April 2000

Aviation Law and Flight 261:
A Few Thoughts on What's to Come

by Robert F. Hedrick

Behind every major air disaster there are a million stories about life, death, tragedy, heroes, human nature and human failure. But among the most fascinating stories is the causal mystery: Why did it happen? Perhaps the reason for this fascination is that it helps us address the ultimate mystery: What good can come from such suffering? Among the most fascinating stories is how our legal system will determine the rights of the families of the victims to compensation from the air carrier, the aircraft manufacturer and other potential defendants.

This reality recently hit home in Washington with the January 31, 2000 crash of Alaska Airlines Flight 261. A majority of the 88 people who died were from Washington.¹ This article is an introduction to some of the legal aspects surrounding liability and compensation that may arise in the aftermath of the Flight 261 crash. It is intended to give a thumbnail sketch of relevant procedural and substantive law. The article addresses:

• compliance with ethical rules by attorneys engaging in early and aggressive solicitation or release efforts;

• jurisdictional issues, including multi-district litigation;

• liability issues, including the significance of the Warsaw Convention, which will apply because Flight 261 originated in Mexico;

• damages, including the application of the Death on the High Seas Act, conflicts of law, damage limitations under international law, and the potential effect of pending federal legislation.

Air disasters are known to bring out the best and the worst in the legal profession. The worst is seen when hungry attorneys intrude upon the privacy of the families of passengers to solicit representation. Whether or not such efforts technically violate the disciplinary rules, exerting pressure on or taking advantage of vulnerable grieving family members seriously detracts from the professional image of attorneys.

If Flight 261 is like many other air disasters, family members will receive a plethora of solicitation from attorneys throughout the country. Most solicitation will be by mail, but there will be telephone calls and in-person contact. Other accidents, such as the ValuJet crash in Florida in 1996, found attorneys or their representatives (runners) near the accident site and at funeral services, trying to talk with family members of the victims. (To be fair, it is not only plaintiffs’ lawyers who skirt the professional restraints. Representatives of potential defendants and their insurance companies have also been known to try to negotiate early settlement with non-represented family members.)

No less than three days after the crash of Flight 261, hungry New York plaintiffs’ lawyers were speaking to the Seattle press about legal issues surrounding damage claims. Though this is a far cry from in-person solicitation, the timing of this marketing through the press is disturbing — services for the victims had not even been held.² 

Then, no less than two weeks and a day after the accident, an attorney in Chicago filed the first lawsuit, accompanied by press statements blaming the pilots for not landing sooner.³  Such action does not further the interests of the clients, and only seeks publicity through the press in an effort to garner more cases. Furthermore, comments about pilot error are not warranted before the investigation is complete, and are brutally disgraceful for the families of the pilots involved.

Under the recently enacted Family Assistance Act covering airline disasters, "… no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 30th day following the date of the accident."⁴

This prohibition on unsolicited communication covers all parties, not just plaintiff attorneys. Legislation is currently pending that would extend the no-contact time period to 45 days.

The Washington Rules of Professional Conduct are even more restrictive. Rule 7.3 prohibits any direct contact "in person or by telephone" if the lawyer does not have any family or prior relationship with the person, "when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain." There is no time limitation. However, this rule is so broad (it would preclude asking a potential business client to lunch) and restrictive that it raises First Amendment concerns. As a result, solicitation efforts do not seem to be deterred by the risk of enforcement.

Since Flight 261 was an international flight, the Warsaw Convention⁵  applies to passenger claims against the airline. Originally signed during the infancy of aviation in 1929 and ratified by the U.S. in 1934, the Convention has survived more than 70 years of attack and partial amendment through supplementing instruments (conferences and protocols), and is currently in the process of complete overhaul. The U.S. Supreme Court recently held that the Warsaw Convention is the exclusive remedy for U.S. passenger claims arising from international flights.⁶ 

The Convention contains provisions on jurisdiction, air carrier liability, limitation of damages, and statutes of limitation, to name a few. Article 28 of the Convention sets out four venues where national jurisdiction may occur. They include the air carrier’s principal place of business and the destination of the flight, both in the U.S. for Flight 261.

Both California and Washington will likely have jurisdiction for the claims of Washington residents. The accident occurred in U.S. territorial waters off the coast of California, and Washington is the principal place of business for the air carrier.

In 1968, in an effort to reduce the burden on federal trial courts handling complex multi-party litigation pending in different district courts, Congress passed a special venue statute for multi-district litigation.⁷  This allows transfer of cases from the district court to the transferee court on a temporary basis for consolidated pretrial proceedings. What typically happens with air disasters is that most cases will be filed in federal courts, usually in two or more different states, and then consolidated under FRCP Rule 42.

An appointed judicial panel may then order transfer of the cases to one court to handle all pretrial proceedings. In many aviation cases the panel has selected the district where the accident occurred as the transferee court. The panel may also consider the district where most cases are pending, which could be in Washington for Flight 261. A plaintiffs’ steering committee, consisting of a handful of lawyers, will be selected to represent the claimants as a whole. Upon completion of the pretrial proceedings, the cases are transferred back to their respective original venues for trial.

Under Article 17 of the Warsaw Convention, air carriers are liable for "damage sustained in the event of the death . . . of a passenger." This provision provides near absolute liability on the part of the carrier, with the protection of limitation on recoverable damages, which has recently been severely eroded. Article 20(1) allows the carrier to escape liability if it can prove it took "all necessary measures to avoid the damage or that it was impossible for it to take such measures."⁸  As discussed below, the Warsaw system has recently undergone serious erosion, and the effect on air carrier liability is significant.

State law will govern the liability of the manufacturer and other defendants. A conflict of law analysis, either under California law (applying the government interest approach, with forum law as default) or under Washington law (applying the most significant relationship test) will likely result in the application of California law, as that is where the Flight 261 accident occurred and where the MD-83 airplane was assembled (Long Beach). However, with the use of depecage (applying the law of different states to different issues in the case), a court could apply a mixture of both Washington and California law.

It is too early in the investigation to determine if the air carrier, manufacturer, or other potential defendants violated any federal aviation regulations.⁹  If so, under California law such violations may constitute negligence per se,¹⁰  whereas under Washington law they would merely be evidence of negligence.¹¹ 

Many of the world’s major air carriers have recently signed special contracts of carriage which waive the Warsaw Convention limits of liability and incorporate certain provisions which alter the effect of the Convention. For example, most U.S. carriers have waived the limitation of damages and the Article 20(1) defense for the portion of claims not exceeding 100,000 SDRs (Special Drawing Rights), or roughly $150,000. It is anticipated that Alaska Airlines will focus its legal efforts on damage issues because the Article 20(1) defense is a difficult burden for carriers to sustain.

Since the location of most aircraft accidents is fortuitous, the underlying terrain should not make a difference as to either the recoverable value of human life, or who may recover. But there is no consistency in the law. On a single flight, the amount of money that survivors may recover varies as to where the accident may occur.

Flight 261 crashed in the Pacific Ocean approximately 7.8 miles off the shore of Southern California, and perhaps closer to the shore of Anacapa Island off the coast. Had it crashed on land, California or Washington damage law would most likely apply to the damage claims arising from the death of Washington passengers, depending on the result of a conflict of law analysis.

In 1920 Congress passed the Death on the High Seas Act (DOHSA) which applies to deaths "occurring on the high seas beyond a marine league [three nautical miles] from the shore of any state . . ."¹² DOHSA provides limited recovery for "pecuniary loss sustained by the person"¹³ and only in favor of "the decedent’s wife, husband, parent, child or dependent relative…."¹⁴ Not recoverable under DOHSA are non-pecuniary damages, such as loss of society and consortium; survivor’s grief; and any pre-death pain and suffering of a decedent.

How significant are these limits on damages? In one study (performed by this author) of 16 jury verdicts arising from the 1983 KAL 007 tragedy, 39.5 percent of the total damages awarded were pecuniary, and 60.5 percent were non-pecuniary. Whether or not DOHSA applies is significant.

Since Flight 261 crashed approximately eight miles from the California coast, it appears that DOHSA should apply.¹⁵ However, by Presidential Proclamation in 1988, President Reagan extended the U.S. territorial sea from three nautical miles to 12 nautical miles.¹⁶ Therefore, by definition the high seas begin beyond 12 nautical miles. In contrast, DOHSA applies "on the high seas beyond a marine league from the shore…."¹⁷ The issue that will likely arise is whether DOHSA applies to an aircraft accident that occurs more than three miles but less than 12 miles from shore.

There is one decision that is directly on point, but is currently on appeal before the Second Circuit. In 1996, TWA Flight 800 crashed eight miles off the coast of Long Island, New York. The distance from shore is nearly identical to that of Flight 261.

In the TWA Flight 800 litigation, the defendants brought a motion to dismiss all claims for damages other than those allowed under DOHSA. New York Federal District Court Judge Robert Sweet held that DOHSA did not apply because the territorial waters (extended to 12 miles) were not the "high seas," and therefore deaths occurring eight miles from shore did not fall within the coverage of DOHSA.¹⁸ The defendants appealed this decision to the Second Circuit, where it is currently pending. But no matter how the Second Circuit rules, that decision will not be binding on the Ninth Circuit.

In the 1996 case of Zicherman v. Korean Air Lines, Inc.,¹⁹ the U.S. Supreme Court held that DOHSA applies to aircraft accidents occurring on the high seas that are covered by the Warsaw Convention. There, the Court recognized that "Congress may choose to enact special provisions applicable to Warsaw Convention cases, as some countries have done."²⁰ After substantial pressure from TWA Flight 800 families, a number of legislative bills have been brought and are pending in Congress. If passed, these bills will alter the effect of DOHSA on air carrier accidents.

One bill, HR2005, would amend the general provisions of the Federal Aviation Act,²¹ which precludes application of shipping laws to aircraft, to include DOHSA as a shipping law. It also applies retroactively "to civil actions commenced after the date of the enactment of this Act and to civil actions that are not adjudicated by a court of original jurisdiction or settled on or before such date of enactment."²² The Senate version, S943, retains DOHSA but allows supplemental recovery as allowed under common law or state law. There has also been some discussion at the Committee level to retain DOHSA application, but supplement recovery by allowing non-economic damages, albeit with a damage cap.

The end result is that if DOHSA applies to Flight 261, the pending legislation could have a significant effect on the value of passenger claims.

Absent DOHSA, what law governs damages for an accident causing death that occurs in U.S. territorial waters? The answer is not clear. The alternatives are either state law, or federal common law (which in aviation cases has been general maritime law). One recent decision out of the Second Circuit, dealing with damage issues arising from the Pan Am Flight 103 accident in Lockerbie, Scotland, held that under normal federal disposition, federal courts are to incorporate state law.²³ The majority of cases addressing the issue have applied state law. Furthermore, in light of the type of accident at issue, there is a negligible relationship to traditional maritime law. At least one case from the U.S. Supreme Court raises questions as to whether maritime law would even apply.²⁴ 

Should state law govern, the Washington passenger damage claims would be governed by Washington or California law, depending on where the action is venued and the judicial determination following conflicts of law application.

The reason why Flight 261 fell out of the sky is slowly being unraveled through the NTSB investigation. The causal mystery, if not the philosophical mystery, will be solved someday to the best of our human abilities. But for the families of victims and for potential defendants, the mystery of liability and compensation is just beginning. We can only hope that human failure does not play a role in solving that mystery.

NOTES

1 Ironically, last fall the Aviation Section of the King County Bar Association hosted a three-day seminar focusing on legal and insurance issues likely to arise should a major air disaster occur in the Pacific Northwest. Topics included: air carrier emergency response; NTSB accident investigation; the new Family Assistance Act; and a variety of legal issues surrounding passenger claims.

2 See Old Law Could Limit Crash Victims Insurance, Seattle Post-Intelligencer, February 3, 2000, at A7.

3 Why Didn’t the Crew Land the Plane, Seattle Post-Intelligencer, February 15, 2000.

4 49 U.S.C. §1136(g)(2) (1997).

5 12 October 1929, 137 L.N.T.S. 11, 49 Stat. 3000, TS No. 876, ICAO Doc. 7838.

6 El Al Israel Airlines, Ltd. v. Tseng, 119 S.Ct. 662 (1999).

7 28 U.S.C. §1407

8 Supra note 3, Article 20(1).

9 Chapter 14, Code of Federal Regulations.

10 See Fagerquist v. Western Sun Aviation, 191 Cal. App. 3d 709 (Ca. Ct. App. 4th Dist. 1987).

11 RCW §5.40.050.

12 46 U.S.C. §761.

13 Id. at §762.

14 Id.

15 But it appears the aircraft crashed somewhat closer to Anacapa Island, which is off the California coast. If it crashed within three nautical miles of Anacapa Island, DOHSA should not apply.

16 Presidential Proclamation 5928, 54 Fed. Reg. 777 (Dec. 27, 1988).

17 46 U.S.C. §761.

18 In re Air Crash Off Long Island, New York on July 17, 1996, 1998 U.S. Dist. LEXIS 8044.

19 116 S.Ct. 629 (1996).

20 Id. at 626.

21 As set forth in 49 U.S.C. §40120(a).

22 HR 2005 §1(a) (1997).

23 Pescatore v. Pan Am, 97 F.3d 1 (2nd Cir. 1996), cert. denied sub nom, 112 S.Ct. 331.

24 See Executive Jet Aviation v. Cleveland, 409 U.S. 249 (1972), where the Court stated: [W]e conclude that the mere fact that the alleged wrong "occurs" or "is located" on or over navigable waters . . . is not of itself sufficient to turn an airplane negligence case into a "maritime tort." It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. Id. at 268.
Executive Jet suggests that flying across an ocean (as opposed to taking a ship) "might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by waterborne vessels." Id. at 271 (footnotes omitted). A persuasive argument can be made that the planned route of Flight 261, following the West Coast, but not crossing a body of water, does not perform a function traditionally done by water vessels.
In addition, the pilots’ decision to remain over the ocean (as opposed to flying over populated areas) while trouble-shooting the horizontal stabilizer problem has nothing to do with traditional maritime activity. It is absurd to think that the safety decision to remain over the sea should affect the amount of recoverable damages to the survivors.

Back to table of contents >>