Air Safety And Law

The National Transportation Safety Board has concluded its investigation into the Continental Connection (Colgan) Flight 3407 disaster and has issued very important safety recommendations, which if acted upon by Colgan, the other regional airlines and Federal Aviation Administration will greatly improve aviation safety. If the regional airline industry and the FAA do not act and act quickly another regional airplane will crash because other poorly selected and trained pilots will make the same or similar terrible mistakes as Flight 3407′s pilots.

Thus far, neither the Federal Aviation Administration nor the regional airline industry has taken the steps necessary to prevent the next disaster. In January, the Federal Aviation Administration issued a document entitled “Answering the Call to Action on Airline Safety and Pilot Training,” but the document is clearly just an attempt to blunt criticism of its half-hearted response to the Flight 3407 tragedy. The FAA has engaged in a lot of talk, but very little action. The same is true for the industry, much of which has committed to taking steps to improve pilot training and supervision, but thus far has largely not acted.

Colgan is a prime example of industry inaction. After “learning” that neither of Flight 3407 pilots had been fit for duty since they had gotten what little sleep they received the night before the flight in crew rooms, Colgan instituted a no questions asked fatigue policy that would not punish pilots for canceling flights because they were fatigued. Colgan then cancelled the new policy because its managers believed pilots were abusing the policy. Colgan also promised the National Transportation Safety Board that it would institute a Flight Operations Quality Assurance (FOQA) program, but as we approach the one year anniversary of the Flight 3407 disaster, its FOQA program is not operational.

We support the Flight 3407 families’ fight for change. Most regional airlines say that “safety is paramount” or that “safety is job one” — it’s time that these sayings are not mere words.

The tragic crash of Continental Connection Flight 3407 on February 12, 2009 should spur the FAA and the airline industry to change the rules and practices that lead to the disaster. On Tuesday, February 2nd, 2010, the National Transportation Safety Board will hold a hearing and most likely issue its probable cause report. We hope that the report focuses on the following:

1. Background checks of pilots. Colgan Air, which operated Flight 3407 under contracts with Continental Airlines, did not conduct a thorough background check on Flight 3407′s Captain and did not therefore discover that he had failed three check rides before applying for his Colgan job.

2. Fatigue. Pilots who are fatigued make mistakes and it is not enough for an airline to issue rules that pilots should not fly if they feel fatigued. If pilots are punished for missing flights an airline’s culture will cause pilots to take flights that they should cancel. The Federal Aviation Administration (FAA) should review each airline’s fatigue policies to make sure that they are non-punitive and that each airline’s culture promotes flight crews to use the fatigue policies.

3. Pilot Experience. We support increasing the minimum hours that pilots must have in order to fly commercially. Pilot experience, however, must focus on quality as well as hours. Right now, the Regional Airlines are able to hire and retain experienced pilots because the major carriers are not doing much hiring. What can’t happen is that Regional Airlines return to the practice of hiring less qualified pilots when the job market for pilots improves.

4. Pilot Training — Regional Airlines must invest significantly more on pilot training, especially with regard to emergency procedures. The training must cover every emergency and every possible emergency scenario. Classroom discussion is not a substitute for flight and simulator training.

5. Pilot Scheduling — The Regional Airlines need to improve their scheduling, not only so that pilots are not over-scheduled (which becomes a fatigue issue) but also to ensure that the schedule ensures that a flight crew with sufficient experience and professionalism is in each cockpit. Airlines should not be scheduling low-time and/or weak Captains with inexperienced co-pilots.

6. Improved systems on aircraft. We hope that the NTSB will recommend improvements to aircraft that would warn pilots earlier of problems. For example, a low airspeed alert would warn pilots that airspeed had dangerously decayed before the verge of a stall giving the pilots more time to react to a problem.

In late January, the FAA issued a report entitled “Answering the Call to Action on Airline Safety and Pilot Training, which appears to be the FAA’s attempt to get ahead of the NTSB’s release of its probable report. The report discusses a number of ongoing projects that address some of the issues discussed above. We hope that the FAA will continue to work on these projects once the media attention moves to other subjects.

The FAA and the Regional Airline industry are being pushed to action by the families of the Continental Connection Flight 3407 disaster. The families will not rest until they are confident that no other family will suffer what they have suffered.

While it may be impossible to prevent every accident, there should never be another accident like Continental Connection Flight 3407.

An Ethiopian Airlines plane carrying 90 people reportedly caught fire and crashed into the sea just after taking off from Beirut in bad weather very early Monday morning.

The most recent reports indicate that the pilots did not (and possibly could not) comply with air traffic control directions and conducted a unusual maneuver shortly before the crash.

It is too soon to rule out possible causes of the disaster and it is important for the investigators to determine whether there was a mechananical problem with the airplane.

Some commentators are speculating that there might have been a bird strike, engine failure or some other mechanical failure. Others are discounting the possibility that weather was a factor or that terrorism or sabatoge was at issue. I think it’s too soon to speculate about the cause and I am happy that the National Transportation Safety Board has dispatched a team to assist in the investigation.

This has been a tough couple of weeks for general aviation…  Last week I blogged about the crash of a Glasair near Oxford, CT, now there is word of a tragic crash near Bimini, The Bahamas which took the lives of 3 persons from Naples Florida including J.P. Antonmattei, a prominent Naples businessman.

This crash too has struck a chord with me.  I recently flew my plane down to the Bahamas this past December for a vacation.  The flying in The Bahamas is just beautiful, but it poses unique dangers that require special consideration.  Foremost is the obvious water danger.  Life preservers are a must, a raft is a good idea, and for my trip, I bought a PLB (Personal Locator Beacon).  A PLB sends a GPS position to a satellite when activated so that search and rescue can more accurately and rapidly locate you.

All this, of course, presupposes that you are able to survive the water impact, which unfortunately appears not to have been the case in this crash.  Again, you can be a very experienced pilot, and even have life saving equipment with you, but if your machine is not operating properly, all bets are off because now, rather than dealing with a challenging enough emergency landing on land, your situation is compounded by a water emergency landing (or “ditching”)….  Notwithstanding Sully Sullenberger’s outstanding  piloting accomplishment on the Hudsaon, a successful ditching is extremely demanding and remains a very dangerous “option” when a mechanical failure occurs over water.

It remains too early to know exactly what caused this tragic crash, but it is another sad reminder that flying over water poses unique considerations.  Our thoughts and prayers are with the families…

While we routinely handle small, private plane crash accidents like the one that occurred this past Wednesday near the Oxford airport in Connecticut, this tragic accident struck a particular chord with me.  I had just flown past the Oxford airport that day in my own plane (which is very similar to the GlasAir III) returning from an aircraft inspection in another case.  After I landed and heard about the crash and how experienced and capable Mr. Foster was (he was a former NASA engineer who had been flying for 20 yrs and actually had the talent to build his own plane) it was a poignant reminder to me how unforgiving aviation can be.  No matter how experienced we may be as pilots, aviation requires not only our full respect as pilots, but a necessary reliance on others.  For instance, we must rely on manufacturers to provide us with the safe “machine” part of the “man-machine” equation, weather briefers for accurate forecasts and airports (and other entities) to safely place and mark electrical power towers (or other obstructions) near airports.  While it is too early to know exactly what happened in this tragic crash, as a fellow-pilot, this is the type of accident that I find particularly sobering.  Our thoughts and prayers are with the Foster family.

The reports from the investigation suggest that American Airlines Flight 331 touched down almost half-way down the 8,910 foot runway. The investigation now focuses on why the airplane landed so dangerously long and will consider potential reasons such as pilot error or mechanical failure. The investigation should also focus on why the pilots did not abort the landing approach and the wind conditions the airplane experienced on the approach and whether the flight crew should have accepted the controller’s suggestion of an alternative runway given the winds current at the time of the approach.

In Jamaica, soliciting U.S. attorneys have bombarded victims with a lot of nonsense. The victims should know that it is important to research the background of any attorney they consider hiring. A law firm that flies lawyers to the scene of the accident immediately after an accident to solicit victims is probably the last law firm a victim should ever consider hiring. Claims against the airline are governed by international treaty and the victims have two years to bring a claim. Potential claims against other entities are governed by other limitations periods.

Victims who have suffered injuries in the crash have the right to recover from American Airlines for their injuries. Under international treaty, American Airlines is liable to the victims and can only limit the extent of its liability under certain circumstances, none of which I see here.

We continue to follow the investigation and will write additional posts in the future regarding the accident’s safety and legal ramifications.

A short time after American Airlines Flight 331 crashed in Jamaica, certain U.S. lawyers arrived to offer “assistance” to the victims and to gather “evidence.” Most of of their work, however, seems related to self promotion and solicitation of potential clients.

I can think of no legitimate reason that a U.S. attorney would need to fly to Jamaica immediately after the accident to “gather evidence,” almost all of which is under the custody and control of the Jamaican government.

The Jamaica Observer published an article recently warning its readers to watch out for the ambulance chasers and I hope that the Jamaica bar takes action against the U.S. ambulance chasers, as the bars of other countries have done when confronted with similar activity.

United States federal law and state ethical laws and guidelines prohibit solicitation of aviation disaster victims, particulary in the first forty-five days after an accident. No victim of an aviation disaster should be then victimized by U.S. attorneys who arrive on the scene with exaggerated promises. The victims deserve better.

Investigators are looking at the American Airlines Flight 331′s point of touch down, which according to reports was approximately 4,000 feet down an 8,900 foot runway. If true, the next question is why the pilots landed so long and why they attempted to land at all. The investiatiors will also need to examine the tailwinds the airplane encountered on the landing approach and the runway conditions.

While it is too early to come to any conclusions, we believe that the investigation must focus on the crew’s decisions on the approach and why they did not execute a missed approach.

Nevertheless, the investigators need to also consider all the potential causes, including: 1. a possible equipment malfunction, 2. runway design — the runway was not designed with groves to assist in the dispersion of water, and 3. Weather — the information that the pilots received concerning wind and runway conditions is significant to the investigation.

Investigations often take over a year to be complete, but we expect this investigation to reveal the pertinent safety issues in a much shorter time — hopefully in January or February.

Victims, especially those in Jamaica, should be wary of U.S. attorneys who solicit them. We believe that no real “aviation lawyer” would ever solicit clients and that victims should never be harrassed by lawyers.

The AOPA’s annual convention has undergone a transformation and is now the all-new AOPA Aviation Summit, which will feature new experiences, education, events and opportunities to interact with people and technology that are relevant to the general aviation flying public. 

See www.aopasummit.org for information.

Doug Griffith and Stuart Fraenkel will be speaking on Liability of Aviators: A Risk Management Toolbox on Thursday, November 5 at 11:00 a.m. , Convention Center, Room 18