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

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 hydraulic actuator system carefully.  The actuators move the helicopter's rotor blades, allowing the pilot to control the flight of the aircraft. The AS350B's hydraulics -- similar to a power steering system in a car --  help move the helicopter's actuators. 

The A-Star helicopter's hydraulics have a troubled history. The hydraulic system seems to fail frequently.  Without hydraulic assistence, the pilot may find it hard to move the actuators and thus the helicopter can be difficult to control.  In fact, one of the country's largest operators of A-Star helicopters is on record as saying that the design of the helicopter's hydraulic system is so prone to failure that it is defective and dangerous and needs to be redesigned.  

While a problem with the hydraulic system can make the helicopter difficult to control, a disconnected actuator control rod will make the helicopter impossible to control. That's what happened in 2007, when an AS350B just like the one in involved in this accident crashed in Hawaii, killing four tourists.

Days after the accident in Hawaii,  the A-Star helicopter's manufacturer, 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. 

This condition could lead to flight control disconnect and subsequent loss of aircraft control. Two fatal accidents have occurred after the servo-control rod end-fitting became detached from the servo-actuator. 

Of course, it's far too early to say what caused the Mountain Lifeflight accident.  But the helicopter's hydraulic actuator system is certainly something that needs to be looked at very carefully.

December 6 Update: More on this accident here.

January 14 Update: On Compensating the Mountain Lifeflight Families here. 

AS350BService Bulletin

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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 as one of the worst of any state in the country.  Some statistics: 20 Hawaiian air tour crashes occurred in one three-year period alone.  Within one two-week period, two separate tour crashes claimed five lives.  Kauai seems to be the most lethal of the islands, with 18 fatalities occurring over one four-year period.  The bottom line: 40 people have died in Hawaiian sightseeing flights since 1995.

Are the Statistics Improving?  So reports the Honolulu Advertiser.  But that's a stretch.  Just look at the chart accompanying the article, which appears below.   Only the most optimistic industry booster could find a positive trend worth noting. (Note: the chart shows fatal accidents only, not the total fatalities resulting from those accidents.)

But at Least the Industry Has Gotten A Wake-Up Call, Right?     Well, that's what it claims.  There were two helicopter crashes in 2007, and the industry says those two crashes changed everything.  Did they? 

Hardly.  

Take a look: The first crash in 2007 involved Heli-USA, one of Hawaii's largest helicopter tour operators.  That crash killed 4 tourists and injured 3.  The National Transportation Safety Board's report, published this past January, found that the crash was caused by Heli-USA's sloppy maintenance practices. It seems that Heli-USA mechanics were not tightening nuts properly on the company's helicopters.  That's because they weren't following the manufacturer's manuals as required by the FAA regulations. Maybe it's hard to blame the mechanics, because the only manuals Heli-USA had on hand were three revisions out of date.  In fact, the NTSB determined that the crash wasn't caused by a mechanic simply having a bad day, but by a shoddy maintenance program that falls well short of meeting basic FAA regulations. 

And that 2007 crash was Heli-USA's second fatal Hawaii crash in 2 years. So did Heli-USA finally get the "wake-up call," like the industry says?  Not at all.  Heli-USA's president, Nigel Turner, has made clear that he rejects the NSTB findings.  It doesn't appear that he intends to change a thing about how his company maintains his helicopters.  The fact of the matter is that he hasn't learned any lesson at all, and the NTSB is powerless to bring him or his company into line. 

It's Still Profits Over Safety.   It gets worse.  Turner's company operates only A-Star helicopters. A pilot himself, Turner says A-Stars have a problem.  He says that the design of the helicopter's hydraulic system causes the helicopters to crash.  Turner says he has known about the problem for years, but the manufacturer refuses to fix it.  Does that mean Turner is going to switch to a helicopter he considers safer?  Nope.  Turner makes no bones about it: the profit motive trumps safety.  According to the Star-Bulletin:

Turner said that despite the problems with the A-Star, 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.

Tourists Beware.  Turner's concerns about the safety of his helicopters appear nowhere on Heli-USA's website.  Instead, there's a page touting Heli-USA's "excellent safety record."  (How can a company that has, in the past four years, killed 7 and injured 6 others consider its safety record to be "excellent"?)

Visitors to Hawaii deserve to know what the industry leaders know.  Perhaps Heli-USA could at least put up a sign at its counters:  "The owner feels the helicopter you are about to climb into has a dangerous design defect."  Or maybe:  "We don't require our mechanics to follow the manuals."  

Oh, wait a minute, that might not be good for profits. 

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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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