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

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 ditches), 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 pilot, 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 such 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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NTSB Chairman Deborah Hersman's recent testimony before congress concerning the mid-air collision over the Hudson raises more questions than it answers.  She stated that  the Teterboro controller instructed the Piper pilot to switch to frequency 127.85 to contact the Newark controller.  But before leaving the Teterboro frequency, according to Hersman, the pilot read back to the controller "127.87,"  which was wrong.  Thereafter, the pilot was in contact with neither Teterboro nor Newark, and so neither facility could warn him of the impending collision. Hersman's remarks are here.

Hersman's implication is that the Teterboro controller failed to correct the pilot, and so the controller contributed to the pilot's getting "lost in the hertz" (out of radio contact) at a crucial moment.  However, the animation that the NTSB released on the same day that Hersman testified does not appear to back Hersman up.  It just doesn't sound as though the pilot read back "127.87" as Hersman states.  You can listen to the audio yourself beginning at minute 2:25. 

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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 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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Accident victims or their families ask me this question a lot.  Sadly, the answer is usually: "no."

Pilots:  Most states require drivers on our highways to carry a minimum amount of liability insurance in case they injure someone. But pilots are regulated by the federal government, not the states. The federal government does not require pilots to have any insurance at all.

Though not required to have liability insurance, private pilots who own their own airplanes usually carry at least some. Many owner-pilots have policies with a $100,000 per passenger limit.  On the other hand, pilots who rent the aircraft they fly usually have no liability insurance at all.

Tour Operators:  Many tour operators aren't required to carry liability insurance either. So they frequently carry none -- or  just minimal policies with per passenger limits of $100,000 or less. To protect themselves from lawsuits, tour operators place title to their aircraft in shell corporations. By using shell corporations, victims' families cannot seize the operator's assets if it is determined that the operator was as fault for the accident. 

Aircraft Manufacturers:  Even aircraft manufacturers are free to "go bare", and many do. To protect themselves from liability for harm they may cause to others, some well-known manufacturers simply place their most valuable assets -- typically their type certificates -- in separate shell corporations so that they are out of reach of creditors.

The lack of insurance, combined with the industry's use of shell corporations, is a major obstacle facing victims of aviation accidents seeking fair compensation from those who have caused them harm.  It's a problem in need of a regulatory solution.

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