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Liability for Design and Manufacturing Defects in Aviation

Air navigation law hinges itself on the heading of liability. The issue is bifurcated into criminal liability and civil liability. 

by Dr. Ruwantissa Abeyratne
Writing from Montreal

Whether it is a design defect or manufacturing defect, courts, particularly in The United States, have been inclined to treat both the same, on the basis that in both instances the product would be equally dangerous and the attendant damage to the consumer (or bystander) would be the same. In the United States, The Restatement of the Law of Torts, Section 402 A of which says that one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if the seller is engaged in the business of selling such a product - applies which extends the damage caused by a product rendered defective by a manufacturing fault to a design defect, where the manufacturer must bear the cost of compensation which is usually covered by insurance, placing the ultimate burden is on the insurer. Many States in the United States adhere to the doctrine of strict liability in such cases, where liability accrues irrespective of fault. Strict liability is distinguished from fault liability, the latter requiring the establishment of fault i.e. negligence on the part of the manufacturer.

Directly in point is the case of the case of Sikkelee v Precision Airmotive Corporation. The case involved a pilot who, in July 2005 was piloting a Cessna aircraft that crashed shortly after take-off. The pilot's wife filed a wrongful death action against the defendant engine manufacturer – who claimed during adjudication that he was only the designer of the product - among others, alleging that the engine carburetor was defective and was responsible for the crash. The engine in question had been manufactured in 1969 and the defendant was aware that the engine was defective. The federal Aviation Administration (FAA) had sent a communication in 1971 to the manufacturer and subsequent communications thereafter about 17 issues regarding defects in screws in the engine. The court held that even if, as claimed, the defendant was just the designer of the product – he would have the same duty of care to the plaintiff as did the manufacturer.

The question arises whether an aircraft manufacturer must merely ensure that an aircraft is safe to fly and that there is no attendant responsibility for the manufacturer to make an aircraft “safe” to crash. This distinguishes between the manufacturer’s liability for not making the aircraft perform safe navigation, and not making the aircraft “safe” to land in water in an emergency. In other words, the manufacturer would be liable for avionics but not necessarily liable for fixing an apparatus that could be deployed in a landing on water. This principle was enunciated in the 1966 analogy of Evans v. General Motors Corp where the court held that it was unreasonable to expect a manufacturer to make a motor vehicle accident proof or fool-proof when the danger to be avoided is obvious to all. What the court held was that the vehicle must be reasonably fit to carry out its major function of providing safe transport, but it cannot be expected that it would be equipped with a pontoon if it accidentally fell into the water.

The above analogy does not apply where the defect would lie in the core function of the vehicle – that of providing safe transport. In other worlds a car cannot be equipped by the manufacturer with defective brakes or a defective steering wheel. Similarly, an aircraft manufacturer cannot claim immunity from liability if a defective piece of avionics equipment is installed in an aircraft.

A good analogy in this regard involves faulty aeronautical charts. There are private individuals and companies producing aeronautical charts for air navigation and an incorrectly produced aeronautical chart could be a serious safety impediment. An accident caused as a result of the technical crew being misled by an aeronautical chart could ground an action for products liability and civil damages. An early case in this regard is Aetna Casualty v. Jeppesen where an aircraft operated by Bonanza Airlines crashed in 1964 while landing in Las Vegas, Nevada. The survivors of the crew, alleging that the crash was caused by a defective approach chart, sued Jeppesen—the manufacturer of the chart. Jeppesen was found to be liable as there was evidence of a flaw in the chart. The flaw was that the graphic depiction of the profile in question which covered a distance of 3 miles from the airport was the same depiction of the plan which covered a distance of 15 miles. The trial judge found this discrepancy one which radically departed from Jeppesen’s usual standards of graphic depiction which would have misled the pilot in his approach to the airport.

In the 1978 case of Times Mirror Co. v. Sisk where the case concerned the crash of a Pan American Boeing 707 cargo freighter into a mountain located on the approach path to Manila International Airport in the Philippines. the court was faced with the fact that, while the approach path had been approved by the Government of Philippines and the chart used for the approach by the pilot was a standard Jeppesen chart, it had not shown the presence of the mountain. The court had no difficulty in concluding in favour of Jeppesen, on the ground that the pilot had been so off track that the chart could not be considered the proximate cause of the crash.

Aeronautical charts are products that could impugn the manufacturer if they are defective. However, it has to be proved that the manufacturer of the chart had misled the pilot with the information provided in the chart. The 1985 case of Fluor Corp. v. Jeppesen & Co, which was similar in circumstances to the Sisk case, concerned the crash of a Lockheed L-1329 Jet Star on approach near Lake Saranac, New York. The plane hit a mountain which 2,140 ft while attempting to land on a night when it was snowing, and the weather was inclement. The mountain was not shown in the Jeppesen chart. The crash took the lives of all passengers. The plaintiffs sued Jeppesen on breach of warranty, negligence and strict products liability. Jeppesen claimed that the crew were responsible for the accident as they were flying too low in adverse weather conditions. While the trial judge did not instruct the jury on strict products liability, he exonerated the chart-maker on the counts of breach of warranty and negligence.

There was an interesting issue in the Fluor Corp case where, while the trail judge accepted that an aeronautical chart was a “product” he opined that it did not come under the heading of strict liability as only items whose physical properties rendered them innately dangerous, such as machines and mechanical devices, explosives could be susceptible to actions grounded on strict products liability, The Appeal court judge—Justice Gates—disagreed, saying that although a sheet of paper might not be dangerous per se, it would be difficult indeed to conceive of a saleable commodity with more inherent lethal potential than an aid to air navigation that, contrary to its on design standards, fails to list the highest land mass immediately surrounding a landing site.

The next issue is the liability of the State which certifies an aircraft with a defective product.

Annex 8 to The Chicago Convention which addresses issues of airworthiness of aircraft provides that the State of manufacture is required to ensure that each aircraft, including parts manufactured by sub-contractors, conforms to the approved design, and that the State taking responsibility for the production of parts manufactured under the design approval has to ensure that the parts conform to the approved design.

In the United States, the Federal Government is a potential defendant in this context and could be liable in negligence. In the 1982 case of Medley v. United States it was alleged on behalf of the plaintiff that the Federal Government had not only created an unsafe flight route but had also perpetuated that destructive error in an aeronautical chart that did not indicate the error. The surviving victims of the crash and the carrier’s insurers sued the Federal Government for death, personal injury and property damage. It was argued for the Federal Government that the acts of the government in this instance came under the “discretionary function exception” under the Feral Tort Claims Act. District Judge Aguilar held that the alleged acts of the government are clearly of an operational character and so not within the discretionary function exception to liability. The judge also held that the government had a duty to perform acts with and functions with due care. When this duty is discharged in a negligent manner, the government is guilty of negligence and it cannot escape liability by invoking the discretionary function exception. As there is no discretion to conduct discretionary operations negligently.

Air navigation law hinges itself on the heading of liability. The issue is bifurcated into criminal liability and civil liability. These two areas in turn affect three categories of respondents: the State: the corporate entity and the private individual. With privatization rapidly becoming a prolific tool of the aviation industry, the corporate entities who are responsible for the various industries within the aviation spectrum will be liable under legislation.

The author is former Senior Legal Officer at the International Civil Aviation Organization and is currently Senior Associate, Air Law and Policy at Aviation Strategies International

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