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

There's not a lot of air traffic at night. So some air traffic control towers close altogether.  Any landing aircraft is on its own.  Other air traffic control towers are staffed with just one controller.  Not surprisingly, lone controllers working the night shift tend to doze off. 

That little secret is now out. That led to the resignation of the head of the Air Traffic Organization.  And then, just yesterday, the FAA announced that a second controller will be added to the overnight shift at 27 airports. 

Sounds like moves in the right direction. But what do you get when you put a second controller into a dark, quiet control tower in the middle of the night? 

Two sleeping air traffic controllers.

It's not a matter of just adding staff.  It's a matter of dealing with the somewhat complicated issue of how night shifts disrupt a workers' circadian rhythms. At least so says Dr. Mark R. Rosekind, the newest member of the the National Transportation Safety Board. 

I had the pleasure of hearing Dr. Rosekind speak a couple of weeks ago at Menlo High School in Atherton, California. Dr. Rosekind is one smart guy.  And he happens to be a sleep expert. In fact, Dr. Rosekind was the Director of the Center for Human Sleep Research at Stanford University. So he knows a thing or two about "fatigue management." 

Unfortunately, the FAA isn't required to listen to the NTSB, and frequently doesn't.  In the past, when it comes to fatigue risk management, an act of congress was required to get the FAA to do something.

Not to worry.  This time the FAA, or at least the US Transportation Secretary, Ray LaHood, is on top of it.  He is outraged.  LaHood says he "will not sleep" until there's good safety in the control towers.  (Yes, he really said that.) 

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The FAA has issued a new rule requiring that charter airlines and helicopter operators train their employees in “crew resource management,” or cockpit teamwork, just as the major airlines do.

The FAA estimates that complying with the rule over the next 10 years will cost the charter industry $12 million. But it also expects that the new rule will result in fewer accidents, saving 20 lives over the same period. 

Is it worth it? According to the FAA, yes. Government bean counters figure that the value of a human life is $6 million. So the “savings” to society over the 10 year period is $120 million – ten times the rule’s expected costs.

The government analysis is here.

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Many think that, after it completes an investigation, the NTSB can order a stop to the dangerous practice that it determined was the cause of the aviation accident.  Not so.  The NTSB has no regulatory power at all. The only thing the NTSB can do after an investigation is make a safety recommendation and hope that the FAA will adopt it.  As the NTSB puts it:

Our effectiveness depends on our reputation for . . . producing timely, well-considered recommendations to enhance transportation safety.  

There is, however, a problem.  The FAA is free to simply ignore the NTSB's recommendations.  And it usually does just that.

I've written before about the FAA's failure to implement the NTSB's safety recommendations aimed at improving the safety of  the air ambulance industry, reducing accidents from turboprop icing,  and grounding dangerous and defective aircraft.  Now the Washington Post has picked up on story.

Why do the NTSB's recommendations simply languish?  According to the Post, it's because the FAA's rule change process is complex, and because the aviation industry fights change.  But the Post notes that 

. . .many believe that the biggest cause of delay lies with the FAA itself.

Count me among them.

Unfortunately, to get the FAA to implement the NTSB's safety recommendations, it seems as though there must first be some sort of public outcry followed by an act of Congress.  At least, that was the case with the NTSB's recent recommendation aimed at reducing the number of accidents caused by pilots flying without adequate sleep.

There has to be a better way.  

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Only modifications that carry a Supplemental Type Certificate may be legally installed on an aircraft. The Supplemental Type Certificate guarantees that the FAA has thoroughly tested and reviewed the modification. And it's the Supplemental Type Certificate that insures that the modification is safe and compatible with the particular model aircraft on which it’s being installed. Right?

Maybe not. Owners really shouldn't place too much stock in an STC. Or so says one former NTSB accident investigator. The investigator, now retired, explained to me that most owners might be surprised by how little work the FAA does before issuing an STC. Sure, the STC process is a huge paperwork shuffle for the modification's manufacturer. But it's little more than that. The process seldom entails any real independent engineering cross-check on the FAA's part.

"Give me an example", I asked. "OK,' he said. "Let's talk tip tanks."

A popular modification for many models of Cessna single-engine aircraft are wingtip extensions that

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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 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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This past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight.  As it turns out, a defect in the Zodiac's design induces an aerodynamic phenomenon known as flutter.  Flutter can destroy a wing or other control surface in a matter of seconds.  This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here. 

When the NTSB's issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures.  Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

I was wrong.  The FAA refused to ground the aircraft.  Even I was surprised.

Of course, it was just a matter of time.  On November 6, another Zodiac crashed in Arkansas.   It looks like another flutter-induced failure.  That brings the death toll to 11.  On November 13, the NTSB issued an official "I told you so."

The Safety Board's urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet." 

The NTSB's unstated question:  Just how many deaths are required before the FAA finds "adequate justification" to act?

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Aviation manufacturers have long argued that victims should not be permitted to sue for aircraft design defects because, before any manufacturer's aircraft leaves the ground, its design has to be approved and certified by the FAA. If the aircraft's design is good enough for the FAA's engineers, they argue, it should be good enough for the court system.  Judges and juries should not be permitted to second guess the FAA.

Aviation attorneys representing victims of air crashes take a different position.  They argue that the FAA "approval" process is not really an independent safety review of an aircraft's design at all.  Rather, the FAA certifies aircraft based largely on the say-so of engineers who, though designated by the FAA, are in fact employees of the manufacturer seeking the certification. The issue of whether an aircraft's design is defective is thus appropriately left to the judgment of an independent jury. In short, the fact that the FAA certified a design doesn't really mean all that much. 

Now FAA certification of an aircraft's design will mean even less -- at least with regard to Boeing aircraft.  That's because the the FAA will drop out of the certification process completely for certain Boeing products.  Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping -- Boeing employees will do that too. According to the Seattle Times, 

The new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification. 

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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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Air traffic controllers work within the guidelines set forth in the Controller's Handbook (pdf), which they often call "the Bible."  The Handbook is hundreds of pages long, and controllers must follow it to the letter.  If they deviate and an accident results, the Federal Tort Claims Act permits the victim to sue the FAA for negligence. 

Sometimes, the Handbook doesn't cover a particular air traffic situation. In those cases, the controller is supposed to simply use his best judgment.  But this would seem to present a problem for the victim of the controller's error.  That's because one of the Federal Tort Claims Act's most important limitations is the "Discretionary Function Exception." The Discretionary Function Exception states that a victim can’t sue the federal government for bad decisions that the government left to the federal employee's best judgment.  Regardless of how careless the employee was, the government is immune from suit. 

Does that mean that, if a controller makes an error in a situation not covered by the Controller's Handbook, the victim can't sue?  

No.  Courts have ruled that an air traffic control error never falls within the Discretionary Function Exception. It doesn't matter whether the air traffic situation was covered in the Handbook, or was one left to the controller's judgment.  If a controller's error caused the accident, the victim can sue the FAA for negligence, just as though the FAA were a private party.

However, certain other rules will apply to the victim's lawsuit: 

• Before starting the suit, the victim must file a claim against the government on a Form 95: 
• The lawsuit must be filed in Federal Court, not State Court;
• The judge -- not a jury -- decides the case;
• No punitive damages can be awarded; 
• The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
• If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.

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