Updated: Dec 22, 2018
According to the Convention of International Civil Aviation Annex 13, an aviation accident is defined as an incident involving an aircraft which results in someone getting seriously injured, the aircraft incurs serious damage or goes missing. This can take place from the time all crew members and passengers board the plane till the time they disembark.
Causes of Aircraft Accidents
Accidents involving an aircraft can be due to many different factors. But, the first consideration is always to examine the possibility of pilot error. The other factors that can lead to an aircraft accident include:
The failure to adequately maintain the aircraft for possible repairs
The failure of any aircraft components
A defect in the aircraft design during manufacturing
Sadly, it has been found that over the past 50 years, most of the airline accidents have been due to pilot error.
Filing a Claim
In crashes that do not involve a major commercial airline, the claim regulations are normally patterned after car accidents. This means unlike the higher standards of care that are required by commercial pilots, private aircraft owners and pilots may exercise an ordinary level of care while flying. That doesn’t mean pilots are without responsibility in case of an aircraft incident.
When’s the Right Time to Lawyer Up?
As of January, 2012, the U.S. Air Traffic Organization had issued an action order for air traffic controllers in which all ATCs were instructed to report anything that they considered out of the ordinary. This included pilot deviations, communication errors and anything that the controller would otherwise not expect. The Mandatory Occurrence Reporting or MOR applies regardless of whether the controller or the pilot is at fault. It is being used in all ATC facilities and towered airports across the country.
The new rule was a far cry from the Aviation Safety and Reporting System that was administered by NASA and funded by the FAA. It basically turned into every pilot’s “get-out-of-jail-free” card, and is part of a much broader safety initiative been taken by ICAO. The idea behind this rule was to collect as much information and data as possible to correctly identify and correct problems in the system.
The problem with MOR is that often times, it lands in the local FSDO. This is a problem since an investigation is required for deciding whether or not the pilot is at fault. This could also lead to a certificate action, which is the equivalent of purgatory for pilots. However, the MOR program is not all bad. For instance, previously, if an aircraft had a dodgy gear, the FAA had no way of tracking the problem and getting it fixed. But under the MOR system, the FAA is not only alerted of the potential problem of an aircraft but can also lead to the owner of the aircraft being contacted by the FSDO.
So, the question is, “how is a pilot to respond if contacted by the FAA due to a complaint lodged under the MOR system?”
The best thing to do in such a situation would be to not respond to the FAA and instead let the lawyer do the talking. This is a view that’s held by the Air Line Pilots Association (ALPA) and the non-profit Aircraft Owners and Pilots Association (AOPA). It’s also one of the reasons these two organizations offer their pilots legal services.
However, the FAA has a different take on the matter. According to the FAA, it doesn’t make a difference whether a pilot talks to their lawyer or the FAA since each case is taken into consideration individually. This means there’s no one-size-fits-all approach to the new law. But if a pilot did do something which could result to a certificate suspension or, even worse, a revocation, then it would be wise to talk to an attorney first before facing the FAA.
It should also be noted that much like being pulled over by a police officer on the road, refusing to answer their questions or giving a curt response will result in the matter being escalated, and would also offend the FSDO inspector.
The Right Plan of Action
The right way for a pilot to deal with any claim would be to have a friendly conversation with the FSDO inspector if it is something minor and hope that the matter is dropped. This would probably lead to some administrative action and require more training without the need of any certificate action.
Although many errors are usually unintentional, the pilot could be held liable if their actions were negligent. There are many other factors to take into consideration for both commercial and private pilots. For instance, a pilot could be in error during adverse weather. This will be determined by whether or not the pilot took the necessary actions to avoid a situation or could have known of the dangers ahead. In case of an aviation accident due to a pilot’s error, the injured party could sue the owner of the aircraft (in case of a personal pilot) which is known as “vicarious liability”. In case of a commercial flight, the injured party can sue the airline since a pilot’s error is also considered as the airline’s error.
While an aircraft accident due to pilot’s error can be a devastating blow to the pilot and the airline, it is essential to hire a reputable aviation accident attorney who is able to pursue the aviation accident claim on your behalf. Hiring an attorney is also necessary due to the relationship between state law and federal jurisdiction which often accompanies aircraft accidents. Needless to say, early commitment of forensic resources and investigation will be crucial.
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