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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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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Who can be held responsible for compensating the Mountain Lifeflight families, and who is immune from suit?   

Maintenance.  If faulty maintenance is proven to be the cause of this helicopter crash, the families can recover against the maintenance company, provided that the families can prove that the maintenance company was negligent.  There is an important exception, however.  The families cannot sue the company that performed the maintenance if that company was Mountain Lifeflight itself.  That's because the worker's compensation laws immunize a crew member's employer from suit brought by the crew member's family.  More on that here.

Pilot error.  There is no reason to believe that the crash was caused by pilot error.  To the contrary, as discussed here, it looks as though the crash was likely caused by a mechanical failure.  However, assuming for argument's sake that the crash was caused by pilot error, the workers' compensation laws prohibit the families from suing either the pilot's estate or the pilot's employer.

Design defect.  Other A-Star accidents similar to this one raise the question of whether the crash was caused by the helicopter's faulty design.  The families are entitled to sue the aircraft's manufacturer, Eurocopter, and get to the bottom of the design defect issue.  If the families prove that the crash was in fact caused by a defect in the design of the helicopter, then they can hold Eurocopter responsible.

But there is one hurdle the families must overcome before winning a design defect suit.  The accident helicopter, N5793P, was manufactured in 1982.  The General Aviation Revitalization Act, or GARA, immunizes manufacturers from liability from lawsuits arising from aircraft that are older than 18 years.  At first blush, it would seem that the families have no recourse against the manufacturer at all.  But there is an important exception to GARA.   If the accident occurred as a result of a new part that was installed on the aircraft less than 18 years before the accident, the manufacturer can't assert the defense, no matter how old the aircraft.  And it has been reported that N5793P had been completely rebuilt only a few years before the crash.  Therefore, even though the helicopter was manufactured more than 27 years ago, it's likely that most critical parts on the aircraft were less than 18 years old, and that GARA won't protect the manufacturer.

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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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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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