“A runway incursion should never happen, and there are so many backup systems that are supposed to prevent it, that it’s really surprising in this environment and today’s world that there could possibly have been such an accident.”
The most recent deadly aviation incident on a runway in Tokyo has raised concerns about the state of the industry as well as possible recoveries for victims.
On Jan. 2, a Japan Airlines flight on board a JAL Airbus A350 collided with a Coast Guard aircraft at Tokyo’s Haneda airport, causing the passenger jet to burst into flames. All 379 people on board the JAL flight escaped the fire, however, five of six crew on the Coast Guard flight died.
34-Year Aviation Lawyer Steven Marks of Podhurst Orseck in Miami, Florida, said the accident was likely caused by a combination of both air traffic control and pilot error. The official cause of the crash is still under investigation.
Marks and Podhurst Orseck have been at the front of some of the biggest lawsuits stemming from deadly aviation disasters since the 1970′s with the 1972 crash of Eastern Air Lines Flight 401 in the Florida Everglades.
Marks said that runway collisions have “almost always” resulted in fatalities on-board. In 2001, he represented victims of the last known runway crash involving a taxiing passenger jet when over 100 people lost their lives in a ground collision at the Linate Airport in Milan, Italy.
“A runway incursion should never happen, and there are so many backup systems that are supposed to prevent it, that it’s really surprising in this environment and today’s world that there could possibly have been such an accident,” Marks told Law.com. “The most miraculous thing about it is the fact that no one on the JAL crash was killed.”
Due to differences in jurisdiction when international crashes occur, Marks says that the path to recovery for victims can be extremely long. In fact, he says his representation of the Linate Airport victims has been ongoing for almost 23 years since the incident.
“Some of these international crashes, depending on the jurisdiction in which you bring them, can be extraordinarily long and expensive,” he said.
Although the JAL flight was a domestic one landing from the island of Hokkaido, he noted that some passengers may have had international destinations on their itineraries. This would trigger the Montreal Convention’s jurisdiction, which allows for automatic liability and unlimited damage recovery up to the extent of their injuries.
The Montreal Convention, established with a treaty signed in 1999, unified all of the treaty regimes covering airline liability under international law. It eliminates the need for passengers to establish negligence on the airline’s part, opening up the possibility for greater recoveries.
However, he also noted that for passengers who were only travelling within Japanese borders, their window for damages will likely be much smaller.
“Almost all of the Asian countries except for Malaysia, you’re going to get very modest, non-economic damages,” Marks said. “Fright, fear of life, pain and suffering, things like that are just not going to be as compensable in Japan.”
“It seems unfair, and I think objectively it is unfair for certain passengers on the plane because of their jurisdictional limitations to be stuck in a place where the recoveries are terrible,” he added. “Other passengers, just by virtue of their citizenship, or their final destination, might be entitled to a U.S. jurisdiction with very favorable international treaty terms; that happens all the time.”
As for the incident’s cause, Marks pointed to the possibility of air traffic controllers being overburdened due to labor shortages. He says because of the recent increase in the number of “near-misses,” the demand for more air traffic controllers has grown rapidly.
“That’s where you really measure the workload of air traffic control, on how many near-misses occur,” he said. “Thank God you don’t have too many actual incursions or contacts… but the warning signs are there when you start seeing near-misses.”
In a recent review of 2023 FAA data by the Wall Street Journal, the number of near-collisions over a 10-month period from January to October was the highest since 2016. Although the report noted that the FAA hit its 1,500-person goal for new ATC hires in 2023, they are reportedly still 3,000 controllers behind staffing targets—forcing many of them to work six-day weeks.
This month, a three-member panel for the FAA will begin work examining how fatigue considerations could be applied to air traffic controller work requirements and scheduling.
“There is something going on with the workload of air traffic control to result in these reported incidents,” Marks said.
In regards to warning signals on the ground, Marks says that although the runway incursions have been overwhelmingly international, the requirements by the International Civil Aviation Organization (ICAO) are no less stringent than they are in the U.S. Rather, it’s the enforcement of those measures that is followed more tightly in the States for several reasons.
“The rules and regulations for air traffic control anywhere in the world are uniform, but it’s the practice of complying with those rules, and the oversight and enforcement, that fluctuates dramatically around the world,” Marks said. “Tokyo’s a very sophisticated place, so you would not expect this to happen, whereas a place like Russia, China or Africa, which has much higher accident rates; you would expect there to be more of these kinds of incidents.”
As for the trend of younger, more inexperienced pilots being hired due to a “shortage of qualified pilots,” Marks doesn’t share the concern about increased risks despite calling it the “biggest stress on the aviation system right now.”
“A younger pilot tend[s] to go through checklists and double-check them, and they’re so much more vigilant about following all of the safety rules,” he said. “Just because there are younger pilots flying commercial, passenger flights now, I don’t think necessarily means there’s a risk if they’re teamed up with experienced, seasoned pilots.”