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A Programmed ‘Pilot Trap’

Landing a modern jetliner requires the full attention and coordination of the pilots. The speed of cruise flight — approximately 550 miles per hour — must be bled off for landing. The airplane must be guided down an invisible glide slope so the tires skim the end of the runway. While descending, the airplane must be configured for landing; trailing edge flaps and leading edge slats deployed, engine power throttled back for a stable descent, communications must be maintained with the airport tower and with the flight attendants in the cabin, and a lookout must be maintained for other aircraft in the vicinity.

While the pilot handling the flight controls is seeking to maintain the airplane on the descending glide path, any automation that maintains the airplane’s reduced speed certainly frees his mind for the task of keeping the airplane along the -3° path to the runway.

If the pilot mistakenly believes the automated system is maintaining the correct speed for descent, when it is not, the lack of thrust can mean premature contact with the ground — and usually disaster.

The subtle failure of speed protection during descent is a classic “pilot trap”, one that caught the captain of Asiana Airlines Flight 214 on July 6, 2013. During a daylight landing in clear weather at San Francisco, with 291 passengers aboard the B777, the airplane lost speed, struck the seawall at the end of runway 28L, and cart wheeled to a spot about 2,000 feet further down, completing a 330° turn before skidding to a stop. Three passengers died and 199 were transported to hospitals with injuries.

The airplane was destroyed, broken apart and charred in a goo of firefighting foam.

The wreckage of Asiana Flight 214

The wreckage of Asiana Flight 214

A fiery, deadly fiasco resulting from decreasing airspeed that was not sensed by any of the supposedly professional pilots in the cockpit (three captains and one first officer, some training and evaluation being conducted on the flight from South Korea).

The National Transportation Safety Board (NTSB) investigated. A year after the crash, acting NTSB Chairman Christopher Hart glumly observed, “In this accident, the flight crew over-relied on automated systems without fully understanding how they interacted.”

Whether the automatic speed control was “On” or “Off” was not clear to the crew. The handling pilot presumably thought it was “On” when in fact the equivalent of speed control in an automobile had quietly, without announcing this fact, snapped “Off”.

The NTSB recommended that the Federal Aviation Administration (FAA) review the design of the speed protection systems on the B777:

“Convene a special certification design review of how the Boeing 777 automatic flight control system controls airspeed and use the results of that evaluation to develop guidance that will help manufacturers to improve the intuitiveness of existing and future interfaces between flight crews and autoflight systems.”

Classic toothless bureaucratese. Preferable wording might be:

“Redesign B777 and all other aircraft model autoflight systems to ensure that their controls of airspeed and altitude are obvious and that their ‘On’ and ‘Off’ status is unambiguous to the crew, and that changes in status are both aurally and visually apparent in the cockpit such that acknowledgement or rejection is required by crew action. Require all autoflight systems not meeting this standard to be upgraded in aircraft within 24 months of this recommendation, with associated documentation and recommended flight training to be issued to the airlines. Ensure FAA approval of all such changes and issue of FAA-compliance directives to ensure mandatory implementation by airplane manufacturers and the airlines.”

Let us not be wishy-washy about the flight crew’s real-time knowledge about whether speed is automatically being maintained, or not.

The problem predates the Asiana crash at San Francisco. At least one other crash and one incident involving other Boeing aircraft models can be attributed to mode confusion — or ignorance — according to the NTSB.

Captain Kim Je Youl, a B777 instructor pilot at Asiana Airlines, remarked in an interview with NTSB investigators that if the Flight Level Change (“FLCH”) mode is selected during descent, the autothrottle will move to the HOLD mode, which does not support airspeed protection. Rather, the engines will spool down to idle power. From an English translation of his statement:

“During an approach to Seattle … the airspeed was falling close to the target airspeed but the autothrottle was in an idle state and did not respond … when the airspeed was 10 knots below the target airspeed, I turned off the autothrottle and manually pushed the throttle and had an uneventful landing. However, I was surprised that the autothrottle did not maintain the selected target airspeed.

“After the flight, I examined the ‘Flight Control’ section of the Boeing Flight Crew Operations Manual (‘FCOM’) and was eventually able to find, with some difficulty, a single sentence ‘note’ item on circumstances in which the autothrottle may not respond. I still felt this ‘note’ was insufficient to explain what I had just experienced. Therefore, I did a further study of the ‘Autopilot’ section of the Boeing FCOM and realized that in the circumstances I described above the autothrottle can be in a dormant state and the autothrottle will not function even if the target airspeed is reached. In my personal opinion, this is very important information that should be highlighted to pilots as a ‘warning’ item and not merely a ‘note’ item in the Boeing FCOM.

“In light of my personal experience, I made it a point to teach this aspect of the Boeing 777’s authrottle logic in ground school.”

No aural alarm. Just a green “Hold” light on the instrument panel (not yellow or red) — green signifying everything is normal. The term “Hold” is a misnomer; not holding thrust to maintain the target airspeed, but holding at idle power. Unless this condition is caught, the airplane will descent below the glidepath.

Captain Jung Tai Soo, a B777 pilot for Asiana, recalled his ground school session:

“I attended [a] course on ‘Performance’ that was taught by Captain Kwon Young Sik, a Boeing 777 captain and flight instructor at Asiana. Captain Kwon stressed that during approach … he strongly cautioned against using FLCH in a situation where a fast descent was required, using the visual approach to runway 28L at [San Francisco] as an example.”

One would think that for an airplane in flight, any automatic command to reduce thrust to idle power would be signified by a yellow light on the instrument panel illuminating the word ‘IDLE’.

Note the illuminated green letters, with HOLD supposed to indicate idle power; for the unwary, a 'pilot trap' of the first order

Note the illuminated green letters, with HOLD supposed to indicate idle power;
for the unwary, a ‘pilot trap’ of the first order

A pilot who does not remember his ground school instruction, or who is otherwise distracted or busy during the descent to the runway, might not recognize that the airplane’s computer has reduced the two engines’ power to idle. Basically, nil power when more power is needed.

This deadly quirk was discussed at a December 2013 NTSB hearing on the Asiana crash. Indeed, mode confusion, the design of the authrottle system, and how the crew is supposed to know “HOLD” means idle power consumed a good portion of the discussion between the five Presidentially-appointed board members, FAA, Boeing and Asiana witnesses called to testify.

This particular autothrottle system is found on hundreds of Boeing aircraft; not just on the B777. The same arrangement is a feature of the B747, the B757 and the B767. The exact same autothrottle system is found on Boeing’s brand new B787. In other words, the system is widely used in the existing fleet and will be in use for the nest 50 years as the B787 enters widespread service.

The FAA’s Stephen Boyd testified about the absence of a “wake-up” function on the autothrottle, revealed during the course of certification flight testing, done as part of the process to gain FAA approval of the B787 for use by the airlines:

“We were conducting a flight test and there was a flight level change initiated and [it] was interrupted by another event … Our pilot … was monitoring airspeed and noticed airspeed was decaying, and then as part of his test pilot functions, allowed the airspeed to decay further to see what would happen

“And our test pilot was expecting … the autothrottle would wake up … not realizing that the autothrottle was on, the autothrottle would not wake up.

“In the process of doing the evaluation [of the autothrottle design software], working with Boeing in this one, our FAA pilot determined that the fact that the autothrottle did not wake up was not a safety issue, nor was it a regulatory compliance [issue] …he worked with Boeing to include additional information in the flight manual to explain that the autothrottle on the 787 would not wake up from an autothrottle hold.”

So, buried deep in the B787 flight manual is the same quiet but revealing caveat — “additional information” according to the FAA’s obviously satisfied Boyd — that Captain Kim found hard-to-find and woefully deficient in the B777 manual.

Captain Kim was present at the NTSB hearing, representing Asiana Airlines. He noted that the European Aviation Safety Agency (EASA) wrote during B787 certification that the wake-up function was not operative and did not protect the aircraft.

“EASA noted the inconsistency in automation behavior has been in the past a strong contributor to aviation accidents and concluded that Boeing would enhance the safety of the aircraft by avoiding exceptions in the autothrottle wake-up mode,” he point out.

“Why didn’t Boeing devise its automation design to address this recommendation?” he asked Robert Myers, Boeing’s chief engineer for flight decks.

Myers reply was revealing:

“This EASA recommendation came up during the 787 certification in a similar manner as the FAA response item that we discussed earlier. This [EASA concern] came out as a recommendation, which means that Boeing is not required to respond to it and it is not a certification issue.”

Thus, the FAA determined the autothrottle’s lack of wake-up was not a safety issue, and the European concern about the same issue did not “require” a response. By such careful parsing of words, the very same autothrottle deficiencies contributing to the crash of Asiana Flight 214 were embedded in the new B787.

Board member Robert Sumwalt asked Boeing’s Darren Gulbranson, head of the company’s simulators, “Where does it caution that if you’re in a flight level change mode and the autothrust is in hold, that they (sic) will not wake up as we’ve just described here?”

Gulbranson: “I believe it’s in Chapter 4 of the Flight Crew Operations Manual, a note that says in flight level changes, the mode — that the throttle’s in hold, it will not wake up.”

Sumwalt was not impressed that this key behavior of the system was buried in the fine print. “See? If you know all of those nuances, it’s pretty clear, but here we are training people and we’re instilling in them that the autothrottle is going to wake up.”

Needless to say, the NTSB hearing was a startling revelation that when the authrottle is in HOLD mode it will not wake up and provide speed protection. One is left wondering what other foibles and quirks lurk in the highly automated cockpits of today’s, and tomorrow’s, jets, covered by notes in the manuals but not fixed?

In its listing of safety concerns emanating from the Asiana Flight 214 crash, The NTSB listed “reduced design complexity” to “help reduce the type of error made by the PF [pilot flying].”

The NTSB concluded:

“If the autothrottle engagement function (wake-up), or a system with similar functionality, had been available during the final approach, it likely would have activated and increased power about 20 seconds before impact, which may have prevented the accident.”

The chaotic cabin of the Asiana B777 following the crash

The chaotic cabin of the Asiana B777 following the crash

Twenty seconds of added thrust — time that probably would have spelled the difference between a routine landing and fearful passengers scrambling to evacuate a wrecked airliner.

Recliner Rage

Passenger arguments over reclining seat backs have resulted in at least three unplanned landings recently. Tempers were flaring, and the pilots deemed it prudent to follow the admonition of one aggravated passenger cramped behind a reclined seat back: “Put this airplane down, NOW!”

The number of reclining seat back disputes resolved by diplomatic flight attendants remains unknown but is probably a lot.

Economy class seats have been cramped for years. Anyone sitting in the middle seat knows the subtle disputes over the arm rests, which must be shared with passengers in the adjoining window and aisle seats. In the case of seat width, the passengers in the window and aisle seats have the option of scootching slightly outwards, either toward the cabin wall or into the aisle, giving the hapless middle seat passenger use of at least one arm rest.

This flexibility does not pertain to the space measured from the hinge point of the seat in front to the hinge point of the seat in back — what is known as seat pitch. When the forward seat is reclined fully, the passenger behind is wedged in; the feeling can be positively claustrophobic. It should not surprise that occupants crammed like sardines are turning on each other.

As a passenger commented:

“In most economy class seats, if the person in front of me reclines, I cannot use my fold down tray, cannot use my computer, cannot read a book or newspaper. The reclined seat takes up all the room in front of my. This is intolerable for more than an hour or so.”

On one of the three flights that landed prematurely, a passenger had locked the seat in front of him in the fully upright position, using a device known as a Knee Defender. The irate passenger whose seat was blocked from reclining threw a cup of water in the face of the passenger using the Knee Defender when he refused to remove the device.

The Knee Defender prevents the seat back in front from being reclined into the space ahead of one when the tray table is deployed

The Knee Defender prevents the seat back in front
from being reclined into the space ahead of one
when the tray table is deployed

The $22 Knee Defender consists of two plastic wedges that, when affixed at the base of the seat back in front, prevents it from reclining. According to the website where Knee Defender can be ordered:

“It helps you defend the space you need when confronted by a faceless, determined seat recliner who doesn’t care how long your legs are or about anything else that might be ‘back there’.

“For those of use who have to squeeze ourselves into the limited airplane legroom space of a coach seat offered by many airlines, a seat in front us that is poised to recline is a collision waiting to happen — with our knees serving as bumpers.

“Knee Defender™ to the rescue.”

Of course, passengers can always upgrade to Economy Plus (or variants of this moniker), in which they are afforded a greater distance between seat rows — but the seat itself remains the same.

In many cases, the Economy Plus seats are in the exit rows for emergency evacuation out the removable window panel. The extra space between seats is required by the Federal Aviation Administration (FAA) so that all passengers — not just those in that row — can speedily evacuate the airplane.

On these rows, the seat backs in front do not recline, to prevent any inhibition to quick evacuation.

The obvious solution to recliner rage is to make all rows the equivalent of exit rows — more distance between rows of seats and locked recliners. This stratagem would doubtless be unacceptable to the airlines, which would lose revenue-generating seats, and to passengers who want to recline, albeit courteously.

But this recourse does not address the overall problem of seat size. Airline seats are designed for the 95th percentile of men. However, people are getting bigger, and it is estimated that about 1 in 10 passengers today find the seats too small for them. With many economy class seats measuring a scant 17 to 18 inches across, many passengers find them too snug. The widest part of the body is in the shoulders, which is why many passengers wind up shoving for arm rest space.

The FAA should initiate a study of population size to resize, as it were, the minimum seat size and spacing, both fore-and-aft and left-to-right. FlyersRights, a passenger advocacy group, argues that there is a safety dimension not being addressed in the current mania to cram more seats into airliners and fill them completely for each flight:

“We sounded the alarm on substandard seat pitch due to airlines being allowed to insert extra rows to increase profits, resulting in passengers unable to brace themselves according to the aircraft safety card. Passengers also cannot exit a plane in 90 seconds during an emergency as required by the FAA, due to lack of egress in seat rows.

“What is needed is the FAA stepping in and setting a minimum distance between airline seats…”

Assuming such an FAA study resulted in larger seats and increased pitch, the result might not be increased comfort for the passengers. The new standard would have to be embedded in regulation. Any proposed regulation would have to be published for public comment. Airline opposition to any reduction in seats would doubtless be fiercely opposed.

The sad case of child safety seats on airlines is instructive. The FAA proposed mandating them — which would have ended the unsafe practice of infants in parents’ laps. The public response was overwhelmingly favorable. Parents, medical and safety experts all weighed in favorably. Airlines were opposed. The FAA proposal died.

Until the FAA is no longer subject to the dictates of the airline industry, expect no relief on cramped seating.

How might relief be accomplished? Have Congress enact a law requiring the FAA to study seat size and pitch from a safety and comfort standpoint, and to require its findings to be implemented by the airlines within ten years. Nothing less will relieve the present cramped and disputatious economy class seating conditions.

Questionable Accountability

The Federal Aviation Administration (FAA) proposed a $12 million fine July 28 against Southwest Airlines for sloppy repairs to fuselages on its B737 jets. What appears as significant regulatory action appears distinctly as another tardy and weak effort to assure the safety of the flying public.

“The FAA views maintenance very seriously, and it will not hesitate to take action against companies that fail to follow regulations,” vowed FAA Administrator Michael Huerta.

Tough talk and a proposed fine that are both years late, when timely FAA oversight might well have made a difference. The whole announcement of this “civil penalty” against the airline appears scripted for public consumption.

The FAA says it seeks financial disciplinary action based on Southwest’s maintenance lapses from 2006 to 2009. Note that it is now 2014, five years after the closing window of alleged shortcomings. Financial penalties and mandated procedural and personnel changes would have made eminent sense in 2010; now, years after the fact, the FAA’s belated action is too late to impact procedures, or to make a meaningful imprint on the minds of those responsible.

Not to mention that had the FAA acted in a timely manner, the sudden 60-inch tear in the upper fuselage of a Southwest jet cruising at 34,000 feet in April 2011, forcing an emergency landing of the planeload of terrified passengers, might not have occurred.

 

<a href=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/hole.jpg”><img class=”size-medium wp-image-2869 ” alt=”Hole blown in the aluminum structure of a Southwest jet when the lap joint failed ” src=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/hole-300×169.jpg” width=”300″ height=”169″ /></a> Hole blown in the aluminum structure of a Southwest jet when the lap joint failed

The FAA says that proper procedures were not taken when fuselage skins were repaired on Southwest’s jets. Specifically, that the airplanes were not placed on jacks to stabilize them for the repair work; sealant was applied between overlapping skin panels, but not all rivet holes were affixed with fasteners within the time allowed to assure a good bond and corrosion-free service.

The repairs, according to the FAA, were not performed in accordance with airworthiness directives (ADs). However, the FAA adds that it approved the repairs after the airline provided proper documentation. So, did the FAA subsequently okay the repairs even though they were made on airplanes that had not been first placed on jacks, and rivets were applied in the time allowed after sealant was applied? And it took five years for the FAA to determine that the paperwork was sloppy and to issue a proposed fine? Where were the FAA’s on-site inspectors when the repairs were first made?

Lots of questions. No answers.

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<a href=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/faa.jpg”><img class=”size-full wp-image-2870 ” alt=”Looks official, but the globe should be a pillow until the agency acts like a rigorous regulator ” src=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/faa.jpg” width=”261″ height=”192″ /></a> Looks official, but the globe should be a pillow<br />until the agency acts like a rigorous regulator

Now begins a period of negotiation between the FAA and Southwest Airlines, in which the likely outcome is a dramatic reduction in the fine.

A fine against American Airlines for $162 million was subsequently whittled down to $25 million — an 85% reduction.

For Southwest’s lawyers, this 2013 precedent will surely provide a stimulus for vigorous argument.

Previous maintenance lapses do not seem to result in increased fines. From 2005 to 2013 the FAA levied $1,155,000 in proposed penalties against various airlines for maintenance lapses. Three forfeitures were announced against Southwest, the largest being $45,000. Eight penalties were proposed against Alaska Airlines, one of which was a measly $5,500. You would think that with eight proposed penalties from 2006-2007 there would be a special inspection of the Alaska’s maintenance practices across-the-board, especially when the airline came within a hairsbreadth of losing its FAA-issued operating certificate after the fatal crash in 2000, a direct result of maintenance deficiencies.

Each proposed penalty is viewed in isolation, not as part of a pattern warranting scrutiny as to the root causes of the maintenance violations. The flying public is unaware of these penalties; that is, unless the FAA decides to make a show of toughness.

The penalties would put a crimp in a household budget. For a corporation, they are not even as irritating as a minor hangnail.

Southwest earned a net profit in 2013 of $804 million. The proposed penalty of $12 million represents a mere 1.5% of 2013 profits. Negotiated down by 85% — as in the American Airlines case — will result in a penalty of just $1.8 million, or about two-tenths of one percent of Southwest’s 2013 profits.

These thoughts occur:

1. FAA action regarding AD noncompliance should occur within 12 months of discovery.

2. A forfeiture should be meaningful. Say, 5% of annual profits for each instance, times the number of airplanes affected.

3. The FAA should not be in the business of negotiating with the airlines what they will actually pay. The FAA is the regulator; if irregularities have been documented by the FAA’s principal maintenance inspector, the airline should be fighting to retain its operating certificate, not the amount of a reduced fine.

4. If the FAA were serious about safety and accountability, it would annually publish for the flying public each airline’s ranking using a star system similar to that used for automobile crashworthiness. For aviation, a three-star rating system would apply:

One star (¶): the airline meets FAA standards. If the airline is not meeting these admittedly minimum regulations, it should not be operating.

Two stars (¶¶): the airline more than meets FAA standards and has in place some voluntary safety programs.

Three stars (¶¶¶): all of the above, plus the airline has a pro-active safety culture with a non-punitive program to encourage employee reporting of deficiencies.

A civil penalty of less than $1 million would knock down an airline’s star rating by one star for six months. If already at the minimum one-star level, the airline would have its rating reduced to just a half-star. For penalties equal or greater than $1 million, the airline would be penalized by one star for a full year,

In pretty short order, we would see airlines scrambling to achieve a three-star rating and to make this ranking a feature of advertising, annual reports, and even on the corporate letterhead. Imagine a little logo on a proud airline’s web site and in its advertising: the great seal of the FAA emblazoned with three gold stars and a motto like, “Top ranking for safety, for five years and still improving.”

The flying public would have a ready measure; the airlines would have a meaningful incentive to avoid fines.

Malaysia Airlines Flight MH 17 – International Treaty Affords Legal Right to Passengers’ Families to Pursue Claims in Their Home Countries

Given the location and geo-political implications of the occurrence involving Malaysia Airlines Flight MH 17, speculation as to its cause will likely run rampant for years and remain vehemently contested even after a governmental probable cause is determined.

Yet regardless of the ultimate cause of the occurrence, the rights of the passenger’s beneficiaries to recover compensation for damages from Malaysia Airlines will be governed by the Montreal Convention of 1999. Even out-of-court, private settlements between the air carrier and passengers’ beneficiaries would be predicated on the provisions of the Montreal Convention.

Article 17(1) of the Convention provides:

“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Beyond this threshold requirement, Article 21 of the Convention establishes a two-tiered scheme of liability for compensation. First, the air carrier is strictly liability up to an amount of 100,000 Special Drawing Rights (SDRs), which had the equivalent of US $154,166 on July 17, 2014. Thereafter, there is presumptive liability to an unlimited amount unless the air carrier proves that:

“(a) Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) Such damage was solely due to the negligence or other wrongful act or omission of a third party.”

If an air carrier and the passenger’s beneficiaries are unable to reach an agreement on the amount of compensation for damages, a court action must be brought within the two years prescribed under Article 35.

The location or jurisdiction for the bringing of such a court action is limited under Article 33 of the Convention to one of five places:

1. a court in the country where the air carrier maintains its domicile;

2. a court in the country where the air carrier maintains its principal place of business;

3. a court in the country where the air carrier has a place of business through which the contract has been made (usually considered the place the ticket was purchased);

4. a court in the country of the place of destination; or

5. a court in the country in which the passenger had his or her principal and permanent residence, so long as the air carrier or its code sharing partner does business there.

Many of these five potential jurisdictions are often the same in a given action. However, to the extent that they are different, it is the option of the plaintiff as to which of the five jurisdictions the action is to be brought.

Once an action is brought, the Montreal Convention continues to govern the substantive legal remedies of the parties, but under Article 33(4), “questions of procedure shall be governed by the law of the court seised of the case.” Such applicable procedural law may well contain limitations of the nature and amount of the recoverable damages. This must be appreciated and understood before settlement or proceeding with an action in any court.

Wrongful Death Lawsuit Filed From Plane Crash Captured In Viral Video

(Chicago, July 8, 2013) A wrongful death lawsuit was filed today in the Circuit Court of Cook County, Illinois on behalf of the family of an airline employee who perished in the fiery crash of a Boeing 747 cargo plane outside Bagram Air Field, Afghanistan on April 29, 2013.  The victim, Gary P. Stockdale, was a mechanic for National Airlines who was aboard the flight when it crashed shortly after takeoff.  The suit was filed by Chicago-based Nolan Law Group which is also representing the families of Jamie Lee Brokaw and Rinku Summan, pilots for National Airlines who were among the seven men killed in the crash.

Video of the crash captured on a vehicle dash cam went viral after being posted on the internet through the Live Leaks website.

At the time of the crash, the plane was transporting cargo that included five Mine-Resistant Ambush Protected (MRAP) vehicles weighing nearly 80 tons which were on pallets in the main cargo area of the plane.  Government investigators have reported that it is likely a shift in the cargo from one of the vehicles breaking loose from its restraints that resulted in the crash.

The suit alleges that the accident aircraft was unreasonably dangerous and unfit for the transport of high density, rolling cargo and that Boeing’s manuals lacked sufficient limitations and warnings related to the transportation of such cargo.  The suit further alleges that the airplane’s cargo restraint system was faulty, that it was improperly assembled by Boeing during its conversion from a passenger to a cargo aircraft, and that the instructions on the use of the cargo restraint system were inadequate.

Well-known as an aviation law firm, Nolan Law Group has extensive experience in major air cargo crash litigation having represented crew members and families of crew members in accidents involving Fine Air at Miami Airport in August 1997, Emery Worldwide near Sacramento in February 2000, and most recently the Kalitta Air Boeing 747 crash near Bogotá, Colombia in July 2008.  The firm has also been active in other crash claims from Afghanistan including a previous National Airlines crash near Kabul in October 2010, and the successful resolution of claims arising from a fatal helicopter accident at Kandahar Air Field in July 2009.

 

Contact:

Tom Ellis

tje@nolan-law.com

Office: (312) 630-4000 x.112

Cell: (312) 493-3349

Asiana Accident Highlights Passenger Rights And Limitations To Recovery

Although Asiana Airlines Flight 214 crashed while landing at the San Francisco International Airport, contrary to simple logic, lex loci delicti may not be applicable and the United States may not be a forum for all passengers to bring a case against the airline. In cases wherein a claim may not be brought against the carrier in the United States under the provisions of the Montreal Convention, a passenger may wish to consider other avenues of recovery. Historically, these have included claims against aircraft and aircraft component manufacturers, airport operators and pilot training facilities. In each of the foregoing, it should be proven that adequate ties exist which points to the United States courts as the most convenient forum where the case may be filed and heard.

Under the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), a treaty superseding the Warsaw Convention, which the United States ratified on July 31, 2003, any one of the following basis for jurisdiction should be present before jurisdiction may be acquired by the US court, namely: (1) domicile of the carrier; (2) the “principal place of the business” of the carrier; (3) the place where the carrier has a “place of business through which the contract has been made; (4) “the place of destination”; or (5) the “principal and permanent residence” of the passenger.” Art. 33, Montreal Convention, as quoted in Baah v. Virgin Atlantic Airways Ltd., 473 F.Supp.2d 591 (2007).

Thus, as held by the Adjoyi, et. al. v. Federal Air (Pty) Ltd., 137 F. Supp.2d 498 (2001), federal district courts have no jurisdiction over Warsaw Convention (now Montreal Convention) claim unless air carrier’s domicile or principal of business is in the United States, the carrier has place of business through which contract for passage was made in the United States, or that the United States is the place of destination of flights. Applying the foregoing to the recent crash, it is clear that only the third, fourth or fifth basis (added by the Montreal Convention) would allow a claim to be filed in the United States, to wit, where the ticket was purchased in the United States, or that the United States was indicated as the ticket’s final destination or where the passenger is a resident of the United States, regardless of where the ticket was purchased or its destination is. Otherwise, a case filed with the US courts may be dismissed for want of jurisdiction.

In addition to the foregoing, Article 17 of the Montreal Convention provides that a carrier is liable only when death or injury took place on board the aircraft or in the course of the operations of embarking or disembarking. It likewise provides that for death or bodily injury claims, the carrier cannot exclude or limit its liability if damages do not exceed 100,000 special drawing rights. Article 21 of the Montreal Convention. Furthermore, a carrier may not be liable for any claims in excess of the said amount, should the carrier prove that damage was not due to the negligence or wrongful act or omission of the carrier or its agents and employees, or that the damage was due to negligence or wrongful act or omission of a third party. Id.

 

Wife of Afghanistan Plane Crash Victim Retains Aviation Attorneys

A Boeing 747 cargo plane, operated by National Air Cargo, crashed on takeoff from Bagram Air Base in Afghanistan on April 29th of 2013, killing all seven of its crew members. Among these crew members was Jamie Lee Brokaw (33) of Monroe, Michigan, a third generation pilot whose family’s aviation history stretches back to WWII. Brokaw was a member of the U.S. Air Force during Operation Enduring Freedom and Operation Iraqi Freedom before becoming a commercial airline pilot in 2008 and a First Officer in 2010. Brokaw is survived by his wife Elizabeth, who has retained Nolan Law Group to represent it for claims arising from the fatal injuries he sustained in the crash.

The accident gained unusual international attention when footage of the crash was posted on the internet and speculation ensued as to its cause, as the aircraft attained a very steep nose-up attitude immediately after takeoff. The aircraft then rolled left and right and entered a stall, where it descended into the ground near the end of the runway. Mrs. Brokaw, confident of her husband’s knowledge and attention to safety are searching for further answers and placing liability, something government investigators are precluded from doing. The accident aircraft was originally manufactured as a passenger aircraft and converted to a freighter in December of 2007 by Boeing for Air France. This raises some serious concerns about the structural strength of the aircraft and floor, as well as issues about the cargo restraint systems. The plane’s cargo included extremely heavy vehicles, and although the total cargo weight was within proper limits, the individual restraint capabilities of such heavy vehicles have their own limits.

Well-known as an aviation law firm, Nolan Law Group has extensive experience in major air cargo crash litigation, having represented crew members in accidents both nationally and internationally. A few examples include Fine Air at Miami Airport in August 1997, Emery Worldwide near Sacramento, California in February 2000, and most recently the Kalitta Air Boeing 747 accident near Bogotá, Colombia in July 2008. The firm has also been active in other crash claims from Afghanistan including a previous National Airlines crash near Kabul in October 2010, and the successful resolution of claims arising from a fatal helicopter accident at Kandahar Air Field in July 2009. Brokaw is also survived by his step-daughter Chloe and parents Susan and Terry.

 

Nolan Law Group Files Lawsuit Stemming From National Airlines Crash in Afghanistan

Nolan Law Group has filed a wrongful death lawsuit on behalf of the families of six crewmembers who died aboard National Airlines Flight 662 when it crashed into a mountain outside Kabul, Afghanistan on October 12, 2010.

The Lockheed Model L-100-20 (L-382E) airplane was operated under contracts with National Air Cargo, Inc. and Transafrik International Limited, among others, as National Airlines Flight 662, enroute from Bagram Air Base to Kabul International Airport.

In its Complaint, the Nolan Law Group alleged that National Air Cargo, Inc. and others were negligent and careless in procuring and providing an aircraft for use in commerce that was not airworthy or in a safe condition. It was likewise alleged that the said aircraft’s terrain avoidance warning system was inoperative, the autopilot was unserviceable and the traffic collision avoidance system was inoperative in flight, among others. Furthermore, the lawsuit included a claim against the entity providing the air traffic control services in the airspace near and around Kabul International Airport, for negligence and failure to provide the aircraft command with adequate warning and necessary instructions to keep a safe and proper separation between the aircraft and the surrounding terrain. This case is currently pending with the District Court of New York.

Earlier, Nolan Law Group has filed wrongful death claims on behalf families of victims who were killed in a Russian Mi-8 Hip helicopter under contract to NATO, which crashed in Kandahar Air Field in the Southern Afghanistan on July 19, 2009, killing 16 passengers and wounding five. The lawsuit was filed against the victims’ subcontracting employer who failed to exercise reasonable care and was negligent in ensuring that the chartering company whose services it procured was aware of the safety standards applicable to performance under the subcontract. This case was later settled by the parties.

Wing Clipping Incident Underscores Need For Cockpit Collision Alert

Based on the collision of an Air France A380 super-jumbo with a Comair regional jet on the evening of 11 April 2011 at New York’s JFK International Airport, this “Most Wanted” recommendation issued in 2000 by the National Transportation Safety Board (NTSB) will doubtless receive added impetus: “Give immediate warnings of probable collisions/incursions directly to flight crews in the cockpit.”

The recommendation to the Federal Aviation Administration (FAA) has been color-coded by the NTSB as red for “Open – Unacceptable Response.”

There are eight pages of fine print notes summarizing letters back-and-forth between the FAA and the NTSB since the recommendation was first issued. The last letter from the FAA, in 2009, indicated that a pilot project “will support development of requirements and an acquisition strategy …” etc. etc. The FAA response was neither timely nor promising.

It may be useful to compare the aviation industry to the automobile industry. During the past decade, automobile manufacturers have developed collision-avoidance cruise control and hands-free parallel parking. Both applications involve the detection of obstacles (e.g. cars and curbs).

The FAA, in concert with industry, is developing the Next Generation (NextGen) air traffic control system. Built around ADS-B (Automatic Dependent Surveillance – Broadcast), airplanes will broadcast their positions to air traffic control. This is known as ADS-B Out. A complementary application, called ADS-B In, would broadcast information into the cockpit. Under ADS-B In, the two aircraft involved in the collision at JFK would have been broadcasting their location to one another, providing the essence of a collision avoidance system. Under the initial concept of NextGen, ADS-B Out will be featured but not ADS-B In.

As the essence of collision avoidance the NTSB seeks, ADS-B In remains a distant dream. Application of automobile collision avoidance to taxiing aircraft as a “good enough” solution has not been even considered.

The NTSB justifiably concluded in 2009:

“This recommendation is now 9 years old, and it has been on the Most Wanted list almost since the recommendation was issued … technologies have not yet been finalized nor scheduled for deployment ….”

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There has been no update since. Now the NTSB is investigating the incident at JFK and will doubtless take the opportunity to reiterate its stalled safety recommendation.

Back at the gate after colliding with the regional jet

Back at the gate after colliding with the regional jet. Photo Attribution: © Antoine FLEURY-GOBERT / Wikimedia Commons / CC-BY-SA-3.0

The Air France A380 was taxiing from the boarding gate to the runway for a flight to Paris. A Comair CRJ700 operating as Delta Connection was pulling into its gate, but had halted, waiting for ramp personnel to marshal the small commuter jet the final few yards into the gate. The CRJ700 had arrived from Boston.

The huge Air France A380, its 262-foot wingspan overhanging the 75-foot taxiway, struck the much smaller CRJ700. The impact spun the CRJ a full 90 degrees, just missing a person on the ramp who was walking out to escort the small jet to the gate. In a video of the collision, the ramp person can be seen jumping back as the CRJ700 rotated violently approximately 90 degrees. The 62 passengers aboard received quite a scare.

Grainy photograph showing the CRJ700 being spun 90 degrees

Grainy photograph showing the CRJ700 being spun 90 degrees

A pilot aboard the CRJ700 radioed the tower: “Roll emergency trucks. We’ve been hit by – uh – Air France.”

The larger jet halted after being seemingly unaffected by the collision. However, the left wingtip of the A380 was damaged and the jet returned to the terminal to offload its 520 passengers and await repairs. The CRJ700 had been struck on the vertical fin, which also required repair.

Damage to the A380

Damage to the A380

Damage to the CRJ700

Damage to the CRJ700

The A380 is equipped with a closed-circuit television system (CCTV), which apparently was of little use in alerting the pilots to the presence of the CRJ700. The CCTV features a panoramic camera mounted high in the tail and four additional cameras mounted below the fuselage to track the landing gear. The system is intended to help prevent the landing gear from rolling off the taxiway when the A380 is making wide, off-center turns. Since the A380 was engaged in straight line taxiing at the time of the incident, the pilots may not have been looking at the video feeds.

With a restricted field of view from the A380 cockpit, preventing the pilot from viewing the wing clearly past the outer engines, the pilot taxiing the A380 clearly did not see the much smaller and closer-to-the-ground CRJ700.

One pilot remarked:

“With the large aircraft, it really does not matter if you are on the center line of those taxiways – their width at JFK is 75 feet. The A380 has a 260-foot wingspan. To me that means the pilots have to be extra careful to ensure wingtip clearance.”

The role played by the tower controllers will most definitely be examined by NTSB investigators. Additionally, if the A380 was on the center line of the taxiway, what was the responsibility of the Comair pilots on the ramp to ensure proper clearance?

In automobile terms, who had the right-of-way?

JFK and other airports serving the A380 have had taxiway turns modified to allow the landing gear to negotiate the wider radius without departing the paved surface. Terminal gate areas must meet a box 262 feet on each side, or template, to ensure adequate clearance from structures.

Had the NTSB’s 2000 recommendation been adopted by the FAA, the A380 cockpit would have featured a warning of the threat that likely would have enabled the pilots to take action and prevent the collision.

Skin Rupture Explodes Myth That Safety Is Under Control

Up on the top of the fuselage, tiny hairline cracks were creeping between the rivets; suddenly, the cracks connected and a 5-foot section blew open with the sound of a thunderclap as air in the fuselage rushed out. The emergency oxygen masks dropped down to the startled and frightened passengers.

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The manner in which the cracks suddenly connected together, growing a quarter-inch or more in fractions of a second, is known in engineering parlance as the “fast fracture” phenomenon. It has been seen before, notably in an Aloha Airlines B737 in 1988, when cracks, observed outside the fuselage by passengers while boarding, connected and caused complete loss of structural integrity. The walls and roof of a section of fuselage ripped off. Stewardess Clarabelle Lansing, serving passengers at the time, was sucked out of the airplane. Her body was never found.

From a made-for-TV movie, the Aloha Airlines accident.

From a made-for-TV movie, the Aloha Airlines accident.

In the case of Southwest Airlines flight 812 on 1 April 2011, while the flight attendants were taking drink orders, the fuselage of the 15-year old B737-300 ripped open at a lap joint where fuselage panels are held together by three rows of rivets. Fortunately, no one was ejected from the airplane. Emergency oxygen masks dropped from their overhead compartments and the pilot began a rapid descent from 34,000 feet to a lower altitude where the ambient air is dense enough to sustain life. The 118 people aboard scrambled to don the masks. One passenger said, “People were dropping” (fainting). At the cruising altitude of 34,000 feet, the so-called “time of useful consciousness” is on the order of 10-20 seconds, so one does not have much time to fiddle with the unfamiliar oxygen mask.

It is not known if the emergency oxygen had been de-activated in the lavatories, or if anyone was in the lavatory at the time pressurization was lost. The airlines had until 4 April 2011 to remove or exhaust the lavatory oxygen canisters. (See Aviation Safety Journal, “ ‘Huge Favor’ to Airlines Ordering Emergency Oxygen Removed From Lavatories”)

The airplane made an emergency landing at Yuma, AZ, and passengers clapped and cheered when the captain emerged from the cockpit.

The accident aircraft in better times.

The accident aircraft in better times.

The Aloha accident set in motion the Federal Aviation Administration’s (FAA) supplementary structural inspection program (SSIP) for older jets. They were to be inspected for signs of fuselage skin cracking and patched up. Jet transports that had accumulated 75% of their design life were subject to the SSIP requirements, which meant more than 75,000 flights. This particular Southwest jet was well short of that threshold, which would have required about 20 years of hard airline service.

The SSIP clearly did not work – and did not apply – to Southwest Airlines flight 812. Investigators with the National Transportation Safety Board (NTSB) pored over the plane, using various eddy-current and other instruments to chart the extent of cracking.

Robert Sumwalt, NTSB Member on scene, said there was evidence of extensive cracking in the area of the rupture. A 9-foot section of the fuselage, covering the area of the rupture, was removed from the airplane on 3 April 2011 and sent to NTSB headquarters for detailed analysis. The rupture occurred in a different area than on the Aloha B737 but involved the same joint design: three rows of rivets, each row about ¾ inch from the next, and the rivets along each row about the same distance of ¾-inch apart from one another. As in the case of the Aloha B737, the failure began in the lowest row of rivets, where the stresses are highest. In this case, crack stopper straps halted the failure at the rib-stringer intersection.

NTSB investigators also conducted inspections of other portions of the lap joint along the fuselage and found evidence of additional cracks.

Southwest Airlines cancelled 600 flights to inspect its remaining B737-300 aircraft. There are 288 B737-300s in U.S. registry, of which 79 are operated by Southwest. As of this writing, 21 have been inspected and three of the planes were found with small, subsurface cracks.

“What we saw with Flight 812 was a new and unknown issue,” said Mike Van de Ven, Southwest’s executive vice president and chief operating officer.

The “fast fracture” phenomenon is hardly “new and unknown” for older aircraft with highcycles. By high cycles is meant take-offs and landings; during each flight the fuselage is inflated like a balloon, and the flexing is akin to the repeated bending of a paper clip until it breaks. The lap joint features three rows of rivets to contain the stress, but periodic inspection for signs of cracking is essential.

The airplane underwent overhaul in March 2010. During this so-called D-check, the cabin seats, sidewalls and other appurtenances were removed to facilitate inspection of the aluminum structure for cracking. The records of that D-check will be closely scrutinized by the NTSB, as the cracking found on the accident airplane was clearly extensive enough to predate that overhaul of a year ago. Were cracks discovered? Were they repaired?

According to the dictates of the SSIP, crack growth is slow enough such that they can be missed entirely during one teardown – as long as crack growth is detected and rectified at the next overhaul. These D-checks occur at approximately four year intervals. If the cracks were detected during the last D-check for the Southwest B737-300 but not corrected, were Southwest maintainers seduced by optimistic predictions of crack growth? If the airplane was stripped to bare metal and the cracks were not discovered, why not?

If only visual inspections were conducted – as opposed to more advanced non-destructive testing (NDT) techniques – it is possible but not plausible that cracking was not detected. Of interest, NTSB investigators employed NDT on the aircraft on the ground at Yuma and immediately concluded that widespread fatigue cracking was present. Under the controlled conditions of an overhaul, Southwest technicians should have been able to detect the cracking.

Southwest’s maintenance has been under a cloud before. In March 2008 the Federal Aviation Administration (FAA) proposed a fine of $10.2 million against Southwest for operating 59,000 flights with airplanes out of compliance with a structural airworthiness directive (AD).

On 3 April 2008 the House Transportation and Infrastructure Committee held hearings on the alleged “cozy relationship” between Southwest Airlines and other carriers with the FAA. Then committee chairman Rep. James Oberstar (D-MN) complained to top Southwest executives at the hearing, “Southwest Airlines allowed 117 planes to fly without AD compliance … the most egregious lapse of safety that I’ve seen in 23 years.”

Despite Oberstar’s concern, in March 2009 the FAA announced that the $10.2 million fine had been reduced to $7.5 million on condition that Southwest would rewrite all its maintenance manuals.

On a per flight basis, the FAA originally proposed a penalty of $172.00 for each non-compliant flight, negotiated down to $127.00 per flight – less than the price that a passenger pays for a ticket on the carrier. A token proposed penalty was reduced further based on Southwest meeting certain minor demands.

This penalty did not arrest the structural problems at Southwest. On 13 July 2009, the very next month after the reduced fine was announced, a Southwest B737-300 experienced a rupture in its ceiling, forcing an emergency landing. The NTSB removed the ruptured component and after due metallurgical analysis it was determined that the probable cause was “Fuselage skin failure due to preexisting fatigue at a chemically milled step.”

The piece from the 2009 rupture.

The piece from the 2009 rupture.

A chemically milled step is one where metal is removed during manufacturing to minimize aircraft weight.

Boeing issued a service bulletin (SB) covering inspection of the area where the rupture occurred (on the roof, near the tail) and the FAA published an AD making the inspection mandatory.

From 2009 through 2010 Southwest filed 6 Service Difficulty Reports (SDRs) with the FAA recounting depressurization events. Below is the one for July 2009 involving a B737-300 (the same model as this most recent pressurization emergency):

“Declared emergency/diversion. Pressurization event at 33,000 feet. Masks dropped, emergency descent … Found fuselage cracked between BS [body station] 827 to BS 847, STR [stringer]. Repaired skin per SWA [engineering order].”

On 28 December 2010 the FAA published AD 2010-25-06 concerning structural problems for early model B737s (including the -300 variant). The summary is instructive:

“This AD requires repetitive inspections for cracking of certain fuselage frames and stub beams, and corrective actions if necessary … This AD results from reports of the detection of fatigue cracks at certain frame section, in addition to stub beam cracking, caused by high flight cycle stresses from both pressurization and maneuver loads … This reduced structural integrity can increase the loading in the fuselage skin, which will accelerate skin crack growth and could result in rapid decompression of the fuselage.”

The inspections must be performed within 4,500 flight cycles, or within 9,000 cycles after the previous inspection. Southwest complained to the FAA that “the specified threshold will pose a significant burden [as] half of its model 737-300 and -500 fleet will require an out-of-sequence maintenance visit …”

At 4 flights per day, the 4,500 cycle threshold implies a 3-year time to accomplish the inspection.

Meanwhile, in an apparent effort to demonstrate it is on top of the situation, the FAA announced on 4 April that it will issue an emergency AD requiring structural inspections of older B737 using NDT. Randy Babbitt, head of the FAA, said, “This action is designed to detect cracking in a specific part of the aircraft that cannot be spotted with visual inspection.”

Why cracking on the top of the fuselage is not amenable to visual inspection was not explained.

From a B737-300 diagram, it appears that the skin panel which ruptured open begins around station 663 and continues past station 706 and ends before station 727. The rupture is close to, but not exactly correlated with, the location cited in AD 2010-25-06. There is a lap joint at that location. It was corrosion, a substandard repair, scribing or a similar scrape in the surface of the aluminum which cracked from pressurization cycles.

As one aviation industry insider remarked: “I would like to hang anybody I see scraping lap joints with metallic or non-approved scrapers.”

This observation is not presented to suggest that such practice was condoned at Southwest Airlines. Rather, it illustrates the sensitivity of the metal skin to unauthorized abuse when flight cycles are measured in the thousands.

Given the extreme danger presented by even a scribe line, allowing 4,500 flights – much less 9,000 – seems overly generous. Whatever “significant burden” imposed on Southwest, that mandate seems lax in the extreme. Consider the ongoing out-of-sequence inspections, the 600 cancelled flights (at least), the likely lawsuits from the passengers aboard Flight 812, and the cancelled bookings from a frightened public, not to mention the loss of confidence in FAA oversight, then the “cost” of this incident progresses to erosion of confidence in the safety of air travel. This lost confidence is not simply restored by quickly fixing this particular problem.