A few days ago, Richard Russell, a 29 year old airline ground employee, got in a 76 seat commercial aircraft and took off from a crowded airport. Many people expressed surprise that he was able to accomplish this feat given the complexity of a modern commercial aircraft, noting that even starting the engines is a multistep process.  In addition, he showed a fair amount of skill in flying the aircraft.  Despite this, it appears he had no training in commercial multiengine aircraft and little, if any, formal pilot training.

In this instance, the troubled young man may have been suicidal, but fortunately, he was not murderous. After his joyride in the aircraft, it appears he intentionally crashed the plane into an uninhabited area.  But what if his intentions had been different?  Once he was airborne, it would have been a simple task for him to have crashed the plane, and its full load of fuel, into the terminal or another aircraft full of passengers.  During a busy travel day, the potential loss of life would be staggering.

Investigators and security experts will no doubt learn a lot from this incident. The problem, of course, is that the vulnerability from highly improbable “black swan” events such as this only becomes clear in hindsight.  What proactive steps can a company take to insulate itself from a potentially bankrupting liability in advance? The answer is the SAFETY Act.

The SAFETY Act has two purposes. The first is to permit security experts from various branches of government, working through the Department of Homeland Security, to review a company’s security technology and protocols and determine that they are effective in meeting threats such as this.  The second is to permit a company that obtains SAFETY Act certification to limit its liability if the unthinkable happens.

While the SAFETY Act is designed to protect from liability arising out of a terrorist attack, in practice, the statute has a broad application. For example, in the aftermath of the mass shooting carried out by Stephan Paddock at the Mandalay Bay, many people argued that the SAFETY Act cannot apply because investigators were never able to ascribe a motive to the attack.  The SAFETY Act does not require, however, that there be any particular motive, political or otherwise, for such an attack.

The SAFETY Act applies to any action that:

(i) is unlawful;

(ii) causes harm to a person, property, or entity, in the United States, or in the case of a domestic United States air carrier or a United States-flag vessel (or a vessel based principally in the United States on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), in or outside the United States; and

(iii) uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States.

6 U.S.C. § 444(2)(B). According to the plain meaning of the statute, the motive for the attack is irrelevant to the question of whether the SAFETY Act should apply to a particular attack.

It was only Richard Russell’s decision not to take as many innocent people as he could with him when he died that prevented an unimaginable catastrophe from occurring. Since no defense can ever be perfect, it is up to everyone involved to ensure that all avenues of defense, including the SAFETY Act, are used as part of a comprehensive approach to security.

For those of you who are interested in more information on the details of the SAFETY Act, the following LINK will take you to a recording of our recent webinar where we explore the SAFETY Act in detail and its application to the aviation industry.