Author: Christopher Ison

Let’s discuss liability in the Dynamic Airways Boeing 767 engine fire that occurred at the Fort Lauderdale/Hollywood International Airport on October 29, 2015. The plane, a Boeing 767 bound for Caracas, Venezuela, had a serious engine fire while taxiing for departure on Taxiway B. According to the Air Traffic Control (“ATC”) feed, everything happened relatively quickly. The aircraft behind the Dynamic 767 informed ATC that the “live” engine was leaking what appeared to be fuel. Moments later, that engine and a large portion of the port side of the aircraft were engulfed in flames. Fortunately, Broward County Fire Department responded to the scene and all passengers were able to evacuate within six minutes via the aircraft’s emergency exit slides. What is unfortunate, however, is that more than 20 people were injured, landing at least one passenger in the ICU with serious burns and one child injured. Furthermore, the Fort Lauderdale/Hollywood International Airport was closed for an indefinite period while emergency teams and airport administration contained the situation.

 

Time and time again, we are told that the most dangerous part of flying is “the drive to the airport.” Today, for some unfortunate souls onboard the Dynamic 767 bound for Caracas, that saying was a colossal farce. So who is to blame? Who do we hold responsible for the fact that some Dynamic passengers took a ride in an ambulance rather than an airworthy Boeing 767? Can those individuals have any redress for the injuries that they have sustained?

 

As of right now, it is too soon to tell who is at fault. Was it the airline, the pilots, the mechanics, ground crew, aircraft/engine manufacturers, and/or some unknown entity? It’s hard to say this early into the investigation. However, there is at least one early indications that seemingly spells disaster for both Dynamic Airways’ and the engine manufactures…the fuel leak. The two primary questions about the fuel leak are: what caused the leak and did the leak have anything to do with the fire? From there, an apportionment of blame can begin to sort itself out.

 

Well, what does “the blame game” have to do with potential torts in Dynamic Airways’ engine fire? Think of it this way. If the fire was caused by some sort of design defect in the engine, there may be a potential claim for strict product liability against the engine’s manufacturer. This theory of damage recovery allows the plaintiff to avoid showing negligence on the part of the manufacturer. Instead, the mere fact that the product was defective and caused injury is sufficient to allow the plaintiff to sue. Depending on the law in your state, for the most part, a strict liability claim will have four elements: 1) the defendant must be a merchant; 2) the product is defective at the time it is sold by the defendant; 3) the product is unreasonably dangerous; 4) the plaintiff suffers personal injury or property damage caused by the defective property. In the scenario where the engine was improperly designed, those injured on the Dynamic flight could potentially have a case using the strict liability theory.

 

Think of another scenario where the pilots of the Dynamic Airways’ 767 knew of the fuel leak and did nothing to correct or investigate the issue. In this scenario, you will likely have to also assume that the leak had something to do with the fire. This situation speaks to the tort theory of negligence. Negligence is an unintentional tort involving carelessness that causes harm. Generally, the tort of negligence requires the plaintiff to meet 4 burdens: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached that duty of care; 3) the defendant’s breach is the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffers injury that is protected under the law. In the scenario of pilot negligence, you could see where those individuals injured on the flight could say that the pilot owed a duty and that the pilot breached that duty by not seeing to it that the leak was corrected, thus causing their injury. You could also see that in the world where a mechanic incorrectly/failed to fix/diagnose/maintain the engine, the injured parties could work up a case for negligence.

 

Nonetheless, those with significant injuries do not want to sue pilots and mechanics for their catastrophic injury. Why? Simply put, these aren’t the people with the money. Rather, the pilots and the mechanics would rather need to worry about a FAA Enforcement Action being brought against them in that sort of situation; however, that is not to say that they could not also be sued for negligence.

 

As the investigation continues, it will be possible to give more poignant analysis on the situation. None of the above is to be considered legal advice, rather brief legal musings on the details as reported. There are a lot of moving parts to be considered in a case such as this (like will the Montreal Convention come in to play, etc)…much of which are too lengthy to recite in a blog article. If you have questions about the Dynamic Airways Boeing 767 engine fire, call an aviation attorney at The Ison Law Firm…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

In order to avoid ending up on the nightly news or worse, the FAA’s list of civil penalty recipients, it’s a good idea to have at least a cursory understanding of the regulations/rules in place for operating a drone near an airport. There are so many UAV operators out there right now that don’t know how to go about legally operating their drone near an airport and/or what interaction they need to have with the airport/ATC/FAA before doing so. Most of the problem is that the FAA/DOT has dropped the ball and has failed to make crystal clear rules for UAV operators. Instead, drone operators are treated like the red-headed step-child of the aviation community and forced to second guess every move they make. As of right now, there are at least three things required for flying a drone: 1. Aircraft; 2. Controller; 3. A prayer that your operations are legal. Be that as it may, the following will hopefully guide your Section 333 operation toward being legal, should you need to fly your drone near an airport.

 

So what are the general rules? The golden rule from the FAA on UAV operations near airports is: don’t fly within 5 miles of an airport unless you contact the airport and control tower before flying. To that end, the FAA requires that a drone not be flown within 3 NM from an airport with a published instrument flight procedure, but not an operational tower, or 2 NM from an airport without a published instrument flight procedure or an operational tower, or 2 NM from a heliport with a published instrument flight procedure. That seems pretty simple…right?

 

The main question becomes: what do I do if I need to go within the area prohibited for UAVs? Let’s say for example you run a wedding photography business and your client is getting married at an outside venue and requires aerial footage. Luckily, you have a Section 333 Exemption and all of the necessary documentation to operate your drone commercially. But wait a minute…the wedding venue is within 5 NM of an airport with a published instrument flight procedure and operational tower. The first thing you will want to do is find the number for the Air Traffic Control tower at issue. The telephone numbers for most Air Traffic Control towers are available online at www.acukwik.com. When you call ATC, be prepared to supply them with your flight path and the location, date, and time of your requested operation. For example, you might call and say, “Good Morning, my name is Bill Smith and I plan to fly my 3D Robotics UAV over the Sable Wedding Pavilion tomorrow at 9:30 AM. I will circle the area for roughly 45 minutes at approximately 150 feet.” Generally, you will want to tell ATC who you are, what you are going to fly, where you want to fly it, and when you want to fly it. Make sure that you actually obtain permission from ATC before flying within their airspace. You may even want to provide ATC with your cell phone number so that they can get in touch with you if necessary.

 

Secondly, the FAA calls for drone operators to contact the airport before entering its airspace to conduct a drone flight. Most importantly, there will be times where you may want to fly within 2 NM of an airport with a published instrument flight procedure and no ATC tower, in which case you will only have to call the airport. Who do you call at the airport? The best person(s) to call at an airport for legal purposes would be the office of the airport administrator. Essentially, these are the CEOs of the airport. Again, you will want to advise this office of your flight path and the location, date, and time of your requested operation. If you cannot get ahold of anyone at the office of the airport administrator and you are working with a general aviation airport, you may want to try calling the fixed based operator (“FBO”). A FBO is typically the entity that provides fuel, pilot services, and aircraft services, etc. You can typically find the telephone number to both the office of the airport administrator and FBO online at www.airnav.com.

 

For consistent flight within the 5 NM barrier, the airport administrator may request a letter of agreement between you and the airport. In most cases, this is not necessary and is something that the FAA will not require. If an ATC tower or airport administrator, consult with your drone attorney or Section 333 attorney.

 

You will also note that restrictions are placed on airports with a published instrument approach. Most airports have some sort of instrument approach associated with one of its runways, be it a GPS approach, ILS approach, VOR approach, etc. Typically, you can determine whether a particular airport utilizes an instrument approach by reviewing the airport specifics online at www.airnav.com.

 

Maybe you have also heard of the term “No Drone Zone.” There are some areas in the country, such as Washington, D.C., in which the FAA explicitly prohibits the operation of UAVs. It is critical to make sure that the airport and area in which you want to fly are not under such a flight restriction. If so, you had better make other plans for your operation’s flight path.

 

And one last thing that all UAV pilots should always remember when flying, whether or not within an airport’s drone-restricted airspace, is to ALWAYS remain clear of other aircraft. While there haven’t been any conclusive tests completed to prove that a small unmanned aerial vehicle could cause catastrophic harm or any harm at all to a general aviation or commercial aircraft, it is highly advised that you not be the drone operator to test the theory. Such unauthorized drone operation could result in property damage, death, and/or FAA civil penalties for unauthorized UAV operation.

 

If you have any questions about how to operate within an airport’s drone-restricted airspace, be sure to call a drone attorney at The Ison Law Firm. Or, if you feel that you have violated a rule or regulation mentioned in this article, feel free to reach out. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.