Liability to Passengers in Military Aircraft

• Author: By Major Norman S. Wilson
• Pages: 04

This article discusses the rights and remedies for sur-vivors of disasters ihvobing aircraft owned 07 chartcred by the wilitory. Recovery through the Federel Tort Claims Act, and other judicial and administrative pro-cedures, along with limitations, svch w the Warsaw Con-vention, the Pre-flight Waicer, and the "incident to service" doctrine. are conridered bu the author. Concluding that the remedies in general are adequate, the aethor hope8 that some of the concepts behind the limitn. tions tcill be elucidated, in order not to frustrate legis-lative inteat.

I. INTRODUCTION

Air travel has became commonpiace in the twentieth century. Huge jet planes carry scores of passengers across the United States in six to eight hours and span the oceans in a slightly longer time. The cammercd air transportation industry is mammoth, but the largest of the corporate giants constituting that industry is rivaled by the aviation activities of the Federal Gov-ernment through its Armed Forces.

Tragedies are as much a part of military aviation as they are of the commercial industry, and when a military plane falls into the ocean, crashes into a mountain, or cracks up on take-off, a host of complex and entangled legal questions arise. The basic question spawned by B military aircraft disaster is the Same as that arising from the fall of a commercial aircraft, to wit: What are the legal rights of injured parties? The right8 of injured parties in the latter case is, of course, governed, for the most part, by local law. In the farmer case, where the defendant 1s the Knited States, the question is more difficult to answer.

Therefore, this article examines Some of the legal issues flowing from a military aviation disaster with a view, toward determining the rights and remedies of passengers an military aircraft for personal injury and desth. The inquiry extends beyond purely

'This article WBP adapted from a thesis presented to The Judge Advocate General's School. U.S. Army, Chariotteauiile. Virpinia, while the author

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B member of the Fifteenth Advanced Course. The apimoni and eonelu-s i m Presented herein m e those of the author and do not neceanarily represent the view of The Judge Advocate General.. School or any other governments1 agency.

**JAGC, US. Army:

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"military flights" because the .4rmed Services mwe significant numbers of service members, employees, and their dependents by charter Rights. Since the purposes of the charter flights are either military or have a military connection, a discussion of certain aspects of liability to passengers thereon is warranted. As used herein. the term "military flight" refers to those flights performed by the Armed Forces. The term "military charter flight" refers to flights by commercial airlines under contract wvith the military establishment.

Military planes operate around the world. Accordingly, the scope of this article extends to accidents on the high ~easand in

foreign countries. Since aviation cases involve B determination of the applicable Ian by which the substantive rights of the parties will be measured. it is necessary to consider the choice of iaw rules in aviation cam where the United States is the defendant, In the case of certain classes of passengers, the Armed Services generally require, as a condition of passage, that a pre-flight waiver af liability be executed. This practice is examined against the background of the Federal Tart Claims Act and case law. Further, in view af the world-vide operation of military aircraft and the charter flight activity of the Armed Forces, it 1s

also appropriate to discuss some aspects of the Warsaw Convention,? an internatlanai agreement concerning international transportation by air, to which the United States is a party. Finally, since there are situations wherein no judicial remedy exists on behalf of a person injured or killed on a military aircraft, mention will be made of other possible avenues through which redress may be obtained.

There is no dearth of scholarly articles dealing with aviation accident law generally. However, no writer to the knowledge of this author, has devoted specific attention to the field of military aviation and the particular legal requirements which must be met before the Federal Government will be held liable for negligence. To illuminate this narrow area, then, is the purpose of this article. In many areas the law is still developing; in others the courts are in conflict; in still others, there has been no significant case experience. Thus, more questions may be raised herein than are answered. It is hoped, nevertheless, that this article will serve as a source of answers to threshold questions on the present state of the lau- in the areas discussed and further, as a direction

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-18 Us.c. gg 134601, 2611-80 (1864) [hereafter called FTCAI.

s Convention for the Unification of Certain Rules Relatlng to Interna.

tional Tranrprtatian by Air, 49 Stat. 3000 (1934) [hereafter called Warsaw Conrentlo"]

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indicator for the practitioner who may b& presented with a case arising from the crash of a military or miiitary chartered plane.

11. THE FEDERAL TORT CLAIMS ACT A. A TYPICAL CASE

Attorney at Law, Ourtown, USA, sits at his desk alternately thumbing a pile of folders and reading a recent local newspaper. The headlines announce the crash of an Air Force transport plane in which d l persons aboard were killed. The plane was enroute to Washinaton, D.C., had taken off from Tinker Air Farce Base, Oklahoma, and had crashed in Indiana, presumably because of a malfunction in the plane's fuel injection system. Passengers on the fatal flight included: the crew; a serviceman catching a "hop" to return to his station from leave; two reporters returning to Washington after witnessing the demonstration of a new type jet fighter-bomber: a civilian employee traveling on orders for official business; a retired officer going to the Pentagon to examine his personnel records; tuw reservists traveling to annual reserve training; and a friend of the plane commander who was "just going along for the ride." The services of the attorney have been engaged by the survivors of several victims of the crash who reside in Ourtown. His research is completed and he is ready to advise his clients concerning their best course of action.

2. GEXERAL

   Whether or not there is a light to recover damages for the Personal injury or death of a passenger on a military aircraft occurring in the United States. its territories or posaesions, de-pends upon whether the requirements of the FTCA are met.s FTCA basically provides that the district courts hare exclusive jurisdiction over civil actions far money damages against the United States for injury to property or personal injury or death due to the negligent m wrongful act or omission of employees of the Government acting within the scope of their office os employment, under circumstances where the United States, if a private person, would be liable to the claimant under the law where the act or omission occurred.' The Act 8180 provides for the

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   'Cla~mn armng in foreign countries are discussed at part I1.F inira. '28 U.R.C 8 1316(b) (1964). Property damage claimi will not be d l s eusred herein.

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   administrative settlement of tort claims against the Unlted States:

   Other pertinent provisions of FTCA bar claims arising in foxeign countries

   ~ and claims arising aut of combatant activities.. Governmental liability in tort exists only where thoae factors spelled out in 28 U.S.C. g 134fi(b) are present. Accordin&, there follow a discussion of thaw factors and the manner and extent to which the? hare been applied in aviation cases

3. ELEMEYTS OF THE C.4l.SE OF ACTIOS 1. A segizgant l e t 07 O,,?ission.

   In Dalehtte i.

   Vnited States," Mr. Justice Reed stated that the FTCA is to be invoked only in the ease of a negligent or nrongful act or omission and that the United States is not liable xithaut fault.* Although the unireraal appllcRtion of this rule id unsettled, " the vast majorit>- af cases filed under FTCA re11 upar. some form of neeligence and thus, aviation accident cases generally hold that liability 1s determined by the ordinars rules of negligence and due care under the cmumstances.

   The complex natiirr of the machine and the technical expertise required to deduce meaningiu! conclusions from the wreckage of a fallen plane renders proof of negligence in aome plane crashe? a formidable task. Although an adequate showing of nepllgence can sor.etimea be made. the testimony of crew and passenFera as to nhat occurred on a stricken craft is. more often than not, unarahb.e due to the death of all pei?oiis aboaid. leglkence may be ehonn from B variety of circumatancea. A violation of refolations constituting a standard of care i? evidence of negll-

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   gence.12 Also violation of self-imposed internal regulations and atandards of procedure has been held to constitute negligence. Far instance, in Montallie? v. h i t e d SfafES,'' where Air Force operational procedures prescribed a flap setting of 30' for the take-off roll of a particular type aircraft, the use of 40' flap settings was negligence. Apain, where governmental regulations prescribe a particular air traffic pattern for approaching and departing aircraft at an airport, it is negligence to vary from that pattern,:' Permitting insufficiently trained personnel to operate aircraft has also been held to be negligence. In Montellier, for example, where an unrated Air Farce officer mas at the controls of an unusual type plane in a take-off crash, it was held to have been one of a series af neglipent acts which produced the disaster.lS And lastly, flying at an insufficient altitude may constitute negligence.'*

   Proving negligence need not be limited to proof of the actions of the crew of a plane. The Government has been held liable for the actions of airport tower controllers...