Aerobatic hall of fame pilot Eddie Andreini was flying a routine at the Travis Air Force Base. 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 show center. His Stearman caught fire. Eddie couldn’t get out. The crowd watched, prayed, and waited for fire trucks to arrive. Some bystanders wanted to rush to the plane to help, but the announcer warned everyone to stay back and “let the firefighters do their job.”
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.)
The Chinook helicopter was flying in Afghanistan. Without warning, one of the helicopter’s two engines flamed out. The helicopter crashed. Eight service personnel were killed and fourteen were severely injured.
The victims and their families sued the helicopter’s various manufacturers, including Boeing, Honeywell and Goodrich. They claimed that the helicopter’s engine quit because of a defect in the design of the electronics that control the fuel flow to the engine.
The Army agreed. It’s investigation concluded that the engine failed because of problems with the the engine’s FADEC (Full Authority Digital Electronic Control) and DECU (Digital Electronic Control Unit).
A federal court recognized that "the Chinook’s engine obviously did not perform like it was supposed to." Nonetheless, it tossed the case out of court, ruling that the manufacturers were protected from liability by the Government Contractor Defense. That defense immunizes manufacturers from liability for defective products causing injury or death in those cases where the government approved the design that ended up being faulty.
The victims argued that the government didn’t really approve the defendants’ defective design, because the contract documents left the details of the design to the manufacturers’ discretion. The contract documents provided:
Specific implementations used to describe the functional requirements throughout this document are for informational understanding only. Actual implementations used to meet these requirements will be at the discretion of the designer unless specifically stated otherwise.
The court rejected the argument. Though the clause left some of the details to the manufacturers, the government nonetheless approved the design.
The victims also argued that the manufacturers should have included in the helicopter’s Operator’s Manual a warning about the problems with the helicopter’s design, since they were well aware of other failures that had resulted in accidents. The court rejected that argument too, because the military had approved the manual’s wording.
Military personnel were killed or injured, not by enemy fire, but by a defectively designed product that was manufactured by private industry for profit. Yet, the manufacturers are permitted to turn their backs, and walk away,
The case is Getz v. Boeing.
The Federal Tort Claims Act allows citizens who have been injured by the federal government to sue the United States. But there’s an important exception. No suit against the government is allowed when the victim is a service member injured by the negligence of the United States military.
The rule protecting the military is called the Feres Doctrine. In aviation accident cases, the doctrine bars service members from suing the government regardless of whether the crash was caused by the negligence of a military mechanic, air traffic controller, dispatcher or pilot.
Not surprisingly, the Feres Doctrine is controversial. It allows the military to avoid responsibility for not just simple negligence, but for gross negligence as well. Because of its unfairness, Congress has repeatedly been asked to abolish the rule, or at least limit it. (Large pdf of Congressional Hearing here.) But the Feres Doctrine remains the law. As long as the victim was an "active" service member, and the injury or death was "incident to service," the military is immune from suit.
That doesn’t mean that injured soldiers or their families cannot sue others who may have contributed to a military aircraft accident. For example, if a defect in the design of the aircraft contributed to the crash or to the injuries the crew member received, the crew member can still sue the aircraft’s manufacturer. The aircraft manufacturer may be able to assert defenses of its own, such as the "government contractor defense," but not the Feres Doctrine.
The military prepares an investigative report after every accident involving one of its aircraft. The report focuses on the military’s role in the accident. It seldom addresses whether a manufacturer or other civilian contractor may have been at fault. In fact, as discussed in this article concerning a military helicopter crash off the California coast, sometimes the report provides no answers at all. Families will often need to enlist an aviation accident attorney to conduct an investigation on their behalf. The attorney may need to file suit against the manufacturers just to obtain access to the evidence bearing on who, other than the military, may be responsible for a service member’s injury or death.
A crew member injured by an aircraft’s defective design may sue to hold the aircraft manufacturer accountable. At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.
A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft’s design by asserting the "government contractor defense." That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:
- That the US government specifically required or approved the design feature that caused the accident or injury;
- That what the manufacturer built conformed to the specifications that the government approved, and
- That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn’t.
If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft’s design caused him.
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.