The International Law Framework for Global Aviation

Gregory L. Riggs, J.D.AABI Industry/Educator Forum

February 21, 2013

Framing the DiscussionDefining the scopeThe role of “International Law” in aviationResponsibility and accountability in the

international arenaThe impact of legal forces on professionalism

and safetyLessons for educators?

What do we mean by “International Law” anyway?

Is “International Law” really law?

The role of customs and norms – e.g. sovereignty

The role of treaties and conventions

The Role of International Agreements

US France

Brazil Canada

Int’l Treaties

The Story of Liability

Who is responsible when bad things happen?How does the law affect our behavior?What’s the worst that can happen?What do lawyers like better: domestic US accidents

or international accidents?What difference does it make to AABI?

Degrees of Culpability

Simple Negligence

Gross Negligence

Willful Misconduct

The Law of Negligence in the US

To establish a prima facie case, an injured plaintiff must prove:

1. Duty of care -- Obligation to take REASONABLE CARE

2. Breach of the duty -- Failure to take reasonable care

3. Causation -- The breach causes the injury

Schwamb: The Airline Standard of Care in the United States

“With proof of injury to a fare-paying passenger on common carrier and failure to reach his destination safely, the plaintiff establishes a prima facie case of negligence . . .”

At this point, the burden shifts to the defendant to overcome the prima facie case.”

Standard of Care – Cont.

At this point the carrier must show:

1) that the incident did not occur,

or

2) that it was WITHOUT THE SLIGHTEST DEGREE OF NEGLIGENCE

Why the High Standard?

“A public carrier of passengers is required to exercise

the highest degree of vigilance, care and precaution

for the safety of those it undertakes to transport.”

The Elephant in the Room

Punitive Damages

12

Exxon Valdez Oil Spill

The Jury’s Decision

Exxon Valdez Jury Verdict:

Gross negligence on the part of Exxon management

Punitive Damages Award

$5 Billion

Lessons and Dangers in US Law

When things go wrong, liability is virtually a sure thingLevel of accountability is extremely highManagement is responsibleLegal liability can be astronomical (but punitive damages

are really hard to get in aviation)

The International Liability Regime

Warsaw Convention of 1929 was designed to protect the young aviation industry and provide certainty and uniformity.

Key Warsaw Provisions

Warsaw Convention is exclusive remedyCarrier is presumptively liableCarrier not liable if it proves it took “all necessary

measures”No “emotional distress” without physical injuryLimit on amount of money recoverable ($75K) unless

gross negligence

Another Elephant

Criminal Prosecutions –Safer Skies?

Criminal Charges in Other Countries

France - Concorde accident in ParisConcorde ran over titanium strip – tires explodedCriminal charges filed against manufacturer execs,

Continental mechanics, and aviation officialBrazil mid-air

US pilots charged with involuntary manslaughter Passports seized

Criminal prosecutions in UK, Switzerland, Greece, et alBlue Panorama

Criminal Prosecutions in the US

AMR Hazmat

Argenbright

Valujet

Safety Implications of Criminal Sanctions

Safety investigations are about:Developing the factual recordWhat errors were made, by whom, why, how?How do we prevent future errors?

The keys to success are: Cooperation Openness and honesty Objectivity

Who would you put in jail?

Terrorism?Sabotage?Extreme recklessness (e.g., drunken pilots)?Falsifying maintenance records?Fraud?

Are international legal trends good or bad?

Reasonable damages – GoodTrend away from blame - GoodUniformity – GoodClear standards of aviation operations – GoodPunitive damages difficult to obtain – GoodCriminal prosecutions - Bad

Thoughts for Educators

What should we teach our students about the risks of legal liability?

What lessons should we distill for students about how to meet or exceed society’s expectations?

How do we infuse high professionalism and aviation character?

How do we teach future aviation leaders about management responsibility?