aviation expert on a planeIntroduction:

In October of 2014, a co-pilot’s mistake led to the crash of a tourist space plane, which the National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA) subsequently investigated. Recently, the results of those investigations were made public, causing much speculation among aerospace and aviation expert witnesses, as well as giving rise to certain legal questions.

Discussion:

The NTSB released a report on Tuesday, claiming that the crash, which killed a co-pilot and wounded the pilot, was the result of safety issues and human errors that are problematic in other parts of the transportation industry. See, e.g., “Co-Pilot’s Error Is Blamed for Crash of Space Plane,” New York Times, Jul. 28, 2015. In light of the incident and the ensuing investigations, many issues are at play, including who bears the responsibility for the crash, as well as what role government oversight agencies do and should have when assessing the safety of a particular vehicle.

According to one source, “During [the] powered flight of SpaceShipTwo on Oct. 31, the co-pilot…released the feather lock at the speed of Mach 0.82 as it rocketed upward instead of waiting until Mach 1.4, as specified in the procedure, when it would have been much higher in a thinner atmosphere. The force of the air against SpaceShipTwo’s tail caused the tail booms to pivot upward, and the craft broke apart.” Id.

However, despite such findings, much finger-pointing has occurred, and it has been directed at various parties. Some aviation, aerospace, and engineering experts have placed the blame on human error, claiming (as above) that the co-pilot made a mistake. If such was indeed the sole and proximate cause of the crash and resulting injuries, legal liability might rest with the individual co-pilot.

Others have criticized the manufacturer of the space plane, arguing that perhaps the training of the pilots involved and/or the design of the spacecraft’s controls were to blame. See id. One member of the investigation team concluded that, in fact, “the mistake is often the fault of a flawed system.” Id. In the NTSB’s determination, the manufacturer was responsible for the crash because of the manufacturer’s “failure to consider and protect against the possibility that a single human error could result in a catastrophic hazard to the SpaceShipTwo vehicle.” Id. Furthermore, according to the NTSB, both of the pilots received adequate training and were fully qualified to pilot the craft. Id. In that event, legal liability would rest with the company that owns the space plane, and not with the individual piloting the vehicle.

Still others have voiced concern over the manner in which the FAA handled the matter to begin with. In 2013, the NTSB identified ten safety concerns regarding the launch of the spacecraft, many of which were directed at the FAA. Id. In addition, the FAA itself mentioned several shortcomings in the manufacturer’s “analysis of human factors and computer software.” Id. Despite that, the FAA ultimately granted the manufacturer a waiver to the requirements it discussed as being necessary, and it granted a permit to undertake the launch. See id. As one expert explained, “The FAA issued the waiver based on commitments made by [the manufacturer] about how it would act to mitigate the risks but failed to check that [the manufacturer] was fulfilling its commitments.” Robert Wright, “Virgin Galactic rocket granted license despite safety fears,” Financial Times, Jul. 28, 2015. In the event that the FAA knew about potential safety hazards but permitted the launch and potentially negligently monitored the process, questions may arise as to the government’s role in the crash. If the FAA had the opportunity to guide the manufacturer as to how to prevent and/or correct such risks, legal implications could arise for the government as well.

Conclusion:

Ultimately, the investigations reveal much but leave many questions unanswered. Expert witnesses in the aviation and aerospace fields are left to fill in the gaps, and from a legal perspective, the question of who is at fault is far from clear. Attorneys should take note of this incident and, when working with clients in these industries, do everything possible to retain qualified experts and to coordinate their expertise with that of government oversight agencies, in an effort to both avoid future accidents and to protect themselves in the event of litigation.

By: Kat S. Hatziavramidis, Attorney-at-Law