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Protect Yourself

How old is the helicopter you’re flying? If you are like most of us, you probably fly a helicopter that was produced a couple of decades ago. I have flown the Bell 47, the Hughes 500, the Sikorsky 76 and the Robinson 44.  Only one of those types is younger than my adult daughter!

So what – right? We all know that aircraft are effectively rebuilt around the manufacturer’s data plate. Most if not all the parts have been replaced over the years, and the “old” aircraft are actually quite new.
So what? Why does this matter to operators or pilots? Well, if you happen to have flight operations into the U.S., or even if you just happen to fly into the U.S. on occasion, you need to know about the General Aviation Revitalization Act (GARA).

Signed by President Bill Clinton in 1994, GARA was to be the answer to a tailspin the general aircraft industry found itself in. Some manufacturers were going bankrupt defending lawsuits, while others stopped producing piston-engine aircraft because of the associated liability risk. Manufacturers could no longer afford liability insurance for aircraft that had been flying since the Second World War.

So what? Well, the existence of GARA, this little-known law (to me at least, until recently) will matter to you if you are a pilot, a pilot’s loved one, or an operator who suffers a loss or injury due to the negligent manufacturing of an aircraft or one if its component parts. GARA is a statute that cuts off the liability tail for manufacturers after 18 years! 

To understand how GARA works, it is important to know exactly which aircraft are covered by it. GARA deals with “general aviation aircraft,” which are any aircraft that the FAA issued a type certificate or airworthiness certificate for, and which, at the time of issuance had a maximum seating capacity of fewer than 20 passengers, and which, at the time of the accident, was not engaged in scheduled passenger-carrying operations. If your helicopter meets these minimum requirements, and many would, then it is covered by GARA in the U.S. 

Now, there are some notable exceptions. GARA will not apply if: 1) you were injured in the accident, but were not “aboard” the aircraft at the time of the accident (lawyers love this type of wording!) or 2) you were injured as a result of being a passenger for the purpose of receiving treatment for a medical or other emergency (clearly not your day!) or 3) you can prove the manufacturer concealed, or knowingly misrepresented required information, relevant to the performance, maintenance, or operation of the system or part that is causally related to the harm you suffered (great legal wording once again!) or 4) that you had a written warranty that extends beyond GARA’s 18-year reach (we all know warranties are measured in months, not years!).

GARA dictates that no civil action for damages for death or injury may be brought against a manufacturer of an aircraft – or any component, system, subassembly, or any other part of an aircraft – in the U.S. 18 years after the date of delivery of the aircraft to its first purchaser, lessee, lessor, or seller of that particular aircraft. This encompasses quite a group! GARA was initially designed to protect general aircraft manufacturers from seemingly endless liability tails. When one group gets protected, however, another gets exposed!
So, now what? Well, if GARA exempts the aircraft and parts manufacturers from liability, then the only ones left with deep enough pockets to satisfy the damage awards in a lawsuit will be pilots, operators, and maintenance facilities! 

How do we protect ourselves if we fly older aircraft in the U.S.? One way is to ensure we have the appropriate type and amount of insurance in place when operating in the U.S. Another way to avoid the reach of GARA is to try to have your legal action heard in Canada, if at all possible (see my October column on this topic). 

While no case has truly considered the jurisdictional reach of GARA into Canada, it is my opinion that GARA will not apply to incidents that occur in Canada. However, due to “reciprocating state” agreements between provinces and individual states, an action that has been dismissed in the U.S. may well be given that same consideration north of the border – only time will tell.

Are you still thinking ‘so what’? Not me!

Neil MacDonald is a lawyer with Harper Grey LLP, practising in Aviation Law. He holds an ATPL-H, and flies part-time as an Air Ambulance pilot. nmacdonald@harpergrey.com .
This is not a legal opinion. Readers should not act on the basis of this article without first consulting a lawyer for analysis and advice on a specific matter.
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