Following up on my recent posts on the incident, I had the opportunity to discuss the crash of AirAsia QZ8501 with Colin O’Keefe of LXBN. In the interview, I share my thoughts on the potential cause of the incident and what that might mean as far as compensation for families.
Let’s get it out of the way: there is little in common between the apparent loss of AirAsia Flight QZ 8501 and the disappearance of Malaysia Airlines Flight MH 370.
But Flight 8501’s disappearance does have at least some resemblance to the 2007 loss of Adam Air Flight 547. Both Indonesian airliners disappeared shortly after contact was lost in bad weather. Both disappeared in Indonesian airspace — the AirAsia flight over the Java Sea; the Adam Air Flight over the Makassar Strait.
Bad Weather vs. Pilot Inputs
The speculation after the Adam Air crash was that the flight was brought down by severe weather — weather that the crew had been warned about. But that turned out to be wrong. Adam Air Flight 547 went down because the crew fixated on troubleshooting a problem with the aircraft’s navigation system, not because of weather. The crew became so preoccupied withthe navigation system that they allowed the aircraft to slowly roll into a steep bank. They allowed the nose to point down and the aircraft to build too much speed. When the pilot figured out was going on and tried to recover, his control inputs broke the wings.
But the AirAsia Crew Had Requested a Deviation for Bad Weather
Unlike the Adam Air crew, the AirAsia pilots had requested from Air Traffic Control a clearance to climb to a higher altitude but didn’t immediately get it. A short time later, all contact with the airliner was lost. Isn’t that a strong indication that rough weather may have been a factor?
First, while small aircraft are often brought down by rough weather, it’s extremely rare for an airliner to be. Airliners avoid rough weather largely for comfort rather than for safety. Second, although Air Traffic Control delayed in giving the AirAsia flight a clearance to climb, the pilots were free to do so immediately in the unlikely event the weather posed a risk to the aircraft’s safety.
But while it’s rare for an airliner to be brought down by turbulence, it’s quite possible for an airliner to be brought down by a pilot’s reaction to that turbulence.
Airbus Rudder System
That’s exactly what happened to American Airlines Flight 587 in 2001. The aircraft encountered turbulence climbing out of JFK. The co-pilot tried to correct by pushing on the rudder with his foot. He pushed too hard and the aerodynamic forces caused structural failure. The airliner crashed and killed all 260 aboard and 5 on the ground.
American Airlines 587 was an Airbus A300. More then 10 years after that crash, the FAA required all 300 series aircraft to be modified to warn the pilot to "stop rudder inputs" when structural damage becomes a risk, a modification that I felt was inadequate. Flight 8501 was an Airbus A320. That’s the same model which the NTSB called flawed because its rudder system was too sensitive:
The Airbus A320 family is . . .susceptible to potentially hazardous rudder pedal inputs at higher airpeeds.
Airport fire trucks must get to a burning plane within three minutes if they are going to save any lives. That’s the maximum response time allowed by the National Fire Protection Association, the organization that sets the standard for airport firefighters, including those working at U.S. Air Force bases.
The survivable atmosphere inside an aircraft fuselage involved in an exterior fuel fire is limited to approximately 3 minutes if the integrity of the airframe is maintained during impact. This time could be substantially reduced if the fuselage is fractured. . . rapid fire control is critical. . .
Aircraft flown in air shows are usually smaller and less fire resistant than transport category aircraft. At air shows fire trucks need to get to crash sites even quicker – within 60 seconds or less.
The key to getting fire trucks to a crash quickly is to station the trucks near to where an accident is most likely to occur. Normally, that might be the end of the active runway. But most air show crashes occur at “show center” rather than the end of the runway. As one Travis Air Force witness put it, show center is where ‘the majority of dangerous events focus.” At air shows, that’s where fire trucks should be waiting.
On May 4, Eddie Andreini was flying a routine at the Travis Air Force Base open house. He was attempting a stunt known as an inverted ribbon cut. Something went wrong. Eddie’s Stearman slid upside down along the runway, coming to a stop at smack dab show center. Eddie was uninjured but was trapped inside. A fire started almost immediately. Air Force personnel say that they saw Eddie struggling to get out as he waited for the fire trucks to save him. One minute passed, then two, then three. But the crash trucks didn’t come. When they finally did, it was too late.
The Air Force refused to explain why it took so long for its fire trucks to reach Eddie. So we sued it under the Freedom of Information Act. We now have internal Air Force documents showing that the brass didn’t understand the Air Force’s own regulations. They mistakenly believed regulations prohibited them from stationing fire trucks near show center. So instead, the Air Force positioned the fire trucks more than a mile and a half away.
The Travis speed limit for fire trucks is 45 mph. So it took the first fire truck (a “Rapid Intervention Vehicle”) more than four minutes to get to Eddie. Had the Air Force positioned even one truck at show center–as it was supposed to–firemen would have gotten to Eddie within a minute and Eddie would have been saved.
Regulations can be confusing. Was the Air Force’s mistake understandable? Not really. The manual that Travis show organizers had in hand–and agreed to follow–makes clear that fire trucks belong at show center. According to that manual, the personnel who were permitted in the “aerobatic box” (the area in which performers fly) included “demonstration teams and fire/rescue.” (Page 28.) The manual goes on to direct that fire trucks should be located “with immediate access to the show line” (page 34) – not a mile and a half away.
To the extent the Air Force brass was confused, the FAA cleared things up for them when, a week before the air show, it told Travis that crash trucks did indeed belong “in the box” near show center.
Our team, specifically the air ops staff, was led to believe that we could not put an emergency vehicle (or anything else) inside the Show Box at Show Center, because it was sterile and protected. We learned that this was not correct about a week before the show after [name redacted] discussed it with [name redacted] of the FAA. We learned that we could place airshow official vehicles or people in the aerobatic box.”
Travis had time
The Air Force’s own documents prove that Travis officials had a week before the show was to begin to correct their mistake and arrange for the trucks to be stationed at show center. But the Travis officials had already decided that the fire trucks were going to be positioned where they couldn’t be of any use to a performer. Having made a plan, they weren’t going to change, even if it put lives at risk unnecessarily.
“I’ll say it again, I need the trucks on the runway! I need the trucks on the runway now!”
The Travis Command Post recording is difficult to listen to. After hearing it, it’s hard to believe that Travis still tells the public that its fire department responded to the crash in an “exemplary” fashion.
(Notes: At 2:14, one of Eddie’s crew tried to fight fire with a hand-held extinguisher. The extinguisher was too small and was expended in seconds. By that time, the Rapid Intervention Vehicle had not yet even left its station. The Air Force documents do not explain why it took so long for the truck to roll. It finally arrives on scene after the 4 minute mark. The time stamps were placed on the photos by Air Force.)
Asiana now says the autopilot confused the crew of Asiana Flight 214, and blames Boeing for the crash of Flight 214. ABC Channel 7 asked me to comment.
Someone changed the course of Flight MH370 and turned off the aircraft’s transponder. Turning off an aircraft’s transponder makes it more difficult for the plane to be tracked by radar. A hijacker with even minimal flight training would have known that.
But there is one wrinkle. The transponder was reportedly turned off when air traffic control was in the process of a “handoff” from Malaysian Air Traffic Control to Ho Chi Minh City Control in Vietnam. At that moment, the aircraft was in the shadows: on the outskirts of Malaysian radar coverage and just entering Vietnam radar coverage. The crew had said goodbye to Malaysian air traffic control, but hadn’t yet established contact with Ho Chi Minh City Control. If a crew wanted to disappear, that would be an ideal time to pull it off. Only the most sophisticated hijacker would know that.
Airline’s Obligation to Compensate Family Members
An airline’s obligation to compensate the families of those lost in the crash of an international airliner is governed by an international treaty known as the Montreal Convention. The Montreal Convention requires the airline to compensate the families of those lost whenever the crash was the result of an “accident.” An “accident” is defined as “an unexpected or unusual event or happening that is external to the passenger.” Whether the crash was caused by a pilot’s wilful misconduct, a hijacking, or even a terrorist attack — it doesn’t matter. The crash counts as an accident and the airline is liable.
Cap on Airline Liability
An airline is strictly liable for a family’s loss up to 113,100 “Special Drawing Rights,” an amount equal to about $175,000. The airline can avoid liability for sums exceeding that amount only if it can prove it was totally “free from fault.” That is usually an impossible task for an airline, even if the crash was caused by a terrorist. The air carrier can seldom show that there was nothing it could have done to avoid the accident. It’s the problem of proving a negative. Thus, if in fact flight 370 was lost in a crash, it’s unlikely the Convention’s “cap” on liability will come into play.
More in my interview appearing in the Malaysian press.
This animation compares what Asiana 214’s approach should have looked like to what it did look like. From the data we have, the animation appears to be fairly accurate, except the audio is not properly synchronized. (The initial transmissions are from when the aircraft was 7 miles from the runway, not several hundred feet.)
If the audio were fixed, would this animation be admissible in court?
Not in it’s current state. It relies too much on guesswork. But once the data from the black boxes is available and the animation modified accordingly, it’s exactly the type of thing the lawyers would want to show to a jury.
As described here, passenger claims against Asiana Airlines are limited by the Montreal Convention. But any claims the victims’ may have against a manufacturer of the aircraft or its component parts are not.
NTSB Chairman Deborah Hersman reported that evacuation slides opened inside the passenger cabin. The slides are, of course, designed to open outside the cabin. Passengers (or crew) who were injured by the slides may be entitled to compensation for those injuries from the appropriate manufacturers, if it is proven that the slides malfunctioned because of a defect rather than an error on the part of the flight crew. Those sorts of claims would be governed by U.S. product liability law, not by the Montreal Convention.
The markings on a runway are there to help the pilot aim for the proper touchdown point. Shortly before the Asiana 214 crash, SFO moved the touchdown point for runway 28L several hundred feet down the runway. SFO was thus required to remove the old markings, and paint on new ones that matched the new touchdown point. The airport was not permitted to simply paint over the old markings with black paint. It was supposed to remove the old markings entirely. According to the FAA:
Pavement markings that are no longer needed are not to be painted over but instead are to be physically removed. Removal of markings is achieved by water blasting, shot blasting, sand blasting, chemical removal, or other acceptable means that do not harm the pavement. The FAA does not endorse painting over the old marking because this practice merely preserves the old marking, which is some cases have misled pilots . . .
Look at the photo at right from the New York Post. It is clear that SFO did exactly the wrong thing – when they moved the touchdown point, they painted over the old markings instead of removing them.
Was this yet another factor that the crew of Asiana Flight 214 had to deal with?
So far, the NTSB has not mentioned the improper runway markings. We’ll see if it comes up in today’s briefing.
Because Asiana Flight 214 was international, lawsuits against the responsible airline are governed by the Montreal Convention. The Montreal Convention strictly limits where a passenger may bring suit. To bring suit against an airline in a U.S. court, the injured passenger must be a U.S. resident, the passenger’s ticket must have been issued in the US, or the trip must have had a final destination in the US. As discussed here, that means that many of the tourists who were victims of Flight 214 may not qualify to sue Asiana in the US.
The Montreal Convention also permits victims to sue the responsible airline in the country in which the airline’s principal place of business is located. In this case, that doesn’t help the victims because Asiana Airlines’ principal place of business is in Korea.
But some foreign passengers may have purchased their tickets through Asiana’s code-share partner, United Airlines. The Montreal Convention allows a passenger to sue not just the “actual carrier” (Asiana), but also the “contracting” carrier (the code share partner who issued the ticket). For some passengers, the "contracting carrier" may have been United Airlines. United Airlines’ place of business is in the U.S. That means that passengers who purchased a ticket from United may sue in the U.S. regardless of whether they qualify to sue Asiana here.
Asiana Airlines Flight 214 was an international flight between Seoul and San Francisco. That means the airline’s obligation to compensate its passengers for their injuries is governed by an international treaty known as the Montreal Convention. Here are some of the Convention’s important points, as they apply to Flight 214:
- The Airline must compensate its injured passengers as long as the crash was caused by an "accident." The Convention defines "accident" to include any unexpected event; from an encounter with bad weather, to poor planning on the part of the pilot, to mechanical failure. This crash certainly qualifies as an "accident." The exact cause of the accident doesn’t matter. The passenger does not need to prove that the airline was negligent, or that the airline did anything wrong at all. The airline is automatically required to compensate any injured passenger.
- A passenger who was physically injured is entitled to compensation for his or her emotional distress as well as for the physical injuries. However, a passenger who was not physically injured is not entitled to compensation for emotional distress, no matter how severe the emotional distress may be.
- The cap on an Airlines’ automatic liability under the Montreal Convention is US$170,000. Asiana Airlines may avoid liability for amounts exceeding US$170,000 only if it proves that it was not in any way "negligent or at fault." In this case, it appears that it will be impossible for Asiana to make such a showing. Therefore, there will be no artificial "cap" on Asiana Airline’s obligation to compensate the passengers who were physically injured in the accident.