Foreign Aviation Accident Lawyers

Forum Non Conveniens

Foreign aviation accidents often present issues raising a legal doctrine called forum non conveniens, whereby a court may refuse to exercise jurisdiction over matters where it believes there is a more appropriate or convenient forum available.  In determining this convenience, the court weighs factors such as access to evidence, witnesses and what country’s aviation safety bureau conducted the investigation into the matter.

U.S. courts offer procedural and substantive advantages to plaintiffs that are not available in other jurisdictions around the world.  Procedurally, U.S. courts offer broad pretrial discovery, allow grouping multiple actions in single class action suits, relegate fact-finding to juries, require less restrictive pleading rules than other countries and permit the use of contingency fee retainers by attorneys, which are not available in many nations.  Substantively, United States laws generally impose longer statutes of limitations, less strict evidentiary standards, the ability to pursue punitive damages and places no limits or “caps” on non-economic damages.

These factors combine to make America an attractive forum for plaintiffs.  Given the numerous advantages plaintiffs have under U.S. law, they often develop significantly more settlement leverage than if they brought suit in a foreign country.  In some cases, the only connection to the United States may be the manufacture of the aircraft, while the accident, maintenance, crew, passengers and points of origin and destination are all in another country.

Podhurst Orseck’s aviation litigators work regularly with forum non conveniens issues and have extensive experience with the law in this area.  We have a solid reputation for handling foreign aviation matters in the United States and obtaining equitable recoveries for clients.

Pan Am Flight 1736 and KLM Flight 4805, Tenerife, Canary Islands (1977)

No discussion of foreign aviation accidents would be complete without a discussion of the infamous “Tenerife Disaster.”  Tenerife may stand as the single aviation event with the greatest impact on global commercial aviation in the history of flight.  It also demonstrates the causal chain of events that accumulate in the buildup to an aviation accident.

In 1977, A KLM Boeing 747 and Pan Am 747 passenger aircraft both were diverted to Los Rodeos, a small regional airport in the Canary Islands, because of a bomb detonation at Gran Canaria International Airport which had shut that airport down.  Los Rodeos was relatively small and ill-equipped to handle five diverted commercial passenger jets.  Ultimately, the airport was inundated with aircraft and many were required to park on the taxiways.  After Gran Canaria reopened, the KLM and Pan Am were instructed to back taxi on the same runway.  The controller’s intention was to prepare the KLM for takeoff and move the Pan Am up-field past occupied taxiways and then off the runway for takeoff behind the KLM.

In the ensuing chaos, communications were not properly received and inadequate airport markings led to confusion.  Inopportunely, the airport’s altitude placed it in a high density cloud at ground level.  Visibility on the ground was thus extremely limited.

As aircraft schedules ran late, language barriers prevented effective communication.  Radio traffic was stepped on and blocked between the tower controller and two aircraft.  In the KLM 747, it is speculated that the captain – concerned about fuel levels, schedules and other factors – became injudicious.

The accident investigation demonstrated that the first officer acted to retard the throttles on the captain’s first attempt to take off because the aircraft did not have a takeoff clearance. Moments later, unstandardized terminology appeared to give the KLM takeoff clearance and the captain pushed the throttles up, believing he had clearance.  Cockpit voice recordings show the engineer, even on this power up, questioned the captain as to whether the Pan Am was off the runway.

With the KLM 747 rolling at full takeoff power, the Pan Am appeared in the fog on the runway in front of it.  Unable to stop the aircraft, the KLM crew attempted to lift off and miss the 747.  The KLM struck its tail on rotation and failed to fully clear the other airliner.  This disaster was the deadliest aircraft accident in aviation history, killing 583 people.

This single aircraft incident led to global procedural aviation changes, including:

  • Establishing English as the common working language for aviation
  • Standardizing aviation terminology terms, including the term “line up and wait”
  • Renewing the training focus on crew resource management (CRM) procedures, encouraging more effective event analysis and communication between crewmembers while downplaying the captain/first officer hierarchy
  • Encouraging a greater emphasis on awareness, identification and recognition of individual contributing factors building up to an aviation accident during pilot training, in an effort to stop the “error chain” prior to a mishap