Aviation Law Monitor : Aviation Lawyer & Attorney : Michael Danko Law Firm : California Airplane & Helicopter Crashes : Aviation Law Monitor

Eurocopter's AStar is the most popular tour helicopter in the United States. But according to some tour operators, the helicopter is dangerous and defective. They use it anyway because it is the most profitable.

No, I’m not making this up.

Problems with the AStar 350?

One of Las Vegas' largest tour operators, Heli-USA, is run by Nigel Turner.  Turner is himself a pilot. He operates the largest AStar fleet in the Western United States. And he feels that the design of the AStar's hydraulic sytem causes it to crash. Turner complains that the manufacturer refuses to fix the problems. But, like other tour operators he sticks with the AStar for one simple reason: money. According to a 2008 article in the Star Bulletin:
 

Turner said that despite the problems with the AStar, it will remain the helicopter of choice for his company because it's the only chopper with forward-facing seats that can fit enough passengers to make a tour profitable.

So what exactly do hydraulics and actuators do?

The actuators move the helicopter's rotor blades, allowing the pilot to control the flight of the aircraft. The AS350's hydraulics -- similar to a power steering system in a car -- help move the helicopter's actuators. If the hydraulic system fails, the pilot may find it hard to move the actuators and thus the helicopter can be difficult to control.
 

While a problem with the hydraulic system can make the helicopter difficult to control, a disconnected or broken actuator will make the helicopter impossible to control. That's what happened in 2007, when an AS350 just like the one involved in this accident crashed in Hawaii, killing four tourists. Days after that accident, Eurocopter issued a Special Airworthiness Bulletin (see below) prompted by two previous fatal accidents, warning of the consequences of loose servo control rod end fittings. 

The Sundance Helicpter’s control system

NTSB board member Dr. Mark Rosekind says that the Sundance helicopter climbed and turned erratically just before impact.  That's consistent with an actuator problem. And, just hours before the crash, one of the Sundance helicopter's main rotor actuators was replaced.  Was the actuator defective? Was it installed incorrectly?

The NTSB has now recovered that actuator from the wreckage site. That's where the investigation will focus. 

But given what industry leaders have to say about problems with the AStar’s control system, one has to wonder whether by continuing to use the helicopter the tour industry is simply placing profits ahead of public safety. 

AS350BService Bulletin

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Power lines can be virtually invisible from the air.  The trick to avoiding them is, paradoxically, not to try to find them.  Instead, the pilot should look for the towers from which they are strung.  Once the pilot has the towers in sight, he should choose one and fly directly over it, rather than between them.  By flying over one of the towers the pilot can be assured of avoiding the wires, since no wires are strung higher than the tower itself.  

In November 2009, a Piasecki helicopter struck high tension wires shortly after departing from Adelanto airport as it headed for an airshow in Riverside, California.  The helicopter crashed and burned, and all three aboard were killed.

We represented Colleen Goble, the widow of one of the pilots on board the helicopter.  Yesterday, a jury in San Bernardino county, California rendered a $10 million verdict in her favor against the estate of Joseph Pike, who was the other pilot in the helicopter and the helicopter’s owner.  The jury determined that Pike was the pilot in command at the time of the accident.

Pike, a well-known flight instructor with over 12,000 hours of flight time, trained his students to never fly between electrical towers.  Rather, he taught his student to pick one tower and fly over it.  On the day of the accident, however, Pike chose to “split the towers” and ended up in the wires.

Pike’s estate had argued that forensic evidence showed that Goble, not Pike, was at the controls.  Pike’s estate also argued that the lines’ owner, the city of Los Angeles, should have installed orange marker balls on the lines to make them visible. Pike’s estate had sued both Goble and the city of Los Angeles but dismissed both those claims shortly before trial.

Goble was a vintage helicopter buff. He worked for a medical technology company and held several patents.  His work had been featured on National Geographic Television and had been displayed in the Smithsonian.  He was 58.  The couple lived in Connecticut and had no children.

The name of the case is Goble v. Estate of Pike.  The judge was the Honorable Steve Malone.

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The NTSB blamed the pilot for the last Blue Hawaiian helicopter crash into the side of a mountain. The NTSB concluded that while flying near bad weather, the pilot inadvertently entered clouds, became disoriented, and lost control of the helicopter. According to the NTSB, the probable cause of the accident was:

The pilot's inadequate decision by which he continued visual flight rules flight into instrument meteorological conditions. Also causal was his failure to maintain terrain clearance resulting in a collision with mountainous terrain. A contributing factor was the low ceiling.

One need only look at the low clouds in the photo taken shortly after Thursday's Blue Hawaiian crash on Molokai to wonder if weather and pilot decision-making played a similar role in this latest crash. 

Hawaii’s micro-weather makes helicopter tours dangerous. We've written about it before here, and here.  Spoken about it too.  Yet, year after year, tour operators opt to collect the fares and fly when weather conditions dictate that they really should stay on the ground.

Did the pilot involved in Thursday's crash try to squeeze his Eurocopter between the weather and the terrain and lose control?  Time will tell whether this accident should be added to the list of crashes caused by "improper VFR."  But without significant changes in the industry, Hawaiian tourists will continue to lose their lives in completely avoidable weather-related helicopter accidents. 

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Philip, South Dakota is the site of the second fatal Robinson R66 crash. This time, only the pilot was on board the helicopter.  The first fatal R66 crash, which happened in July, killed two. 

How does the R66 safety record stack up so far? 

Since there are only 41 R66's on the US registry, the record stacks up poorly.  

Before the Robinson R66 came along, there were about 1.2 fatal turbine helicopter accidents for every 100,000 hours flown. For the R66 crashes to be in line with that norm, each of the 41 R66's in the fleet would need to have logged 4000 hours.  Since Robinson didn't start delivering the R66 until November 2010, that's virtually impossible.  More realistically, the average time on an R66 is less than 400 hours.  

Though not a scientific analysis, as of now it looks as though Robinson's R66 is about 10 times more likely to be involved in a fatal crash than other turbine helicopters.

Sure, this is a small sample.  Perhaps it's too soon to draw any conclusions.  But should R66 owners and pilots be concerned?

Of course they should.

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A helicopter carrying workers to an oil rig attempts to land on the rig’s platform. The helicopter hits something on the rig, spins out of control, and crashes into the sea. All the helicopter's occupants are killed. 

Sadly, with more than 5000 oil rigs operating off the US shores, oil rig-related helicopter crashes are a relatively common occurrence.

Even though the accidents are almost always the result of someone’s negligence, it's often unclear what compensation, if any, the victims’ families will be entitled to.  That's because there is little agreement as to what law applies to helicopter accidents on oil rigs. 

Since there is no governing "helicopter accident law," some courts look to the law of admiralty.  Reasoning that the deaths occur offshore, they apply the Death on the High Seas Act. The Death on the High Seas Act, or DOHSA, generally allows the victims' families “pecuniary damages” only.  Pecuniary damages include lost wages and funeral expenses. Except in certain circumstances, no compensation is allowed for the loss of the victim's care, comfort and emotional support, or his pre-impact pain and suffering. When DOHSA applies, it can mean the family members get no compensation at all.

Most oil rigs are located on the "outer continental shelf." Because of that, some courts have ruled that the Outer Continental Shelf Lands Act applies to helicopter crashes on oil rigs. Unlike DOHSA, the Outer Continental Shelf Lands Act ("OCSLA") entitles the victims' families to all the damages available under the wrongful death statute of the nearby state. That usually includes compensation for the loss of the victim's care, comfort and affection.

In Alleman v. Omni Energy Services Corp, a helicopter pilot landed on an oil platform, then tried to lift off and reposition the helicopter to make it easier for the passengers to exit.  When he did, the helicopter's main rotors struck a boat landing that had been improperly stored near the helipad.  The helicopter spun across the pad, momentarily came to rest on the edge of the pad, and then fell over the side of the rig and into the Gulf of Mexico below.  One passenger died.

The court ruled ruled that OSCLA applied, not the more restrictive DOHSA.

This accident "actually occurred" on the oil platform itself and OSCLA therefore applies. It does not impact our analysis that Hollier fell into the sea after the accident occurred on the platform. . . .Congress did not intend . . . that these island-platforms be within admiralty’s jurisdiction. 

Texas lawyer Ryan Hackney  questions the court's reasoning:

The [opinion] takes it as self-evident that the accident “actually occurred” when the helicopter’s tail rotor made impact with the boat landing on the platform. From Hollier's perspective, however, the more significant impact was surely the one when his helicopter crashed into the unforgiving water of the Gulf of Mexico. To put it bluntly, bumping your tail rotor might ruin your day, but crashing your helicopter into the high seas will ruin your whole week.

It was the main rotor that struck the landing, not the tail rotor.  But, putting that aside, Hackney's  thorough analysis of the Alleman opinion and the law bearing on helicopter crashes on oil rigs is excellent and worth a read for anyone wrestling with the topic.

As Hackney's analysis points out, the law that applies to helicopter crashes on oil rigs is confused.  In fact, there is sufficient disagreement among the courts concerning OCSLA's application that the United States Supreme Court has agreed to hear argument in October in Pacific Operator Offshore v. Valladolid.  The case doesn't involve a helicopter crash.  But it will tee up issues of when OCSLA applies to accidents injuring rig workers and when it does not.  

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The Chinook helicopter was flying in Afghanistan.  Without warning, one of the helicopter's two engines flamed out.  The helicopter crashed.  Eight service personnel were killed and fourteen were severely injured.

The victims and their families sued the helicopter's various manufacturers, including Boeing, Honeywell and Goodrich.  They claimed that the helicopter's engine quit because of a defect in the design of the electronics that control the fuel flow to the engine. 

The Army agreed.  It's investigation concluded that the engine failed because of problems with the the engine's FADEC (Full Authority Digital Electronic Control) and DECU (Digital Electronic Control Unit). 

A federal court recognized that "the Chinook's engine obviously did not perform like it was supposed to."  Nonetheless, it tossed the case out of court, ruling that the manufacturers were protected from liability by the Government Contractor Defense.  That defense immunizes manufacturers from liability for defective products causing injury or death in those cases where the government approved the design that ended up being faulty.

The victims argued that the government didn't really approve the defendants' defective design, because the contract documents left the details of the design to the manufacturers' discretion. The contract documents provided:

Specific implementations used to describe the functional requirements throughout this document are for informational understanding only. Actual implementations used to meet these requirements will be at the discretion of the designer unless specifically stated otherwise.

The court rejected the argument.  Though the clause left some of the details to the manufacturers,  the government nonetheless approved the design.

The victims also argued that the manufacturers should have included in the helicopter's Operator's Manual a warning about the problems with the helicopter's design, since they were well aware of other failures that had resulted in accidents.  The court rejected that argument too, because the military had approved the manual's wording.

Military personnel were killed or injured, not by enemy fire, but by a defectively designed product that was manufactured by private industry for profit.  Yet, the manufacturers are permitted to turn their backs, and walk away,

The case is Getz v. Boeing.

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After a helicopter accident, many airplane pilots are quick to conclude that the helicopter pilot violated one aviation regulation or another.  But the laws that airplane pilots know so well do not always apply to helicopters. Rather, helicopters operate largely under their own set of rules. Some of the differences between the rules applicable to airplanes and helicopters are:

Minimum Altitudes. Airplanes must stay 500 feet above any person and 1000 feet above any person or building in a populated area.  Flying any lower is a regulatory violation.  But helicopters can get as close to a building or person as they want, as long as the flight poses no "hazard to persons or property on the surface." 

Minimum Fuel. Airplanes must carry enough fuel to reach their planned landing site, then 30 minutes thereafter.  If it's a night flight, airplanes must carry 45 minutes of extra fuel.  Helicopters are allowed to fly with a smaller fuel reserve -- 20 minutes worth, day or night. 

Traffic Patterns. When approaching an airport, airplanes are supposed to fly in the designated traffic pattern.  But helicopters are expected to "avoid the flow of fixed wing aircraft."  That means helicopters are to take an alternate routing when there are airplanes in the area -- a routing which would be unacceptable for airplanes.  

Visibility. Except when on an instrument flight plan, airplanes cannot fly unless the weather conditions allow a certain minimum visibility.  For example, in airspace outside of air traffic control jurisdiction, airplane pilots may not operate unless the weather is clear enough to see at least 1 mile ahead of them.  But in that situation, there is no minimum visibility requirement for helicopters.  Rather, helicopter pilots can fly in that same airspace as long as they stay out of any clouds. 

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Some pilots refuse to fly piston-powered helicopters, insisting instead on turbine-powered machines.  Turbine engines, their argument goes, are much less likely to fail in flight than piston engines. Though more expensive to purchase and to operate, the reliability of turbine-powered helicopters makes them safer than their piston-powered counterparts.

Does that mean the new Robinson R66, with its Rolls-Royce turbine engine, will be a safer helicopter than Robinson's R44, with it's Lycoming piston engine? 

Not according to Robinson.

In fact, for years Robinson has taken a contrarian view, suggesting that pilots are in fact safer in piston-powered helicopters.  Though the large turbine engines used in airliners are incredibly reliable, the small turbine engines used in helicopters are not.  According to Robinson, accident statistics favor piston helicopters. 

Tim Tucker, a Robinson factory pilot, caused a stir when he published the data supporting that argument in a 2003 issue of Rotor and Wing magazine.  Unfortunately, his article, ("Turbine Reliability: Fact or Fiction") is no longer available on the internet (or at least I can't find it). But Robinson R44 owner and flight instructor Philip Greenspun sums up the substance of  the argument pretty well:

Turbine engines have a reputation for extreme reliability, but physically small turbines, such as those that go into low-power helicopter engines, are subject to a lot of thermal stress and are not nearly as reliable as the turbines in an Airbus. Piston engines have a reputation for unreliability, but that was earned when the engines were operated at 100 percent power. The R44 is a demonstration of the most reliability that you could ever get from a piston engine; the Robinson R66 and similar light turbine helicopters demonstrate the least reliability that you could ever get from a turbine engine. . . 

The Robinson factory stops short of saying that the turbine engine makes its new R66 more dangerous than the R44.  But it's not saying that it makes it any safer either. Deftly avoiding the issue, the company president told AOPA Pilot magazine (December 2010 issue): 

The decision to use a turbine engine really had nothing to do with reliability.  Data has shown the Lycoming 0-540 installed in the R44 to be extremely reliable.

But If Robinson believes small turbine engines are less reliable that the piston engines, then why is Robinson introducing a turbine-powered helicopter at all? 

According to Robinson, the market wants a helicopter with improved performance at high altitude and a better power-to-weight ratio.  It also wants a ship that can use jet fuel, since avgas is in some parts of the world becoming harder to come by. Only a turbine-powered helicopter can meet those demands.

Fair enough.  Just don't think that shelling out the big bucks for the R66 ($790,000 for the R66 vs. $415,00 for the R44) is going to buy a greater extra margin of safety.  In fact, if you believe what Robinson has been saying about small turbine engines for the past 10 years or so, the R66 should prove to be less reliable, and thus less safe, than Robinson's cheaper piston version.

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Emergency Medical Services helicopters don’t get paid for being on call. They earn money only when transporting patients. But, when they do transport a patient, they are paid well -- up to $20,000 per trip.

The business model has worked out well for the industry. In fact, the number of EMS helicopters in service has quadrupled since 2002. But since an operator doesn’t get paid unless the helicopter carries a patient, there’s an incentive to fly the mission regardless of how adverse the conditions. And because operators are paid the same rate no matter what equipment they use, operators tend to use older helicopters, and to run them as inexpensively and as ill-equipped as possible.

Not surprisingly, the EMS helicopter fatal accident rate is, when compared to other forms of commercial aviation, off the charts.  In fact, with a crash rate that is 6000 times that of commercial airliners, flying an EMS helicopter is the second most dangerous job in America. Only working on a fishing boat is riskier.

Some of the reasons why EMS helicopters crash: 

• Weather.  Inadvertent flight into clouds or fog can cause the pilot to become disoriented and lose control of the aircraft. Thunderstorms can bring a helicopter down in seconds. While accurate weather information is available for airport destinations, it is a rare commodity for the off-airport locations that EMS helicopters typically service. The lack of accurate weather information, coupled with economic pressure to complete the mission, takes a toll.

• Unprepared Landing Sites. Helipads are designed so that there are no wires, trees or other obstacles for the helicopter to hit during landing or takeoff. The ground is firm and level so that the helicopter won’t roll over when it touches down.  But when responding to a call, EMS helicopters accept landing sites that have been neither surveyed for hazards nor otherwise prepared for helicopter traffic.

• Terrain.  EMS helicopters crash into mountains, ridges, and hillsides with some regularity. Most of those accidents happen when it’s dark, foggy, or cloudy. “Controlled flight into terrain” is a leading cause of EMS helicopter crashes.

• Mechanical Failure.  Rotor blades come off, engines fail, and pilots lose control of EMS helicopters due to defective parts or maintenance.

• Crew Fatigue.  Almost half of all EMS helicopter crashes take place on the “back side of the clock,” meaning the eight hours between 10 p.m. and 6 a.m. This is the most dangerous time for EMS helicopter operations. Fatigue and darkness are a deadly mix.

In Part II ("Golden Hour and Other EMS Myths"): With names like “Angel Flight,” “Mercy Flight,” and “Life Flight,” the EMS helicopter companies market themselves as indispensable life-savers. Is this just marketing hype, or are the benefits of helicopter transport really worth the risks?

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Robinson Helicopter Company has long touted the crashworthiness of its helicopters. An excerpt from Robinson Safety Notice SN-10, which dates back to 1982:

The R22 and R44 have demonstrated excellent crashworthiness as long as the pilot flies the aircraft all the way to the ground . . .The ship may roll over and be severely damaged, but the occupants have an excellent chance of walking away from it without injury.

That’s turned out to be not quite true. Sure, occupants may survive the initial rollover without injury. But because of the way it is designed, the helicopter is prone to catching fire and burning the occupants before they have a chance to get out.  There has been a string of such accidents, the most recent being the September 16 Robinson crash at Mammoth, California.

The R44 helicopter involved in that accident, N2153S, experienced a problem on takeoff.  The pilot "flew the aircraft all the way to the ground," just as he was supposed to. When the helicopter touched down, it rolled over.  As advertised, the two occupants survived the rollover uninjured.  But almost immediately, fuel rushed into the cabin, a fire erupted, and both occupants were badly burned.

As I explained here, there is no reason for an occupant to be burned in that sort of mishap. Technology has existed since the 1970's that can almost completely eliminate post-crash fires in otherwise survivable helicopter accidents.  The technology is not particularly expensive, fancy, or heavy.

In the case of the Robinson helicopter, the biggest problem is the aircraft's transmission. In any type of rollover accident, the transmission can puncture the fuel tank. The fix is simple: replace the rigid fuel tank with a soft bladder tank that won't rupture. 

Robinson has known about the problem for years.  But instead of fixing it, Robinson tried to dodge liability by putting the problem back on the owners. While continuing to tout the aircraft's crashworthiness, in 2006 it posted on its website a "safety notice" advising that anyone flying in one of its aircraft should wear fire retardant clothing head-to-toe.

To reduce the risk of injury in a post-crash fire, it is strongly recommended that a fire-retardant Nomex flight suit, gloves, and hood or helmet be worn by all occupants.

Robinson didn't seriously expect any occupants to wear that kind of clothing.  It's hot, uncomfortable, and generally inconvenient.  The "strong recommendation" was strictly a "CYA" move.  If Robinson was serious about it, it wouldn't have posted on its website pictures of people flying Robinson helicopters in shorts and t-shirts. (One such picture right.)  Rather, it would show everyone wearing head-to-toe Nomex. But that sort of "advertising" would kill sales.

The unnecessary burn injuries continued. Finally, in December 2009, Robinson conceded that there was indeed a better way and announced that all new R-44’s will be equipped with bladder tanks.

In a continuing effort to improve the R44 fuel sytem’s resistance to a post-accident fuel leak, current production R44s now feature bladder-type fuel tanks, flexible fuel lines and other modifications.

Great news. But what about the thousands of Robinson helicopters produced before last December without bladder tanks?  They are, without a doubt, defective.  The defect has caused, and will continue to cause, needless burn injuries.  The defect and the resulting injuries are Robinson's responsibility.

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A passenger injured in an aircraft accident can't sue the aircraft manufacturer if the part that caused the crash is older than 18 years. Any such suit would be barred by the General Aviation Revitalization Act, or GARA.

What if the accident was caused by a mistake in one of the aircraft's manuals rather than a defect in the aircraft itself?  If the manual is older than 18 years, does GARA protect the manufacturer from liability for its error? 

It depends.  The manufacturer is off the hook if the manual is properly considered a "part" of the aircraft.  Some manuals are. Some aren't.

A flight manual (sometimes called a "pilot's operating handbook" or "flight handbook") is properly considered "part" of the aircraft, and so GARA protects the manufacturer. For example, in Caldwell v. Enstrom Helicopters, the pilot's family blamed a helicopter crash on the flight manual's failure to say that the last two gallons of fuel in the helicopter were unusable.  As a result, the pilot believed he had sufficient fuel but in fact did not.  He crashed just minutes from his destination.

The Caldwell court said that manufacturers are required by regulation to provide a flight manual when it delivers the aircraft to the customer.  The manual must be carried in the aircraft at all times thereafter. Therefore, the manual was properly considered to be an aircraft "part."  Because the manual at issue was more than 18 years old, GARA applied to protect the manufacturer from liability for any errors. 

But the situation is different when the manual is a maintenance manual. A manufacturer can sell an aircraft without providing to the buyer a maintenance manual.  Thus maintenance manuals, unlike flight manuals, are not a "part " of the aircraft, and GARA doesn't apply. At least according to Rogers v. Bell Helicopters Textron, a case decided earlier this month by a California appellate court. 

In Rogers, the pilot claimed the accident resulted from faulty instructions in a maintenance manual for balancing the helicopter's tail rotor. The court ruled that, despite the fact that the manual was more than 18 years, GARA didn't apply and so the pilot was entitled to sue.  

Unlike a flight manual that is unique to the aircraft, used by the pilot, and necessary to operate the aircraft, a maintenance manual applies to different aircraft models, is used by the mechanic, and only for troubleshooting and repairing the aircraft.

According to Rogers,, GARA won't protect a manufacturer from liability for mistakes in its maintenance manuals, regardless of how old the manuals are. 

The plaintiff in Rogers was represented by Louis Franecke of San Rafael. 

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Nothing scares helicopter pilots more than wires. Flying into a wire is often fatal. What worries the pilot is that wires are hard to spot. The trick is to look for the towers. Once you see the towers, you can spot the wires strung between them.

But not always.

In January, a California Fish and Game helicopter flew into wires near Auberry, California. Four died in the ensuing crash. Two families have now sued Southern California Edison, alleging that the power company should have marked its wires with orange balls to make them more visible.

The twist to the case is that the helicopter did not strike the 2” thick high tension wires that carry electricity.  Rather, it flew into thinner, harder-to-see “static lines” that were strung above the high tension wires.

From one of the lawsuits:

The transmission lines directly over Willow Creek span 3,000 feet from tower to tower. . . Static lines are normally within several feet of the power transmission lines however on the 3,000 foot span the static lines were constructed and maintained so as to be significantly elevated above the power lines. . . . helicopter pilots flying in and about transmission lines would form the belief that the static lines would be maintained at the approximate same distance above the power lines . . . Because of the size of the static lines, they are nearly invisible until they are within about 285' so that at a nominal speed of 60 knots the pilot has no more than 2.8 seconds to observe the lines and avoid them whereas with colored ball warnings on the lines they are easily seen from a safe distance to allow pilots to identify the lines and to easily avoid the hazard of them.

Here is a photo of marker balls installed on a nearly invisible static line, and the high tension wires that hang below.  (This is not the accident site.)  Note what a difference the balls make.

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This week, aviation accident attorneys from across the country met on Maui to discuss current topics in aviation law. This was part of the American Association of Justice's Winter Convention. I was honored to have been asked to speak. My talk was on Hawaii helicopter crash litigation -- a topic with which we are -- unfortunately -- perhaps too familiar.

I covered the profits, accident statistics, the poor safety record, lack of insurance, the popular equipment (including the Eurocopter AStar); and the FAA's unfortunate lack of heli-tour industry oversight. Powerpoint available here.

As it turns out, my presentation was a bit controversial. The tour industry was a sponsor of the convention. And I ripped into it. On the flight back to San Francisco, someone asked me whether that made me uncomfortable, given that AAJ actually promoted the tours. In fact, the blogosphere was chiming in about it before I even spoke. Carter Wood, blogging on PointofLaw.com, questions the appropriateness of my topic:

That's the way you pay back Hawaii's hospitality? 'Fly like a tropical bird, and then sue!'

First, the risks are, for the most part, unknown. Unknown to people travelling to Hawaii, and unknown even to the AAJ, a group which is, generally speaking, keenly aware of industries that place profits over consumer safety. Thus, the title, "Under the Radar."

Second, I want to get the word out. It's too important. Too many people's lives have been torn apart by this industry. I really don't care what “sponsors” I offend.

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In 1994, the FAA -- hoping to reduce the number of helicopter tour crashes in Hawaii -- promulgated a controversial rule that set minimum altitudes for Hawaiian sight seeing flights.

According to an article appearing this spring in Aviation, Space and Environmental Medicine, after the rule went into effect the overall number of helicopter crashes in Hawaii decreased, but the number of crashes resulting from improper VFR flight into instrument conditions increased.  That means fewer overall crashes (especially ocean ditchings), but  more crashes into mountainsides hidden in the clouds. The number of fatal crashes remained the same.

Although its data and methodology may be questionable, the recent report concludes:

the FAA should reconsider the Rule's clause that established a minimum flying altitude of 1,500 feet, as we know higher altitudes are associated with more cloud cover. 

This conclusion delighted the helicopter industry which opposed the new minimum altitude requirement.  And a possible increase in weather-related accidents was one of the FAA's concerns from the outset.  Requiring helicopters to maintain more clearance from terrain features, and more altitude to deal with engine failure, makes it harder for them to remain clear of the clouds.  But the report fails to consider the "deviations" the FAA has issued to air tour operators that allow them to fly lower than the established minimums.  Depending on the number of deviations that the FAA issued, it may be unfair to blame the rule for the increased number of mountainside collisions.

It’s a modern day Scylla and Charybdis. (OK, you'll have to indulge me, my favorite mythical allusion because it's more accurate than saying "catch-22” or "caught between a rock and a hard place.") Is the danger posed by the close proximity to the terrain more daunting than the unpredictable cloud cover? When it spoke in 1994 the FAA said, “No -- higher altitude is safer".
 

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The easy answer: the applicant is the Pilot in Command and is fully responsible for the safe operation of the aircraft, not the FAA check pilot. But what about when the check pilot attempts to simulate an engine failure by chopping the throttle? At that point, hasn’t the check pilot assumed control of the aircraft?

Well, that’s what happened recently when another AS350 helicopter accident occurred during a check ride in Maui. The applicant, a commercially certificated air tour pilot working for Sunshine Helicopters, made a forced landing after the helicopter experienced a total loss of engine power. The helicopter was destroyed and both the pilot and the FAA check pilot suffered serious injuries.

The FAA defends the check pilot, explaining that it is routine to simulate the loss of engine power during a check ride. The air tour operator, Sunshine Helicopters, claims that while a simulated loss of engine power may be routine, the check pilot's actions resulted in an actual engine failure over terrain unsuitable for an emergency landing.  Causing an actual engine failure is anything but routine.

The F.A.A. regulations require that, to pass a check ride, an applicant must demonstrate that he is the “obvious master of the aircraft.”  It follows that the applicant is presumed to be the pilot in command and responsible for the safe outcome of the flight. But if the applicant pilot can prove that the check pilot improperly interfered with his ability to control the aircraft, then he may successfully overcome that presumption and hold the FAA check pilot responsible. 

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The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty.  The San Francisco Daily Journal, California's largest legal newspaper, published this column on how the new rules came to pass, and why they aren't enough.

FAA and NTSB Battle Over Aviation Safety

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The NTSB's preliminary report on the crash contains little more than what was in the news accounts. The report does, however, offer one bit of new information.  The helicopter impacted on a magnetic heading of 230 degrees.  That heading is not in line with the route from Reno to Susanville.  While that might ultimately prove to be important, little can be made of that information without a careful examination of the layout of the terrain near the accident site and the roadway that the pilot might have been using to aid in his navigation.     

Though the information in the NTSB's official report is sparse, an NTSB spokesman did offer his expanded comments to Mary Pat Flaherty, a reporter for the Washington Post who has been following the poor EMS safety record during the past months. The NTSB's Ted Lopatkiewicz told Flaherty that the Mountain Lifeflight helicopter didn't have certain important safety equipment.  Lopatkiewicz was referring to the helicopter's lack of an autopilot, a ground proximity warning system, night vision goggles (discussed in this post), and other equipment necessary to navigate in poor weather.

But in this case the pilot was flying in good weather.  He did not collide with the ground because he could not see it.  Rather, as discussed here, it appears that the pilot crashed because of some type of mechanical problem with the helicopter.  It's unlikely the helicopter's lack of advanced equipment played any role in the accident at all. 

Related Posts:

Compensating the Families of the Mountain Lifeflight EMS Crash

Mountain Lifeflight EMS Helicopter Crash at Doyle, California

EMS Helicopter Safety: NTSB Pushes the Envelope

OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity 

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An A-Star AS350B air ambulance helicopter crashed November 14 at Doyle, California, killing the three crew members on board.  According to an article in the Reno Gazette Journal, the pilot made a distress call before the crash. That indicates that the pilot was likely experiencing a mechanical emergency. The photographs accompanying the article show that the wreckage was spread over a fairly large area.  That indicates that the pilot lost control of the helicopter well before he was able to attempt an emergency landing.

Under the circumstances, the NTSB will be looking at the helicopter's

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Thursday's mid-air collision involving a Coast Guard C-130 and Marine Corps AH-1H Super Cobra was the second military helicopter crash that has occurred east of San Clemente Island since 2007.  

On January 26, 2007, four were killed when a Navy MH-60S Seahawk crashed just miles from the spot of Thursday's accident.

The Navy was unable to determine the cause of the 2007 crash.  As reported by the Navy Times,

[Navy] investigators were unable to conclusively determine a specific cause for the mishap, unable to find fault, finding no culpability, no sign of neglect on the part of the aircrew nor the personnel responsbile for maintaining the aircraft. 

When the Navy was unable to determine a cause, the family members hired their own aviation experts to investigate.  But, as reported by the Aviation Internation News Network,  the Navy wouldn't allow the families' experts access to the wreckage, instead requiring them to file a lawsuit so that they could conduct their own investigation.

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There's little question that EMS helicopters are the most dangerous aircraft in the sky. EMS helicopters have a fatal accident rate 6000 times that of commercial airliners. Flying EMS helicopters is one of the most dangerous jobs in America.  In fact, according to the Washington Post, only working on a fishing boat is riskier.  And the EMS helicopter safety record is getting worse, not better.

Why, exactly, is the EMS helicopter accident record so bad?  As discussed here, one problem is that it's not clear who is ultimately responsible for overseeing the industry. State agencies, county agencies and the federal government all have a hand in oversight but no one appears to be in charge. That means that definitive industry standards cannot be established and hazards cannot be effectively managed.

This week, the NTSB recommended that the FAA take steps to address the most serious of the industry's problems. Some of the those recommendations are not particularly surprising. For example, the NTSB suggests that pilots be better trained in bad weather flying, and that helicopters be equipped with night vision equipment and autopilots.

One of the NTSB's recommendations, however, no one saw coming.  The NTSB suggests that Medicare -- which funds most of the EMS helicopter industry by paying up to $20,000 for each patient transport -- adjust its rate reimbursement structure according to the level of safety the helicopter company provides.  In plain english, the NTSB suggests that Medicare not pay air ambulance companies unless they meet certain safety standards.  NTSB board member Robert Zumwalt concedes this recommendation "pushes the envelope".  But the air ambulance record is so bad, extreme steps are necessary.

By targeting the air ambulance industry's source of funding, the NTSB is looking beyond the FAA for help in making the air ambulance industry safer.  Why not just leave it to the FAA?  For one thing, the FAA has yet to act on the EMS helicopter recommendations the NTSB made 3 years ago.  The NTSB is hoping the Department of Health and Human Services (Medicare) will be more responsive to its safety concerns than the FAA has been. 

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We count on the NTSB to get the facts right. That confidence is, unfortunately, sometimes misplaced. The truth is that the NTSB gets it wrong. A lot. I’ve written about that here, here, and here.

The NTSB has now given us further reason to question whether it deserves the confidence we place in it. On Friday, the NTSB came out with a block-buster press release condemning the Teterboro air traffic controller who had cleared the Piper airplane for takeoff. According to the NTSB's report, the Teterboro controller could see on his radar screen that the Piper pilot was on a possible collision course with the Liberty Tours helicopter. In fact, according to the NTSB, the controller could see the conflict before the Piper pilot switched off from the Teterboro controller’s frequency. Yet, according to the NTSB, the controller failed to warn the Piper pilot.

At 1152:20 the Teterboro controller instructed the pilot to contact Newark on a frequency of 127.85. . . At that time there were several aircraft detected by radar in the area immediately ahead of the airplane, including the accident helicopter, all of which were potential traffic conflicts for the airplane. The Teterboro tower controller, who was engaged in a phone call at the time, did not advise the pilot of the potential traffic conflicts.

That was wrong. True, the controller was on the phone when he should not have been.  But the helicopter did not appear on the controller’s radar screen until after the Piper pilot was supposed to have switched to a new frequency. Of course, by then it was too late for the controller to advise the pilot of anything. In other words, it appears that there was nothing the controller could have done -- whether he was on the phone or not.

Over the weekend, the air traffic controllers’ union privately asked the NTSB to correct its error. The NTSB refused. So today the union issued its own press release setting the record straight.  The press release claims that the NTSB's account, which implies that the controller should have prevented the accident, is "outright false" and "misleading."  Worse, it charges that the NTSB knows it, but refuses to correct its error.

This afternoon, after the controllers' union went to the press, the NTSB finally conceded that it was, in fact, wrong. It thus issued a new press release, explaining that the controller could not have seen the helicopter after all.

The accident helicopter was not visible on the Teterboro controller's radar scope at 1152:20 [when the controller instructed the Piper to change frequencies]; it did appear on radar 7 seconds later - at approximately 400 feet.

The NTSB offered no apology for its error. Nor did it offer an explanation. Rather, despite that the union was right, and the NTSB was wrong, the NTSB’s only reaction was to kick the union off the investigation.

The NTSB’s blunder was a whopper. It laid blame for the accident where it does not appear to belong.  The NTSB's only interest is supposed to be in getting the facts right. If that’s so, why did it not correct its error when the union asked it to?  Why did it require the union to force the issue? 

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Compared to pilots in other countries, pilots in the US have extraordinary freedom. Of course, to keep commercial airliners safe from collisions, pilots of small aircraft are excluded from certain airspace near major airports unless they have first obtained a clearance from air traffic controllers.  If a pilot obtains the necessary clearance, controllers will dictate the pilot's path and use radar to monitor the pilot's every move. 

But that still leaves many places where pilots are permitted to fly without being supervised or controlled in any way.  One such area, appropriately enough, is near the Statue of Liberty.  As long as the pilot stays below 1100 feet -- outside the airspace used by airliners -- the pilot doesn't need a clearance, doesn't need to have filed a flight plan, and doesn't need to communicate with any tower or other air traffic control facility. The pilot is totally on his own.

Many non-pilots are surprised to learn that the method used to prevent collisions in such uncontrolled areas is called "see and avoid."  The pilot is supposed to look out his window, "see" the other aircraft, and "avoid" them.  Pilots talk about having to "keep their head on a swivel" when flying in uncontrolled airspace. Though this method of collision avoidance may sound primitive, over the years it has worked well.

There is one problem.  Helicopters and airplanes don't mix well in a "see and avoid" environment.  Helicopters fly slower than airplanes.  And because they have a small cross section, they are hard to spot -- especially when viewed from directly behind. That puts them at risk of being rear-ended.  It doesn't help matters that helicopters tend to manuever in a fashion that most airplane pilots find to be unpredictable. 

Because of all that, helicopter pilots are supposed to "avoid the flow" of airplane traffic.  In other words, as best they can, they are supposed to stay out of the way. Unfortunately, when both a helicopter and airplane are headed to the same spot, or are both looking at the same feature on the ground, that can be difficult to do.

We don't know what factors combined to result in the midair over the Hudson.  But the NTSB has long recognized that when it comes to uncontrolled airspace, helicopters -- especially tour helicopters -- don't mix well with airplanes.

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The FAA is supposed to use its regulatory powers to promote aviation safety.  Over the years, however, it seems to have become too bureaucratic and conflicted to take decisive action when it counts most.  Examples:

• In April, the NTSB asked the FAA to immediately ground the fleet of Zodiac aircraft because the aircraft's wings tend to fall off. So far, ten people have died in Zodiac accidents. The FAA's response: "let's wait and see."
• In 2006, the NTSB asked the FAA to take simple steps to improve EMS Helicopter safety in the face of a horrible EMS helicopter safety record. The FAA has yet to act.
• In 1996, the NTSB first recomended that the FAA act to reduce risks of commuter aircraft flying in icing conditions.  More than a decade later, the NTSB is still waiting for the FAA's response.

Now, there's more.  In 2008, an FAA inspector determined that nearly half of the nation's EMS helicopter fleet--about 300 aircraft--have improperly installed night vision systems. As installed, the systems are a hazard to the air ambulance crews and the patients they carry.  The inspector felt the aircraft should be grounded until they were fixed.  The FAA initially agreed, but then changed its mind.  Apparently,  the FAA decided to look the other way because of the "negative publicity" a grounding would generate.

Huh?  Since when should the FAA be concerned more with negative publicity than with safety?

Recently, the United States Office of Special Counsel became involved.  Special Counsel, however, has been unable to get the FAA to respond to its inquiries.  So it has taken the unusual step of writing to President Obama.

[The United States Office of Special Counsel] found a substantial likelihood that FAA officials and employees engaged in violation of law, rule or regulation, gross mismanagement and an abuse of authority, all of which contributed to a substantial and specific danger to public safety.

The Office of Special Counsel appears more interested in EMS Helicopter safety than does the FAA.  We'll see what happens next.EMSHelicopterOSC

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Special rules protect careless health care providers in California.  The rules, collectively known as MICRA, were designed to make it harder for medical malpractice victims to sue the doctors who injure them. For example,

• The medical malpractice victim must provide the defendant doctor a special notice before filing suit.
• At any trial, special rules of evidence apply that favor the doctor.
• There is a $250,000 limit on what the negligent doctor or his insurance company ever has to pay to compensate parents when the doctor causes their child's death.
• An injured party cannot recover against a negligent doctor more than the $250,000 limit for causing any sort of pain or disfigurement. 

But what do the MICRA rules have to do with helicopter crash cases?

In March 2008, a California court of appeal ruled that the medical malpractice rules apply to the claims of a someone injured in an ambulance.  In that case, called Cannister v Emergency Ambulance Service, the court ruled that a negligent ambulance company that injures a patient en route to the hospital was entitled to all the protections of MICRA, because the ambulance company was properly considered a “health care provider.” The ruling extended the umbrella of MICRA's protection from doctors to ambulance drivers, at least when those drivers are licensed as EMT’s.

An EMS air ambulance company will undoubtedly argue that Cannister -- regardless of how unfair -- applies not just to road-bound ambulances, but to air ambulances as well. The aviation lawyer must keep the MICRA rules in mind in handling EMS helicopter accidents in California, and he should be familiar with the strategies that medical malpractice lawyers use to minimize MICRA's unfair impact on his clients.  

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During the Vietnam war, hundreds of soldiers suffered serious burn injuries following otherwise survivable Huey helicopter crashes.  In 1970, Bell Helicopter responded by developing a crashworthy fuel system and installing it in the new Hueys it produced.  The crashworthy system included stronger fuel cells, breakaway fuel lines, and cutoff valves.  

The Army kept track of the effectiveness of the new fuel system.  Over the next 39 months, 895 helicopters without the new system crashed.  Post impact fires resulted in 52 burn fatalities and 31 burn injuries.  Over the same time period, 702 helicopters with the new crashworthy fuel system went down.  Remarkably, there was not a single thermal injury or death in any of those crashes.  That was enough to convince the Army.  After that, it required all its helicopters to be manufactured with the crashworthy fuel system.   

Today, no one should be burned in an otherwise survivable helicopter accident.  The technology has long existed to almost completely eliminate post-crash helicopter fires. But while the risk has been virtually eliminated in military helicopter operations, post crash fires are still the single biggest hazard to survivors of civilian helicopter crashes. (pdf) That's because some civilian helicopter manufacturers have resisted incorporating crashworthy fuel systems into their designs.    

Helicopter manufacturers know that some of the aircraft they manufacturer will inevitably be involved in accidents.  They must take steps to make their civilian helicopters reasonably safe in the event of an accident, just as they do when building helicopters for the military.  If someone is burned in a civilian helicopter crash, then the aircraft's design may well be proven to be defective, and the manufacturer held accountable for the injuries its design has caused. 

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Flight Safety Foundation has released a study identifying the most significant risks involved in the helicopter air ambulance industry. The safety study was undertaken in response to the industry's increasingly poor safety record.

According to the 64 page report (pdf), one of the biggest problems is that it’s not clear who is in charge of overseeing the industry.  State agencies, county agencies, and federal agencies all have a hand in regulating air ambulance operations but there is little coordination between them. Because no one agency is clearly in charge, hazards cannot be appropriately identified or managed, and definitive industry standards cannot be established.  

The report went on to identify 25 other significant risk factors.  Among the problems discussed:

• Good decisions aren’t being made about whether a patient actually needs air transport.  Unnecessary flights lead to increased crew pressure and fatigue.
• The industry lacks a real “safety culture.”  That can give rise to environments that reward inappropriate risk-taking behavior.
• There is not enough money available to upgrade the EMS helicopters with current technology.
   

The report was underwritten by Bell Helicopter.  Though interesting reading, there's little in the report that those familiar with the air ambulance industry would find surprising.

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The Hawaiian Helicopter Tour Industry is Big Business.   Each year, more than 1 million people take an aerial tour of Hawaii.  That equates to one out of every 10 visitors to the islands.  Most of the tours are in helicopters.  The business generates more than $200 million annually, and supports countless jobs.

A helicopter is a great way to take in the islands' natural beauty.  And that is what the tour companies sell.  "Fly into the heart and heat of an active volcano" advertised one operator.  "Fly close enough to feel the waterfall's cooling mist" offered another.

But the Helicopter Safety Record is Terrible.  Flying too close to the terrain features, tangling with the islands' unpredictable "micro-weather," and substandard maintenance practices have resulted in a long list of fatal accidents. As a result, year after year, Hawaii's aviation safety record stacks up

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A reader of this post concerning air ambulance accidents asked, “Can the FAA really get away with ignoring the NTSB?"  The answer, to date, is "yes."  And there's nothing the NTSB can do about it.

The whole reason the NTSB exists is to learn from accidents and make safety recommendations so that similar accidents won’t happen again. But the NTSB has no power to make anyone, including the FAA, follow its recommendations.  And so, frequently, the FAA just ignores them.

Of course, ignoring NTSB recommendations can lead to loss of life. Some feel that the crash of Continental Flight 3407 in Buffalo might have been avoided, and 50 lives saved, had the FAA acted on the NTSB’s safety recommendations concerning turboprop planes and airframe ice. But the FAA never did, despite that some of those recommendations are now more than 10 years old. Even by goverment standards, ten years is a long time to sit on something. 

But back to air ambulances: The NTSB studied 55 air ambulance crashes occurring between 2002 and 2004 in which 54 people were killed.  As a result of what it learned, the NTSB recommended (pdf) that air ambulance companies be required to, among other things: 

• equip their helicopters with terrain warning systems;
• ensure that their pilots have good weather information before taking off; and
• ensure that their pilots get adequate rest. 

All straightforward stuff that is hard to argue with. 

That was back in 2006.  Since then, another 9 air ambulances have crashed, killing 35.  Still, the FAA hasn't acted on the recommendations. Though there has been some response from the FAA, the NTSB calls the response "unacceptable." 

One might wonder: if the FAA is free to ignore the NTSB, and has a record of doing just that, then what’s the point of even having an NTSB?

Good question.
 

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Well, that seems to be what the National Transportation Safety Board said today when it commented on the preliminary accident statistics for 2008.

The NTSB's comment:

The 2008 accident statistics reveal a mixed picture. . . We are particularly concerned with the spike in fatalities in on-demand air charter operations. There's a lot of room for improvement in this area, and as evidenced by our recent forum on emergency medical service helicopter accidents, we continue to do everything we can to identify the safety issues involved, and to advocate for the adoption of our recommendations that will make the skies safer.

Our Translation:  "The 2008 accident statistics wouldn't look bad except for all the air ambulance helicopter crashes.  We've got some ideas on how to make air ambulance operations safer, but the FAA keeps ignoring us.  As usual." 

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