No Mayday Call from Egypt Air Flight 804

Aviation expert Clive Irving suggests that, because the Egypt Air pilots made no mayday call, they must have been killed before the aircraft crashed.  In other words, the crash was the result of terrorism rather than a mechanical issue.

Normally in a fire and smoke emergency the pilots would have time to don smoke masks with microphones in them, and would be able to send a Mayday, and describe the problem. The Egyptian pilots clearly were never able to do this, suggesting the possibility that they were either disabled or killed at the onset of whatever overcame the airplane so rapidly.

I'm guessing Mr. Irving never experienced a significant in flight emergency.  Those who have understand that the last thing a pilot facing an emergency feels the need to do is broadcast a mayday or “describe the problem” to some air traffic controller sitting in a warm dark room hundreds of miles away, sipping coffee.  And calling air traffic control to “describe the problem” is a task that appears on few, if any, emergency checklists.   Sure, pilots in distress broadcast “Mayday! Mayday!” all the time – in the movies.  But that’s about it.

“Mayday” is from the French, “m’aidez”, meaning “help me.”  When you are 6 miles over the ocean and dealing with smoke in the cockpit there is nothing an air traffic controller can do to help you.  Nothing at all.  The smoke is entirely your problem.  In an emergency, communicating with an air traffic controller is most often a distraction to be avoided or at least deferred until time and bandwidth permits. 

We don’t yet know whether the flight 805 crashed due to a mechanical problem or a terrorist act.  But the fact that the pilots made no mayday call suggests nothing.

Aviation Defense Attorneys Tout Their Chummy Relationship With The NTSB

The NTSB allows aviation manufacturers to participate in its crash investigations.  But it excludes from the investigation the crash victims, the victims’ lawyers, and their experts.  That’s how the NTSB has gone about investigating aviation accidents for years.  It’s little wonder, then, that the NTSB’s final reports are frequently biased in favor of the manufacturers and against the pilots or the passengers.  The conflict of interest inherent in the NTSB’s investigations is one reason why the NTSB most often concludes that a crash is due to pilot error rather than, for example, a mechanicalChairman of Wilson Elser's Helicopter Defense Practice defect.

Lawyers for crash victims have long complained that the manufacturers and their lawyers are too cozy with the NTSB.  When the manufactures aren’t trying to influence the NTSB’s conclusions in their favor, they are using their status as a “party” to the NTSB investigation to gather information they can later use to defend themselves in lawsuits the victims might bring.

Lawyers for manufacturers used to deny that they were too chummy with the NTSB.  Now, not only do they concede that its true, but they have started touting their relationship with the NTSB as a way of attracting more manufacturers as clients.

Wilson Elser is one of the country’s largest aviation lawyer firms representing manufacturers and other industry interests.  Today the firm announced that it is launching a “national helicopter defense practice.”  Why should a helicopter manufacturer hire Wilson Elser after a crash?  Well, because Wilson Elser is in tight with the NTSB:

Our team consists of accomplished litigators and trial attorneys, which are key to any defense team, as well as collective experience in aviation and aerospace with a distinct focus on rotorcraft. Together with our strong relationships with the National Transportation Safety Board and Federal Aviation Administration, we are able to gather the information necessary to create strong defense theories.”

It hardly seems fair that defense law firms are allowed to use their cozy relationship with the NTSB and their status as a “party participant” in the NTSB investigations to gain an advantage in litigation against the crash victims.  Yet, that is the way it is.

Sikkelee v. Precision Airmotive Corp.: Manufacturer Can Be Sued Even Though FAA Approved Design

Here’s the pre-emption argument:

Our plane’s design was approved by the FAA.  If plaintiffs think there is something wrong with it, they should take it up with the FAA. But they should leave us alone.”  

Manufactures make this argument in just about every aviation case we bring.  We  respond that that the FAA regulations are the bare minima only, and weren’t intended to be the last word on whether an aircraft’s design is safe. Besides, the FAA is stretched so thin that it allows many manufacturers to essentially self-certify their design work.  So in many cases the FAA stamp of approval was placed on the aircraft by someone who was actually on the manufacturer’s payroll.  How safe is that?

Sikkelee v. Precision Airmotive involved the crash of a 1998 Cessna 172.  The plaintiffs alleged the crash was caused by a defective carburetur. The manufacturers asked the court to dismiss the case against them because the aircraft engine's design was FAA-approved.  

The court noted the controversy concerning the FAA’s practice of allowing manufacturers to self-certify, but held it wasn’t really relevant.  Instead, the court agreed with plaintiffs that Congress simply didn’t intend the FAA regulations to be the last word on safety. That means that the regulations did not pre-empt state law, and the plaintiffs' tort case against the manufacturers of the plane and the plane’s engine components could proceed.

The manufacturers argued that if plaintiffs were allowed to sue over products even though they comply with all FAA regulations, it would end up killing the aviation industry.  The court had an answer for that: 

On the contrary, [our holding] simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects.”

No question that aviation manufacturers will continue to make the preemption argument going forward, as they are always looking for that sympathetic ear.  They just didn’t find one in the Third Circuit.

Sikkelee v. Precision Airmotive  

Spirit Airlines Likely Immune from Allred's Suit Alleging Airline Served Too Much Alcohol

Injured passengers have filed suit against Spirit Airlines in connection with last month’s drunken melee on board a flight from Baltimore to LAX.  The plaintiffs, represented by Los Angeles attorney GloriaAllred Sues Spirit Allred, seek to hold Spirit Airlines responsible for the conduct of the unruly passengers who injured them because Spirit Airlines allegedly fueled the flap with copious amounts of alcohol and failed to protect them from injury

Claims against ground-based barkeepers and others who over serve customers are permitted in some states.  But such suits don’t work when the defendant is an airline.  The Airline Deregulation Act of 1978 grants an airline immunity from any liability arising from the airline’s choices in connection with “routes, rates, or service.”  “Service” includes drink service.  That means that when a drunken passenger injures his fellow traveler, the airline who served the offending passenger cannot be held liable.  Gee v. Southwest Airlines.   

This case isn’t going anywhere. 

Icon Aircraft A5 Purchase Agreement: Who would sign this thing?

As AOPA is pointing out, Icon’s 41-page purchase agreement for its long-awaited A5 is, well, “unusual.” 

Perhaps what is most troubling is its language that seeks to allow Icon to dodge liability for any accident, regardless of its cause.

Founder and CEO Kirk Hawkins told AOPA that Icon believes in "extreme responsibility."

What we’re trying to do, in a nutshell fundamentally, is put the responsibility [for accidents] where it belongs. . . If it’s our fault, we’ll own it.  If it’s your fault, you own it.”

Seems fair enough, except that’s not what the agreement says.  It says that if the accident is Icon’s fault because, for example, Icon screwed up the design or manufacture of the buyer's aircraft, the buyer and his family owns it, not Icon:

Owner and Managing Pilot understand that participating in ground, water and air operations and related activities could result in injuries from a variety of factors, including but not limited to . .  . defects in the aircraft or components. . .   Owner and Managing Pilot knowingly assume these risks on behalf of themselves and their Successors in Interest.

If Icon would like buyers or pilots to "knowingly" assume the risks of defects in its aircraft, maybe it should come out and tell us what those defects are. 

This is not about "extreme responsibility"  It's about extreme irresponsibility. Icon is trying to dodge liability for any defects resulting from  its own actions and shift it onto others. 

Who would buy an aircraft from a manufacturer who wants it in writing that if we made a mistake that injures someone, its your fault?

MH 370 Families File Last Minute Lawsuits Against Malaysia Airlines

Malaysia Airlines Flight 370 is still missing.  Before filing any lawsuits, the families of those missing would certainly prefer to know what happened. But with a strict two year statute of limitations set to expire tomorrow, the families have to file suit now or never.  So it’s not surprising that a flurry of lawsuits are being filed around the world. 

The Montreal Convention controls any lawsuits filed against Malaysia Airlines.  It allows suit to be filed against an airline in a U.S. court only if either:

  1. The passenger's ticket was issued in the United States;
  2. The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States; 
  3. The airline is incorporated in the United States;  
  4. The airline's principal place of business is in the United States;
  5. The United States was the passenger's permanent residence.              

Most of the passengers were Chinese, so, as expected, a number of families filed suits today in Beijing Court.  Many more filed in Malaysia.

But at least 45 plaintiffs joined in a suit filed in California federal court in a case entitled Zhang v. Malaysia Airlines Berhard.  At first blush, it wouldn’t appear that the plaintiffs can meet the Montreal Convention’s prerequisites for obtaining jurisdiction in the U.S.  For example, the passengers weren’t U.S. residents, nor is the airline’s principal place of business in the U.S.  So what’s the justification for filing here?

The plaintiffs allege that jurisdiction is proper in the U.S. because the airline is now legally “dead.”  When the person liable is dead, the Montreal Convention allows the family to sue those representing the dead entity’s estate.  Plaintiffs allege that, in this case, the entity now representing the dead airline’s estate is its insurer, Allianz Global, and that Allianz maintains offices in the United States.

[A]n action lies against Allianz after [Malaysia Airlines] was rendered defunct and dead and an action lies against those Defendants as would lie against [the airline].. . .. Defendant Allianz maintains its principle places of business in three locations in California and six other locations.

Certainly, a novel argument for access to the U.S. court system.  Expect Allianz to challenge U.S. jurisdiction almost immediately.

Pearl Harbor Helicopter Crash: Settling with Power?

Today a Bell helicopter crashed into Pearl Harbor near the Arizona Memorial.   Reports are that everyone survived.  

 

 

Some are saying the helicopter experienced engine failure.  Unlikely.  Instead, the pilot probably experienced "settling with power."  That's when the helicopter is forced down by the downdraft it   creates with its own rotors.  To avoid crashing, the pilot must ease up on the power.  In the video, you can hear power increasing.  Adding power (or torque) just makes things worse.   

Settling with PowerFrom the FAA's Rotorcraft Flying Handbook:

When recovering from a settling with power condition, the tendency on the part of the pilot is to first try to stop the descent by increasing collective pitch. However, this only results in increasing the stalled area of the rotor, thus increasing the rate of descent. Since inboard portions of the blades are stalled, cyclic control is limited. Recovery is accomplished by increasing forward speed, and/or partially lowering collective pitch. In a fully developed vortex ring state, the only recovery may be to enter autorotation to break the vortex ring state. When cyclic authority is regained, you can then increase forward airspeed.

Passengers Fall Ill on American Airlines Flight 109: Another Fume Event?

American Airlines Flight 109, traveling from London to Los Angeles, was two hours into its flight when passengers and crew members suddenly started fainting or otherwise becoming ill.   The captain turned the Boeing 777 around and landed at Heathrow. American Airlines 777 

According to the Daily Telegraph in Britain, the aircraft likely experienced a problem with the aircraft's pressurization system: 

This would suggest problems with cabin pressure, although normally such problems occur during take-off and landing.

American Airlines added that the aircraft was being inspected by maintenance engineers.

Actually, what happened was likely a “fume event.”  For years, the airline denied fume events existed, but now we know that they do.  And we know that they are dangerous.  In fact, I wrote about a fume event aboard another American Airlines Flight (Flight 49) almost five years ago.  

Here's what happens: airlines pump air into the cabin.  The air is a mix of fresh air and air that has been compressed by the aircraft's engines--known as "bleed air."  But when the air distribution system malfunctions, toxic chemicals found in the aircraft's engine oil can be heated and pumped through the airplane, creating a fume event that makes passengers sick

Sometimes the passengers recover quickly, sometimes the ill effects can linger for years, with victims suffering ongoing tremors, memory loss, and headaches.   

If they are injured, passengers can recover against the responsible airline.  Because American Airlines Flight 109light was international, the Montreal Convention applies.  The Convention requires an airline to offer fair compensation to anyone injured as a result of an "accident."  A fume event would likely qualify as an accident, even though some airlines now contend that fume events are a "normal” part of flight.

The flight attendants, however, can't sue the airlines due to workers' compensation laws. That means their only chance for compensation is a product defect claim against Boeing, the aircraft's manufacturer.  As it turns out, Boeing has known about the risks of fume events in its designs since the 1950’s.

Piper Turbo Lance Crash in Bakersfield: Icing?

Piper N36402 departed Reid-Hillview Airport for Las Vegas as it was getting dark.  The pilot had his wife and three children on board.  Though the weather was challenging, the aircraft was turbocharged, which would have allowed the pilot to climb above at least some of the clouds.  

The plane's flight path, speed, and altitude changes can be followed on FlightRadar24.  The radar track shows that thePiper Turbo Lance N26402 aircraft made at least one 180 degree turn, but then resumed its course.  

It wasn't long too long after that the pilot found himself in trouble. The radar data shows the aircraft's speed building excessively and its altitude dropping fast.  The made two mayday calls (recording below) before the aircraft crashed, killing all aboard.

The flight conditions were ripe for airframe icing.  The Piper Lance lacked deicing equipment.  Airframe icing changes the aerodynamics of the wing and tail and can bring an aircraft down in a matter of minutes.  The loss of control can be especially dramatic when it is the tail surface that ices up first.

 

SkyLife HEMS Crash and Weather

The SkyLife Bell 407 air ambulance helicopter departed from Porterville Airport at 6:52.  It crashed minutes later, halfway into its 50 mile flight to San Joaquin Hospital in Bakersfield.  The four aboard SkyLife Helicopter Crashwill killed, including the patient being transported.

The flying conditions at Porterville were acceptable.  Though it was dark, the weather was 3300 overcast, with light rain, light winds, and 9 miles visibility.  Under those conditions, the crew could fly “VFR,” meaning they could avoid terrain and other aircraft by simply looking out the windscreen.  Were the conditions significantly worse, the pilot would have had to fly “IFR,” and would have had to rely on instruments and help from air traffic control.

The helicopter crashed east of McFarland.  The airport nearest the crash site does not have weather reporting equipment.  But first responders say that by the time they arrived it was raining hard. Photos of the crash area show dense ground fog. 

 Heavy rain, by itself, does not necessarily pose a safety risk.  But the restricted flight visibility that generally accompanies heavy rain or fog, does.  A helicopter pilot who inadvertently wanders into clouds, fog, or heavy rain can quickly become disoriented and lose control of the aircraft . 

One challenge of night flying is seeing and avoiding poor weather conditions before you wander into them.  Inadvertent flight into clouds is called “continued VFR into IFR conditions.” Sometimes pilots, trying to stay out of the clouds, will fly lower and lower until they strike hillsides or power lines that are hidden in the darkness.  The results of that sort of “CFIT” accident are almost always fatal.

It’s too early to say if weather was even a factor in this case.  After all, the first responders who reported the poor conditions didn’t get to the site for more than an hour after the crash.  But ground scars should provide clues to whether the helicopter might have crashed because the pilot lost control or whether, instead, he struck the ground, wires or a radio tower that he could not see while in controlled flight.  

Investigators will also want to know whether the air ambulance crew had night vision goggles available to them.  Night vision goggles have been a hot button for the NTSB for some time.