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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=”https://nolan-law.com/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=”https://nolan-law.com/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.


<a href=”https://nolan-law.com/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=”https://nolan-law.com/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.



Tom Ellis


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 ….”


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.

swa 5

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.

Deadline Looms for Arrestor Beds

With such a bona fide success record, you would think deployment would be accelerated.

I am referring to the Engineered Materials Arresting System (EMAS), which employs specially configured concrete that slows aircraft that have overrun the runway. EMAS has been credited with seven “saves” since 1999, the most recent of which occurred 1 October 2010 at Teterboro, NJ. A Gulfstream G-IV business jet ran off the end of the runway and into the arrestor bed. The EMAS, as designed, crushed under the weight of the aircraft, providing a predictable, controlled deceleration. The Gulfstream was stopped before it could break though the airport perimeter and hurdle across Route 46, a busy highway.

Runaway corporate G-IV halted by an arrestor bed.

Runaway corporate G-IV halted by an arrestor bed.

In this fortuitous case, no one was hurt and the aircraft suffered only minor damage – mainly needing a new set of tires.

In February 2005, an overrun at Teterboro had a less happy outcome. A Canadair CL-600 corporate jet attempted take off with its center of gravity well forward of allowable limits. The airplane did not get off the ground. It crashed through the perimeter fence, crossed Highway 46 and plowed into a warehouse. No one was killed. The 11 occupants of the aircraft all survived, but the badly damaged aircraft was written off. Two people in automobiles hit as the Canadair roared across the highway were injured.

Canadair jet lodged in a warehouse after overrunning the same runway in 2005.

Canadair jet lodged in a warehouse after overrunning the same runway in 2005.

After that accident, EMAS was installed in 2006 to prevent future overruns from bursting through the fence.

The light-colored area shows the installed EMAS at Teterboro. Note close proximity of the highway.

The light-colored area shows the installed EMAS at Teterboro. Note close proximity of the highway.

A witness said of the latest incident, “Just drove by and thankfully they installed those arrestors or it would have gone straight across Route 46 again.”

EMAS is produced by NJ-based ESCO-Zodiac Aerospace. The company’s Kevin Quan said:

“Both the airport and ESCO [Engineered Arresting Systems Corp.] – Zodiac Aerospace are thrilled about the aircraft arrestment from last Friday afternoon … This is our 7th successful save with the product. Both loss of lives and millions of dollars of aircraft damage have been avoided with the use of EMAS arrestor beds. Airports that have been proactive in installing arrestor beds such as Teterboro are now seeing the benefits of this technology.”

Six previous "saves" attributed to EMAS.

Six previous "saves" attributed to EMAS.

One could quibble with Quan’s enthusiastic use of the word “proactive.” The terrible 2005 accident spurred the 2006 installation that saved the plane and lives in 2010.

There is a disturbing pattern of the Federal Aviation Administration (FAA) freeing up money for airports to install EMAS after, not before, an accident. Following the fatal overrun of an American Airlines MD-82 twinjet at Little Rock, AR, EMAS was installed.

EMAS works by increasing the resistance of the aircraft tires to rolling. A concrete surface normally decreases rolling resistance through its hard surface. But EMAS consists of aerated cement blocks. Those blocks are designed to have the same effect on the airplane’s tires as gradually deepening snow would to a moving automobile. EMAS is configured for each runway, and is intended to stop a jet moving up to 70 knots (80 mph).

Close up of the crushable concrete.

Close up of the crushable concrete.

In the latest incident at Teterboro, the jet did not show obvious signs of structural damage, although its tires and landing gear struts were buried in the fractured concrete.

According to ESCO-Zodiac, “[A] Proprietary computer model predicts aircraft performance and design for the most effective solution for each runway end.” The company is the only one that presently produces an aircraft arresting system certified by the FAA for airport runway safety areas (RSAs).

Normally, an RSA consists of a grassy area, free of obstacles, extending 1,000 feet beyond the end of each runway and about 500 feet in width. But many airports were built before the 1,000-foot RSA length was promulgated by the FAA about 20 years ago. And airport locations are constrained by highways, railroads, severe drop-off of terrain – as at Little Rock – bodies of water, and populated areas (residential, office, industrial).

Where there is insufficient area for the 1,000 x 500 foot RSA, the EMAS arrestor bed can be installed. It normally extends up to 600 feet past the end of the runway, but the design is tailored for each location and for the heaviest types of aircraft anticipated to operate at the particular airport.

Under the FAA program of airport safety improvements, all runways must feature either the full 1,000-foot RSA or the EMAS arrestor bed by 2015. For some deficient runway RSAs, grading and planting will suffice if land is available and not too costly. Where this is not possible, EMAS is employed.

According to ESCO, as of October 2010, 55 EMAS configurations have been applied to runways at 37 airports worldwide (35 U.S. airports) since 1996. This works out to an average of about four installations yearly in the U.S. According to the FAA, about 80 EMAS installations remain to be completed during 2011-2014 to meet the deadline of projects completed by 1 January 2015.

emas installed

That works out to an installation rate of about 20 EMAS per year, or four times the annual rate of installations thus far.

It is doubtful the FAA will meet its goal.

The pity here is that the EMAS installation can easily be justified on cost-benefit grounds. Assume an EMAS installation price at Teterboro of $8 million. Now assume the statistical value of a life is approximately $3 million, and there were 9 passengers and crew aboard the G-IV that was stopped by EMAS. Assume $25 million for a used G-IV. Add together the cost of airplane and lives and compare to the price of an EMAS installation:

Benefit: $27 million lives saved + $25 million aircraft saved = $52 million

Cost: $8 million EMAS

Ratio of benefits to cost: 6.5 to 1

That’s one runway, one incident. The benefits nationwide clearly are in the hundreds of millions of costs avoided.

The FAA’s support of EMAS is laudable; at the same time, the agency’s definition of a “high priority” program does not square with the 2015 deadline. An accelerated limit of 2013 would be more in keeping with the FAA’s definition of the program’s importance.

Cessna 206 Medical Transport Plane Crashes in Lake Michigan

A single-engine light plane carrying a patient to the Mayo Clinic crashed into Lake Michigan on Friday, 27 July, raising concerns about the safety of general aviation. The airplane was flown by a private pilot who had volunteered to transport the patient from Alma to Rochester, MI. The airplane was not flown by an emergency medical services (EMS) company that specializes in transport/evacuation of patients. Rather, the airplane was owned by Freed Construction of Alma.

A rescue vessel receives a survivor of the crash from a small fishing boat.

A rescue vessel receives a survivor of the crash from a small fishing boat.

The Cessna 206 was regularly used on a volunteer basis to transport patients to the Mayo Clinic.

On board the aircraft was owner Jerry Freed and pilot Earl Davidson. Also on board were three other individuals, whose names are not known at this time.

The airplane crashed into the lake about 10 am off the shore of Ludington, a resort town on Michigan’s west coast. A small fishing boat rescued a survivor about two hours after the crash. At this point, the fate of the others is not known but they are presumed dead.

The airplane was equipped with an emergency locator transmitter (ELT), or radio beacon, that was activated on contact with the water. The ELT signal is detected by satellite and can be used to pinpoint the location of the wreckage.

The planned flight was some 150 miles one-way.

Pilot Davidson reported loss of engine power to an air traffic controller at Minneapolis about 10 minutes before the plane went down. The power problems apparently began about one-third of the way to Rochester; the airplane doubled back over Lake Michigan and then descended steeply near Ludington.

Coast Guard search and rescue operations are continuing.

The National Transportation Safety Board (NTSB) will be investigating the crash. Among the issue to be covered:

— The lack of cockpit voice and data recorders, and the absence of a cockpit video recorder, which would have at least captured the status of instruments, controls, and the pilot’s actions.

— The use of a Part 91 General Aviation airplane to transport the patient. Under Part 91, there are no standards regarding pilot flight and duty time, and maintenance records are also considerably less rigorous and detailed than for a Part 135 (air taxi) flight. Companies specializing in patient transport are required to transport patients under Part 135 regulations, which are considerably more demanding. Under Part 135, a risk assessment of the flight was necessary and flight following by a company dispatcher should have been routine. As a General Aviation operation, neither criteria was required.

— The use of a single engine piston transport for basically an overwater flight over a lake known for its cold water (and reduced survival time). In this case, the airplane could have flown to Benton Harbor, along the shore to Gary, and west up through Janesville, enroute to Rochester.

— The presence in the airplane of life preservers and rafts, and whether or not the preservers were donned (uninflated) before the airplane crossed into the overwater portion of its flight.

News reports of the crash involving a “medical transport plane” may give their readers the illusion that this was a formal EMS flight by a company specializing in that kind of operation. It wasn’t; it was a Part 91 operation in which the owner and pilot were performing a voluntary service for a non-paying patient.

The Part 91 accident rate is far higher than for Part 135 (air taxi) or Part 121 (scheduled airline) operations. Patients and their relatives and care givers may not be aware of the poor safety record of Part 91 operations.

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