Your First Helicopter Crash Case
By Ladd Sanger, published in Trial Magazine, February 2010, Volume 46, No. 2

Federal regulations often give defense counsel the upper hand in helicopter crash litigation. But with careful preparation, you can overcome the unique challenges raised by these cases and make a winning argument for your client.

In recent years, a spate of high-profile-accidents has raised the public’s awareness of helicopter safety. Last April, the loss of a petroleum services helicopter in the North Sea resulted in 16 deaths. A heartbreaking air ambulance crash in Aurora, Illinois, claimed the lives of an infant patient on board and the entire flight crew. In fact, 2008 was the deadliest year on record for the helicopter emergency services industry (HEMS), with 7 accidents and 28 fatalities.¹

These accidents have caught the attention of federal regulating bodies. The Federal Aviation Administration (FAA) and the National Transportation Safety Board (NTSB) have taken aggressive steps to increase helicopter safety. Both agencies are devoting significant resources to developing comprehensive and lasting solutions to safety concerns.

Helicopter cases present unique legal and factual issues that do not typically arise in negligence or products liability cases. Being prepared to deal with them early will make the case faster and less expensive to resolve. Thorough case investigation and a solid understanding of the laws and regulations that govern these cases are essential.

Unlike an automobile accident, where the vehicles are readily available for inspection by the attorney, nearly all aviation accidents in which a tort lawyer will be involved are investigated by the NTSB, which takes control of the wreckage. The NTSB will not permit other parties to inspect the wreckage until the agency releases it, which can take years in some cases.

The government’s control of physical evidence puts the plaintiff lawyer at a distinct disadvantage because both the helicopter operator and manufacturers of key components are typically invited to be a part of the official NTSB investigation. In contrast, the NTSB virtually never allows a representative of anyone injured or killed in a crash to be part of the investigation.

Furthermore, the parties whose interests are typically opposed to the plaintiffs’-manufacturers, for instance-get to write a report that is frequently adopted by the NTSB as the official report. Since the plaintiff lawyer is barred from the inspection process, it is important for him or her to gather as much information as possible from other sources during this time.

Eyewitness statements can be a good initial source of information, but because most eyewitnesses are not familiar with the aerodynamics and mechanical functions of helicopters, their observations must be carefully scrutinized. For example, an eyewitness may report having heard a popping noise, then having seen the helicopter spinning. This report is consistent with a mechanical failure in the anti-torque (tail rotor) system, but it could also describe one of several aerodynamic conditions induced by the pilot.

An eyewitness’s credibility must be considered with all the facts and evidence. For example, a witness may report hearing a sputtering sound from a helicopter powered by a turbine engine, which cannot sputter. While the combined recollections of eyewitnesses may assist in forming initial theories regarding what caused the accident, these theories must be confirmed by corroborating physical evidence. Some of this evidence includes air traffic control communications, radar data, scene photographs, data from nonvolatile memory chips, maintenance records, and the helicopter wreckage.

Key records

The Airmen Certificate and medical files, as well as the record of major alterations and repairs for the helicopter, should be requested from the FAA through a Freedom of Information Act request. Typically, the insurer for the helicopter’s hull will have copies of the log books and maintenance records after the crash. A written request for preservation and copies of the records and for access to inspect the wreckage should be sent promptly.

The maintenance records, FAA records of major alterations and repairs, log book entries, work orders, and a list of parts with the associated serial numbers from maintenance providers will be critical to assessing the economic and legal viability of the case. Many helicopter parts are time-limited and replaced at regular intervals. Knowing what parts have been replaced within the 18 years before the crash is critical to evaluating the viability of a products case, in light of the General Aviation Revitalization Act’s (GARA) statute of repose (discussed below).

Helicopter crashes usually are newsworthy events. Photographs, videos, and the identities of witnesses often may be obtained from the news media, archived news reports, and online sources.

The NTSB issues three reports in the course of a typical investigation. The first is a preliminary report, available on the NTSB Web site within a week or so of the crash. While this report can be helpful as an introduction to the accident and frequently gives some foreshadowing of the NTSB’s focus, it contains little hard information.

At the close of the investigation, the factual report is released. This is the most thorough and useful report. A certified copy of the factual report and the complete NTSB docket should be ordered from General Microfilm.²

Finally, the NTSB publishes a probable cause report, which is usually only a few sentences in length. It is inadmissible in civil litigation by statute.³

The NTSB investigator may be deposed once during a case, but only if the litigant can show that the investigator has factual information that is not otherwise available. A request for this deposition to the NTSB general counsel must specifically state what information the investigator possesses that cannot be obtained elsewhere, or the request will be denied.

I do not recommend spending the effort and expense to depose the NTSB investigator unless you need to elicit a specific piece of information. In a typical investigator’s deposition, he or she will merely read the factual report without providing additional information. It’s better to depose the manufacturer’s investigators, who do not enjoy the same protections of federal law.

Also be aware of the time frame in which NTSB reports are released. It has become increasingly common for the process to take years, leading to clear statute of limitations issues in many jurisdictions. Many courts have flatly refused to toll limitations statutes, even in cases where the cause of the crash or the involved parties’ identities are unknown.⁴ This is of particular concern, as it is not uncommon for potential plaintiffs to consider filing suit only after the NTSB determines the cause of the crash, which can be extremely difficult to do and can take a great deal of time and technical expertise.

A lawyer handling such a case must try to quickly transform the available evidence into a workable theory of recovery. For this reason, many aviation lawyers have backgrounds as pilots or engineers. Attorneys without this specialized experience must either retain an aviation lawyer as co-counsel or rely on specialized experts when evaluating a helicopter accident.

Carefully choosing appropriate experts is of the utmost importance. Pilots, mechanics, and operations -personnel are often experienced in only a few types of aircraft. Those with experience in the particular model or series of helicopter involved will contribute most to the case.

Likewise, engineering experts-crash reconstruction analysts, metallurgists, and aeronautical engineers-should be consulted with their specific helicopter background in mind. Those in the aviation field often dedicate their careers to a certain subset of the industry; a great expert in a case involving a fixed-wing aircraft may not be the best choice in a helicopter case.

In the United States, the aviation industry is heavily regulated by federal laws and regulations. One of these is GARA. Intended to invigorate a faltering general aviation industry in the United States, the statute provides a bar to claims against the manufacturers and designers of aircraft that are more than 18 years old.⁵

This can be a serious issue when one considers that helicopters are often in service for decades, in part because almost every component can be regularly overhauled or replaced by design. Appropriately, GARA contains a rolling provision that allows claims related to parts that are less than 18 years old.⁶ Determination of what components are not subject to GARA is a critical piece of research that must be accomplished early in any case involving a helicopter that was manufactured more than 18 years before the crash.

The exceptions to GARA are highly specific, and interpretations of some issues, such as whether a manual constitutes a part, vary by jurisdiction. If you are investigating a possible GARA issue, look closely at the volume of case law interpreting it.

A consideration unique to helicopter cases is the potential defendants’ adherence to the Federal Aviation Regulations (FARs), which govern aircraft operations, maintenance, and certification. The FARs are codified in Title 49 of the Code of Federal Regulations but are available from a variety of other sources published for the aviation industry. The most well-known, FAR/AIM (Federal Aviation Regulations/Aeronautical Information Manual ), is published annually by the FAA. Other publications-designed to train pilots, mechanics, and air traffic controllers-break down the regulations by specific area and offer more detailed explanation, which can be highly useful if your negligence theory involves lack of compliance.

Defense traps

Expect certain aviation-specific challenges from opposing counsel. Defense lawyers for manufacturers and aircraft maintainers are often experienced aviation lawyers, well versed in the areas of the law unique to aviation and well practiced at defending the products or services of their particular client. However, through careful pleading and preparation, you can avoid or at least minimize common defense traps and regular stumbling blocks.

Removal. Some of the usual defendants in helicopter cases monitor filings to see if they are named in a case. Once they see a filing, they immediately file an answer, before they are even served, and remove the case to federal court on diversity grounds. This is an exploitation of 28 U.S.C. §1441(b), which allows for removal before service on the nondiverse defendant. This procedural trickery can be avoided by either filing suit against the nondiverse defendant first, then adding the diverse defendants after the nondiverse defendant is served, or by ensuring that the nondiverse defendant is served the day the case is filed.

Federal preemption. Challenges based on federal preemption of state law are frequently employed in aviation cases. While express preemption is a concern, implied preemption is more typical in helicopter cases.

Because the aviation industry is heavily regulated, defendants sometimes successfully argue that federal law so thoroughly occupies the aviation field that “Congress left no room for the states to supplement it”⁷ and “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”⁸

The first federal regulation of note is the Federal Aviation Act of 1958, intended to centralize the rulemaking authority for safe and efficient use of the nation’s airspace and resulting in the creation of the FAA.⁹ The Third Circuit has interpreted the statute as preempting the entire field of aviation safety,¹⁰ but many courts have declined to follow that ruling.¹¹

Defendants have also used the Airline Deregulation Act, which expressly preempts state law relating to the price, routes, and services of commercial air carriers,¹² to suggest implied preemption over a host of aviation-related claims.¹³ While the Supreme Court has interpreted the statute broadly with respect to what constitutes airline “rates, routes, and services,”¹⁴ many lower courts have held the act “does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft.”¹⁵

The Warsaw and Montreal Conventions, treaties adopted by the United States that govern international flights, give rise to similar preemption arguments but are of less concern in helicopter cases than in those involving commercial airline flights because helicopters are not typically used to travel between countries given their limited range.

As the law regarding preemption in the aviation field is anything but settled or consistent, you must carefully research the state of preemption issues in your forum. Recently, in response to the large number of fatal air ambulance crashes, many state courts and agencies have begun attempts to clarify preemption in relation to the air ambulance industry, though these efforts are far from complete.¹⁶

The Supreme Court’s recent decision in Wyeth v. Levine addressed federal preemption of state law tort claims in the pharmaceutical context, finding that the minimum federal standards often relied on in preemption arguments are only a presumptive lowest standard of care.¹⁷ While this decision has not yet found its way into an aviation case, it will likely be a factor in future aviation preemption challenges.

Government contractor defense. The largest operator of helicopters in the United States is the federal government. Filing suit on behalf of a person injured or killed in the crash of a helicopter owned or operated by a branch of the armed forces or a government agency presents distinct challenges. One of these is the government contractor defense, an affirmative defense espoused by the Supreme Court in Boyle v. United Technologies Corp.¹⁸

Also known as the Boyle Doctrine, the defense is intended to insulate the government against financial liability when it contracts for the production of military equipment. To that end, liability for design defects in military equipment cannot be imposed if reasonably precise specifications were approved, the equipment conformed to those specifications, and the supplier warned of the dangers inherent in the equipment’s use. In the investigation phase of the case, it is important to attempt to identify a manufacturing defect or an off-the-shelf civilian component that is causally related to the crash.

At its most effective, this defense generally shields contractors from tort liability in actions alleging that plaintiffs sustained injuries as a result of a helicopter design defect. To further complicate matters, courts have been expanding the government contractor defense to apply to both services and products.¹⁹

Federal officer removal. In the heavily regulated aviation industry, certain actions taken by companies in the design and maintenance of helicopters constitute more than mere compliance with regulation-they are the direct result of a federal agency’s directive. In instances where the government had so much control over the defendant’s work or design that the defendant was essentially acting as a federal officer, defense counsel can seek removal to federal court through the “federal officer” removal statute.²⁰ This is relatively common, especially in cases involving military or government helicopters.

For example, a maintenance facility that maintained a Customs and Border Patrol helicopter argued that the plaintiffs’ claims were barred because the federal government controlled the maintenance. The federal court found that the maintenance provider was required to use the off-the-shelf civilian manuals and that the defendant failed to meet the standard of the federal officer removal statute.²¹ Simply directing the maintenance contractor to comply with industry-wide standards does not constitute a reliance on specifications provided by a federal officer, the court said.²²

Fortunately for the plaintiff, opportunities for federal removal under the statute are somewhat limited. The Supreme Court held in Watson v. Philip Morris Co. that “the fact that a federal regulatory agency directs, supervises, and monitors a company’s activities in considerable detail” does not mean the company was acting under the direction of a federal officer.²³ In other words, adherence to federal regulation alone does not give rise to removal.

A 2007 decision out of the Eastern District of Louisiana, Joseph v. Fluor Corp., examines the degree to which an explicit federal direction has legal bearing on the design or manufacturing process. The court found that where the government’s procurement specifications did not establish control over the manufacturing process, the removal statute does not apply.²⁴ In that case, a request from a government agency that the manufacturer produce units as rapidly as possible did not rise to the level of “direct and detailed control” as required.²⁵

Courtroom considerations

Taking a helicopter case to trial is, in most respects, similar to presenting any other matter involving complex products liability issues. The trial lawyer must act as the go-between, transforming technical data and expert testimony into clear issues that the jury can understand. Photos, charts, and graphics are extremely useful. Defective components, actual or exemplar, and demonstrative representations of those components can help convey to the jury the failure that caused the crash.

Where the presentation of a helicopter accident case departs from that of other civil tort cases is in the complexity inherent in helicopter operations and the relative lack of public understanding of the subject. While jurors in an auto accident case can easily apply the facts to their own experience, and any parent in the jury box can understand the trust a plaintiff placed in a product purchased for his or her young children, the same is not true in a case arising from a helicopter crash. Few jurors have flown in helicopters, and fewer still have any experience in the operation of a helicopter.

Opinions will be formed on the juror’s preconceived notions unless you work carefully to change them. For example, in many cases an official report or opposing counsel will accuse the pilot of contributing to the crash. Aside from any facts presented to support such a claim, jurors may harbor a belief that a professionally trained pilot should be capable of bringing a damaged helicopter down with minor injury.

The reality of an accident is likely very far from that belief-a pilot may have mere seconds from the first sign of trouble to guide the helicopter to the ground. In some situations, like a transmission or main rotor blade failure, there is nothing the pilot can do to prevent a terrible outcome. The very nature of helicopter flight dictates that most crashes take place quickly and are exceedingly violent. It is crucial that you effectively relate this information to the jury; expert testimony concerning helicopter operations may prove especially effective.

Helicopter crashes present unique factual and legal challenges. Thorough investigation, solid legal research, and careful planning will help any lawyer who is new to this practice area navigate the minefield of helicopter crash litigation.

Ladd Sanger is a managing partner with Slack & Davis in Dallas.

Notes:

1. NTSB, Federal Most Wanted List of Transportation Safety Improvements 12 (Oct. 28, 2008), www.NTSB.gov/Recs/Mostwanted/FedMWLPPTwebfinal.pdf.
2. www.general-microfilm.com.
3. 49 U.S.C. §1441(e) (2006); Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
4. See e.g.Hertz v. U.S., 560 F.3d 616 (6th Cir. 2009).
5. Pub. L. No. 103-298, 108 Stat. 1552 (1994).
6. 49 U.S.C. §40101 (2006).
7. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
8. Gade v. Natl. Solid Waste Mgt. Assn., 505 U.S. 88, 98 (1992).
9. Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731 (1958) (codified at 49 U.S.C. §40101).
10. See Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999).
11. See e.g. Sakellaridis v. Polar Air Cargo, Inc., 104 F. Supp. 2d 160 (E.D.N.Y. 2000).
12. 49 U.S.C. §41713(b)(1) (2006).
13. Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784 (6th Cir. 2005); Eagle Air Med Corp. v. Colo. Bd. Health, 570 F. Supp. 2d 1289 (D. Colo. 2008).
14. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992).
15. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995).
16. R. Michael Scarano & Bill Bryant, Federal Preemption of State Regulation over Air Ambulances, 28 Air Med. J. 77 (2009).
17. 129 S. Ct. 1187 (2009).
18. 487 U.S. 500, 512 (1988).
19. Saleh v. Titan Corp ., 2009 WL 290281 (D.C. Cir. Sept. 11, 2009).
20. See 28 U.S.C. §1442(a) (2006).
21. Takacs v. Am. Eurocopter, L.L.C., 2009 WL 3026824 (W.D. Tex. Sept. 23, 2009).
22. Id.
23. 127 S. Ct. 2301, 2302-03 (2007).
24. 513 F. Supp. 2d 664 (E.D. La. 2007).
25. Id. at 671.

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By Bob Cox, Ft. Worth Star-Telegram

The Italian-built aircraft involved in a crash Saturday that killed a Dunbar High School student is part of a relatively new type of private aircraft that is not subject to the same safety and regulatory standards as legions of older aircraft used to train pilots.

When the Federal Aviation Administration created a separate regulatory requirement in 2004 for “light sport aircraft,” it based the rules on “consensus standards” agreed upon by the aircraft manufacturers and private pilot groups.

The Tecnam P2002 Sierra that apparently nose-dived into the ground near Waxahachie, killing the student and the instructor pilot, is among the new, relatively low-cost airplanes introduced under the relaxed standards aimed at encouraging more people to take up flying.

But some aviation lawyers and safety experts say these light planes already have a poor safety record and should not be used for training pilots.

“The problem is these aircraft are not nearly as safe” as other planes long used for pilot training that were certified to tougher standards, said Jon Kettles, a Dallas aviation lawyer and pilot. “You’ve got a lower requirement for the airplane and a lower requirement for the design and testing.”

The light-sport-aircraft category essentially gave FAA approval for manufacturers to assemble and market small planes that had previously been sold as kits for home assembly and for experimental aircraft enthusiasts, who are presumably knowledgeable about the risks involved.

The problem, aviation experts say, is that manufacturers of such aircraft are allowed to “self-certify” that they meet FAA airworthiness and safety standards without the oversight and documentation that the agency normally imposes.

Alejandro House, executive director of the C.R.P. Future Pilots School, which operates the Dunbar program, said the Tecnam aircraft was thoroughly researched and chosen for its safety.

“The aircraft is one of the most stable aircraft in the light-sport-aircraft category,” House said. “We did our analysis because safety is the most important priority for our students.”

House said the aircraft was also chosen because students were being trained to earn FAA licenses to fly light sport aircraft, not private pilot licenses, for which the requirements are more demanding.

Records of accidents involving light sport aircraft cannot be easily obtained. The National Transportation Safety Board, which investigates accidents, does not have a separate category for the aircraft. One search of the board’s accident database using the words light sport aircraft turned up 29 accidents in the last two years and another search using the same term turned up 41.

The board’s records contain reports on four accidents in the last two years involving the same model Tecnam aircraft, none of which came up in the other searches. None of the four accidents resulted in fatalities or even serious injuries.

John Eakin, who owns Air Data Research in Helotes, said, “From reviewing all the accident reports I read every week, I see more and more involving LSAs.”

In April, the board issued an urgent recommendation to the FAA to ground the Zodiac CH601XL series aircraft, citing six accidents and 10 fatalities, because the aircraft broke up in flight. The FAA did not act until November, by which time another fatal accident occurred.

Beyond such basic issues as structural integrity, airplanes have quirks and characteristics that are often not discovered without extensive flight testing.

Over several decades, Cessna Aircraft Co. has built many if not most of the light planes now used for pilot training, all certified to FAA safety and airworthiness standards.

In 2006, Cessna launched its own light sport aircraft, the model 162 Skycatcher, and has suffered two crashes in flight testing because of the inability to recover from stall-induced spins. The test pilots escaped both crashes without injury, one by parachute and the other after a crash landing, according to aviation news reports.

Cessna, based in Wichita, Kan., received FAA certification last year but recently notified prospective buyers of the aircraft that deliveries would be delayed several months while changes were made to fix issues found in flight testing.

“I think it speaks highly of Cessna that they’re doing more than the minimum,” Eakin said.

Most light sport aircraft come from small operations, many of them foreign manufacturers, said Ladd Sanger, another Dallas aviation lawyer and a longtime pilot. Few have product liability insurance. “That doesn’t seem like the kind of airplane you ought to be putting high school kids in,” Sanger said.

Tecnam is based in Naples, Italy, and says its heritage in manufacturing general aviation aircraft dates to 1948.

Aviation attorney Michael L. Slack of Slack & Davis made the announcement while in Jamaica to meet with client passengers of American Airlines Flight 331. With him were Slack & Davis partner and fellow aviation attorney Ladd Sanger and co-counsel Delano Franklyn of Wilson Franklyn Barnes.

According to the Jamaican investigative authorities, who are being assisted by the National Transportation Safety Board (NTSB) of the United States, there has been no indication of any mechanical failure in the aircraft that was contributory to the crash.

Slack, one of the lead attorneys involved in investigating and preparing a case against American Airlines arising from the crash of American Airlines Flight 1420 in Little Rock, Arkansas, stated, “There appears to be no factual basis for criticism of the Boeing aircraft. The aircraft appeared to perform exactly as it was designed. If there was a malfunction, it was in the judgment of the American Airlines pilots who were reckless in their decision to continue the approach and attempt to land in Kingston during a driving rain storm.”

Slack, who is a former National Aeronautics and Space Administration (NASA) senior aerospace engineer and licensed pilot, added, “American Airlines and its pilots had ultimate responsibility for the safe operation of this flight. They are the accountable party. While the investigation is incomplete, the existing factual record points to American Airlines as the responsible party, not the Boeing Company.”

Slack went further to state, “Involving inappropriate and improper parties slows and delays ultimate compensation to the passengers. From our experience handling airline cases over the years, we have found that the most expedient procedure is to go directly after the airline when pilot conduct is implicated and force the airline to defend its actions. Fooling around with parties that have nothing to do with the outcome of a crash wastes time, money and is not in the passengers’ best interest.”

In the litigation arising from American Airlines Flight 1420, a 1999 air crash extremely similar to AA331, Michael Slack was one of the trial attorneys who took the lead in developing the liability case against American Airlines. He was co-lead trial counsel in Manus v. American Airlines, a case tried for passengers Stephanie Manus and her two children. The Manus verdict was the only passenger injury verdict in the AA1420 litigation affirmed by the Eighth Circuit Court of Appeals.

American Airlines Flight 331 crashed at the Norman Manley International Airport on December 22, 2009. The Jamaica Civil Aviation Authority (JCAA) released a factual information report about the crash on January 6, 2010.

Mike Slack (left) and Delano Franklyn in Kingston, Jamaica

The Kingston-based law firm Wilson Franklyn Barnes has announced that it has chosen the Texas-based aviation law firm Slack & Davis as its partner to represent passengers involved in the crash of American Airlines Flight 331.

The plane crashed after it overshot the runway at the Norman Manley International Airport on December 22 last year.

Slack & Davis is led by Michael L. Slack, a former National Aeronautics and Space Administration Senior Aerospace Engineer.

The firm’s legal team also includes licensed airplane pilots.

Wilson Franklyn Barnes said the experience of the members of the legal team gives them keen insight into what goes on in the cockpit of an aircraft.

According to Delano Franklyn, a partner at Wilson Franklyn Barnes, Slack & Davis has litigated claims against major airlines, aircraft manufacturers and other aviation-related corporations.

Mr. Franklyn said the firm is highly prepared to match the well-funded legal teams of multimillion dollar corporations.

WASHINGTON - An American Airlines jet that crashed in Jamaica last month touched down in the middle of the runway and was still traveling 72 mph just before it split open near a series of thick concrete posts, a top Jamaican aviation safety official said Tuesday.

Jamaican investigators are scheduled to give their first public update today on the crash of American Airlines Flight 331, which careened off the runway at Kingston-Norman Manley International Airport on Dec. 22.

Lt. Col. Oscar Derby, director general of the Jamaica Civil Aviation Authority, said investigators have gathered facts but are still trying to answer why pilots landed in nearly the middle of the 8,910-foot runway - limiting their distance for stopping the aircraft in heavy rain and gusting winds.

Derby said the Boeing 737-800 bounced after landing, which would have further eliminated several hundred feet of stopping distance.

“The [runway] touchdown usually occurs at 1,500 feet, or between 1,000 and 1,500 feet [down an 8,900-foot airstrip],” Derby said. “Why this aircraft touched down at 4,100 feet is something that we are investigating very carefully in order to determine what the cause might be.”

The crash left the plane cracked apart in two places but didn’t result in any fatalities. Jamaican investigators are leading the inquiry, while the U.S. National Transportation Safety Board has sent investigators to assist. Jamaican investigators have interviewed the pilots and are reviewing cockpit voice and flight data recorders for clues, Derby said.

Separately, the Federal Aviation Administration is conducting extra surveillance of Fort Worth-based American after two other bad landings, including one on Dec. 24 in Austin when a plane’s wing struck the ground while landing. Such reviews typically include in-flight inspections and examinations of safety data to look for warning signs that may have been missed.

“In situations where there may be several incidents involving a single carrier over a short period of time, FAA inspectors increase their surveillance, which we’re doing now, and conduct a review of those events to determine whether they might be indicative of a larger issue,” FAA spokeswoman Sasha Johnson said.

Tim Wagner, an American spokesman, said the carrier is examining the Jamaica crash as it cooperates with the FAA review. The carrier was the subject of enhanced FAA scrutiny last year because of maintenance lapses.

“We always do comprehensive reviews of incidents,” Wagner said. “We are always willing to work with the FAA and find ways to evaluate incidents to learn lessons going forward.”

Derby said Jamaican authorities are still “weeks or months” away from reporting the major contributing factors to the accident, which may turn on bad decisions by pilots in difficult weather.

Pilots typically approach an airfield into a headwind to reduce speed. But the American pilots approached the Kingston runway from the north, where a 16 mph tailwind increased their speed. The Boeing 737-800 has a tailwind landing limit of about 17 mph.

When the plane’s wheels first touched down on the rain-slicked runway, the pilots were already 4,100 feet into the 8,900-foot airstrip. It remains unclear why the pilots touched down there. Preliminary evidence suggests the captain used a head-up display, a navigational aide that guides a pilot toward the appropriate point to land, Derby said.

Pilots and aviation experts say that if a head-up display is used correctly, it almost always results in a safe landing regardless of weather.

Passengers on Flight 331 reported turbulence so severe that beverage service had to be stopped. Some said they felt the jet bounce or skid after landing.

Derby said there were “indications” that the jet hydroplaned over water after landing, a condition that can impair a plane’s braking system.

On Wednesday, investigators plan to begin a runway friction test to determine whether a slick runway may have contributed to the crash, Derby said. Previous flights landed in bad weather that evening, but the rain may have been heavier when Flight 331 landed, Derby said.

“We have looked at exactly where the rain was and the intensity of the rain,” he said. “We are zooming in to try and reconstruct the conditions on the runway and test the friction rate, and therefore what braking existed at the time.”

Mike Slack, an aviation lawyer in Austin, said a jet may bounce on landing for reasons including excessive airspeed and excessive rate of descent. The bounce can deprive the jet of several hundred feet of stopping distance, Slack said.

“The moral of the story is you don’t land an aircraft in a thunderstorm with a dynamic weather environment like that present over the runway,” he said.

Dallas Morning News staff writer Eric Torbenson in Dallas contributed to this report.

Link to story on the The Dallas Morning News Web site.

United States-based aviation expert Michael Slack said the decision by the pilot of American Airlines Flight 331 to land the aircraft in weather conditions it was not capable of handling might have contributed to the December 22 accident.

Responding to reports that the 737-800 aircraft was attempting to land in a tailwind of 14 knots, Slack pointed to a 2004 study which showed that the maximum tailwinds for take-offs and landings by this model plane was 10 knots in clear weather conditions. This number, he noted, was lower in bad weather.

On top of the heavy rains, officials at the Met Office and the Jamaica Civil Aviation Authority (JCAA) confirmed yesterday that there was a tailwind of 14 knots in the vicinity of the runway at the time of the incident.

Pointing out that all pilots have this information, the Met Service official explained that data about the weather conditions at the airport is updated every hour and made available to the air traffic control tower and other aviation interests.

Common knowledge

“Every pilot … every airline knows where to get that data (tailwinds) when they are planning a flight,” the Met Service official said.

Flight 331 was on its way into Kingston from Miami when it overshot the runway at the Norman Manley International Airport, coming to a stop just metres from the sea on the others side of the Port Royal main road.

Speaking to The Gleaner from Texas, Slack said the accident was eerily similar to the crash of AA Flight 1420 in the US city of Little Rock, Arkansas, on June 1, 1999.

In the Arkansas incident, which left the pilot and 10 passengers dead, the AA plane overran the runway at the Little Rock National Airport, hit several objects, tore through a perimeter fence then crashed and burst into flames.

The US-based National Transportation Safety Board (NTSB) investigated the accident and pointed to several errors by the pilot.

One error, according to the NTSB report posted on its website, was the pilot’s decision to continue his approach to landing “when the company’s (AA) maximum crosswind component was exceeded.”

The report also highlighted “the flight crew’s failure to discontinue the approach when severe thunderstorms and their associated hazards to flight operations had moved into the airport area.”

Slack said arising from the NTSB findings, AA revised its policy and warned its pilots against attempting to land in adverse weather conditions.

Forgotten the lessons

“But Flight 331 tells us they have forgotten the lessons of Little Rock,” said Slack, who won a multimillion-dollar award for one family from the Little Rock crash.

When contacted, AA spokesman Tim Wagner said he could not discuss the airline’s policies because the investigation into the Flight 331 mishap was still ongoing.

“Because company policies and their application will be something that the authorities will examine, I cannot circumvent their investigations by discussing them publicly,” Wagner said in response to questions from The Gleaner.

JCAA investigators are scheduled to meet the local and international media in Kingston today to provide an update on the investigations.

Link to story on The Jamaica Gleaner Web site.

This week in Jamaica history repeated itself when the pilots of American Flight 331 attempted to land a Boeing 737-800 in a driving rainstorm. Same reckless mistake. Fortunately there was no post-impact fire. Otherwise the outcome would have been more tragic.

But whether there were fatalities in the Jamaica crash is not the point. The point is that American Airlines made the same grave mistake this week as it did 10 years ago. Did American management not take the lessons of Flight 1420 seriously? Did American not alter its severe weather avoidance training as it told the NTSB that it would? Is American still the arrogant “we do it our way” airline regardless of their passengers’ safety? All very real and troubling questions.

Until we know more it appears to be the same airline making the same reckless errors. That’s the tragedy for those who suffered through the disaster of Flight 1420 and had hoped it would never happen again.

Aviation lawyer Michael Slack has been involved as one of the lead attorneys in several American Airlines crashes.  In the litigation arising from American Airlines Flight 1420, he was one of the attorneys who took the lead in developing the liability case against American Airlines.  He was co-lead trial counsel in Manus v. American Airlines, a case tried for passengers Stephanie Manus and her two children. The Manus verdict was the only passenger injury verdict in the AA1420 litigation affirmed by the Eighth Circuit Court of Appeals.

Slack & Davis aviation attorney Ladd Sanger also was involved in AA1420 litigation. On behalf of the entire MDL (multidistrict litigation) panel, Sanger created a reenactment of AA1420’s approach to landing and accident sequence. He also supported the MDL lead counsel in performing key liability depositions.

Michael Slack and Ladd Sanger have represented passengers in the following American Airlines and American Eagle airplane crashes, and in several non-crash cases against American Airlines involving international flights and passenger injuries (under the Montreal Convention).

American Eagle Flight 4184 (ATR-72-212)
Roselawn, Indiana
October, 1994

American Airlines Flight 1420 (McDonnell Douglas MD-82)
Little Rock, Arkansas
June, 1999

American Airlines Flight 587 (Airbus A300B4-605R)
Belle Harbor, New York
November, 2001

American Connection Flight 5966 (BAE Jetstream 32)
Kirksville, Missouri
October, 2004

Unfortunately, the truth about the 150-mile deviation – while air traffic controllers and company handlers were frantically trying to reach them by radio and text message – may never be known because the best evidence, the cockpit voice recorder (a component of the so-called “black box”), only saves 30 minutes of sound.  It took more than 30 minutes to turn the airplane around, fly the approach, land, and taxi to the gate, so the sounds in the cockpit that might verify or contradict the pilots’ story have been permanently erased.

Were the pilots so engrossed in conversation that they failed to hear the aircraft’s call sign repeatedly and urgently being transmitted? Or were they literally asleep at the wheel with the airplane on autopilot? It is not uncommon for a radio call to get “stepped on” or garbled, but the length of time that passed with no response to repeated messages suggests that these pilots were more than merely “distracted.”

The full story – and whatever lessons might be gleaned to improve airline safety – would have been told if the FAA had required more than a 30-minute loop on the cockpit voice recorder.  The FAA needs to consider requiring a digital log of all cockpit sounds. The pilots won’t like it, but safety demands it. – Mark Pierce