Posts about: "ATC" [Posts: 614 Page: 29 of 31]¶

I skimmed through the complaint. The defendants are American and PSA (which I will refer to as the airlines) and the USA as responsible for the actions of the air traffic controllers (which I will refer to as the FAA) and for the actions of the helicopter crew (which I will refer to as the army). Perhaps somewhat notable is who is not being sued. This includes the manufacturers of both aircraft and their components and the manufacturer of the night vision goggles.

The best (in my view) argument against the airlines is that it was PSA policy that their pilots should not accept a diversion from runway 1 to runway 33 if they had not already briefed this approach (in addition to briefing the approach to runway 1). The pilot in charge hadn't done this but nevertheless accepted the diversion. This looks bad of course but there is little reason to believe that the omission of the briefing made any difference. It is also argued that the response to the TCAS conflict alert was inadequate which seems only clear in hindsight. Finally there were also insinuations to the effect that airlines should not serve busy airports because they are dangerous that I didn't find convincing.

The argument against the FAA is that the ATCs had actually violated various regulations starting with having one controller handle both helicopters and airplanes and continuing with the specific instructions and information provided to the helicopter and airplane. I suspect these purported violations are not as clear cut as claimed. In any case it is unclear they made any difference.

The argument against the army is that the blackhawk crew violated specific regulations and rules that they were required to observe. Most seriously that they were too high, knew they were too high but didn't correct this in a timely way. This clearly did make a difference and in my view if proven would be sufficient to establish liability.

I didn't notice any references to the discretionary function exception. In general the arguments against the government are based on purported specific violations of established rules and regulations by low level personnel and not on debatable broad policy decisions. The case that an army pilot doesn't have discretion to violate altitude limits seems easy to make to me. Any more than an army driver has discretion to ignore stop signs.

I think the point here is that, had the 5342 pilots followed PSA procedures (i.e., not accepting an approach that wasn\x92t previously briefed), they would have refused the circle 33 offer by ATC, thereby avoiding the accident.

Reviewing the 5342 CVR, runway 33 was not included in the CA/PF\x92s approach briefing about 35 minutes prior to the expected landing time. The CA/PF did do an abbreviated briefing for 33 after the circle 33 option was accepted.

The airline lawyers will point to the many ignored near miss reports in arguing that this accident was waiting to happen and that it was just luck that this accident didn't happen sooner.

The plaintiff lawyers would have a better argument against the airline if they had deviated from the approach.
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I guess the question is what is the alternative world. The pilots could also have followed PSA procedures by briefing both approaches. Which seems to be the correct thing to do if they were willing to accept the alternative approach. In which case it seems likely that the crash would still have occurred in just about the same way. The legal complaint does make some (unconvincing in my view) suggestions that the delayed briefing could have distracted the pilots just enough so that they didn't recognize the danger from the helicopter in time.

I think it's not unreasonable to assume that words being exchanged in the cockpit/the extra workload prevented the pilots from noticing the ATC transmissions to the helicopter, and that would have impaired their situational awareness. Situational awareness is required for safe flight, especially in congested airspace.

If the SOP requirement was instituted by the airline out of a safety concern, to reduce the workload on the pilots during that critical phase of flight, then that has a bearing on how responsibility is apportioned.

Weren't the jet and helo on different frequencies?

yes, but the local controller transmitted on both, e.g. the message where the controller told the Blackhawk to pass behind the CRJ.

I think it is unreasonable. Those crews probably do that runway change often, and would do it blindfolded. As for workload, I agree with Layman; the workload, even if they had briefed it, would have been the same.

Clearly not a pilot, again. Pilots, especially of multi-crew aircraft should NOT have to listen every transmission to every other aircraft to "maintain situational awareness".

This is the problem with enthusiastic amateurs and blood-thirsty lawyers: all these peripheral issues take centre-stage and the real causes are not addressed. Easier to spear the pilots of the CRJ for not doing a unneeded briefing or missing a TCAS alerts than get the FAA and army boffins that approved that sh1tshow in the first place...

Retired airline pilot here and I don't need to hear all ATC transmissions, just the ones that have anything to do with my aircraft.

Thais reminds me of the trail of the "Herald of Free Enterprise" ferry back in 80s. The Company procedure was clear : it was prohibited to start moving the RORO ferry if the front door was still open . But it had become common practice to gain time ,to leave harbor while the doors were closing When the guy in charge of the door overslept during his break the door remained fully open while the ship was leaving port , and when accelerating water came in and the boat capsized .killing 200 people . During the trail the company executives showed the SOP, and got away with blame , The Guy that overslept and the captain took all the blame . (All this from memory , check Internet for the full report if you want more info)

We could maybe potentially see something similar here , blaming the PSA captain for accepting without prior briefing a visual Circle 33 to gain time , things he probably had done many times before to the satisfaction of his employer .

@ WillowRun 6-3 : Is normalization of deviance a mitigating circumstances in the US legal system ?

Anticipating what may be a scathing NTSB report, and certainly will be a highly critical report, the FAA and - through some interagency process or similar path through the bureaucracy - the Army as well will already be experiencing significant leverage for reform. Perhaps it will be unprecedented leverage given the almost incomprehensible series of errors which occurred in this accident (not actually incomprehensible, because they happened in fact). And although it makes sense that the airline defendants will have their own reasons for trying to leverage significant reform, one has to wonder to what extent the airline industry as a whole already is taking as strong a position as possible on the many issues in the looming massive spending on new ATC technology and facilities, and (hopefully) new ATM architecture overall.

As for the Army's public presence about this accident, no, you have missed nothing. The Army's witnesses at the NTSB hearing were (imo) well prepared for testimony, but if any other public statements by Army officials have been made, I've missed them too. I would note that one of the purposes of the PAT flights is continuity of government missions. Obviously this would not be a subject on which the Army (or anyone else with official knowledge of and responsibility for same) will be saying much of anything.

A preliminary caveat is necessary - actually, two caveats. The simpler one is that in my legal career I have not handled personal injury (negligence) matters and, although every attorney licensed in the United States presumably knows at least basics of any given legal subject matter - and even though this is only an internet forum and not practicing law - how the facts relating to the briefing of the approach to 3-3 will impact the liability issues probably will get pretty complicated in the actual lawsuit. (More on this to follow).

Second, and without diving into way too much legal stuff, it's important to remember that the substantive content of the law that will be applied to claims such as in the Complaint can be different in one state within the U.S. compared to another state. As I write this I haven't yet read the Complaint in total and although "jurisidiction" and "venue" certainly are covered, "choice of law" might not be. What specifically the tort (negligence) law of the District of Columbia, as a separate legal jurisdiction even though it is not a state within the U.S. might be, I would have to guess. Whether the plaintiffs will have some legal theory for the District of Columbia federal district court to apply the tort law of, say, some other state where the crash victims lived, ..... I don't know.
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By "mitigating circumstance", I'm inferring that you're asking whether the continous acceptance of deviations from the airline's policy could lessen the force of arguments that the airline has legal responsibility for the accident as (i) one of the causes of the accident, or (ii), under the argument that if the PSA flight had not accepted the approach to 33, then the entire accident sequence would have been broken and would not have occurred. I find (ii) a very difficult proposition to accept, but not because of logic. After all, and even though it is a counter-factual, if the PSA flight had not been where in the space in the sky where the collision occurred....... then none of the other glaring problems about the airspace would be the focus of so much attention.

But so much else was fundamentally wrong with how the airspace in question was structured, how it was operated (for lack of a better term) by FAA, and how it was operated in by the Army, that moving the PSA flight out of the approach corridor to 33 instead of where the collision occurred strikes me as not sensible. First, it is severely simplistic given the other systemic and operational failures. Second, I see it as insulting to the many serious issues about safety in the NAS which are squarely and directly presented by the facts of this accident. But whether the law to be applied, whether it's the substantive law of negligence in the District of Columbia or some other state within the U.S., allows the analysis of legal liability (of the airline) to be determined by such a severe counter-factual which completely ignores the many other serious failures by the other active participants - I cannot say.

But to continue, so the airline has a policy of some sort that the circling approach to 33 should not be accepted if it was not briefed as part of the initial approach briefing for the usual arrival runway. So the pilots are supposed to interpose the company's policy rather than agree to an ATC request - let's say that's the case. But is it really? I'm going to wait for PSA to defend its pilots and the company policies. Does it actually require the pilots not to accept the approach if the initial approach briefing didn't also include 33? - was it really that level of an absolute prohibition? The Complaint contains allegations, not facts. (I have my doubts, but then SLF guys often do.)

As for the specific question about normalization of devicance, .... it is an interesting question! not least because I think it cuts both ways.

In the standard formulation, as rules get broken over and over, the fact that such breaking of such rules creates a cumulative deviation from the legally required standard of care receives less and less attention. In other words, negligence is gradually accepted as okay. So this certainly would not "mitigate" against the legal arguments for finding the airline to have some legal responsibility.

But on the other hand.... do you recall the scene in which the courtroom attorney, famously portrayed by Tom Cruise, confronts the Git-mo Commanding Officer, portrayed also famously by Jack Nicholson, in the Hollywood film, "A Few Good Men."? Attorney Caffee is trying to get Colonel Jessup to reveal that the Colonel had given an illegal order (which had resulted in severe hazing of a servicemember leading, in conjunction with his medical conditon, to that soldier's death). Counsel cannot ask the Colonel directly. So Counsel asks the Colonel if sometimes, when he gives the soldiers under his command an order, they might shrug it off, saying things like "the Old Man doesn't really mean it" or "he is just giving the order for show, we don't have to do anything about it". And the Colonel slams the question down hard, testifying emphatically that his orders are always, unfailingly, taken as direct orders that must be obeyed. (Anyone who recalls the film knows the rest.)

Was the PSA policy really that strident of an order? I have my doubts, and as I said, I'm anticipating - with more than just lawyerly interest, after all, this accident seems to me to be a watershed event in the evolution of the NAS with severe consequences for years to come - PSA's able and motivated legal counsel will have much to say.

I'm pretty frequently amazed, even after a dozen years, at the knowledge many forum community people have about particular aviation accidents stretching back decades. I wonder, are there examples where the legal system tried to blame pilots, but not for making any error as such, and also amid such a wealth of almost incomprehensibly negligent factors in the structure and operation of the airspace, and the operation of military aircraft in that airspace? (If this is too strong for some readers, my reason is this is a pilot's forum, and so when I see that someone is parking a big bus with a banner reading "throw 'em under here" I think it's okay to sound off.)

Thanks a lot for your detailed explanations WR 6-3 . One is nearly always feeling more educated after reading your lengthy posts .

To answer your 2 questions , the fist one is easy , over my nearly 50 years of aviation experience , except recently where we start to discuss seriously Human factors, Fatigue , Mental well being , it was always to blame the Pilots or the controllers first when you can , and protect management and manufacturers was the priority
Al Wiener had even a law for that in the 1980s : . To the second question , concrete examples, yes there are . For instance ,nearly all the Japanese accidents and serious incidents resulted in pilots or controllers" being thrown under the bus" as you say , ,some sent to jail, and fired , because in their legal system someone has to be blamed . Watch the upcoming Haneda one .
It you want one , the one I know pretty well is . the Nantes ( France) collision , 2 civil aircrfat under military ATC ) Iberia and Spantax) back in 1973 , at the first trial the Spantax pilot was blamed to protect the military ATC institution , (but overturned in appeal a few years later )
In the US I do not immediately recall any particular involving military ops but there must be some similar to KDCA,, maybe someone has time to run through a proper judicial database .

Many thanks, ATC Watcher!

What load of codswallop. Now we'll have every dogsbody pilot peering at their ADS-B In screens and asking ATC "is that return going to miss us?". TCAS does not require ADS-B, only a transponder (Mode S best). ADS-B In in busy CTAs/zones will be a distracting nightmare for crews.

Every pax jet is separated by SIDs and STARs, with either lateral and/or vertical separation. That is what is required here with the choppers. Playing TCAS dodgem-cars below 1000ft when you're trying to land is not the way to go.

Point 3 is the only one that makes any real sense. The rest sound good only to the great-unwashed.

As a non-technical poster on this forum I sure as shucks won't comment on the ADS-B content of the proposed legislation. But point 4 of the summary:
"Directs the Army OIG to initiate a safety coordination audit. The Army Inspector General has declined to voluntarily review the Army's aviation safety practices. The Inspector General would conduct an independent review of the Army's approach to safety."

Why does this not make real sense?

The NTSB will very likely (undoubtedly, I think) include, in its report, quite extensive findings about the Army's operations. It was at least very unusual, if not unprecedented, for the NTSB to issue urgent recommendations to FAA in the immediate aftermath of January 29 with regard to use of the helicopter routes. On these facts, why is it not sensible to require the Army to undergo an IG review?

Although without a service record, I do generally understand the idea that the Army's task and purpose is lethality, at least in the meaning of that term before the assemblage at Quantico earlier this fall. Surely operating in domestic airspace doesn't make safety irrelevant "becasue lethality", does it?

One other aspect of this tragic and from many perspectives senseless midair collision is that very dedicated professional people in the aviation field are going to have their respective actions and failures to act in the events of January 29 scrutinized in the most harshly critical light in a courtroom. Bluntly, their performance will be trashed - the Army pilots, one or more controllers, and as discussed recently on this thread, the airline aviators too. On these facts, and hoping that reasonable minds may differ, I think the IG review isn't just a sensible idea, it's a necessity. It is something owed to those people, who are not going to speak up in their defense, or in their eternal regrets, from the great beyond. The least the United States can do is to find out what to do better. I'll work for the IG project, gratis, .... if they'd take me.

Having had ADS-B traffic displayed in my cockpit for over the last decade, I beg to report it has vastly reduced the urgency of necessary avoidance of conflicting CAT since I can now deal with them several miles away.

For one example before ADS-B display, ATC once dumped me in front of CAT that required a 90\xb1\xb0 bank to avoid. There were other interesting encounters with CAT in Class E - no longer.
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As we saw here, ATC can fall short and altitudes can be missed. An ADS-B display is a valuable backstop - for a small fraction of the cost of TCAS.

Recall that the accident Blackhawk flight crew likely had a Stratus 2S onboard that could have provided ADS-B traffic info via the flight crew\x92s Army-issued EFBs loaded with ForeFlight. There is no evidence from the Blackhawk CVR (or the aircraft\x92s flight path) that this feature was used.

As I recall from the interviews, there was no Army aviation policy about how this technology was to be used during DC area flights. Some crews used it, but most did not.

On the Inspector General portion of the proposed legislation (and I'm taking the summary published by the Senate Commerce Comm. as accurate of what actually is in the proposed legislative measure): I had been under the impression that the various Inspector General offices throughout the federal interagency work on any assignment they are given, that they need to tackle and proceed with the established IG process, and there isn't a project-by-project requisition for funding. In other words whatever work they are assigned, the annual appropriation for the IG function is in place. But not having worked with any IG office - and knowing that "partner in a law firm" is a quite different world, I don't really know.

There's more to the IG part of the proposed legislation than budgeting, however. My first thought when I read the Sen. Commerce Comm. summary was that the IG and - speaking generally here - various senior-level authorities in the Defense (now "War") Department, the Army, and the White House, realized almost immediately after the accident - certainly once the initial set of facts came to light - that an Army IG investigation would be guaranteed to produce one thing at least: free discovery for the accident victims' families and their attorneys. As time has rolled on, and with the first Complaint now on file in federal district court, this dynamic has become even more persuasive imo.

I'll litter the thread with legal stuff only a little more here. Anyone following the thread has seen posts about the application of part of sovereign immunity to claims against the Army and the FAA/DOT, despite the Federal Tort Claims Act. Specifically, sovereign immunity continues to apply where the alleged negligence resulted from a federal entity exercising "discretion" in making some decision based on weighing competing policy interests and requirements (apologies both for repeating myself from prior posts, and for the legal readers, for oversimplifying). I think this case is going to descend very far down "into the weeds" on this issue; the factual development seems very likely to get highly granular. And the reason for this is that ordinarily, the "discretionary function" refers to a specific decision at a particular time based on development of some sort of administrative record. I've resisted the impulse to post a summary of the Varig Airlines case, in which the discretionary function part of sovereign immunity protected the FAA from liability in an aviation accident matter - the FAA had made a specific decision about how to handle inspections of aircraft (again, apologies for oversimplifying). But in the DCA midair ..... I think there was not one decision to which the discretionary function part of sovereign immunity could attach. This was not a case of discretion being exercised by FAA or by the Army at a specific time for making a decision about a particular thing - no, this was for lack of a recognized term - discretionary inertia. A cousin of normalization of deviance.

What does this have to do with the Army IG and higher-ups (and very very higher-ups) telling the IG to stay in their barracks, I mean offices? In examining the presumably many decisions (or just the intertia of informal practices) the Army made about helicopter flights in DCA airspace, and about altimiters, and about NVGs, and all the rest of the actual flying stuff I don't know, the IG would develop a factual record, and a very official one at that, about how far outside the discretionary function exception this situation really was. How much discretionary inertia was at work, and about how many different parts of the factual record. Which in turn would greatly complicate the Army - and FAA/DOT also in my view - defending in court . . . . if not actually sink the sovereign immunity defense pretty early on.

Caveat: there are probably thousands of published court decisions involving the discretionary function exception; I haven't read them (other than Varig Airlines, and that was in law school for my law review article), and I could have botched the analysis here handsomely.

On politicians and opportunists of other sorts: The Senate Commerce Committee has done heavy lifting in the civil aviation sector not long ago, in the aftermath of the MAX accidents. I'd give the professional staff working for the Committee some credit, not to say that I can take a side about ADS-B, but instead that they (and the Senators, obviously) see the greatly impactful aftermath of the DCA midair collision, and want to try to set the system on a better footing. And that's before NTSB's report lands on desks, whether noticed only for a few news cycles (if those even exist still) or instead lands with a thud. I'm anticipating it will be scatching, but many following the thread watched the hearings (and read the interviews), so . . . .

And don't forget, 12.5 billion bucks have been appropriated for new ATC stuff, with another 18 billion waiting, if not in the wings, then in the cloakrooms. Congress never hesitates to try to get in front of where the money is going, and 12 billion here, 18 billion there, pretty soon you're talking..... we hope not another NextGen sad story. Possibly the Senate Committee is staking out territory from which to try to assure this time, modernization gets done and done right. (I know, there are structural issues too, but one hill to die on at a time.)

QUOTE=Propellerhead;11971298]Suing AA is just corporate greed by the lawyers. Don\x92t see how any of this is the fault of the airline pilots.[/QUOTE]

I entirely agree with the second sentence, and "slapping myself upside of the head" if any of my posts even left the door open to suggesting otherwise. At the same time, the legal process exists to adjudicate claims of injured parties, in this instance, the families of the accident victims. Their lawyers are doing what the system expects them to do, and while lawyers as a group will never, in this society, engender feelings of sweetness and light, I don't think greed is the reason claims against the airline were filed. I'll leave to one side the familiarity (slight though it may be) I happen to have with the lawyers who filed the Complaint - it won't help here to say they've done plenty well, they're consummate professionals, and they are ethically bound to press for significant compensation for their clients. Others will, understandably, scoff and say, "yeah, that's what I meant, lawyers are greedy." (There was, some years ago, a law firm gossip message board known as Greedy Associates, but I digress.)

No, I think the attorneys for the accident victims' families had little choice other than to assert claims against the airline, as wretched as I think those claims are. First, the federal defendants might pull off a Hail Mary of some sort and establish sovereign immunity through the discretionary function exception under the Federal Tort Claims Act. Second, there are no punitive damages awards against the federal defendants, even if they are found liable. Third, including these claims helps to develop a thorough (and might I say, persuasive) factual record to argue to the court and to the jury (leaving aside factors about advisory juries in FTCA matters & etc.). One could just say "deep pockets" but I wanted to highlight what I believe was the lawyers' thought process. Of course they'll vehemently assert the airline actually was negligent, meaning the pilots..... wretched, abhorent.

Maybe I can find an organization which would like to intervene in the case, on behalf of professional piloting - the pilots are victims of the screwed up airspace management too, aren't they? - and then become counsel of record in the case. Don't hold any breaths.

I 100% disagree. ADS-B, among other things, lets YOU see who is going to come close to you without asking ATC what they think about it.