November 6, 2001 Recent Developments in Airline Disaster Law

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by	Phillip J. Kolczynski

About the Author ... Phillip J. Kolczynski manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia. Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multiengine ratings. AviationLaw@AVweb.com AviationLawCorp.com

Almost everyone in the aviation industry — even those so fortunate enough to own and fly their own aircraft — travels on the airlines as a passenger from time to time. Suppose you are killed in an airline disaster. Will your family collect millions of dollars? Will it matter if the flight is international? Should it matter if the airplane crashes into the ocean rather than on land? Are the laws governing airline disasters fair?

And finally, a question we should never have to answer: What if someone intentionally crashes an airliner—how will the courts deal with the civil liability issues?

In this article, I'll attempt to address these questions, while highlighting major changes in airline aviation law. In plain language, I'll explain controversial U.S. aviation laws that affect the rights of American litigants seeking damages for airline disasters such as TWA 800, Swissair 111 and EgyptAir 990.

Almost all of the airline disasters discussed here are in some stage of litigation. This article does not constitute a legal opinion on any case arising out of any crash. Any person who has a claim against an airline must seek the advice of his own or her own aviation lawyer who is experienced in airline crash litigation. This article cannot possibly be used to determine a party's rights or legal options. Every person's case is different. Indeed most federal courts in the United States will not certify an airline crash case for class-action treatment because everyone suffers different damages. Furthermore, the analysis provided at this time will change as new evidence comes to light. This is especially true of the more recent crashes that are the subject of ongoing investigations. My goal is simply to offer an introductory education about some of the issues confronting Americans after major airline disasters occurring during international flights.

The last three major international airline disasters, TWA 800, Swissair 111 and EgyptAir 990, involved international flights which crashed in the ocean after departing from JFK Airport in New York City. The survivors (the families who lost loved ones), will be the first plaintiffs to benefit from major changes in international aviation law that have occurred in last few years. Conversely, all the families will face severe limitations on recovery of their losses simply because the airliners crashed in the ocean rather than on land. The EgyptAir 990 survivors face even greater problems from a seemingly unimaginable "possible cause" now being investigated. Americans will be suing the government of Egypt for damages resulting from an airline accident involving a state operated airline. Are there special problems in suing a foreign government and what if the cause was not an accident?

In order to provide a logical overview of the legal issues facing international airline disaster survivors in U.S. courts, this article will first explain the major changes in the law that control claims by passengers in all international airline flights. Next I reveal the injustice caused by an antiquated U.S. federal law which applies to crashes on the "high seas" in U.S. courts. Finally, in tandem with breaking news coverage, I analyze some of the emerging legal issues that are likely to be faced by the survivors of the EgyptAir 990 disaster.

The Warsaw Convention

The Warsaw Convention Controls the Rights of International Airline Passengers

An international treaty known as the Warsaw Convention controls the legal rights of international travelers to sue the airlines for injuries suffered on an airliner. The Warsaw Convention is 70 years old. The Convention was originally designed to protect the airlines against excess damage liability. The three most recent major airline disasters — TWA 800, Swiss Air 111 and EgyptAir 990 — all involved international flights covered by the Warsaw Convention. This year the United States Supreme Court confirmed that the Warsaw Convention "exclusively" controls a passenger’s right of recovery in U.S. courts for "physical injuries" sustained on international flights.

The Warsaw Convention applies to passengers ticketed on an international itinerary even if the crash occurs on the domestic part of a continuous international trip. For example, let’s assume an American citizen purchases a round-trip ticket in Seattle for a flight to Mexico City with a change of planes in Los Angeles. If a crash occurred during the Washington to California leg, the Warsaw Convention would still apply because that passenger was embarked on an international flight based on his ticketing to Mexico, although other passengers may have only been ticketed for the Seattle to Los Angeles domestic leg.

Until very recently and for almost 70 years, the families of internationally-ticketed passengers killed in airline disasters were doubly traumatized. First, they lost a loved one in what was often a preventable accident. Second, they discovered a harsh economic reality — the maximum amount of money they could collect from the airline was $75,000 U.S. No matter how tragic the loss or how glaring the negligence, they could receive only $75,000, while the family of domestic passengers who died from the same crash could expect to collect millions in U.S. Courts. The only way around this liability limitation was to prove that the airline was guilty of "willful misconduct." Many victims and their lawyers struggled in vain to satisfy this extremely difficult legal burden of proof. Only a few were successful, most notably in the Pan Am 103 disaster, where Pan American Airlines was found liable for willful misconduct in failing to prevent a bomb from being smuggled aboard Flight 103.

This year, a United States Federal District Court in Florida found that American Airlines was guilty of "willful misconduct" for the 1995 Cali Columbia Flight 965, Boeing 757 flight disaster. Apparently, the airline’s pilots crashed into the mountains because they were confused as to their exact location while flying IFR (in clouds). Based on the finding of "willful misconduct," the Flight 965 plaintiffs expected to be able to collect the full measure of their damages. The families of the flight passengers were recently shocked when the United States 11th Circuit U.S. Court of Appeals reversed the Federal District Court Judge in Florida. The appellate judges held that the trial judge employed standards that were too liberal in enabling plaintiffs to establish that the airline was guilty of willful misconduct. Now without proof under the stricter test that the airline’s pilots knowingly flew recklessly, the families will face the traditional $75,000 liability limit.

The United States Signed a Treaty Agreeing to the Warsaw Convention

The Warsaw Convention was the result of a 1929 international air carrier meeting held in Warsaw, Poland, which resulted in a treaty ratified by the United States in 1934. The Convention was an agreement by the airlines to limit their liability for damages to victims of international airline accidents. The fear in 1929 was that a major airline disaster would put a fledgling airline out of business and result in a morass of conflicting legal claims under different countries’ laws. A positive benefit to society from the Convention was the creation of a uniform system of legal jurisdiction for handling international accidents involving physical injury, death and cargo loss. The airlines also achieved a direct pecuniary protection — a liability damage limit for injuries and death based on an artificial monetary unit called a Special Drawing Rights (SDRs.) The airlines agreed to limit their liability to $100,000 SDRs, equivalent in those days to about $8,300 (U.S.). Subsequently in 1966, the limit was raised to $75,000 (U.S.) by the Montreal Agreement that amended the Convention. It was critical to the airlines and their insurers that the Warsaw Convention prevent victims from suing the airlines for punitive damages no matter how reckless the misconduct of the airline's employees.

The Warsaw Convention also protected the airlines by limiting the countries in which the victims could bring a lawsuit. Only countries that qualified under the following requirements could have jurisdiction to rule on Warsaw Convention airline injury or death claims: (1) the place of business where the contract of carriage was entered into. (Usually the place where the tickets were bought), (2) the county which was the destination of the flight, (3) the domicile of the carrier, or (4) the carrier’s principal place of business.

For 70 Years, a Huge Disparity Between Domestic and International Flights Existed in Airline Liability Law

• The family of a passenger who was ticketed for a domestic flight, who was physically injured or killed in a domestic airline accident, whether on a U.S. carrier or a foreign carrier, could sue the airline and collect full measure of compensatory damages permitted by the appropriate state law.
• Prior to 1997, the family of a passenger who was ticketed for an international flight, and was physically injured or killed in an international airline accident, whether on a U.S. carrier or a foreign carrier, could not collect the full measure of damages permitted by U.S. Laws. The plaintiff was limited to recovery of a mere $75,000 (U.S.) pursuant to the Warsaw Convention Treaty.

The Warsaw Convention applies only to the airlines and does not control damage claims by victims against other defendants. Thus, the manufacturer of the airliner and the manufacturer of sub-component parts or systems installed in the airliner, can be sued without the Convention limitations. Airports, private security companies or other service providers can be sued outside the Convention unless they are found to be performing the airlines’ functions under The Convention. Even the United States government can be sued in U.S. federal courts without Warsaw Convention limitations, as long as the operational negligence of its air traffic controllers, or the non-policy making and non-discretionary functions of its government employees are found to be a cause of the disaster.

The inequity imposed on American passengers injured while traveling internationally, was publicized by the efforts of leading aviation plaintiffs attorneys to change the law in this area. The efforts of these attorneys coupled with the growing lobby by airline survivor groups applied intense pressure on legislators to achieve reform. These pressures led to threats by the United States to pull out of the Warsaw Convention and denounce the treaty. If the United States disavowed the Warsaw Convention, the treaty would unravel and the airlines of the world would be exposed to unlimited liability. There would be chaos in the courts and there would be no binding international treaty controlling which countries would have legal jurisdiction after an international airline disaster. The airlines of the world decided to engage in a little self-regulation to preserve the Warsaw Convention. The airlines struggled to preserve some of the important protections they enjoyed against claims by victims of airline disasters under the Convention. They called upon the International Air Transport Association (IATA) to come up with a plan.

Recently, the Airlines Voluntarily Entered Into an Intercarrier Agreement Waiving the $75,000 Liability Limit

IATA in cooperation with the United States Department of Transportation sponsored an international intercarrier agreement on passenger liability that was adopted by airlines starting in 1997. Today, over 120 airlines have signed the agreement. The intercarrier agreement removes the $75,000 (U.S.) limit of liability and allows passengers to recover full compensatory damages for physical injury or death in an "accident," according to the laws of their domicile, or place of permanent residence. After 1997, almost all the airlines have agreed that they can be sued for the entire amount of damages that a victim’s country of domicile would normally allow the family to recover. The victims only have to show that the airline was negligent in causing their injuries.

The airlines have only one defense against unlimited compensatory damage liability under the new agreement. They can try to prove that they took "all necessary measures" to prevent the damage. Under U.S. laws, airlines are held to the ‘highest duty of care" because they are "common carriers." Air carriers have such high responsibilities because they hold themselves out to the public at large for common carriage by air. Theoretically given the "highest standard of care," it should be easy to show an airline was negligent because it failed to live up to the standard of care. Similarly, it should be extremely difficult for an airline to prove that it took "all necessary measures" to prevent the damage. Aviation lawyers have hypothesized that perhaps a missile shoot down, an unpreventable act of sabotage or some unforeseeable intervening cause of a crash would be the only circumstances in which an airline might successfully defend against unlimited liability for damages in a Warsaw Convention case.

After 1997, American Passengers Who Are Physically Injured on an International Flight Can Collect Up to $135,000

Another unique aspect to the newly-modified Warsaw Convention is the fact that the airlines have strict liability up to $100,000 SDRs (a "Special Drawing Right" is a fluctuating composite unit of money) equivalent to approximately $135,000 for U.S. passengers. The $135,000 benefit is for physical injuries or death of international passengers suffered on the airline or while in the process of embarking or disembarking. The strict liability of the airlines for $100,000 SDRs in U.S. courts is in essence a "no questions asked" automatic entitlement to payment of the first $135,000 U.S. of their damages. Indeed, after the Swissair 111 disaster, Swiss Airlines, which was a signatory to the intercarrier agreement, set precedent by promptly paying $135,000 to each of the victims’ families of Flight 111, without in any way acknowledging its liability for the crash.

What About Offenses on International Flights Not Involving Physical Injuries?

Airline insurance defense lawyers have successfully defended the airlines and their insurers against various tort claims resulting from wrongdoing on international airline flights that do not rise to the level of an actual "accident." The airlines have always taken the position that various transgressions that harmed passengers but were not "accidents" and did not involve physical injury were not payable under the Convention. The United States Supreme Court has supported the airlines on this point in a landmark decision this year. The Supreme Court has held that an "accident" for purposes of the Convention, means "an unexpected or unusual event or happening which is external to the passenger." Thus, where the Warsaw Convention applies, international passengers will not be able to recover against the airline for emotional damage claims where there is no physical injury or for offenses involving the misconduct of other passengers and airline personnel. As an example of how confusing the laws can be: Just last year, the Ninth Circuit Court of Appeals in California paved the way for domestic passengers to bring garden variety tort claims (a "tort" is a civil wrong) in U.S. Courts resulting from incidents on domestic airline flights that do not involve "accidents" — just the opposite of international flights.

The Warsaw Convention Needs Further Improvements

The Warsaw Convention is still being modernized. Just this year, major changes were incorporated in the 1999 Montreal Convention that are subject to ratification. Changes being made to modernize Warsaw Convention involve efforts to codify the question of joint liability for co-sharing carriers. Thus, the contracting carrier, the one that sells the ticket and the airline that actually conducts the flight may both be potentially liable under the newly modified Warsaw Convention. Additionally, the modernized Warsaw Convention may create a "Fifth Jurisdiction" wherein victims can bring a lawsuit in their country of domicile or permanent residence. The "Fifth Jurisdiction" would cure the problem of an American abroad who traveled on a foreign carrier from one country to another. Under the Warsaw Convention the family of the traveler abroad would under the traditional jurisdictional requirements, have to sue for his death in the country where he bought his ticket or at the destination. A "5th Jurisdiction" would allow the survivors to sue in U.S. Courts.

Importantly for the airlines, the newly modified convention still protects the airline against punitive damages even after the intercarrier agreement. Passengers may not sue the airlines for punitive damages in a Warsaw Convention case. Airline lawyers will insist that passengers’ damages should be measured by the laws of their domicile despite where they bring their lawsuit. This is a very important issue for the insurers of airlines. Although the United States is known worldwide for state laws that generously compensate air crash victims, many countries where international travelers are domiciled, do not have laws that provide such generous compensation.

Can Plaintiffs Collect Millions After International Airline Disasters?

The newly-amended Warsaw Convention theoretically opens up the airlines to unlimited liability. But the amount of damages for the plaintiffs is still dependent upon the country that has jurisdiction over the lawsuits. It is also dependent on the extent to which compensatory damages will be recoverable according to the law of the passengers’ domicile (home) or permanent place of residence. In a typical Warsaw Convention case, an American would be subject to recovery of damages under U.S. law; a Danish passenger for example, would collect damages in accordance with the law of Denmark; a Brazilian passenger would collect damages in accordance with the law of Brazil. This may sound straightforward, but these issues can be very complicated in the U.S. courts because of choice of law issues involving a determination of which states’ laws should apply to measure damages.

A U.S. court handling an international air crash case by an American plaintiff under the Warsaw Convention must use "choice of law" principles to determine which state laws in the U.S. will apply to a passenger’s claim. One way airline disaster lawyers earn their fee involves persuading the courts to apply the laws of the more generous states to their clients’ cases. Those attorneys who represent families of victims not domiciled in the U.S. typically search for legal arguments to try to justify applying generous U.S. laws to their clients’ claims instead of the laws of the foreign domicile or permanent residence.

How Generous Are U.S. Laws for the Payment af Air Crash Damages?

Compensatory damages are supposed to pay a victim for the losses suffered because of the harm caused by a wrongdoer. Victims of airline accidents are entitled to collect two types of compensatory damages under the laws of most states in the United States. Injured passengers or the families of decedents can usually collect full pecuniary (economic) damages. Pecuniary damages include medical expenses and lost wages suffered by those who are personally injured. The families of those passengers who were killed can recover pecuniary damages for the lost support no longer provided by the decedent.

In addition to pecuniary damages, most states allow the recovery of non pecuniary (non-economic) damages which may exceed pecuniary damages. In the case of personal injury victims, non pecuniary damages are recoverable for pain and suffering. In death cases, the families of the decedents are usually allowed the recovery of non pecuniary damages for the loss of care, comfort and society. Some states allow pre-impact (non pecuniary) pain and suffering damages for the time the person consciously suffered after being harmed but before dying.

Frequently, when wrongful death air crash cases go to trial in front of juries, the award for non pecuniary damages is higher than the award for pecuniary damages. The total verdict may be in the millions of dollars, particularly where the decedent was a middle-class or higher wage earner who supported a family. In order to collect such large amounts, the plaintiff must prove liability on the part of a defendant. There must be a "collectible" defendant with insurance or sufficient assets to pay their damages.

The award of non pecuniary damages is usually at the jury’s discretion subject to reduction by a judge if the amount is excessive. Where there is no right to jury trial, the judge decides the pecuniary and non pecuniary damages.

A few states have enacted laws to limit accident victims with regard to recovery of non pecuniary damages. In those few states that impose such limits, the limit per victim, is often in the vicinity of $250,000 to $500,000 for non pecuniary damages. States with limits on non pecuniary damages will usually still allow victims’ families to recover the full amount of their pecuniary damages.

There is one body of law in the United States that denies survivors any recovery for non pecuniary damages. Those who are killed in a crash on the ocean, outside of the territorial limits of the United States face severe restrictions or damage recovery. The families of passengers who die in crashes into the high seas of the ocean, cannot recover any compensation for the loss of care, comfort and society. Furthermore, the survivors may get almost nothing if their loved ones were not actually providing monetary support to the family at the time of the crash!

The Death on the High Seas Act (DOHSA)

How the Law Deprives Survivors of Fair Compensation If the Air Crash Occurs on the High Seas Instead of on Land or Close to Shore

Whether a crash occurs in the ocean or on or near land can have a huge impact on damages. There are four cases to consider:

Domestic Crashes on Land: If a passenger dies in a domestic airplane crash on the land. The passenger’s family with proof of negligence has the potential of recovering all of their compensatory damages from the carrier under the state law that applies to their case.

International Crashes on Land: If a passenger dies in an airplane crash on the land during an international flight. The passenger’s family can collect the full compensatory damages under the new Warsaw Convention with proof of negligence, plus be assured of payment of the first $135,000 of damages without the need to prove negligence. The passenger may also collect full compensatory damages from all liable parties if not paid by the airline.

Domestic and International Crashes in U.S. Territorial Waters: A passenger dies in an air crash inside the "territorial waters" of the United States (within three miles, according to insurance defense lawyers, or within 12 miles according to plaintiffs’ lawyers). The passenger’s family can collect their full compensatory damages in most U.S. Courts. If the crash occurs on a domestic flight, the only limitations are those peculiar to the particular U.S. law that applies. With a crash into territorial water on an international flight, the current liberal provisions of the Warsaw Convention will be applied.

All Crashes on the High Seas: If a passenger dies in an airplane crash on or above the "high seas," The Death On The High Seas Act (DOHSA) applies. The survivor’s damage recovery is restricted to collection of pecuniary loss only. Victims’ families cannot recover for the loss of care, comfort and society resulting from the death of their loved one. There is no recovery for the pre-impact pain and suffering of the victims as the airplane plummeted to the ocean. In KAL 007 disaster case, the United States Supreme Court held that neither the families nor the estates of the victims can recover non pecuniary damages for the pre-impact pain and suffering suffered by passengers in many airline disasters.

The injustice of DOHSA is even greater. The families of a passenger, who dies in airline disasters on the high seas where the victim was not providing monetary support, may be precluded from recovering any compensation whatsoever. Victims who may fall into this category include children, parents who are no longer supporting their children and young adults who are not supporting anyone but themselves. There is the possibility of claiming loss of inheritance as pecuniary damages, but such claims can be restricted in some cases. Senator John McCain has spoken out against DOHSA. He has told Congress that "since children and the elderly are not usually wage earners for the family, their families are made to feel as if their lives are rendered ‘worthless’ by DOHSA."

The unfairness of DOHSA is even more profound. Victims of air crashes on the high seas are not entitled to a jury trial. Further, there is no right to recover punitive damages under the DOHSA. Nevertheless, U.S. courts enforce the DOHSA almost without exception.

The airlines are not the only defendants protected against liability for more than pecuniary damages under DOHSA. All defendants may assert the protection of DOHSA, including manufacturers, airports, service providers, the United States government, and any other defendant. Moreover, DOHSA applies to all airplane and helicopter crashes on the high seas, not just airline crashes.

Talk to Congress About the Death on the High Seas Act

The Death on the High Seas Act (DOHSA) is a federal statute passed by Congress back in 1920 to provide a statutory basis for the limited recovery of damages for wrongful death where no such right previously existed. In 1920 there were no laws to protect the families of those persons who were killed on the oceans. Over the years, the courts have interpreted the Death on the High Seas Act as applying to all deaths on the "high seas" including air crash deaths on or above the high seas. Since 1920, almost all states have developed "wrongful death" laws Yet, Congress never repealed the DOHSA statute or clarified that it should apply only to maritime matters.

What are the "high seas"? For decades, federal courts said the high seas were the ocean waters beyond a "marine league" from shore. A marine league is three nautical miles from the shores of the territories of the United States. If someone died in a crash inside a marine league the plaintiffs could recover liberal damage awards, either under maritime law or under state laws. If the person died outside the three-mile limit, the recovery was severely restricted by DOHSA, to only a portion of the loss, which was considered "pecuniary" in nature.

In 1988, President Reagan issued a "Territorial Sea Proclamation" extending the United States’ sovereignty to a 12-mile territorial sea. Plaintiffs’ attorneys used this change to the advantage of the survivors of TWA Flight 800, a crash that occurred eight miles off the coast. The attorneys argued successfully to a federal district court in New York, that DOHSA should be interpreted using President Reagan’s 12-mile limit as the cutoff between territorial waters and the high seas. Do not assume that the problem is resolved because of this trial court opinion. Other courts may not follow the trial court in New York. Also, the decision in favor of the TWA Flight 800 families is on appeal to the United States Circuit Court for the 2nd Circuit in New York. Airline insurance defense lawyers are citing decades of precedent wherein federal courts have strictly applied the "marine league" 3 mile limit, to try to reverse the trial judge’s opinion.

The Swiss Air Flight 111 crash occurred outside the territorial waters of the United States but close to the shores of Canada. The plaintiffs in that case are trying to find a creative argument to avoid DOSHA. Recent news accounts covered an attention-getting offer by the insurance defense attorneys in the Swiss Air disaster whereby Swissair would "agree not to contest liability" if the plaintiffs would simply accept the limitations of DOHSA. If you understand DOHSA, you can appreciate why plaintiffs’ attorneys were not inclined to accept the offer because of the severe limitations on damage recovery for their clients under DOHSA.

EgyptAir Flight 990 crashed 60 miles off the coast of New York. The Flight 990 crash was clearly on the "high seas." Thus, unless the law is changed quickly, it appears that the families who lost loved ones on EgyptAir 990 will face the draconian restrictions of DOHSA when they bring their claims in U.S. courts.

The Unfairness of DOHSA Can Be Corrected Under Pending Legislation

The Supreme Court has refused to correct DOHSA and has left the problem to Congress. Relief was proposed last year in the form of House Bill H.R.2005 and its Senate counterpart S.943. The proposed legislation, called "The Airline Disaster Relief Act," would amend DOSHA and take aviation accidents occurring after January 1, 1995, out from under DOSHA. The house bill passed by an overwhelming majority last year, but the Senate failed to enact the bill.

This year the DOHSA reform legislation has been restructured as H.R. 603 and introduced in the 106th Congress. The bill passed the House on March 3, 1999 by an overwhelming majority. The bill has since been referred to the Senate where it currently awaits action. A separate Senate Bill (S.82) has been introduced also but it imposes restrictions on the amount of non-pecuniary damages which could be recovered by the victims’ families.

Senator John McCain, as Chairman of the Senate Committee on Commerce, Science and Transportation, has announced in full committee hearings his strong support for the bill. Anyone who recognizes the injustice can contact his or her congressional representative to reform DOHSA. Congress needs to act on this bill before the upcoming national elections can monopolize the attention of those who are in the best position to take corrective action.

The Foreign Sovereign Immunities Act

Are Government-Owned Foreign Airlines Immune to Suit in Some Airline Disasters?

The survivors of the American victims of EgyptAir 990 will sue the Egyptian government because EgyptAir is believed to be a nationally owned and operated airline and as such, is an instrument of the government. A legal issue exists, however, regarding whether the Egyptian government will have any immunity to tort liability suits.

Privately owned airlines do not usually have any form of immunity for suits resulting from air crash disasters. However, government-owned foreign airlines may enjoy sovereign immunity (governmental immunity) for crashes that occur outside of the United States.

Sovereign Immunity derives from the historical belief in many parts of the world, that the government should not be sued in court like a private person. The United States has partially waived its sovereign immunity by means of legislation called The Federal Tort Claims Act (FTCA). Under the FTCA, the U.S. still has sovereign immunity for many governmental functions but it can be sued in U.S. Federal courts for the negligence of some of its employees.

Foreign governments still have sovereign immunity for many activities. A unique federal law called the "Foreign Sovereign Immunities Act,"(FSIA) applies to foreign airlines that are owned and operated by their governments. Foreign governments can be sued in U.S. Federal courts under some circumstances such as for the negligence of their instrumentalities (e.g. airlines) involved in commercial activities in the U.S.

Federal Appellate Courts have ruled that The Warsaw Convention acts as a pass-through in U.S. courts, allowing the laws of the U.S. to be applied to an airline disaster litigation in involving a foreign airline owned by a foreign government. In this manner, The Foreign Sovereign Immunities Act has been applied to foreign airlines in Warsaw Convention cases.

Under the FSIA, the foreign government loses its immunity when its airline causes injuries in the United States. The foreign government may also not be immune for the "commercial" activities of the government-owned foreign airline that happen in the U.S. or those commercial activities which are sufficiently connected to the cause of the crash. Also, a foreign government may waive its sovereign immunity to suit in the U.S. by treaty or international contract.

The EgyptAir 990 flight crashed on the high seas, thus the injuries did not occur in the United States. It is premature to predict whether the "commercial" activities of EgyptAir are sufficiently connected to the U.S. and the cause of this crash to overcome EgyptAir’s potential sovereign immunity. EgyptAir surely has an extensive airline operation in California and New York. News accounts reveal that many Egyptian employees were attending conferences in Los Angeles before the flight departed from Los Angeles to JFK, en route to Cairo. Indeed, over 30 Egyptian military officers were returning home from business throughout the U.S.

Another theoretical way around the foreign sovereign immunity involves the fact that EgyptAir has signed the new inter-carrier agreement, voluntarily accepting unlimited liability for its negligence under The Warsaw Convention. One would think that if the nationally-owned foreign airline entered into a government approved international contract, an "intercarrier agreement," that the agreement should waive any statutory immunity that could be claimed. However, some federal courts have held that unless the waiver of immunity is clear and specific, the waivers of sovereign immunity may not be decided in favor of the plaintiffs.

Airline Liability for the Acts of Its Employees

Is an Airline Is Legally Liable for the Criminal Act of an Employee That Causes a Crash?

If a disaster on the high seas, involving an airline owned and operated by a foreign government, does not create enough international law problems, the possibility that a criminal act of an airline employee caused the crash, raises even further complications. The Foreign Sovereignty Immunities Act was amended in 1996 to strip foreign governments of immunity if they encouraged aircraft "sabotage, hostage taking or extra judicial killings." But this amendment applies only to governments that support such terrorist acts. What if an employee was to perform a criminal act causing a crash but that criminal act by the employee was neither encouraged nor foreseen by the employer? Further, what if the criminal act by an employee was not helped by any negligent act on the part of the employer? Should the airline employer face liability for the damages caused by their employee?

At the time this article was written the official investigations have not revealed any evidence of mechanical malfunction or terrorist act. The only information that has been disclosed to the public at this time suggests one "possible cause," a most unthinkable one — that a crewmember intentionally caused the crash. The legal issues raised by this "possible cause" are unique.

My research of Warsaw Convention cases in U.S. Courts does not reveal any case where an airline was held liable because an employee committed a criminal act causing the crash of an airliner. The NTSB has reported no airline crashes in the U.S. caused by a suicidal pilot.

There are Warsaw Convention cases that involved killings during hijacking by terrorists but none involving airline employees. Where airline negligence has left the passengers vulnerable to hijacking, the courts have considered the acts of the terrorists to be "accidents," thus, permitting the airlines to be held liable under the Warsaw Convention.

There are a handful of Warsaw Convention cases where the plaintiffs have proven "willful misconduct" on the part of employees of the airlines leading to airline liability. These cases did not involve criminal acts. The cases involved actions of employees who were extremely negligent such that the court found them to be "reckless." The airline was held liable for the employee’s recklessness under the willful misconduct label.

Airline liability under The Warsaw Convention beyond the statutory limit of $75,000 has always been predicated on the wrongful misconduct of employees in the course and scope of their employment. Jurisdiction under the Warsaw Convention as amended by the intercarrier agreement (for amounts in excess of $135,000.) may still require proof of negligence of the airline arising out of the conduct of its employees, acting within the scope of their employment. Similarly, The Foreign Sovereign Immunities Act allows foreign governments to be sued under some circumstances but only where their employees are acting within the scope of their employment. When there is evidence that an airline pilot may be responsible for a criminal act of intentionally causing an airline crash unforeseen by the airline, will the court’s view such a criminal act as one within the course and scope of his employment?

Are the Criminal Acts of an Employee Legally Considered to Be Within the Course and Scope of His Employment?

Under the principle of respondeat superior, a legal concept going back to Roman law, the master is liable for the misconduct of the servant. This legal axiom is embodied in the laws of almost every state in the United States and is sometimes known as vicarious liability. The liability is "vicarious" because the wrongdoing of the employee is being imputed to the employer even if the employer did nothing wrong.

Normally, for the employer to be liable for the employee’s misconduct, the employee must be engaged in carrying out duties assigned by the employer. Further, the employee must be acting in furtherance of the employer’s objectives at the time of the wrongful act. When employees deviate from their master’s instructions, they act on their own motivation, and the master is not usually liable under traditional U.S. laws. As with all laws, there are exceptions.

Courts have frequently found employers liable for intentional torts (civil wrongs) of their employees, if the employees acted out of a motivation to serve the employer no matter how misguided. As long as the employee did not act out of purely personal motives, courts have usually been willing to impute the negligence or even liability for the intentional torts of the employee to the employer. Most courts in the U.S. (With some interesting exceptions) have not imposed civil liability on employers for the unforeseeable criminal acts of employees who were not acting within the scope of their employment. Similarly, in cases decided in the U.S. under the Warsaw Convention, the unforeseeable criminal acts of employees of airlines such as thefts during work hours, have not resulted in liability for the airlines. Many U.S. courts have refused to impute the criminal wrongdoing of the employee to the employer because the criminal act of the employee was not in furtherance of the employer’s business, was done for purely personal motives and could not be anticipated or controlled by the employer.

There is a difficult legal issue arising from the "possible cause" of the EgyptAir 990 crash regarding whether an airline will be held liable if an employee commits an intentional criminal act. Civil liability in U.S. Courts may depend on whether the alleged criminal act was so unforeseeable and such a deviation from the employee’s duties, that it was not done for his employer’s business and thus may not be within the scope of employment.

At this time it appears that The Warsaw Convention, The Death On The High Seas Act and The Foreign Sovereign Immunities Act will all have a bearing on the EgyptAir 990 cases. The Federal court which becomes the forum for the plaintiffs’ cases will have to decide complex choice of law questions. These choice of law questions will be critical to the recovery of damages by the victims’ families because the law chosen will decide the scope of employment question. It is uncertain whether admiralty law (because of DOHSA) or state laws such as those of California or New York, will be used to judge whether the airline should be held liable the criminal acts of its employee. Of course these questions are based on the limited data available In November 1999, which presently raises the issue that an intentional act brought down Flight 990.

California Law is more protective of victims. The Supreme Court of California has interpreted the scope and course of employment issue very broadly under some circumstances to make the employer liable for the unforeseeable criminal acts of an employee. The California Supreme Court has developed a principle of law employing an "enterprise theory" of vicarious liability. The Supreme Court’s reasoning is that an employer’s liability should extend beyond his actual or possible control over employees to include risks created by the enterprise sponsored by the employer. The California approach creates an incentive for employers to guard against the occurrence of tragedies while at the same time insuring compensation for victims. The idea is that even though the employer may not have foreseen the criminal act of the employee and may not even have had a reasonable opportunity to prevent the crime, the employer should nevertheless be held liable. The feeling of the California Supreme Court on this subject is that those who engage in the enterprise are better able to absorb such damages through the rates they charge and the liability insurance they can procure, instead of the victim.

The EgyptAir 990 Crash Investigation

The NTSB will be able to fulfill its responsibilities and complete its investigation with its finding of a "probable" cause. Hopefully, the Board will also issue "feasible" safety recommendations to prevent a recurrence of such a tragedy. The lawyers for the families of the Flight 990 victims may have to dig much further. They may need to determine whether the airline should be held liable for the actions of a pilot, whether the airline was directly liable because of the negligence of other employees, or whether other parties such as the manufacturer have some fault.

It will be important for lawyers handling EgyptAir cases to determine why the criminal act was committed and whether the airline could have prevented the act. If the alleged intentional criminal act was foreseeable by the employer or by co-employees, then the airline could be negligent in failing to take greater precautions. If the airline was negligent, and this negligence allowed the criminal act to succeed, the negligence of the employer may also be a legal cause of the crash. If the airline is directly negligent then the survivors may not have to deal with problems of legal proof that the employee was acting within the scope of his employment.

The probable cause determinations for some previous airline disasters in foreign countries, suggest that suicide was the motivation for the criminal act which brought down the airliner. Do these isolated incidents place all airlines on notice that suicide by a pilot is foreseeable? If so, what possible precautions beyond normal medical screening and prudent employment practices, should be taken by an air carrier to predict and prevent a surprise criminal act by an employee?

Formal psychological pre-employment screening is not normally employed by airlines even though the state of the art in psychological testing has improved significantly over the years. Professional pilots must pass a rigorous medical exam every six months to qualify for a First Class Medical Certificate. Should airline pilots who carry passengers be required to undergo recurrent psychological testing in addition to medical testing every six months? Is such personal scrutiny fair to domestic pilots of U.S. carriers who have an impressive record of personal professionalism and safety? Could such standards be enforced with regard to foreign carriers operating in the U.S. in light of the minimal regulatory control that the FAA has over the staffing practices of foreign carriers?

Is it clearly safer and worth the expense to have two pilots instead of three assigned to stations in the cockpit of an airliner? Manufacturers developed large airliners with two-pilot cockpits to save money. Planners gave assurances that safety would not be compromised by reducing the cockpit crew from three to two and the FAA approved the design.

Are there any issues associated with the captain’s temporary absence from the cockpit? Could he have prevented the disaster from the left seat if he were not away from his duty station at the start of the problem? What additional steps should an air carrier that has the "highest duty of care" for its passengers have taken to prevent such a disaster?

Future Challenges

Air travel will double over the next 20 years according to FAA estimates. The airlines will transport over 2.5 billion passengers a year by 2020. Former NTSB officials have predicted that the average airline accident rate will grow in a corresponding ratio. As the safety challenge grows in the new millennium, the legal system must be improved to ensure fair compensation for victims of air disasters. Major improvements in airline liability law have been made largely through the efforts of victims’ families and their lawyers. More improvements are needed that will require action by Congress, which means that the people are in a position to demand change through their elected representatives.

Human error and mechanical causes, or a combination of these two factors, are the most common probable causes of airline disasters. If accidents are predictable, they are preventable. We depend on the NTSB to investigate major air crash disasters and to come up with "feasible" safety recommendations to prevent future accidents.

Now we have a "possible cause," that may challenge the independence of the Board to determine the "probable cause" uninhibited by political considerations. New threats to airline safety may also require new security and surveillance procedures. National pride should not be allowed to delay necessary investigations particularly in a world where "copy cat" crimes have become an unfortunate reality.

NOTE: The issues discussed in this article do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.