Airshow Update: Accident Liability Threat to Airshow Survival

Posted on 01 August 2015 by Des Barker

The emotive issue of accountability and responsibility remains an unsolved litigation issue when it comes to airshow accidents. In fact, worldwide, it poses the single biggest challenge to airshow organisers and participants alike as insurance companies hike their rates unrealistically in an attempt to cover the entire spectrum of risk, from terrorism to aircraft crashes. Where is the world airshow circuit heading to under threats of litigation?
Introduction

The world's worst airshow disaster in the Ukraine as a Su-27 ploughed into the spectators enclosure on 27 August 2002.

A late 2005 Reuters on-line headline read: "Ukrainian Airshow Pilots Jailed". This was enough to make all airshow organisers and display pilots sit-up and take notice. This bizarre headline has possibly introduced a whole new take on airshow accident litigation for both organisers and display pilots. What was particularly significant, however, was that this headline actually referred to military pilots, not civilian.

Accident Liability

Most military display pilots assume that the State covers all forms of insurance, specifically third party and that the State is ultimately accountable for military airshow litigation claims. It is for this reason that military ground liaison officers enforce regulations so strictly at airshows where military aircraft are authorised to display, a fact sometimes misunderstood by the media and spectators. Even though the military in its own right has its own legal system and is empowered to deal harshly with regulatory misconduct within its own ranks, it is strange that in the case of the Ukrainian Air Force accident, the pilots and air force organisers were personally held directly accountable and responsible for the world's worst airshow accident. In a 'far-reaching' decision, a military court sentenced the pilot, Volodymyr Toponar to fourteen years in prison and his co-pilot, Yuriy Yegorov, to eight years for the Ukrainian Air Force Su-27 that ploughed into the spectator's enclosure at an airshow in Lviv, Ukraine on 27 August 2002. Both aircrew only ejected after the aircraft wingtip had scraped the ground; miraculously, both landed safely but suffered relatively minor injuries. The aircraft clipped the ground and cart-wheeled into the crowd killing 77 people, including 24 children, thereby achieving notoriety as the world's worst airshow disaster.

According to Interfax, Toponar was ordered to pay approximately $1.42 million to compensate victims of the crash and Yegorov $700,000. Anatoliy Tretyakov, the commander of the 14th Air Unit, and the deputy flight commander, Yuriy Yatsyuk, were sentenced to six years and ordered to pay $100,000 each. Anatoliy Lukinykh, the head of Flight Safety of the 14th Air Unit, was given a four-year suspended sentence and ordered to pay $70, 000. It is doubtful that military personnel in the Ukraine would be able to afford such steep fines or that they would personally have been insured against third-party accidents for this airshow.

According to Reuters, they were found guilty of failing to fulfil orders and violating regulations. The investigating commission determined that the pilots had attempted a risky move too close to the ground and that the commanders and show organizers had done a poor job at preparing and ensuring the safety of the spectators. Toponar denied responsibility for the deaths, according to Interfax. He has continuously claimed that technical problems and a faulty flight plan caused the crash and said that he would appeal his sentence to Ukraine's Supreme Court.

Litigation

In another case of litigation, the City of Lakeland, FL, USA, filed suit against pilot Terry Morris, who overturned his modified Glasair III while attempting to land at Lakeland Linder Regional Airport on April 18, 2004 while participating in the annual Sun 'n Fun airshow.

City Attorney Tim McCausland told the Lakeland Ledger newspaper that the city was suing Morris for the cost of cleaning up the accident scene, including digging up soil contaminated by spilled Avgas and of replacing a taxiway light taken out by the aircraft. All told, according to Lakeland officials, the costs came out to $16,283.44.

The city justified its suit against Morris based, in part, on the NTSB Probable Cause report on the accident. The report stated the mishap was caused by the pilot's failure to maintain airspeed and altitude while performing an attempted go-around, with a contributing factor being Morris's failure to follow ATC instructions.

According to the NTSB report and a story reported in Aero-News Network, Morris misunderstood an ATC clearance directing him to land on runway 9L, instead of 9R as he had assumed. While attempting to sidestep over to the correct runway at 200 ft. AGL, the aircraft stalled and while attempting to recover, the Glasair's landing gear caught the right edge of 9L, causing the aircraft to roll off the edge of the runway and flip over.

Lakeland's suit claims Morris was negligent in attempting to land on the wrong runway. In the NTSB report, Morris told investigators he had landed on 9R six times prior to the accident and that he did not initially realize that ATC instructions directing a "white low wing" aircraft to land on 9L were for him.

According Aeronews Network, it has been well documented for many years, that the arrival procedures for Lakeland-Linder Airport (whilst engaging in the confusing and often dangerous maelstrom known as Sun 'n Fun) are at best confusing and often downright unworkable. Hundreds of pilots have complained about these procedures... some have even died while attempting to execute them. It is possibly unreasonable to see the City of Lakeland attempting to further victimize the pilot of an aircraft involved in an accident, a pilot that had lost his aircraft and nearly his life.

Anti-Airshow Lobby Calls To Cancel Airshows

31 October 2003, the Russian aerobatic champion. Aleksander, Flying in the Air Race "Time Challenge"in Motegi Japan, collided with the suspension structures for the "ribbon cut" upside down 30 ft above ground level. Amazingly the pilot suffered only minor injuries.

More and more the litigious society in which we live is homing in on all aspects of everyday life and after an airshow accident, it is not long before the anti-airshow lobby voice their concerns over airshows. A commonly expressed opinion is that public displays of low level aerobatics entails risks vastly out of proportion to any benefits, perceived or real. They maintain that aerobatic displays do not improve public support for General Aviation nor for the preservation of local airports. They furthermore claim that aerobatic displays do not foster a favourable opinion of general aviation among the lawmakers, who are generally sensitive to the mood of the public when it comes to issues of public safety. Accidents, albeit infrequent, they claim, only reinforces the perception amongst the insurance companies that any form of aviation is an underwriting loss just looking for a place to happen and that they simply do not see any benefits to General Aviation stemming from low level displays of aerobatics in front of the public.

But, they are simply incorrect on several counts and lack understanding on the others. What they have expressed amounts to nothing more than their own personal feelings on the matter. Firstly, General Aviation insurance isn't predicated on airshow accidents...PERIOD! Public perception of General Aviation has little to do with airshow accidents and most importantly, the public aren't nearly as uneducated as is claimed by this lobby. Certainly, the 'man in the street' is more than capable of creating a defining line between airshow related accidents and everyday flying. This having been said, airshow flying, especially low altitude aerobatics is indeed a hazardous profession relative to most other jobs and that in many cases, professional demonstration pilots do indeed sometimes exceed both their own, and their aircraft's limitations. There are certainly safety issues, but the banning of airshow flying will not happen as they want. What is happening is that professionals are working together to make the venue safer and as long as there is public interest in low altitude aerobatic flying, and as long as a spectacle like an airshow creates an attraction for the public, airshow flying will remain with us.

FAA Largely Heeds EAA, ICAS Advice for Airshow Rules

It is not as if airshow organisers are just sitting back and doing nothing to improve the already impressive public safety records of airshows, the FAA has heeded the advice offered by the Experimental Aircraft Association (EAA) and the International Council of Airshows (ICAS) in updating its airshow policies. The FAA has worked with airshow and aerobatic groups to maintain the best level of airshow safety in the world, while not causing unnecessary costs onto airshow organizers or hampering displays of historic and vintage aircraft. According to an Experimental Aircraft Association release, specific EAA recommendations accepted by the FAA include:

  • Allowing certain formation flights to enter the airspace from different directions, when flying above 1,000 ft AGL. Many warbird airshows use these formation flights, at stacked altitudes, during their events.
  • Allowing working, media photographers and videographers past the airshow crowd line under controlled procedures, so they may capture images of aerial demonstrations not available to the public.
  • Use of readily recognizable landmarks as corner markers for airshow and aerobatic airspace boxes when more practical and identifiable.

USAF Thunderbirds solo display pilot ejected one eighth of a second before impact after misinterpreting height information for the Split-S at Mountain Home Air Base, Idaho, 'Open House' in September 2003.

Also accepted were recommendations in several administrative areas, which clarify airshow policy statements that could be misinterpreted, according to the EAA. EAA officials had discussed airshow issues with the FAA on several occasions during 2005, including at a meeting between top FAA and EAA officials during EAA AirVenture Oshkosh 2005. Those discussions included such airshow issues as airspace requirements, audience overflights, essential personnel in aerobatic boxes and media access. EAA drew on its more than 50 years of Fly-In and airshow experience and its close working relationships with performers and groups such as ICAS, when making its recommendations.

Conclusion

The impact of litigation on public safety is, as in all other fields, including entertainment, going to increase as the phenomenon of accountability becomes a more focussed means of castigating poor safety standards. As in the USA, the South African CAA will have to work very closely with the Airshow Society of South Africa (ASSA) and the airshow community as partners, to always make safety the top priority. When issues do arise, the expertise of ASSA and the airshow community are valuable resources for CAA to create practical solutions that keep airshows the exciting and memorable entertainment they have become."