controllers falling asleep on the job, airplanes falling apart in mid-air, and this spectacular video of a taxi-way incursion involving the A380, the largest commercial airplane in operation, with a CRJ-700 regional jet, at JFK International Airport—

The National Transportation Safety Board ("NTSB") is investigating the wing tip clipping accident, releasing this official press release:

On April 11, 2011 at 8:25 PM EDT, preliminary reports indicate that the left wing tip of Air France flight 7 struck the left horizontal stabilizer of Comair flight 293 while the Comair airplane was taxiing to its gate. There were 485 passengers and 25 crew onboard the Airbus and 52 passengers and 4 crew onboard the CRJ. No injuries were reported on either aircraft.

The NTSB has requested the fight recorders (cockpit voice recorder and flight data recorder) from both aircraft and will review the content of those devices as part of the investigation. Also, the NTSB will review the air traffic control tapes and ground movement radar data (ASDE-X). The damage sustained to both aircraft is still being assessed.

Parties to this investigation include the Federal Aviation Administration, Comair, and the Air Line Pilots Association. Also, accredited representatives from the French Bureau d'Enquetes et d'Analyses (BEA), the Transportation Safety Board of Canada (TSB), and their advisors from Airbus, Air France, and Bombardier Aerospace, are assisting the investigation.

While no serious injuries or fatalities have been reported as a result of the "wing-tip clipping accident" or any other incident this week, one overriding question comes to mind: Who is to blame, if anybody, as a legal matter?

For starters, the government's own critical role in ensuring aviation safety should not be overlooked.  The "resignation" of Air Traffic Organization Chief Hank Krakowski, together with U.S. Department of Transportation Secretary Ray LaHood's characterization of the recent events as "outrageous," reflects an awareness and responsibility by aviation regulators.

That said, from a legal standpoint, the United States government itself can be sued only in limited circumstances.  Specifically, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (the “FTCA”), federal district courts have exclusive jurisdiction of civil actions on claims against the United States for money damages, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any government employee acting within the scope of his office or employment of the government, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.  Significantly, the FTCA does not apply to claims arising out of intentional torts, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.

Whatever legal and regulatory fallout from the recent events, consumers of air travel should find some solace in the idea that aviation operators and users themselves have every business incentive to ensure safety.  That's the letter and theory of the law on the books, anyway.

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