CRIMINALIZATION OF AIR DISASTERS
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While such proceedings may satisfy the public’s zeal to punish those responsible, the result is that the flow of information necessary to correct aviation problems dries up over the long term because of the fear that such information will be used for criminal prosecution in the event of accidents.

It is bad enough that manufacturers and airlines now hide what they do, or more importantly what they don’t do, in an effort to escape civil liability for accidents. Criminalization has always been fraught with the specter of witnesses using their Fifth Amendment rights not to incriminate themselves (which has the effect of impeding investigations that might result in safety improvements).

Moreover, public authorities, whether prosecutors or public investigators, do a terrible job at investigating aircraft accidents and are too often the tools of manufacturers and airlines. Plaintiffs’ lawyers do the majority of aircraft accident investigations in the United States and spend far more, examine more intensively and extensively, and take sworn testimony more often to get to the bottom of these accidents. Criminalization will impede, not enhance, these efforts. What we need is more zealous sanctions when airlines and manufacturers hide information from the certifying authorities, distort warnings received from the field and flat out lie during civil proceedings. We need fewer judges who are selected for their promise to deter plaintiffs’ lawsuits; we should go back to hiring judges based on their demonstrated lack of bias and predilection.

This issue has been around for years and is most often discussed in countries where civil litigation does not exist the way it does in the United States. Where there is no suitable vehicle to get to the truth civilly, criminalization is the fall-back position taken out of frustration. The real solution is to expand civil litigation systems in countries that don’t currently have them so that safety is enhanced rather than deterred by the regressive effects of criminalization.

– Arthur Alan Wolk

At this stage of aviation history, there is no reason for this disaster and both the horror and pain it has caused to so many families

One hundred fifty-three people were killed when a fully-loaded Spanair MD-82 crashed on takeoff from the Madrid airport on August 20, 2008. Witnesses describe an explosion in the left engine and the aircraft falling to the runway, veering off and then exploding into an inferno.

About one hour before the crash, the crew was reported to have aborted a takeoff because of a high temperature warning, known as an overtemp, from the left engine. Troubleshooting took place and the aircraft was again dispatched for a three-hour flight to the Canary Islands. The aircraft was full of fuel and the outside temperature was a warm 86 degrees Fahrenheit.

It is inexplicable and horrendous that an aircraft such as this was cleared for service without an engine change when they couldn’t possibly have known what damage resulted from the overtemp. This situation in a jet engine is a serious matter requiring extensive investigation, not merely an hour’s worth of troubleshooting. It does not happen without good, and usually serious, cause including imminent failure of hot section components, failure of compressor and fan assemblies or likely turbine disintegration.

Jet engines nearly always telegraph their imminent failure and this one surely did. It was ignored. The Pratt and Whitney JT8D engine has had a long and satisfactory service history starting with the Boeing 727, 737, DC-9 and all the MD-80’s. While generally reliable, it has exploded all too frequently and is the subject of numerous service bulletins and airworthiness directives by the Federal Aviation Administration as well as aviation safety agencies in other countries. Some have exploded so violently that the containment rings that are designed to prevent penetration of debris into other critical aircraft components have proved to be insufficient.

When the MD-82 was built and certified, it was supposed to be able to safely fly with one engine if the other failed after reaching V1 (the speed at which it becomes safe to continue the takeoff in spite of the failure of an engine). However, the claim was substantiated by test pilots who know the engine will be simulated to fail, and not by flight crews who are totally surprised by the event on a hot day while fully loaded.

It is not surprising that the airplane didn’t fly because expecting humans to perform to perfection is unreasonable, and the temperature and weight were likely well beyond the test parameters. At the controls were Spanair test pilots who were also victims of a cascade of events that came together to create this tragedy.

At this stage of aviation history, there is no reason for this disaster and both the horror and pain it has caused to so many families. Airline travel can and ought to be 100 percent safe if people do their jobs. This was an unnecessary accident.

– Arthur Alan Wolk

NASA DEEP SIXES IMPORTANT AVIATION SAFETY INFORMATION
By Arthur Alan Wolk

(October 22, 2007) NASA spent $8,500,000 of our money to study aviation safety the right way: interview pilots in strict confidence so they would feel free to disclose what they see as critical safety failures in our aviation transportation system without fear of retaliation.

Now NASA, instead of releasing the information which shows that the FAA is totally inept at gathering safety information, has ordered the contractor to destroy it because it would be embarrassing to government and the airlines.

This stonewalling of public information obtained in the ordinary course of its duties is unforgivable and a disgrace. The data shows that the FAA is totally in the dark about aviation safety and could benefit from this NASA data because it would demonstrate how and why the FAA doesn’t have a clue what’s going on in the National Airspace System.

The reason no one talks to the FAA is obvious. The FAA will prosecute anyone from whom it receives information that relates to safety of flight even if the purpose of the disclosure is to improve safety. Moreover the FAA totally discounts information from the field about safety defects in aircraft so mechanics and pilots are loathe to report troubling problems as no action is ever taken. In addition, the FAA rats out the whistleblowers and gives them no protection, hanging them out to dry, to lose their jobs and to go it alone. Therefore, they have absolutely no incentive whatsoever to help the FAA.

NASA, on the other hand, gives a “get out of jail free card” with the report of sensitive safety information so there is an incentive to provide timely and helpful information that can be useful in preventing accidents. What is troubling about this revelation, however, is that a serious effort was made by NASA due to a perceived aviation safety need to get up close and personal so it could acquire the most useful data and now it will “deep six” it because it would embarrass another agency of government – the FAA – that agency being solely responsible for the safety of flight!

In short, instead of using this information as a tool to improve the FAA, the most ineffective agency of government, NASA sees fit to destroy the information instead. Hide critical information that might be embarrassing to the government? Never!

– Arthur Alan Wolk

Composite Structures For Aircraft Not All They Are “Cracked Up” To Be
Recent NTSB safety recommendation concerning

A recent NTSB Safety Recommendation should be of great concern to aircraft manufacturers, airlines and their passengers. It concerns the “disbonding” of the composite rudders on some A300 Airbus airliners. It seems hydraulic fluid delaminates the bonding agent and allows the plies of composite material to separate. The danger is that strength of the composite structure is compromised, such that it is no longer useful as an aircraft structure and can result in a catastrophic separation in flight.

Everyone loves composites these days. Why? Because they are light, rigid, strong and increasingly easy to build. They are stronger than their steel and aluminum counterparts and are infinitely lighter. Aircraft manufacturers, ever mindful of the needs of their airline customers, especially fuel costs, are trying to make structures lighter so less power and less fuel will carry the same number of passengers less expensively. Also, since large composite panels can now be made efficiently, small aluminum panels can be substituted with huge sheets of composite structure, cutting manufacturing costs and the price of the finished aircraft.

The rush to larger and more complex structures, however, must be tempered with the very high risk of in flight break-up and a deadly crash caused by unforeseen structural failure or disbonding from the ever present leakage of hydraulic fluid from the myriad of hydraulically operated systems in aircraft, like landing gear, flaps and flight controls. These systems, operating at thousands of pounds per square inch pressure, leak frequently, and a leak where fluid accumulates and remains for long periods can be deadly.

What’s needed is a substitute for the highly toxic, corrosive and composite destroying hydraulic fluid now in use, one that will not disbond composite structures. If this step is not taken at once, we are asking for trouble — and it will be big trouble. New aircraft are increasingly large, carrying more and more people. An Airbus 380 carrying 800 people cannot shed a major structure with impunity. Already the wing failed a critical ultimate load test, and the less than optimal results were double talked away by engineers. No amount of double talk will adequately explain to hundreds of families the industry’s failure in the face of this knowledge to make absolutely certain that hydraulic fluid doesn’t cause an airplane to crash.

Hopefully, and I am not optimistic, the pressures of competition will cause aircraft manufacturers in both hemispheres to address this deadly problem. They have been forewarned!

-Arthur Alan Wolk

Swissair and McDonnell Douglas/Boeing have perpetrated the most cruel hoax possibly imaginable on the victims of Swissair 111

In open court before the Honorable James T. Giles, those defendants in some 170 lawsuits filed following the crash, told the court that they have agreed to share in the responsibility for the crash of Swissair 111 and not to contest liability for compensatory damages for the U.S. victims of the crash. There was, however, a proviso which was lost on most of the attendees, but not on the Plaintiffs’ Steering Committee responsible to the victims of the crash to see to it that they are properly compensated. The lawyers for Swissair and Boeing conditioned their offer on the application of the Death on the High Seas Act that there be a forum non conveniens decision which would eliminate all foreign claimants against Boeing/McDonnell Douglas for product liability and a decision by the court to throw out the Article 28 cases (under the Warsaw Convention), in other words, all those foreign travelers who purchased their tickets abroad.

In short, this cruel hoax was an effort to grandstand before the public and the press in an attempt to appear that Swissair and Boeing were owning up to their unmistakable responsibility for this accident.

What is it that they really offered, however? First, the Death on the High Seas Act, which doesn’t even apply to this accident, may allow for recovery of economic damages only for those who are financially dependent upon the deceased. In short, the value of the cases for children on the aircraft would be virtually nothing. The value of the loss of society, companionship, loss of guidance and tutelage, fear of impending death, pain and suffering, and all of those intangible, non-economic items which are truly the measure of the loss of a person, might not be recoverable under the Death on the High Seas Act.

The Death on the High Seas Act, in fact, is so tenuous that both Houses of Congress have voted to either eliminate it retroactively to the crash of TWA 800, which preceded Swissair 111, or vastly limit its impact. Indeed, the crash of Swissair 111 didn’t happen on the High Seas, but in Canadian territorial waters.

Nonetheless, Boeing/McDonnell Douglas and Swissair would want to eliminate most of the damages recoverable by requiring as a condition of their payment the application of the hideous limitations that are imposed by a statute which most everyone agrees has long since outlived its usefulness.

In addition, in this world economy, the defendants would have the court throw out all claims for those on the aircraft who were not U.S. citizens, regardless of the basis of their claim.

The MD-11 was designed, certified and manufactured in California. It is supported both with respect to parts, service instructions, service bulletins and airworthiness directives from the United States. The pilot flight manuals were created in the United States, and supplements prepared, even to this day, in the United States. All the wiring, flammable insulation and virtually all of the installations that may be relevant to this accident and its cause occurred in the United States or by designers or manufacturers in the United States. Notwithstanding these facts, McDonnell Douglas and Boeing claim that it is not convenient for the litigation against them to take place in the United States. Where are the designers? Where are the certification people? Where are the people who built the aircraft? They are right here in the United States. Where are the people who designed and built the entertainment system? They are in the United States. The home office of McDonnell Douglas was in St. Louis, Missouri.

To have it the way the defendants want it, an American sitting in seat 4-A would have an entirely different recovery and different law applied to his recovery than a person sitting in seat 4-B. If the person sitting in 4-B happened to be a child even from the U.S., there would virtually no recovery. If the person in 4-A was a man who had no one dependent upon him, there would be virtually no recovery. If the person in 4-C was a Swiss citizen, there would be virtually no recovery except that provided under Swiss law.

Instead of resolving all of the cases in one single place before a Judge uniquely qualified to handle the case, in a court designed to handle such disasters, with procedures established to facilitate the administration of justice, the defendants would have two-thirds of the cases sent to twelve different countries, the application of twelve different sets of laws, with only God knows how much delay.

The only thing worse than the crash of Swissair 111 into Peggy’s Cove last September was the charade on the public, the world press and, worse, the court that Swissair, McDonnell Douglas and Boeing pulled on August 5, 1999.

– Arthur Alan Wolk

WHEN IT COMES TO AVIATION SAFETY, WHO IS REALLY TO BLAME?

The FAA … the agency that is supposed to protect us…

Why does it take an air crash to raise public concern about aviation safety? Even though air travel is still the safest means of transportation (based on the percentage of fatalities compared to the number of people who fly), there are hundreds of accidents just waiting to happen … and US Air 1016 was one of them. The FAA has known, for years, about the dangers of wind shear during hazardous weather conditions, and in fact, has been installing special Doppler radar systems at busier airports. However, the FAA never moves quickly enough. Charlotte-Douglas International Airport doesn’t have their Doppler radar yet. The scheduled delivery for 1995 wasn’t soon enough to have protected the 37 killed last week. While the FAA is bogged down in bureaucratic red-tape of its own making, pilots, who are the ultimately responsible for the safety of the flight, are denied timely information that can help prevent accidents like the one in Charlotte. Unfortunately, the FAA’s ineptitude doesn’t stop there. All too often, the FAA knows about manufacturing defects that will clearly affect the safety and/or crashworthiness of airplanes. The FAA doesn’t do anything about those either, or it acts too late.

Between December of 1992 and December of 1993, 13 people were killed in two airplane crashes caused by hurricane force turbulence in the wake of Boeing 757 jetliners. The FAA knew, as early as 1989, that the 757 would, sooner or later, cost lives. Again, the FAA did nothing.

Why didn’t the FAA react? By mandating safe distances between aircraft, the number of flights leaving from and arriving at airports would be cut down, which would cut into industry profits.

In the early ’70s, the FAA was aware that the DC-10 baggage door had a design flaw. It did not act, and 350 people were killed in a Turkish Airlines disaster.

The FAA knew if it allowed Boeing Company to glue certain airliner sections together, they would have to monitor the long term effects. They did not, and the roof blew from an Aloha Airlines Boeing 737, while the side blew out of a Boeing 747. More fatalities resulted in both cases.

The FAA knew there were service problems with the engine attachment bolts on the Boeing 747. It did not act, and two engines came off an El Al 747, killing 45 people in the Netherlands.

The FAA has known for years about flaws in various general aviation aircraft — everything from pilot seats that slide suddenly rearward, causing loss of aircraft control, to undrainable contamination in fuel tanks which result in engine stoppage, to tails that fluttered off hundreds of times, killing hundreds of people, to engines used in helicopters which are so unreliable that the Justice Department sued the manufacturer for fraud in regard to the engine’s unreliability, while the FAA continues to certify the engine safe for flight.

The list goes on and on, but the one thing is clear. It is time to overhaul the FAA from the top down, and bottom up.

The people within the FAA who want to do their jobs and are interested in safety cannot because they are overruled by managers. People with the agency who want to change things to make the FAA more safety conscious are overruled by political considerations imposed on the FAA by influence wielded by the aircraft manufacturers — the same manufacturers the FAA is supposed to regulate.

There is even a product liability bill that would not permit the imposition of punitive damages against an aircraft manufacturer, if the FAA certified the aircraft before it was marketed. Though everyone in government calls the FAA incompetent, Congress still wants to make the FAA’s approval the difference between people being compensated and manufacturers punished, and their not being held liable at all.

The FAA has the responsibility to ensure the safety of flight and to promote aviation. Aviation does not have to be promoted anymore, but safety of flight needs a lot of work. The new FAA needs to have as its sole job the enforcement of existing regulations, the streamlining of regulations to make them more effective, and the enforcement of those regulations (for a change) against those responsible to make flight safe: the aircraft manufacturers who can make the airplanes safe.

While the FAA may not put time and money into forestalling accidents until there is a tragedy, the FAA is itself a tragedy. Somebody needs to do something about its many faults before more lives are tragically and unnecessarily lost.

Arthur Alan Wolk

Portion of fee used to establish group to improve aircraft fire safety

PHILADELPHIA – (10/27/1999) Arthur Alan Wolk, internationally-known aviation attorney based in Philadelphia, on Friday, October 22, achieved a landmark first domestic settlement from Swissair flight 111. Today, Wolk announced that he is donating a portion of his fee to establish a panel of unbiased experts to study and recommend critical improvements in aircraft wiring and fire safety.

The settlement, reached on behalf of the family of 37-year-old Richard Coburn, a husband and father of three, formerly of East Brunswick, NJ, is hoped to be the first of many from the tragic plunge into the waters of Halifax, Nova Scotia of a Swissair MD-11. Wolk and Coburn’s widow both hope to achieve some lasting benefit from the tragedy by working to improve aviation safety.

The cause of this accident is still under investigation by Canadian and U.S. authorities. Privately, however, most agree that Wolk’s assessment, made within hours of the crash was correct – – that the disaster was preventable.

Wolk has been on the plaintiffs’ steering committees of most of the country’s major aircrash disasters and has correctly identified the causes of each disaster well in advance of the release of official findings. He is also credited with many times providing vital information to government investigators.

Wolk, who is a member of the Swissair 111 plaintiffs’ steering committee; the group that is guiding all of the victims’ cases through the courts, says that this early settlement will accelerate the process of closure for victims’ families whose agony has been prolonged due to the lack of settlements thus far.

“Now the Coburn family will be secure with Richard Coburn’s legacy and can begin the most important job of cherishing the memory of their wonderful husband and father. By working to improve aviation safety it is our hope that no other family will again suffer such unspeakable pain,” said Wolk.

Letter to U.S. Department of Transportation Dockets
By Arthur Alan Wolk
August 24, 1999

U.S. Dept. of Transportation Dockets
Docket No. FAA-1999-6001
400 Seventh Street, S.W.
Room Plaza 401
Washington, DC 20590

Re: Docket No. FAA-1999-6001; Notice No. 99-14

Gentlemen:

I oppose the introduction of a regulation that would allow the Federal Aviation Administration to afford protection of voluntary submitted information.

The predicate for this regulation is that those persons who might provide the FAA with useful safety or security information won’t do so if they are fearful that the information will be disclosed in response to a FOIA request. Historically, this has been demonstrated to be an entirely false assumption. The FAA has had in place a Service Difficulty Reporting System for at least forty years to my knowledge. Mechanics and others, without any compensation or hope for it, or any fear of the disclosure of this information, have provided the necessary safety information concerning the failure or near failure of aviation components that could affect flight safety for years. Unfortunately, they are frustrated because they recognize that year after year the information they have provided is not utilized by the FAA to improve aviation safety. Many mechanics I have spoken to have said that they stopped providing service difficulty reporting information because they see model after model of aircraft with no improvements and no changes and failing for the same reasons.

Thus, the paucity of information now provided to the FAA in connection with safety has nothing to do with fear of this information being disclosed under FOIA, it has to do with the disgust by the people who are responsible for providing such information with those who are responsible for using the information effectively to prevent accidents, i.e., the FAA. Thus, the basic predicate for the regulatory change is unfounded in fact.

Indeed, the FAA in response to pressure from manufacturers has refused to divulge information provided both by the manufacturers and those in the field on the basis that it is proprietary and confidential. Thus the FAA has effectively introduced, without regulatory authority for the same, the protection that it now hopes to introduce by way of a new regulatory scheme designed for one purpose and one purpose only preventing the public from knowing and obtaining access to safety information which has been previously withheld from them by both the Government and the private sector. That is the purpose of this rule, that is the thrust behind it, that is the reason it is introduced, and it is really so blatant that the FAA must really think the public are stupid by introducing a rule that is purportedly designed to enhance safety, but in reality is nothing more than an attempt to cover up the blunders of both the FAA and the industry with respect to aviation safety.

Indeed, even thought the FAA had no authority for it, even though the FAA kept from the public all the information concerning certification blunders (like the Boeing 737 rudder system), certification and safety blunders (like the lack of fire safety on all commercial aircraft wiring and insulation systems), and the list could go on and on, now the FAA wants to turn the Government into a secret repository of information that should be disclosed to the public anyway.

Why shouldn’t the public know that an aircraft is unsafe, and then make a choice not to fly it? Why shouldn’t the public know that there are failure rates of aircraft of such a magnitude they shouldn’t buy or fly in it? Why shouldn’t the public know that there are airlines not operating safely because they are conducting paper inspections and paper repairs? In short, what the aircraft manufacturers, the airlines and others want the FAA to do, and the FAA is falling all over itself to comply with, is to make everything a secret so nobody knows how bad it is out there and how badly the FAA is doing its job.

One example strikes me as being especially telling. I wrote a FOIA request, repeated FOIA requests as a matter of fact, arising out of the crashes of United 585 and USAir 427, two Boeing 737s that crashed because of the failure of the rudder servo valve, a probable cause found after nine years of investigation by the NTSB. Of course, the FAA in the State of Washington didn’t have any information that it found releasable, and when we took the deposition of Ken Frye, the FAA person in charge, FAA’s lawyers shut him down when we were asking sensitive certification questions. Of course, we didn’t get the information from the defendants because they cited all sorts of reasons why the information was either unavailable, or they couldn’t find it, or they couldn’t supply it.

Well, something surfaced that was kind of remarkable, a copy of which I am providing to you, which are minutes of the certification meeting of the Boeing 737. Well, lo and behold, it turns out that the FAA did question the certification of this aircraft, the single slab rudder, the single actuator, and even suggested that it was prone to a single point failure. Well, it’s pretty obvious that if this document had gotten out officially, it would have been pretty embarrassing to the FAA, and probably to the managers who overruled the guys who figured out that the 737 shouldn’t have been certified this way, so it didn’t get out officially, it got out unofficially.

That’s the problem, you see, with your proposed regulation. Your proposed regulation is a simple attempt to hide the truth from the public, to hide the truth from victims’ families, to hide the truth from the press, to hide the truth from everyone who has to make an intelligent decision about aviation safety.

In short, this regulation is a cruel and arrogant attempt to deny access to the public from the people who are on the public’s payroll to find out whether the job for which Government is being paid is, in fact, being done honestly, accurately and effectively.

I oppose this regulation, because it has been bought and paid for by industry, because it is the FAA’s continuing attempt to hide its ineptitude because it is completely and absolutely unnecessary.

Even the FAA should understand that it is the threat of public disclosure of critical safety information and the legal liability that may result from it that is the most effective tool at implementing aviation safety improvements, not hiding behind some regulatory device to keep the public in the dark.

Read the Constitution.

Very truly yours,
Arthur Alan Wolk