Air Force Hides the Ball on Andreini Crash Response

Hall of Fame Aerobatic pilot Eddie Andreini died during the "Thunder Over Solano" air show at Travis Air Force Base in May.  There was a mishap during his routine, and his Stearman biplane slid to a stop on the runway. Eddie wasn't hurt, but he was trapped in the plane.  He radio'd for help.

The Air Force had told the performers that its fire trucks would be positioned and ready to respond toEddie Andreini such an emergency within seconds.  But for some reason, the trucks were nowhere to be found during Eddie's routine. Instead of getting to Eddie in a minute or less, as they were supposed to, the trucks didn't get to Eddie for nearly five minutes.  By then, Eddie's plane was engulfed in flames and it was too late.  Eddie was gone.

Where were the firetrucks?  What took them so long to get to Eddie?  When the family asked the Air Force these questions, the Air Force closed ranks and went mum.  So the family exercised its rights under the Freedom of Information Act. The family formally requested the Air Force to turn over to them the documents that would show why the Air Force fire trucks didn't come to Eddie's aid as it had promised, and instead let Eddie burn to death.  

Under the law, the Air Force had 20 days to respond to the family's request. We had hoped that, out of respect for the family, it would have turned over documents right away.  But that was not to be. The family made its request to the Air Force four months ago. Yet the Air Force has yet to turn over to the family even a single piece of paper.

We've just filed suit against the Air Force for violating the Freedom of Information Act.  We want to know:  

  • Does the Air Force believe it is above the law?  
  • Does the Air Force believe that the family has no right to know why Eddie died?
  • What is the Air Force trying to hide from Eddie's family and the public about it's role in Eddie's death?  

 

Complaint - Travis AFB Re FOIA Request - FEC

NTSB Sued for Obstruction of Justice

Families of those involved in five different general aviation crashes and their lawyer are suing the NTSB, charging it with obstruction of justice.  The suit claims that the NTSB withheld from the families information concerning each of the crashes in violation of the Freedom of Information Act.

I’ve commented before about how the NTSB’s “party system” creates a conflict of interest that skews the results of its investigations in favor of the manufacturers.  But this lawsuit goes further than that.  It alleges not just a conflict of interest, but collusion between the NTSB and the manufactures:

Upon information and belief, investigators and others employed by the NTSB collude with manufacturers and, upon their departure from government, most often accept employment defending the aircraft and component manufacturers whom they are previously tasked to investigate.

As a result of that collusion, the lawsuit alleges, the NTSB withholds and even destroys evidence for the express purpose of preventing the victims and their families from finding out what really caused the crash and holding those responsible accountable.

The NTSB, through its officers, employees and/or its agents, including party participants, acted and continues to act with the intent to avoid, evade, prevent and/or obstruct the timely investigation of airplane crashes.

Does the NTSB really destroy evidence? Every aviation lawyer knows that it does exactly that, at least to some extent.  For example, an NTSB investigator may take many photos of an accident scene or wreckage.  Yet, he will make part only certain of those photographs part of the “Public Docket.”  The investigator may simply discard the rest before the NTSB releases its final report and opens the docket to public review.  The lawsuit seems to suggest that at least some investigators discard material purposely and selectively so that evidence that would incriminate the manufactures or other “party participants” never sees the light of day.

Explosive stuff.

 

Obstruction of Justice against the NTSB

Ethics Committee Goes After Monica Ribbeck Kelly for "Frivolous" MH370 Filing

The Illinois Attorney Ethics Committee has filed a complaint against Monica Ribbeck Kelly, the Chicago lawyer who started legal proceedings on behalf of a passenger's family shortly after Malaysia Airlines Flight 370 went missing.  One of the problems for Kelly is that the missing passenger's parents denied that they ever authorized Kelly to represent them.  

According to an ABC news story, the Illinois Attorney Registration and Disciplinary Committee also claimed in its complaint that Kelly has engaged in… conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute…”

According to the complaint, Kelly's allegations were frivolous:

[Kelly alleged] that Siregar had been a passenger on Malaysia Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed. .[Kelly's] allegations… had no basis in fact and were frivolous, because [Kelly] knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysia Airlines Flight 370.”

The ethics commission also criticizes Kelly for suggesting that a mechanical malfunction had contributed to the tragedy when committee said there was “no evidence” suggesting such a malfunction.

Full story and video at ABC News.

The Risk of Automation in the General Aviation Cockpit

I just returned from the American Association for Justice's annual convention in Baltimore, where Hudson River Corridor on the way to BaltimoreI spoke on the risks automation poses to the general aviation pilot.  As luck would have it, my autopilot failed departing San Carlos, so I ended up hand flying coast-to-coast.  No "deskilling" happening here.

Automation risk has become a popular topic over the past few years, but there's relatively little research on the subject.  To prepare for the talk, I reviewed that research and summarized it below.

 

General Aviation Automation Risk

USA Today: Cover-ups Mask Roots of Small-Aircraft Crashes

A few hours ago, USA Today published a lengthy investigative report devoted to small aircraft crashes. The conclusion:  aviation manufacturers have long concealed the fact that their defectively designed products cause aircraft crashes and injures. And the investigating agencies, including the NTSB and FAA, let them get away with it.

The report covers many of the issues we’ve touched upon before on this blog, from defective carburetors, to defective pilot seats, to faulty ice-protection systems. The report also covered a subject we’ve covered on this blog extensively – post crash helicopter fires in otherwise survivable accidents:

One of the most gruesome and long-standing problems has caused scores of people to be burned alive or asphyxiated in fires that erupt after helicopter crashes. Such deaths are notorious because they can occur after minor crashes, hard landings and rollovers that themselves don't kill or even injure helicopter occupants. The impact can rupture helicopter fuel tanks, sending fuel gushing out, where it ignites into a lethal inferno.

Using autopsy reports and crash records, USA TODAY identified 79 people killed and 28 injured since 1992 by helicopter fires following low-impact crashes. In 36 non-fatal crashes, fire destroyed or substantially damaged helicopters after minor incidents such as rollovers, crash reports show.

The report didn’t mention the most recent Robinson fire that killed the R44's pilot at Birchwood Airport in Alaska just two weeks ago.

Pilot error?

I've been saying for years that many crashes that the NTSB attributes to "pilot error" simply aren't. The USA Today report backs that up.  The report discussed the fatal crash of a single engine Piper following engine failure.  The NTSB chalked up the engine failure to pilot error.  But, as it turns out, the crash was caused by a defective carburetor float. The judge handling the case noted that the carburetor manufacturer had received more than 100 warranty claims for similar problems before the crash. Yet none of that product history made it into the NSTB report.

Ruling against Lycoming  [the engine manufacturer] and Precision [the carburetor manufacturer], Philadelphia Judge Matthew Carrafiello found evidence both might be culpable. Precision received more than 100 warranty claims concerning carburetor defects, the judge said, and Lycoming continued to use the carburetors even though it "knew of ongoing problems" with the carburetors "and of numerous plane crashes resulting from such problems.

None of that information was included in the NTSB investigation, which was aided by Lycoming and Precision and blamed Andy Bryan, the pilot, for "failure to abort the takeoff" and "failure to maintain adequate airspeed during takeoff."

According to the report, many of the crashes that the NTSB concludes are due to pilot error are actually due to defectively designed aircraft.

Federal accident investigators repeatedly overlooked defects and other dangers of private aviation as they blamed individual pilots for the overwhelming number of crashes of small airplanes and helicopters . . . The failure of crash investigators to find defective parts, dangerous aircraft designs, inadequate safety features and weak government oversight helped allow hidden hazards to persist for decades, killing or injuring thousands of pilots and passengers . . .

Manufacturers mislead the FAA

Part of the problem is that the NTSB does not travel to the site of many small airplane crashes, leaving the on-scene investigation to the FAA. Unfortunately, according to a former NTSB investigator, the FAA personnel don’t have the same investigative experience as the NTSB investigators and are easily duped by the manufacturers.

Many times what happens now is that when the accident occurs, the technical rep of the (manufacturing) company will call the NTSB and say we'll be party (to the investigation), we'll go out there and let you know what we see … the only people on scene would be perhaps an FAA guy and the field rep of the manufacturer," said Douglas Herlihy, a former NTSB investigator who now reconstructs crashes, often for plaintiffs in lawsuits against manufacturers.

"If you (the NTSB) are not there, you've got the representative from the company at the scene. His job is to skew the facts, to ignore the product difficulties and to remove the question of liability," Herlihy said.

US Airways Flight 735: Airline's Obligation to Compensate Injured Passengers

US Airways Flight 735 from Philadelphia to Orlando encountered turbulence as it passed through 17,000 feet. Three passengers and two flight attendants were injured so badly that they were hospitalized when the plane returned for landing in Philadelphia.

What is the Airline's obligation to compensate the injured?  The answer varies.

Passengers who were traveling on Flight 735 as part of an international flight:

If a passenger originated outside the US, or was ticketed to continue on from Orlando to a foreign destination, the Montreal Convention applies to that particular passenger’s claim. The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident." The definition of "accident" includes an encounter with severe turbulence. The passenger need not prove that the airline was at fault for the accident. Under the Convention, the airline is automatically liable.

As discussed here, the Convention also entitles the passengers who suffered a physical injury to be compensated for the emotional distress they suffered as well.

Passengers who were traveling domestically:

To obtain compensation for his injuries, the domestic passenger needs to prove that his injuries were due to the airline's negligence.  For example, the domestic passengers might need to prove that the flight crew could have reasonably avoided the turbulence but didn't.  That will be difficult -- apparently nothing more than light turbulence was reported in the area.

Cabin Crew:

The injured cabin crew cannot sue their employer due to workers compensation laws. They may be able to proceed against others responsible for the encounter, such as the weather reporting agency used by the airline.  In appropriate circumstances, the crew members can also sue the United States government if Air Traffic Control should have advised the flight of the upcoming turbulence.  Again, however, reports are that there is no reason to believe the turbulence could have been foreseen.

Judge Rules Lawyer Filing Malaysia Flight MH 370 Petition Acted Improperly

Shortly after the crash of Malaysia Flight MH 370, Monica Kelly of the Ribbeck Law Firm announced that her firm was filing litigation in Chicago seeking to preserve evidence and identify other possible defendants who might be involved in the missing Boeing’s manufacture and upkeep.  The filingMonica Kelly, Ribbeck Law generated quite a bit of fanfare and media coverage for the Ribbeck Law Firm and, at the time, the firm said that it expected to represent families of more than 50 percent of the passengers on board.

But the filing hasn’t turned out so well.  The judge has now tossed it out of court, ruling that it was improper and should never have been brought.  Further, she noted that she has tossed out previous petitions improperly filed by Ribbeck, so the firm should know better.  According to the Chicago Tribune, the judge was not amused:

Ribbeck Law had filed virtually identical petitions last year after separate fatal airplane crashes in San Francisco and Laos, and [Judge Flanagan] had dismissed both for the same reason.

“Despite these orders, the same law firm has proceeded, yet again, with the filing of the (Malaysia crash) petition, knowing full well there is no basis to do so,” Flanagan wrote.

The judge said she “will impose sanctions” if Ribbeck Law continues to make such filings.

According to another article in the Tribune, Ribbeck and Kelly have been in trouble before:

Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash. . .

In 2008, Kelly's brother and partner in the firm, Manuel von Ribbeck, was cited while working for another firm he allegedly posed as a Red Cross worker when he approached a man who'd lost his wife and daughter in a plane crash in the Bahamas. . .

Kelly was recommended for censure last month for allegedly continuing to try to represent a survivor of a 2009 Turkish Airlines crash in the Netherlands that killed nine passengers and crew. The survivor had sent a letter terminating the relationship, records show.  

It seems Ribbeck's problems are not limited to aviation cases:

On March 20, von Ribbeck was found in civil contempt of court after he failed to set up an escrow account for child support as ordered by the judge overseeing a 2009 paternity suit filed against him in Cook County, court records show.

In the order, Judge Lionel Jean Baptiste said von Ribbeck must show up in court April 14 and pay $17,000, or a warrant could be issued for his arrest. . .

April 16 Update:  For more, see Christine Negroni's post "Flim Flam and Shenanigans"

Asiana Admits Pilots Allowed Aircraft To Get Too Slow But Blames Boeing

Asiana now says the autopilot confused the crew of Asiana Flight 214, and blames Boeing for the crash of Flight 214.  ABC Channel 7 asked me to comment.

 

Montreal Convention's Time Limit for Bringing Suit Leads to Unjust Result

A passenger suffered from lung disease.  The airline denied him the use of his supplemental oxygen.  As a result, six months later, the passenger died. 

The family sued the airline within two years of the passenger’s death.  Normally, that’s within the statute of limitations.  But because the flight was an international flight, the Montreal Convention applied.  And the Montreal Convention requires suits to be brought within two years of the aircraft’s arrival at the destination, not two years from the injury or death.  Because the family’s claim was filed two years and three months after the plane landed, the trial court dismissed the suit as being brought too late.  The Ninth Circuit Court of Appeals agreed. 

The Convention is rooted in a one-sided deal struck many years ago to protect a fledgling aviation industry.  From the Convention’s venue restrictions, to its limitation on recovery for emotional distress, the Convention leads to results that offend any sense of basic justice or fair play.  

The Convention’s time limit for bringing suit is just one more unfair provision.  Let’s say that a passenger is badly injured in an accident and dies from complications three years later.  It would have been impossible for the passenger’s family to bring a lawsuit within two years from the aircraft’s arrival, because the family’s claim would not have accrued by then.  In that situation, even though the airline caused the death, the family would have no recourse at all.

One justice, Justice Pregerson, dissented noting the Convention was unjust.

Because of the unfair and unconscionable result in this case and perhaps others, I hope that the Montreal Convention will be revisited and revised to protect families like the Narayanans.

That won’t happen any time soon.  Even if there was widespread international support for amending the Convention – and there isn’t – the process would take many, many years.   

The case is Narayanan v. British Airways.   

Malaysia Airlines Must Compensate Families Regardless of Whether Flight 370 was Diverted by Crew or Hijacked

Someone changed the course of Flight MH370 and turned off the aircraft’s transponder.  Turning off an aircraft’s transponder makes it more difficult for the plane to be tracked by radar.  A hijacker with even minimal flight training would have known that. 

But there is one wrinkle.  The transponder was reportedly turned off when air traffic control was in the process of a “handoff” from Malaysian Air Traffic Control to Ho Chi Minh City Control in Vietnam.  At that moment, the aircraft was in the shadows: on the outskirts of Malaysian radar coverage and just entering Vietnam radar coverage.  The crew had said goodbye to Malaysian air traffic control, but hadn’t yet established contact with Ho Chi Minh City Control.  If a crew wanted to disappear, that would be an ideal time to pull it off.  Only the most sophisticated hijacker would know that.

Airline’s Obligation to Compensate Family Members

An airline’s obligation to compensate the families of those lost in the crash of an international airliner is governed by an international treaty known as the Montreal Convention.  The Montreal Convention requires the airline to compensate the families of those lost whenever the crash was the result of an “accident.” An “accident”  is defined as “an unexpected or unusual event or happening that is external to the passenger.”  Whether the crash was caused by a pilot’s wilful misconduct, a hijacking, or even a terrorist attack -- it doesn’t matter.  The crash counts as an accident and the airline is liable.   

Cap on Airline Liability

An airline is strictly liable for a family's loss up to 113,100 “Special Drawing Rights,” an amount equal to about $175,000. The airline can avoid liability for sums exceeding that amount only if it can prove it was totally “free from fault.” That is usually an impossible task for an airline, even if the crash was caused by a terrorist.  The air carrier can seldom show that there was nothing it could have done to avoid the accident.  It’s the problem of proving a negative.  Thus, if in fact flight 370 was lost in a crash, it’s unlikely the Convention’s “cap” on liability will come into play. 

More in my interview appearing in the Malaysian press