Aviation Law Monitor

$26 Million Jury Verdict After Lycoming Refuses to Turn Over Documents

Mike Danko — Thu, 11 Apr 2013 07:40:05 -0800

A jury in Washington state handed down a $26 million verdict against Avco Lycoming as a result of a fatal Cessna 172 crash that killed three people in 2008. The jury's award included $6 million in punitive damages, designed to punish Lycoming for consciously disregarding the safety of the flying public.

It's the second time a jury has slammed Lycoming with punitive damages for its carb floats. In 2010, a jury awarded $89 million, including $64 million in punitive damages, as a result of 1999 Cherokee 6 crash that killed four and injured one.

This case, however, was a bit different. It was the judge who ruled that Lycoming was responsible for the crash before the case ever reached the jury. All that was left for the jury to decide was how much to include in its verdict. The judge ruled against Lycoming because it refused to turn over relevant documents in the case. Apparently, the documents were so incriminating that Lycoming felt it was better to suffer a certain jury verdict than to allow the documents to see the light of day.

[I]n December 2005, Lycoming participated in a series of emails discussing the leaking Delrin Float issue, none of which Lycoming produced during discovery. The series of emails informs Lycoming of the significance of the Delrin float leaking problem. In the emails, Lycoming employees state that it is clear that hollow plastic carb floats can leak, allowing fuel to enter the interior of the floats. The emails reflect that there was also a recent inflight [engine] stoppage. The email also recognized the danger of discussing the defects in writing: “It is too bad that we have to answer in writing on such a touchy issue.”

Plaintiffs asked Lycoming to turn over the rest of the emails on the subject, including those that went to upper managment. The emails would have been important evidence that Lycoming knew the floats leaked and could cause engine failure. But Lycoming refused. So the court ordered Lycoming to turn them over. Lycoming still refused.

Lycoming's willful and deliberate refusal to follow the court’s order prevented plaintiffs from proving their case. So the court did the only thing that was fair and ruled that the floats were defective and caused the accident.

The Judge's order is an interesting read.

Judge's Sanctions Order Against Lycoming

Another Robinson R44 Helicopter Explodes on Impact

Mike Danko — Sun, 24 Mar 2013 15:40:23 -0800

This Robinson R44 crash was in Australia.

Witnesses said that nearby restaurant staff “grabbed every fire extinguisher in the building, but there were too many flames . . . There was nothing anyone could do.”

No occupant of a properly-designed helicopter should be burned in an otherwise survivable impact. Unfortunately, the fuel tanks installed in all Robinson R44 helicopters manufactured before 2010 are not properly designed.

On Friday, the ATSB (the Australian equivalent of the NTSB) confirmed that the accident helicopter was equipped with the all-aluminum fuel tanks, rather than the bladder-type tanks now available for retrofit. The ATSB urged all R44 owners to get their tanks retrofitted after the February 4, 2012 R44 crash that killed noted Australian filmmakers Andrew Wight and Mike deGruy. But less than half of the 4000 Robinson Helicopters with the defective tanks have been fixed.

Passengers killed in this latest crash included a couple who were checking out their wedding venue.

Other low-impact R44 helicopter crashes that have resulted in fires since the new tanks have been made available:

January 19, 2012, Centerville Louisiana (2 Fatalities).
February 4, 2012, Australia (2 Fatalities).
September 18, 2012, Slaton, Texas (No injuries).
November 25, 2012, Corona Municipal Airport (1 Fatality).

NTSB Questions FAA's Practice of Allowing Boeing to Self-Certify its Designs

Mike Danko — Mon, 11 Feb 2013 11:57:47 -0800

The FAA allows Boeing to certify its own design work. That means that, at least to some extent, Boeing now regulates itself. That never seemed like such a great idea to me. After all, isn't it the FAA's job to make an independant determination that an aircraft design is safe? Does it make sense for the FAA to allow Boeing -- or any manufacturer -- to grant FAA certification to itself?

Now, the NTSB seems to agree. In discussing whether the FAA's "self-certification" policy played a role in Boeing's 787 battery problems, NTSB Chair Deborah Hersman hinted that maybe the FAA isn't doing its job:

This is an issue when you have a regulator with limited resources. . .You can delegate some of the action, but you can’t delegate responsibility.”

A regulator that allows a manufacturer to certify its own designs isn't a regulator at all.

Air China at Bottom of Safety List

Mike Danko — Sun, 27 Jan 2013 19:56:22 -0800

The Jet Airliner Crash Data Evaluation Center (“JACDEC”) is an airline safety think-tank in Germany. Last week, it rated the safety records of 60 air carriers worldwide. It considered the number of crashes and fatalities each airline has experienced – regardless of cause – since 1983. Its “time-weighted” methodology placed the greatest emphasis on recent crashes.

The safest airline: Finnair. The least safe: Air China.

Over the past few years, most fatal crashes have been attributable to foreign airlines. Nonetheless, under JACDEC’s methodology, the US carriers didn’t fare all that well.

United Airlines was ranked 31st, American 42nd, US Airways 44^th, Alaska 45^th, and SkyWest was ranked one of the ten worst at 51st. Worse even than Aeroflot, the notoriously dangerous Russian airline.

The entire list is here. The translations for the German column headings is here.

FBO's Insurance Doesn't Protect Renter Pilot

Mike Danko — Fri, 28 Dec 2012 10:05:06 -0800

An Fixed-Base Operator will sometimes tell the pilot to whom it rents an aircraft that, in the event of an accident, the pilot may be held responsible for the FBO's deductible. From that, pilots sometimes conclude that their liability will be limited to the amount of the deductible, and that everything else is "covered."

Not so. Not only can the FBO pursue the pilot for the deductible, but the FBO's insurance company can (and often does) pursue the pilot for the full amount it pays to the FBO for the damage to the aircraft. In other words, the renter pilot can be held responsible for the entire loss.

But more importantly, the FBO's policy doesn't necessarily cover the renter pilot for any injury or death he may cause to others. That was the recent holding in Knezovich v. Hallmark Insurance, an Illinois case arising from a fatal midair collision between a Cirrus and a Cessna in Wyoming. The families of those killed in the Cirrus sued the estate of Cessna pilot, claiming the Cessna pilot caused the crash. The court ruled that the FBO's insurance policy didn't protect the pilot at all (or, more accurately, his estate) and that the insurance company didn't even have to hire the renter pilot's estate a lawyer to defend against the wrongful death lawsuit brought against it. In short, the estate was on its own.

Aviation lawyer Greg Reigel sums it up:

Although this is an unfortunate situation for the deceased pilot's estate, this case serves as a reminder to anyone who rents aircraft to confirm that insurance coverage is in place that will protect the renter. It isn't enough to simply ask the FBO or aircraft owner whether they have insurance. You need to be sure that coverage is in place to protect you, the person renting the aircraft. If the aircraft owner's or FBO's insurance doesn't provide coverage, you need to know that so you can understand your risk and either obtain coverage elsewhere or go without.

Of course, not only was the situation unfortunate for the estate of the Cessna pilot, but it was unfortunate for the families of the others killed in the accident. Even assuming that they prove the crash was caused entirely by the Cessna pilot, unlike the FBO, its unlikely they will ever be fully compensated.

Jury Verdict for Cirrus and Against Lidle and Stanger Families Affirmed on Appeal

Mike Danko — Wed, 19 Dec 2012 18:40:09 -0800

The plaintiffs’ attorney in the Lidle case told the press that, once the judge ruled that certain key evidence would be kept out of trial, a defense verdict was a foregone conclusion.

The plaintiffs wanted to tell the jury about an incident where, according to a Cirrus flight instructor, a Cirrus’ controls locked up in flight without warning in March 2006. That evidence, according to the plaintiffs’ attorney, would tend to prove that there was a problem with the Cirrus flight control system, just as plaintiffs had alleged. And typically such evidence of “other similar incidents” is exactly what persuades a jury that a product is indeed defective. But the trial judge kept that evidence out of trial. In an opinion issued earlier today, the federal court of appeals for the second circuit ruled that the judge’s decision was within her discretion -- in other words, it wasn’t wrong.

Plaintiffs argue that the district court erred by excluding evidence of a March 2006 incident involving another Cirrus Model SR20 G2 aircraft (the "Doremire Incident") to prove [Cirrus’] negligence and notice of a defective condition.

Evidence of prior accidents may be admitted at trial only if the proponent "establish[es] their relevance by showing that they occurred under the same or substantially similar circumstances as the accident at issue." Whether a prior accident occurred under "substantially similar" conditions necessarily "depends upon the underlying theory of the case, and is defined by the particular defect at issue."

The [trial judge] . . .concluded that the Doremire Incident did not occur under substantially similar circumstances because plaintiffs had not "provide[d] evidence that the Doremire incident involved [a rudder-aileron interconnect] lockup where the Adel clamp crossed over and locked on a bungee clamp."

. . . We see no abuse of discretion here. Accordingly, we affirm the [trial judge’s] ruling.

Plaintiffs also wanted to tell the jury about an Airworthiness Directive the FAA issued after the Lidle crash concerning the Cirrus’ rudder-aileron interconnect, again to prove that the design of the aircraft’s control system was defective. The judge kept that from the jury too. Again, the court of appeals ruled that the decision was within the trial judge’s discretion.

Federal Rule of Evidence 407 generally prohibits a plaintiff from introducing evidence of [a manufacturer’s] subsequent remedial measures "that would have made an earlier injury or harm less likely to occur" to prove the defendant's "negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. Nevertheless, evidence of such measures may be introduced for other purposes, such as impeachment or -- if disputed -- to prove ownership, control, or the feasibility of precautionary measures.

Plaintiffs argue that the district court erred by excluding. . .a March 2008 . . . Airworthiness Directive mandating certain adjustments to the rudder-aileron interconnect on all Cirrus aircraft . . .Plaintiffs contend that Rule 407 does not apply to the Airworthiness Directive because it is a subsequent remedial measure taken by the government, not by Cirrus.

The . . . Airworthiness Directive incorporated by reference a 2007 Service Bulletin issued by Cirrus, which the [trial judge] excluded as a subsequent remedial measure and which exclusion plaintiffs do not challenge on review. The [trial judge] concluded that allowing plaintiffs to introduce the Airworthiness Directive would function as a "back door" to introducing evidence of Cirrus's own subsequent remedial measure, which was squarely prohibited by Rule 407. Further, the [trial judge] explained that "in the circumstances of this case where the [Airworthiness Directive] was issued as a direct response to [Cirrus' Service] Bulletin, it is covered by Rule 407. . . because to determine otherwise might discourage manufacturers from issuing service bulletins as part of voluntary compliance procedures.

The second circuit's ruling finally brings the Lidle case to a close.

(All citations omitted, full opinion here.)

Airbus Rudder Pedal AD Inadequate

Mike Danko — Wed, 05 Dec 2012 17:13:52 -0800

American Airlines Flight 587 encountered wake turbulence. The pilot countered with rudder inputs. The rudder inputs were excessive, the tail assembly failed, and the aircraft crashed, killing 265 people.

The NTSB determined that the Airbus' rudder controls are unduly sensitive and make it easy for a pilot to overstress the aircraft's structure, causing a catastrophic failure. Now, eleven years after that crash,the FAA has issued an Airworthiness Directive against the A300 Airbus to remedy what it considers to be a problem with the aircraft’s design.

Originally, the FAA was going to require that all the A300's be modified to limit the rudder pedals' travel. The FAA felt that such a modification would make it much more difficult for a pilot to overstress the aircraft. That modification would have cost about $200,000 per aircraft. But Airbus convinced the FAA to allow a cheaper fix. So for about half of that cost, the FAA will allow the A300’s simply to be equipped with a warning light on the glareshield directly in front of each pilot and an associated "stop rudder inputs" aural warning.

A Warning is a Last Resort

Any engineer will tell you that when a hazard is discovered, the best option is to design out the hazard. If that can’t be done, then the hazard should be guarded against. If that isn’t feasible, the last resort is to warn against the hazard. That’s what’s known as the engineer’s “Safety Hierarchy.”

Here, there was a feasible way to change the design to eliminate the hazard – limit the travel of the rudder pedals. Thus, a warning is the wrong way to go.

A Warning Is Not Always Appropriate.

Warnings work well in some situations. A warning system that alerts a pilot to low fuel is great. A warning system that alerts the pilot that some system is overheating is also useful. But warning systems that activate in emergency situations are often useless.

The problem is that under stressful situations, a pilot’s performance can degrade rapidly. The pilot is unable to comprehend a warning’s meaning in an emergency and respond appropriately. That’s what the BEA (Europe’s NTSB) concluded happened to Air France Flight 447. Confronted with an emergency, the crew could not comprehend and react to the Airbus’ aural warnings. As summed up by Paul Marks:

Despite a stall warning sounding continually, it was ignored and the pilot kept the plane's nose pointing upward - while the plane was in fact plummeting toward the ocean. All the crew needed to do was push the nose down to regain lift - but they didn't.

In the first minute after the autopilot disconnection, the failure of the attempt to understand the situation and the disruption of crew cooperation had a multiplying effect, inducing total loss of cognitive control of the situation," the BEA says.

The combination of the [Airbus] warning system ergonomics, and the conditions under which [Air France] pilots are trained and exposed to stalls during their professional and recurrent training, did not result in reasonably reliable expected behaviour patterns," the BEA adds with massive understatement.

Stress Performance Curve

Why would a trained crew essentially ignore the aircraft’s warning systems in an emergency? A little stress helps people focus, and they tend to perform better. But after a point, stress makes it difficult, if not impossible, to think. A Vietnam fighter pilot used to tell me: “The first thing that happens in an emergency is your IQ gauge goes to zero.”

The Airbus' rudder pedals can be feasibly redesigned to eliminate the hazard. That makes a warning system the wrong solution.

Air France Concorde: Criminal Conviction Against Continental Airlines Mechanic Reversed

Mike Danko — Thu, 29 Nov 2012 22:29:04 -0800

Today a French court of appeals reversed the conviction for criminal manslaughter against the Continental Airlines mechanic involved in the Air France Concorde crash.

That brings the criminal proceedings to a close 12 years after the airliner went down. I wrote here that the proceedings would do nothing for the families. To the extent that the families obtained any compensation at all, it was through the civil system, not the criminal trial.

What the criminal trial did do, however, is forever change the landscape for airline accident investigations, for the worse. Sure, the mechanic was ultimately acquitted. But the ordeal that the mechanic went through will not be soon forgotten by the aviation community worldwide.

The Air France Concorde ran over a strip of metal on the runway at Charles de Gaulle Airport. One of the Concorde's tires exploded. A chunk of the debris from the tire punctured the Concorde’s fuel tank. Fuel leaked from the tank, and into an engine. The ensuing fire and engine failure brought down the aircraft. 113 people were killed.

The metal strip fell onto the runway from a Continental Airlines DC-10 that had taken off minutes earlier. Had Continental's mechanic attached it properly, it wouldn’t have fallen off. Continental's maintenance practices were sloppy. No doubt about that. And the mechanic who was involved was in some fashion responsible for the crash. But not criminally. He shouldn't have been prosecuted.

Next time an airliner crashes, would anyone blame a mechanic for clamming up, instead of cooperating with the NTSB?

Montreal Convention Does Not Apply To Crew Members

Mike Danko — Sun, 18 Nov 2012 20:00:41 -0800

The Montreal Convention requires airlines to compensate international travelers who are injured as a result of an “accident.” If the passenger is killed, the Montreal Convention requires the airline to compensate the family members. But the Convention considers neither an airliner's pilots nor its flight attendants to be “passengers.” Thus, crew members' claims (or the claims of their families in the event of a fatal accident), are usually governed by by local law, not the Convention. In the US, that means that any lawsuit the crew member might bring against the airline would likely be barred by the applicable workers compensation statutes, which typically prevent any employee from suing his or her employer for work-related injuries.

Of course, crew members or their families are free to pursue claims against those other than the airline who might be responsible for an accident. Often that’s an aviation manufacturer. But unlike passengers, crew members generally cannot sue the airline.

There is one exception. A crew member may be considered a “passenger” if she was “deadheading.” That is, if the crew member was off-duty, but the airline had her on the aircraft simply to transport her from Point A to Point B, then the Convention would apply to her claims.

Paint Job a Clue to Brentwood Glasair Crash?

Mike Danko — Sun, 04 Nov 2012 12:16:02 -0800

The owner of the Glasair III had finished painting the aircraft just before the fatal flight that killed him and his passenger near Byron, according to his ex-wife.

[Behne] had just finished painting the plane at his private airstrip when he and a friend went on the ill-fated flight. "He wanted to get it up and running," said Shelley Rose, whose marriage to Behne ended in divorce in 2009."

When an aircraft is painted, the painter must mask holes in the aircraft's exterior, called static ports, as well as the aircraft's pitot tube. The pitot tube and static ports sample air pressure exerted on different parts of the aircraft during flight. That information from the pitot static system drives the aircraft's airspeed indicator, altimeter, and vertical airspeed indicator.

Forget to remove the masking tape, or allow tape residue to clog the tiny static ports, and none of the instruments will work properly. Masking tape is what brought down a Boeing 757 in 1996, killing 70. A problem with the pitot-static system (unrelated to masking tape) was also implicated in the crash of Air France flight 447.

Years ago, I picked up my plane after it was repainted by a reputable shop in Northern California. During my pre-flight inspection, I found tape residue clogging the pitot tube. The tape residue would have prevented the airspeed indicator from working properly, and could have caused problems in controlling the aircraft, especially on takeoff.

An inoperative pitot-static system always presents challenges. But the challenges are greatest at night or in bad weather, not during the nearly ideal flight conditions the Glasair pilot experienced.

Aviation Law Firm O'Reilly & Collins in Bankruptcy

Mike Danko — Thu, 25 Oct 2012 09:47:41 -0800

In July, aviation lawyers Terry O’Reilly and James P. Collins were billing their firm, O'Reilly & Collins, as “the premier trial law firm in Northern California.” They claimed the firm had the financial resources to take on any fight, and that it was “one of the most successful plaintiff’s trial law firms in the United States.” O'Reilly was a long-time member of the prestigious Inner Circle of Advocates, and had just been named a Northern California Super Lawyer. To celebrate, Collins and O’Reilly published ads showing the pair posing in front of Terry O’Reilly’s very expensive 1954 Bentley race car, talking about all the cases they have won.

Sweet.

But today, O'Reilly & Collins is in bankruptcy, leaving its creditors holding the bag for millions. All the firm’s lawyers, except for O'Reilly himself, have scattered.

Court records show that the San Mateo aviation firm has passed off some of its clients to John Kristensen, one of O’Reilly’s former associates. Other cases have been handed off to Jack Stein of the Boccardo firm in San Jose. Terry O’Reilly himself is holding on to at least one case involving the Pilatus crash at Butte, Montana.

O’Reilly continues to be assisted by Pamela Stevens, a lawyer who, according to California State Bar records, bilked her injured clients, including children, out of millions in settlements. The Bar pulled Stevens' license in 2002, finding that she posed a danger to the public.

In July, a San Francisco jury returned a verdict against O'Reilly & Collins for $3.2 million. The judge sanctioned O’Reilly personally for more than $107,000 for failing to turn over documents and then giving false testimony about it.

The firm still has its office in San Mateo, but its website has been taken down. Since the verdict, O’Reilly says that he has moved out of state.

O'Reilly has paid neither the judgment nor the sanctions order.

Mobile Jury Sides With Continental Motors In Engine Failure Case

Mike Danko — Wed, 10 Oct 2012 18:22:00 -0800

Bonanza N7472N crashed in December 2008 after its engine failed in flight. The engine failed because the crankshaft broke. The 25 year-old pilot was killed in the forced landing attempt. The pilot’s widow sued Continental Motors, alleging that the crankshaft, which was only 58 hours old, was defective. This week, the jury sided with Continental.

The plaintiff brought the suit in Continental’s home court, in Mobile, Alabama. The key ruling, according to well-known plaintiff’s attorney Kirk Presley, was the judge’s decision to keep from the jury evidence of other similar failures of Continental crankshafts. That sort of evidence is often crucial. If a jury hears of other similar failures, it is more likely to find against the manufacturer. If it doesn’t, it tends to believe that there is nothing wrong with the product and finds for the defendant. In this case, the jury decided that the fault was not with the crankshaft’s manufacturer but with the facility that installed it into the Bonanza’s IO-520 engine a year before the crash. According to an article appearing in Alabama Live, the facility was Performance Engines.

A similar ruling may have played a key role in the Corey Lidle trial against Cirrus Aircraft. (There, the judge would not allow the jury to learn about other cases where Cirrus controls jammed in the same fashion that plaintiff alleged the controls jammed on Lidle.)

This is the second win in a row for Continental. In 2011 it won a case involving allegedly defective magnetos. That case was also tried in Continental’s home court in Mobile.

The last time Continental lost at trial was 2008, in a case involving cylinders that came loose from an IO-550 engine installed in a 1966 Bonanza. That case was tried in California, and the judge allowed the jury to hear evidence of a limited number of other similar failures.

Another Robinson R44 Burns on Impact

Mike Danko — Sun, 23 Sep 2012 20:39:56 -0800

Another Robinson R44 Helicopter rolled over and almost immediately caught fire. This time it was at Slaton Municipal Airport in Slaton, Texas. According to the Avalanche-Journal, the helicopter was engulfed in flames within 10 seconds of the helicopter rolling onto its side.

Fortunately, the pilot got out. But the R44 is racking up quite a record for catching fire in otherwise survivable accidents. The problem is that once the helicopter's rotor blades strike the ground, its transmission rips into the fuel tank. See here, here, and maybe here.

These fires aren't supposed to happen. In 2010, Robinson began using a different fuel tank that is supposed to be resistant to punctures. But it didn't retrofit the existing fleet. This aircraft was a 2004 model.

Cirrus Crash at Falmouth: Survivable But Aircraft Burns

Mike Danko — Mon, 03 Sep 2012 14:47:24 -0800

The Cirrus SR22 crashed while landing at Falmouth Airpark in Massachusetts and immediately exploded in a fireball. One occupant died. Two others, however, survived, only to be badly burned in the post-crash fire.

Some say that, if properly designed, an aircraft should not burn as a result of an otherwise survivable impact. Technology that prevents such fires has existed since the 70's.

Of course, many aircraft flying today were designed before such technology became available. But the Cirrus was designed in the '90's. One might expect that a fire after a survivable Cirrus crash should be a rare event. But that doesn't seem to be the case.

Cirrus critics, pointing to the Cirrus crash at Scottsdale, among others, want to know why the aircraft seems to be more prone than legacy aircraft to post-crash fires, rather than less. Some blame the fact that the Cirrus is constructed of composite material, while older aircraft are metal. I'm not sure that's an explanation, since I have been unable to find a report of anyone being burned in a Diamond aircraft. Diamond aircraft compete with Cirrus and are also of composite construction.

NTSB Cites Flutter As Cause of Reno Air Race Crash

Mike Danko — Wed, 29 Aug 2012 20:06:20 -0800

The NTSB has determined that the probable cause of the Galloping Ghost’s crash at last year’s Reno Air Races was flutter. No surprise there -- I wrote about flutter within hours of the accident. At its presentation, the NTSB even showed the same NASA video demonstrating flutter that I had posted last year.

Flutter can occur whenever an aircraft is flown faster than it is designed to fly. As it turned out, Jimmy Leeward, the pilot of Galloping Ghost, exceeded by nearly 40 mph the aircraft’s previous top speed without any previous testing to determine if the aircraft would be able to resist flutter at the new speeds. As it turned out, it couldn’t. Board member (and pilot) Robert Sumwalt was highly critical of Leeward’s decision to fly the aircraft in competition without first testing it at race speeds:

If you want to go out and fly fast and try to win, that's one thing. If you're modifying an aircraft without fully understanding how the modifications can affect the aerodynamics, you're playing Russian roulette.”

A loose trim tab assembly contributed to the flutter’s onset. The assembly came apart because the lock nuts that held it in place had been reused multiple times. That’s a no-no. Each time locknuts are removed and then re-tightened, they lose a bit of their ability to grip. That’s why once removed, locknuts should always be replaced with new.

What was surprising was the NTSB’s sentiments concerning “assumption of risk”. According to the NTSB board chair Deborah Hersman:

At the heart of the tragedy was the fatal intersection in transference of risks from participant to observers. One moment, spectators were thrilled at the spectacle of speed only to have it followed by inescapable tragedy. The pilots understood the risks they assumed. The spectators assumed that their safety had been assessed.”

Those sentiments echoed what I wrote here. Judging from readers’ comments to that post, many disagree.

Transcript of the NTSB presentation here.

All this blog's Reno Air Crash posts here.

The FAA's Three Biggest Problems

Mike Danko — Mon, 27 Aug 2012 04:26:10 -0800

Why doesn’t the FAA do a better job of promoting aviation safety?

1. The FAA’s Inherent Conflict of Interest. When the FAA was created, it was charged with both regulating aviation and promoting it. But most aviation regulations don't promote aviation -- they constrain it. The FAA’s inherent conflict of interest explains why the FAA so often ignores the NTSB’s aviation safety recommendations.

2. The Problem of the Captive Regulator. Putting aside the inherent conflict of interest, the FAA is simply too close to the industry it regulates to do an effective job. This problem is not unique to aviation. For example, the drug industry has tremendous influence over its regulating agency, the FDA. We saw that play out most recently last year, when we learned that a number of the FDA committee members who voted against requiring stronger warnings on a drug's label had economic ties with the drug's manufacturer. In California, we learned that the Public Utilities Commission was too cozy with the gas utility it was supposed to regulate. It let the utility slide again and again until September 2010 when a gas explosion in San Bruno killed 8 and damaged or destroyed more than 40 homes.

3. Bureaucratic Incompetence. Sometimes, it seems that bureaucratic incompetence is the simplest reason for the FAA’s failure to act in the face of a known ongoing hazard. What else explains the night vision goggle debacle?

Yemenia Airlines Case Stays in US

Mike Danko — Sat, 18 Aug 2012 07:21:25 -0800

The Yemenia Airline flight that crashed near Moroni three years ago didn't involve an aircraft built in the U.S. The flight had no Americans on board, and no part of the flight was through U.S. airspace.

The families filed suit in California against International Lease Finance Corporation (ILFC), the Los Angeles company that had leased the accident aircraft to Yemenia Airlines. Not surprisingly, ILFC asked the court to move the case to France, arguing that the crash happened closest to French territory, many of the passengers had ties to France, and it made little sense to try the case here. This month, the court denied that request, meaning that the suit can proceed in the United States.

Of course, the families would prefer the suit to stay in the U.S. As discussed here, they have a better chance of obtaining meaningful compensation for their loss here than elsewhere.

The families sued on the theory of "negligent entrustment." In short, they alleged that ILFC should never have leased the accident aircraft to Yemenia Airlines because it knew that Yemenia Air was not competent to operate it safely. Given that Yemenia Airlines had been banned from operating in European Union airspace due to various safety violations, those charges seem solid.

ILFC's request to boot the case from the U.S. courts was a big hurdle for the families. In similar cases, courts have dismissed the families' lawsuits. Here, though, the court ruled that it wouldn't be fair to make the families sue the U.S. company in France because, if they won, it isn't clear how they would enforce a French judgment against the U.S. company.

EMS Night Vision Goggles: FAA Incompetence Exposed

Mike Danko — Sun, 12 Aug 2012 20:36:56 -0800

Stephen Stock, an investigative reporter for NBC, talks about the hazards posed by night vision goggles improperly installed in much of the nation's EMS helicopter fleet. I was happy to offer Stock my thoughts. The FAA refused to comment on camera.

Imagine how difficult it must be for Rand Foster to go to work each day.

Piper Comanche Crash at Truckee-Tahoe: Density Altitude or Bad Fuel?

Mike Danko — Thu, 09 Aug 2012 15:12:19 -0800

At first glance, one might expect that high density altitude was the cause of last week’s fatal Comanche crash at Truckee-Tahoe airport. The pilot first attempted to depart with three aboard, but aborted the takeoff. He then offloaded his two passengers and tried again. It was on the second attempt that the pilot crashed into hangars.

No doubt about it: Because of its altitude, Truckee is a difficult airport, especially in the summer when the air is thinnest. In fact, last week’s crash was the ninth at the airport in the past four years. High density altitude played a role in a number of those crashes, including the Karen Trolan crash.

But the facts don’t quite add up on last week’s accident. The pilot flying the accident aircraft (Piper N8218P) was very experienced – he reportedly had in excess of 6000 flight hours. And though a departure with three aboard may have taxed the abilities of the plane and its pilot, with only the pilot aboard, there shouldn’t have been much of a problem.

Whenever an aircraft crashes on takeoff, the NTSB tests the fuel supply at the departure airport. It’s always possible that an engine failure contributed to the crash, and one possible cause of an engine failure is contaminated fuel.

Today word is out that the fuel supply at Truckee did not meet the standards.

From an email I received from San Mateo County Airport:

After a fatal accident at Truckee (KTRK) on the 2nd of August, the industry-standard practice of halting fuel service and testing the fuel in all tanks and trucks revealed that the 100LL fuel stored at KTRK did not meet the American Society for Testing and Materials (ASTM) standards for 100LL. As a result of these tests, 100LL fuel service at the airport continues to be suspended pending new fuel and testing of its quality.

Truckee Airport has been trying to get in touch with all pilots who purchased fuel between July 20th (the last fuel delivery) and August 2nd (the day of the accident) and have asked us to pass along this information to pilots at San Carlos/Half Moon Bay. Questions about the above-mentioned issue should be directed to World Fuel Service's area representative Mike Montalvo at: 510-604-6511.

The test results don't prove that bad fuel caused the Comanche crash but, at this point, bad fuel can't be ruled out.

Hawaiian Helicopter Tour Traffic Out of Hand?

Mike Danko — Fri, 27 Jul 2012 18:43:15 -0800

No, he didn't buy next to the airport. But for this property owner, he might as well have.

I thought I'd write to you, what do I have to lose at this point?

These tour helicopters "buzz" my property 7 days a week. I'm literally losing it. Highest count so far, 42 flights in a 6 hour period.

I've contacted the FAA, DOH, DOT, EPA, my local representative, the mayor, the Governor's office, and the individual tour companies via e-mail. NOTHING has been done.

I live 12 miles from the airport and 30 miles from the volcano, the helicopters still fly in a half mile corridor creating a nuisance that to me is unacceptable. EVERYONE in my subdivision is irritated by it but NO government agency is willing to address the issue, the tour companies hide behind FAA rules that only address safety but not noise.

I don't want to go on and on about this, I'm just hoping you've handled cases like this before and I can get some help.

I feel like I've lost the enjoyment of my property, my peace of mind, I've lost sleep and my anxiety attacks have come back after 2 years of being relatively free of it.

I realize that you primarily represent people who have been involved in crashes however it just boggles my mind that these companies are allowed to operate with little or no impunity and can conduct business in such a way to cause this kind of annoyance."

(Name withheld)

Unfortunately, it's an uphill battle, as far as I'm concerned. Some years ago, a property owner complained that a tour operator was not only driving him crazy with the noise, but was flying dangerously low over his property. He reported the problem to the local Flight Standards District Office, which did essentially nothing. The owner escalated the complaint to a mainland FSDO. The mainland FAA inspectors came out a few times to watch from a hillside. Funny thing - every time they came out, the overflights stopped.

Seems that the local FSDO was tipping the operator off.

Shortly after that, a Big Island Air tour came through, flying too close to the terrain. 10 people were killed when the aircraft crashed onto the northeast slope of Mauna Loa.

We sued the FAA for failing to enforce the minimum altitude requirements. Unfortunately, the FAA asserted its various immunities to block the suit.

Let's face it. The tour operations are big business. And the FAA seems more inclined to promote that business than to regulate it.

I'm not exactly sure what it will take before there's some sanity brought to the industry.