Posts about: "Accountability/Liability" [Posts: 44 Page: 1 of 3]¶

I have been watching this thread for a while now and felt compelled to respond, mainly due to some of the comments on here, a proportion of which, come from professionals within our industry which in itself is troubling.

Lets break it down based on what we know so far:

See and Avoid We have years and years and years of evidence about the limitations of see and avoid. It is not and never will be effective mitigation to a collision risk on its own. It needs to be backed up with other barriers such as ACAS etc. The human eye is particularly bad at spotting stationary objects, which would have been the case in this instance with another aircraft on a steady bearing. Those who criticise the aircrew for not keeping a good lookout are being disingenuous. The ability to judge distance at night, is difficult. Those who suggest the helicopter was looking up at the night sky, omit to recognise that the cameras on which you are basing that opinion, were at ground level. The crew of the Helo would have been at a similar altitude, looking at a background of many lights, with other aircraft barely above the horizon. The reports state that the aircrew may have been on NVG. This exacerbates the issue as they narrow your field of view, make depth perception even worse and of course, those I know of, do not display different colours, such as navigation lights. So see and avoid needs to be backed up by other measures and one can also see how VFR at night is fraught with danger.

Procedures - There is nothing inherently wrong with helicopter lanes close to aerodromes as long as the procedures that control such traffic are robust. I do not know what the local procedures state for routes 1 and 4 but I would expect them to include a limitation to ensure that you cannot use route 4/1 if an approach is being made to Rwy 33 or vice versa, an approach cannot be made to Rwy 33 if there is traffic on route 1/4. If such a procedure does no t exist then we could argue negligence. Lets assume one does exist. In that case, I would expect some process to block the route or the approach, using an aide memoire such as a flight strip or other electronic means. The recent crash at Haneda, highlights the need for such a safety barrier.

The Controller - Reports suggest that controller numbers were down to 19, which is woefully inadequate for an operation such as this and I hope the NTSB looks at what actions were taken by the airport to close in the face of staff limitations. We assume from reports, that the controller concerned was working in a combined position, with band-boxed frequencies. Looking at FR24 replays, it was quite busy at the time and we also do not know what level of fatigue the individuals were under. If the procedures above were in force, was a blocking strip forgotten? Was the controller overloaded or distracted? I hope they were not combining Radar and tower!

Phraseology - Others on here have mentioned about phraseology used. First of all, I cannot understand this machismo, that US controllers have to speak fast. Stop it! It is dangerous and you only end up having to repeat yourself. Others have mentioned about using the clock code. The Tower controller may not have the endorsement to use radar procedures and may have been forced to use geographical points. From what I have heard and yes lets wait for the report, it seems that the phraseology used was sub optimal.

Duty of Care - Some of here have spoken about the transfer of responsibility onto the helicopter operator. This is a pet hate of mine, of people hiding behind the rules to abrogate responsibility. Everyone in the system has a duty of care and Air Traffic Controllers, regardless of type of service, have an accountability to do what they can to prevent collisions. That is written into the highest levels of ICAO Annex 11

My condolences to all involved and my thoughts are also with those under investigation, who I feel may have been let down by the system.

Well said and reasoned.

The losses so far in this case are almost defined, except that the unfortunate ATC officer is a victim of nothing more than being human and working within the constraints of a system that he did not design or have responsibility of. He has the most powerful pumpkin in the world defaming him from the normalised position of gross ignorance to such an extent that even Fox news and CNN push back. I would suggest that a suicide watch be placed on this poor individual to protect him from the hurtful comments that exude from the incumbent of the WH. This guy is going through hell, as much or more so than any other person suffering the loss in this mishap.


PS:

Humans may be the frail part of the system but they are also the most resilient parts. We will have moments in the following months to doubt that, history highlights failures not successes.




It does. I've been visiting a friend in Reston for 30 years and one day, quite recently, Metro was just "there."
Avoiding the partisan finger-pointing, I'm going to generally agree here.

We all know there are issues with American ATC. But primarily, they are ordinary problems that don't need radical solutions. The solutions are generally more resources and more rigorous enforcement.

* One of my go-to complaints: Pilots not disciplined for erasing or overwriting CVRs following runway incursions and near misses. No blowback for aircrews refusing to meet with NTSB following incursions/near misses. I mentioned this earlier; hopefully 25 hr recorders will fix the overwrite part of this. Ideally the "erase" button would be removed in all cockpits where it still remains. I understand aircrews wanting to erase their CVRs and avoid meetings with investigators after doing something careless (or straight up idiotic) with a plane full of people, but, folks, how can coming to Jesus *not* be part of the job? We are blessed to live in a country where fatal transportation accidents are not presumed to be criminal (unlike most every other non-Commonwealth nation), and aircrews hardly ever have personal liability for damages. Yes a career might take a hit. That's careers for ya.
* Runway incursions in general: Over 1k per year for many years ... we have systems to manage this but they need to be continually funded, resourced, and improved ... HNL, MDW, LAX need to be sorted out aggressively (LAX is no longer the poster child for incursions, good work there, it's HNL now)
* See-and-avoid: It works as well as it does because of the very high standard of air"person"ship prevalent in the US, but it is absolutely guaranteed that see-and-avoid is insufficient to avoid midair collisions, as it is impossible to see all potential collision aircraft even in broad daylight
* Manufacturer quality: Until MCAS I'd have never thought that US manufacturing processes would (once again) become a significant safety risk, but, here we are, with no indication that the trend has been reversed (it's fair to say that there is some promise that there has been a reversal at the top of Boeing management, but effects haven't appeared at this early date)
* ATC hiring: Pay more, hire more, create alternative career structures that allow qualified "old" people in their 30s to start jobs at ATC while giving them a fair framework for retirement

None of this needs "AI" or "satellites" or "complete rework" or "woodchipper" to fix. It just needs money and constant re-commitment to safety, and commitment to compromising in favor of safety when a decision of "revenue vs safety" arises. Honestly I think it's mostly about money. Perhaps 99% about money. Perhaps 100%.

It won't be the last time I'll think it compulsory to say this about this accident - I'm not trying to provoke the inevitable lawsuits into higher intensity (despite status as simple SLF/attorney).

Almost invariably lawyers as well as law students and professors, when asked to comment about what is taught in law school, recite the truism that "law school teaches you how to think like a lawyer." Problem is, even quite modest experience in and with the realities and pressures of representing clients - i.e., practicing law - dulls the thinking part and intensifies the hustler mentalities, of which there are many variations. I'm noting this because law school actually trains you how to spot the issues. It sometimes is the case that the standard things lawyers think about a given set of issues are not the most relevant and meaningful things.

With that hopefully not grossly pedantic context out of the way..... in previous comments on this thread I've noted that the federal defendants would be expected to assert sovereign immunity.... more technically, that although the Federal Tort Claims Act waives sovereign immunity in general terms, the statute also contains various exceptions - in other words, the exceptions where they apply keep sovereign immunity in place. The exception relevant here is the "discretionary function" exception, which (pardon the attempt at over-simplifying it) keeps the immunity in place if the allegedly negligent act (or omission) resulted from a federal entity's policy decision or choice.

I previously viewed the discretionary function exception is likely imposing a pretty strong barrier against liability of the (probable) federal defendants. However.

However. However, as I write this somewhere in an aviation law practice a mid-level or even junior associate is pounding their computer keyboard, amassing BASED ON THE ISSUES NOW REVEALED an analysis of how the discretionary function exception has never, never ever ever, been imposed to bar liability for alleged negligence roughly and/or reasonably comparable to the record of "encounters" now documented by NTSB Prelim Report. And that record goes back several years . . . but presumably discovery in United States District Court under the Federal Rules of Civil Procedure could easily reach back to even more past years.

Of course, it will be said that ignoring these many encounters was indeed a policy choice, and so the exception does apply, a forum post like this notwithstanding. But that's just the point. The ISSUE here is that there never was a conscious policy directive which the alleged negligence stemmed from. Or stated another way, if I were in the aviation practice imagined above, I'd be running associates ragged to amass the above-mentioned analysis which establishes, among other things, that GROSS NEGLIGENCE by the FAA can never be, and is not as a matter of law, a predicate for applying the discretionary function exception. (For lawyers out there, somewhat akin to prima facie tort.)

By the way, for all the discovery sports fans out there, just think how much fun it will be to run discovery to amass the facts of what actions - meaning by the aircraft in which the RAs were annunciated - were taken as a result of all the RAs as noted by NTSB's Prelim Report.

I don't recall seeing this specific Blancolirio segment previously - and thank you AirScotia for putting it up here.

SLF/attorney as I am, I've looked up some information about ASIAS. Not to bury the lede, the legal issues about whether or not the entities within the federal government which are likely to become defendants in the inevitable litigation will be able to defend successfully on the basis of sovereign immunity will draw, and perhaps draw heavily, on information about ASIAS. This just is my view as (for lack of a better label) an observer, and I'm not part of any legal group or practice currently involved with the matters arising from the accident.

1) Juan overstated one point which could become significant in what I think is the impending legal wrangle over sovereign immunity. The Executive Board of the ASIAS isn't comprised of all the stakeholders shown in one of the slides in the video. The Exec. Board "has representation" from all or substantially all of the stakeholder groups. (Source: portal.asias.aero) Didn't find (or invest more time in looking for) the actual roster of members of that board.

2) skybrary.aero has an interesting page about ASIAS. It notes the involvement of Eurocontrol, ICAO, and Flight Safety Foundation and includes further information about the ASIAS purpose and functions.

3) Most of the slides Juan included in the video appear to have been taken from (or at least those slides appear identical to slides in) a 2007 deck on the Voluntary Information Sharing System Working Group. I won't include the individual's name (just being cautious) but the deck is attributed to the Director, FAA Aviation Safety Analytical Services Division AVP-200. (The slides are marked (in fine print - no irony intended) as "ASIAS Proprietary". Yes, and 67 people were killed in a midair collision in the airspace of our Nation's Capital, so, I'll keep my "fair use" arguments ready if necessary.)

The slides in this deck include a chronological look-back at the genesis and iterations of efforts leading up to ASIAS, from 1995-96 through 2007.

The slide displayed in the video which grabbed my attention was the one indicating that ASIAS is governed by formal principles. Why this is so interesting (imho) is that the legal issue of whether sovereign immunity does or does not apply to FAA and (though it is more complicated) to the Army depends on whether the "discretionary function exception" applies. (That is, a federal statute removes sovereign immunity for negligence in general, but it also includes exceptions where sovereign immunity remains in place as a defense . . . or an affirmative defense, but this isn't law school or actual representation). I'm not drilling into the potential arguments and counters at this time. That being said, I'm quite inclined to think that it will be difficult to prevail on an argument defending the way FAA continued to run DCA because that way was based on policy choices or judgments instead of defined rules - in other words, that FAA exercised discretion in a matter of judgment about policy issues. To reduce this to some absurdity, "show me the policy decision memo that was written about a choice between tolerating the risk, now revealed as obvious - and didn't Board Chair Homendy say it was "intolerable" - of midair collisions, instead of applying all the safety principles embedded in the very existence of ASIAS itself." I'm not waiting for such a memo to surface, but if it exists, surely it will be found in discovery.

4) Not least, Juan walks through some specific reports of previous aircraft-helicopter encounters at DCA. At about 8:50, no. 1458911, he relates an incident with chilling parallels to the fateful night of January 29. I mean, if our court and legal system in the United States still has any meaningful relationship to "the interests of justice" . . . this will be (imho) powerful and effective evidence. And it's not from a distant past - just 2015. If my notes are accurate, the incidents just after this one (a Captain who calls DCA the most dangerous airport he's familiar with or words to that effect), and the previous incident also (a TCAS RA, complied with, but then a GPWS from the tower was triggered, incident 1558721 at about 8:15) - when was a specific policy judgment made to shrug off incidents such as these, and what were the alternatives then considered? Or was it "system drift, this is the way we've always done things, National is close to the Hill you know" .... these explanations do not constitute policy, in my view, but rather negligence that can and should be held to adjudicated responsibility and accountability in the United States District Court.

One last point is that Juan's calling attention to the swift and unequivocal actions taken by the Secretary of Transportation is something everyone involved with aviation safety and operations ought to concur with. Not even a month in the role yet - and this tragic calamity occurs. Salute!, Mr. Secretary!

"That's good thinking there, Hot 'n' High." (with apologies to the late Tom Wolfe for my copying the opening line of his 1968 New Journalism book, The Electric Kool-Aid Acid Test)

1) The starting point for any of my thought process about the midair collision is that this accident should never have happened and would not have happened without some parts of "the system" failing to fulfill their assigned responsibilities. Midair collisions in U.S. airspace are an aberation, aren't they? I sense that many aviators and other aviation professionals don't want to say it out loud - their sense of disbelief that this actually occurred.

A few years ago, in response to a question after a guest lecture he had delivered at an ICAO event in Montreal, then-Chair of the NTSB Robert Zumwalt said, "we've already had that accident" . . . the question was about whether an accident caused by certain factors which were, in fact, present in the Colgan Air accident needed to happen, in order for certain rules to be changed. (I don't want to misstate the q&a, although my best recollection was that the question was about fatigue and rest, and commuting time before line service.) In other words, the DCA midair is not an accident the primary causes of which were factors the overall aviation system had not quite learned to do correctly. In comparison, at the time I first began "reading aviation", wind shear accidents were occuring not infrequently (that beginning was December 1974).

I have not represented anyone or anything in air crash litigation and my posting here is not intended as what most lawyers call "client development and prospecting." Despite that, I think the opening statement on behalf of the families of the victims of this accident will be quite a courtroom moment. It's against this backdrop that I've been trying to think through the federal entities' most likely defense. There is some sense, maybe only vague, that how the anticipated lawsuits play out will have some impact or bearing on how the overall aviation system responds to this tragic occurrence.

2) Not for the first time my choice of phrasing was too emphatic and also imprecise. I didn't mean to point to ASIAS as a foundational or ultimate component of decisions about safety of DCA airspace management and usage. Instead, the content of some of the incident reports pointed out by Juan Browne struck me as glaring. They struck me as strong evidence of two things; one - as noted above, this accident was the kind of occurrence caused by some part of the system not fulfilling its responsibilities, and the other, that there were pretty clear statements by "bottom-up" reporters about such responsibilities appearing to be unfulfilled at particular times and in particular situations.

So, from these two foundations, I'm trying to figure out whether the discretionary function exception applies or does not apply. If it applies, the federal court will not have jurisdiction over the claims and the federal defendants will enjoy immunity (irony intended). I apologize in advance for what follows next (it is quoted in full from Congressional Research Service Report (R45732.8, April 17, 2023) "The Federal Tort Claims Act (FTCA): A Legal Overview". I would not clutter up this respected forum with legal material were it not arguably necessary for meaningful discussion of what is likely to happen next in the aftermath of the night of January 29.

CRS:
"[T]to determine whether the discretionary function exception bars a particular plaintiff's suit under the FTCA, courts examine whether the federal employee was engaged in conduct that was (1) discretionary and (2) policy-driven. "If the challenged conduct is both discretionary and policy-driven," then the FTCA does not waive the government's sovereign immunity with respect to that conduct, and the plaintiff's FTCA claim must therefore fail. If, by contrast, an official's action either (1) "does not involve any discretion" or (2) "involves discretion," but "does not involve the kind of discretion\x97consideration of public policy\x97that the exception was designed to protect," then the discretionary function exception does not bar the plaintiff's claim.

Whether the Challenged Conduct Is Discretionary

When first evaluating whether "the conduct that is alleged to have caused the harm" to the plaintiff "can fairly be described as discretionary," a court must assess "whether the conduct at issue involves 'an element of judgment or choice' by the employee." "The conduct of federal employees is generally held to be discretionary unless 'a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'" If "the employee has no rightful option but to adhere to the directive" established by a federal statute, regulation, or policy, "then there is no discretion in the conduct for the discretionary function exception to protect." Put another way, the discretionary function exception does not insulate the United States from liability when its employees "act in violation of a statute or policy that specifically directs them to act otherwise."

Even where a federal statute, regulation, or policy pertaining to the challenged action exists, the action may nonetheless qualify as discretionary if the law in question "predominately uses permissive rather than mandatory language." In other words, where "a government agent's performance of an obligation requires that agent to make judgment calls, the discretionary function exception" may bar the plaintiff's claim under the FTCA. Notably, "[t]he presence of a few, isolated provisions cast in mandatory language" in a federal statute, regulation, or policy "does not transform an otherwise suggestive set of guidelines into binding" law that will defeat the discretionary function exception. "Even when some provisions of a policy are mandatory, governmental action remains discretionary if all of the challenged decisions involved 'an element of judgment or choice'".
[End CRS, all quotations in the excerpt as in original, and all footnotes omitted]

3) Which leads to this essential inquiry: which one - and the answer cannot be "both are involved" - is closer to what happened: the federal entity individuals involved at all levels acted in violation of a statute or policy that specifically directs them to act otherwise", or, the federal entity individuals' "performance of an obligation require[d] that agent to make judgment calls", and "all of the challenged decisions involved an 'element of judgment or choice.'"

On one hand, the imperative of separation of aircraft in controlled airspace is pretty absolute, as far as I have been given to understand. There isn't any discretion or choice to risk a collision at an "intolerable" level of likelihood in order to keep traffic moving, both airline and the military and other helicopter operations in question. And that was the query I was attempted to point out: the midair collision at DCA on Janaury 29 looks like the proverbial death of a thousand small cuts, such that there never was any "judgment" or "choice" as those (admittedly ambigous) terms are employed in the statute and its interpretation. I should have been clearer about only imagining that one of many hypothetical situations where - arguing for the defense - someone was looking at ASIAS and proceeded with the calculating or reasoning which presumably would qualify as "judgment" or "choice." The larger point is that taking account of all the safety information in all the system elements which have been noted and others which might not have been noted here, mark me down as quite skeptical that there ever occurred a time, at a particular place, where anyone acting on behalf of the federal government exercised judgment or discretion that - contrary to the assessment of the NTSB Chair - the risk at DCA was tolerable.

Two caveats to wrap: I don't envy the advocates for the victims' families, as it will be terribly challenging to argue the facts of this case without appearing to cast aspersions on some or all of the pilots and controllers. Nobody wants that, and I certainly don't.

The other is that I do not think that the discretionary function issue will play out in the context of the actions by the pilots of either aircraft or the controllers. Rather it will be litigated with regard to the way FAA (and its parent Cabinet department, DoT) structured, managed, and operated DCA airspace. And this could include staffing policies and procedures (but again, not individuals' actions or inactions on the night of the accident). There may be some involvemenmt of civil-military coordination also at the agency level.

On a somewhat personal note, just a few years ago I traveled by air to a major European capital where a quite substantial and important aviation industry organization has its headquarters; the purpose was to attend a conference hosted by that organization. When the flight ended, because I had not previously traveled on a 787 aircraft, I asked the cabin crew if I could please get an invitation to visit the flight deck to see it, if doing so would not unduly delay the pilots from deplaning. When I got admitted to the flight deck, the captain invited me to sit in the LHS, and then gave me his hat and offered to take my photograph (yes, really). In the snapshots this SLF/attorney looks pretty ridiculous, and I wonder, "what am I, ten years old?" I hope neither this post nor any others look like they were written by that kid.

Hiya WR 6-3 , firstly, please do accept my apologies if I came over a bit harshly re ASIAS. I always read you input as, while the detailed legal nitty-gritty is generally way beyond me, you always provide a refreshing viewpoint which is good to read! The aim of my Post, based on my interpretation of the above quote, was just to emphasise the existence of ASIAS is just as a tool or, rather, a set of tools but which has no real "proactive function" in itself. Yes, it represents a very small part of the Flight Safety chain - but as a resource in the main. As you say, there were loads of examples of what happened at DCA and my post was an explanation as to who, I believe, should have been looking at it. Maybe they did - and just ignored it? No idea!

In the UK, the airport operator is totally responsible for the safety of operations on or above their field out to 4000 ft on approach and departure - about 12 miles. The CAA who regulates aviation here, along with the Dept of Transport, but in conjunction with other stakeholders such as NATS (our en-route ATC organsiation), airlines and airfield operators etc, designs the airspace and sets the generic rules for it's use. As you said, the main rule is "Don't crash anything into anything else!". However, at the airfield, it is the airport operator who needs to ensure that the generic rules work in their environment. If a particular rule is legal but, if applied in their location, is unsafe, they can't apply that rule! That's what the Safety Case should say.

A relevant example? I used to regularly (for work) transit London S > N and N > S along the red dotted line below - at 2400ft as it kept me just out of the London TMA but as high as possible so, if it had all gone quiet on the engine front, I'd have the best chance to get the plane onto the ground with me alive and no-one else hurt. As part of the transit, I had to cross the final approach into London City (green line). So, say heading N, I'd chat to Thames Radar while over South London and would ask for a London City crossing. They'd chat to City ATC to co-ordinate and take me to the Thames before handing me to City Tower. My route over the Approach has aircraft at 1200 ft descending on the ILS and so I would have crossed anything landing at 1200 ft above that. So, while on first glance, it was fine I never, ever got that clearance with an aircraft landing - and for very good reasons. If the aircraft on the ILS had had to do a go-around, life could have become interesting very quickly. I was always held until the landing aircraft was well clear (ie ATC could see it was almost at the airfield) before they cleared me across. Indeed, legally, they could have given me a "You see the landing? Pass behind that"! But, no - always positive clearances. Got my vote ....... + gave me chance to enjoy the views of Greenwich and the City of London and "delayed" me a couple of minutes. OK, a bit unfair as LCY is "sleepy hollow" compared to DCA but, despite that, they were very friendly ..... but very strict!!!!!



So, when you are discussing (I think!!!) whether ATC elected to give PAT25 a "You visual? Pass behind" or whether it was "ordered" from on-high as it was deemed safe to do, ultimately, it is the ATCOs call on the day. Now, before I get flamed, do I blame the ATCO ? No! Well, why not? After all, he gave PAT permission! And yes, it was a "legal" clearance. But was it a wise clearance? When unpacking that little lot you have to look at a raft of Human Factors which influenced that ATCO on that night. He was on his own so, probably, the only way he could cope with all he had on his plate was to try and shift some responsibility onto PAT25 - one less thing for him to juggle. But even then, he needed to be monitoring which he clearly was - but while very busy with other approaches and departures so he just picked up a concern too late as the audio shows - "Are you sure you see the jet?". Another factor - was the strategy to use Route 4 while 33 was active something ATCers at DCA, over time, started in an effort to cut down radio traffic and speed things up? If so, had it been assessed and then monitored for adverse safety? While anecdotally, it seemed people were aware of "close calls", had any analysis taken place looking at the Databases? In the UK certainly, all the Airport Operator responsibility.

To the final "accountability" part re payments to families, the thing we have here is (and, folks, correct me if I've got this wrong) the FAA set the rules and the operate the Rules. Here, the CAA sets the rules and the Airfield Operator operates the rules. That is important - for eg, huge argument here in the UK about just how independent the UK's Military Flight Safety organisation is ..... as it is part of the Military. IMHO, what we have here are valid generic rules, some of which were simply not suitable in this specific location - just like crossing London City with an aircraft on approach - legal ...... but very unwise. As to who carries the can, well, as you said WR 6-3 , the legal beagles will get to the bottom of that ..... but it will take some time. I'll leave that side to you!!! My main question out of all of this is, why were not these issues flagged up by airport management for further investigation given it was something of an open "secret"? And where else (around the world) is this happening?

And, on that cheerful note...........! H 'n' H

I think you might be under the impression that the Army, and the Department of Defense, would not have the "discretionary function exception" available. Both of those federal entities (and that's just convenient shorthand, not an actual definition of legal status) would interpose this exception to the removal of sovereign immunity.

I generally do see the raw facts of the accident as pointing to the acts, omissions, decisions and so forth by the pilots of the Army helicopter. But their conduct must be seen - and this must be an absolute hard line - within the context of what acts, omissions, decisions and so forth were taken by the all identifiable elements of the parties involved - the FAA, the Dep't of Transportation, the Army, the DoD. This context includes the night of the accident and many time periods before. At this time as just an observer well outside any actual fact investigation I'm not expressing a view about the manufacturer of the NVGs.

If you would like an example of an overly complicated argument which - on the state of the public record at present - competent (if not also highly motivated and driven) trial counsel would be advised to leave on the cutting room floor . . . What about legal accountability for the Congressional actors who kept overloading the DCA airspace until it broke, or rather two aircraft broke apart upon impact midair and further upon hitting and sinking into the Potomac, along with the shattering of 67 lives and the lives of perhaps countless family members and other loved ones? What about the denizens of K Street and their collections of multiple colors of Gucci loafers, the better to match the liveries of their airline industry clients? I mean, it could get complicated, and not that interesting either. (Disclaimer: there isn't any likelihood, legally speaking, of holding Congress to account for its actions with regard to DCA airspace management and usage. . . . . . you know, other than "voting" and a word that rhymes with "shmolitics.")

Nothing in the law is certain but I think a legal theory assigning responsibility to the military has a greater chance of success than one assigning responsibility to the FAA. Of course it is standard practice in such cases to sue everyone who could possibly be held liable.

It seems clear the helicopter crew made mistakes that don't qualify as an exercise of discretion. Under the FTCA the crew is immune from lawsuits but the government is liable for the consequences of any such mistakes they made. As it was the governments responsibility not to assign them missions for which their training was inadequate.

I don't see such a case against the FAA. Perhaps if you find some specific regulation that was violated.

I think there is a reasonable chance the government will concede liability. The FTCA doesn't allow punitive damages and FTCA cases are not tried by juries. So if the government concedes liability I see no reason there will be any evidence presented about the cause, the remaining issues will be the amount of damages.

This all applies to the people on the jet. The helicopter crew can't claim against the military because of the Feres doctrine. Perhaps they have a claim against the FAA but I think their chances are distinctly weaker than those of the people on the jet.

The discretion involved in the defense against availability of tort claims would not focus on acts or omissions of the Army crew. It would focus on the discretion which went into decisions about construction of the airspace, rules for its usage, and how these changed over time, and this defense could be developed on behalf of both the FAA and Army. Presumably the Army, not just FAA, had significant involvement in airspace management decisions, such as where the helicopter routes were drawn. And how the helicopter aviators are trained certainly involves discretionary judgments.

Where I continue to view the legal playing field differently is that essentially all the elements of the authorities responsible for construction and management of the airspace in question set it up so this accident could occur even if - in this case - the Army pilots followed every rule and procedure they had been trained to follow. To make the point with some absurdity, the way the Army crew was negligent was in refusing to fly the helicopter routes around DCA absent significant modifications in procedures and rules. What other meaning can reasonable minds give to the by-now cliche: it was an accident waiting to happen? Within the airspace as constructed and operated by both the Army and FAA (and any other users who, at an agency and/or interagency level, participated in management of DCA airspace), the helicopter crew could be said to have acted non-negligently - it was the airspace management system which was negligently designed and operated. As another poster noted, there was normalization of complacency.

As I've noted above, I've got no claim for expertise about the DCA airspace (or any airspace) but that does not stop me from asserting that it is hard to understand why you do not see deep liability exposure for FAA in this matter (prior to successful invocation of the discretionary function exception, of course).

I had to delve into Feres in some depth for my student law review article many years ago .... though that's not the only reason I hadn't noted its relevance and applicability. In any event, I recall it being pretty largely without exceptions.... probably you're correct about that aspect.

The trial lawyers I have met would not easily give up on devising a way to get this case in front of a jury and litigating all issues, including punitive damages. Perhaps a claim against the manufacturer and designer of the NVGs? . . . but then we'll see more posts about legal matters, especially the "government contractor defense" and the Boyle decision by the Supreme Court in 1988 (with some oversimplification, if the defense contractor follows reasonably precise specifications for the design of the military equipemt, it is protected against tort claims by, in effect, an extension of the government's immunity).

Conceding liability but without allowance for punitive damages or their equivalent will be tough sledding. Fatalities in this country in airline accidents had, thankfully, become rare. This lends brutal poignancy to descriptions of the lives and imminent futures of passengers on the CRJ. And despite the lingering in American law of the Feres Doctrine, of the Army crew too. Perhaps some fund would be established by the sages and scholars of the United States Congress and an eminence grise (such as the inimitable Mr. K. Feinberg) would hear claims and assign value.

To give an example. I live in the northeast. Some of roads are old and not built to modern standards. In particular sometimes the overpasses have limited clearance. This is unsafe. You could even describe such overpasses as accidents waiting to happen. Nevertheless if you are driving a truck and you don't plan your route properly, you ignore the signs saying no trucks on the expressway, you ignore the signs saying low clearance ahead you disregard the fact that you are about to try to drive under an overpass which is lower than your truck is high and you plow into it at sixty miles an hour then you were negligent. And you don't escape legal liability because the road was badly designed.

Hiya layman54 , welcome!

Agreed 100%! After all, many air accidents are because pilots are in the wrong place - a good example is the current sister Thread to this one covering a plane which started to take-off from a taxiway - sadly a regular occurrence. Lots of people are asking "How on earth......." - but they did, just as others have done before them! I'll not comment further as the discussion is on that Thread anyway which you can read and the Investigation is early days so far.

However, one of the reasons aviation is so safe today is because the aviation community realised a big driver to improving safety, based on the premise that humans are both ingenious in devising new ways to screw things up - as well as being quite capable of repeating the old ways too - was to understand if additional issues were contributing to those accidents. In particular, anonymous self-reporting of "near misses" provides much valuable information enhancing the understanding of issues before anyone dies. There were many "near miss" reports relating to this route/runway as has been mentioned. But no-one joined the dots........

By understanding how those additional factors contributed to the near miss/accident means further mitigation could be put in place. Maybe one of the most significant - Flight Time limitations - have come about as, after a number of accidents, people realised just how a lack of proper rest significantly degrades human performance and so contributed to poor decision-making, particularly when under pressure. I just use that as an example of "contributory factors" - possibly not relevant here - the full Report is not out yet.

In this case, the helo crew ended up flying into a jet. But why did they do that? Well, when the NTSB recommended that Route 4 be closed, it described it as being "an intolerable risk to aviation safety by increasing the chance of a midair collision.". If the helo crew mistook another aircraft to one they should have been avoiding (a likely mistake) there was little effective mitigation to prevent that mistake leading to catastrophe - hence the recommendation from the NTSB. What there was in terms of mitigation - such as the ATCO - failed. The ATCO suddenly realised all was not quite right but he didn't have the time to come up with a solution to save the day and a collision happened on "his watch". I can't even imagine what he is going through right now every single day.....

Yes, by all means decide liability for recompense to those who lost loved ones on that fateful day - (top tip, go where the money is!). The legal people like our esteemed fellow PPRuNer, WillowRun 6-3 , will do that. What the aviation community itself wants to ensure is that such a mistake (which will happen again - as I said, whilst humans are extremely inventive in finding out new ways to screw up they are also prone to be quite capable of repeating mistakes ad infinitum) - never leads to such deaths in the future. That's why people look, in great depth, behind the obvious cause for the crash to see what more can be done. That's why it's so safe for you to step aboard an aircraft today.

To reiterate, in the words of the NTSB, the aviation world was running a route which provided "an intolerable risk to aviation safety by increasing the chance of a midair collision.". So, one question, who approved that ..... and where is the Safety Case to support that decision? Cue tumbleweed rolling slowly down the road......................

I hope this helps explain why it's wayyyyyy more than "The crew screwed up. End of story!". Cheers, H 'n' H

An irrelevant example.

What "rule" did anybody break in the DCA midair case?

The enthusiastic amateurs can spear the seemingly obvious culprits but that is not how aviation has become the safest mode of transport ever.

No they didn't; it wasn't a mistake, they knew which one they were avoiding. It just wasn't the one they ran into. Taking off on a taxiway is a mistake because we all know what a taxiway and runway are. But avoiding the "wrong" aircraft cannot be a mistake when no attempt or method was made or existed to verify they did have the wrong aircraft in sight.

Just don't pick on the helo crew.

This is what I hate about pilots' obligation to "lookout and See and Avoid". Weasel words written by some bright spark when the Wright brothers were flying but now exposing every pilot to a lawyer-fest when it is, in practical terms, very difficult to do these days with a mix slow and fast aircraft and busy skies.

There's more to these events than meets the eye...

Slow down, cowboy. Drive across the Cross Bronx Expressway at any time of day in your 13\x926\x94 truck. Damned near every underpass on those few miles and there\x92s a lot of them marked something between 12\x926\x94 and 13\x922\x94. I never noticed it until a trucker mentioned it.

There's two counterpoints there, though. Road safety has a much lower safety target than aviation safety (more a comment on a car-centric world than anything else), and the chance of that accident being fatal (especially fatal to an uninvolved party) are much much lower. I'd also hazard a guess that a number of those bridges have warning systems that trigger some kind of stop signal if approached by an overheight vehicle.

Let's say that the reasoning you have described is not only valid but also the dominant theme of an anticipated trial. Is it not difficult to contemplate a trial in which the central theory of liability is invoking a dread phrase, one with both the words "pilot" and "error", or at least the "negligence" version of that phrase. This would be a horrible case to see unfold. Of course the lawyers representing the families and other loved ones of the accident victims will press hard to make exactly such an unfolding happen - and their clients, the families and other loved ones, will be pressing just as hard as the families of the MAX accident victims are doing in the criminal case in federal court in Texas, if not harder.

This is not a reason either to dismiss, or to claim decisivenesss of, any particular legal reasoning here. It is instead recognition that reasoning which points to the request for visual separation and then the failure to maintain it as the basic cause of the accident will produce a very unpleasant legal case. Think of the Army units assigned to this sort of duty, how they are trained to treat "continuity of governement" and transport of highly important (presumably) officials as a kind of higher calling - at least that's the impression given by several statements or articles. And one set of their fellow servicemembers are put in the position of being blamed, and not present even to try to explain what happened. And that's in addition to usual strident reluctance to assign responsibility to aviators in situations where things go wrong.

Over the past several days, it has become clearer that the airspace environment was indeed so compromised that, as SLF/attorney without technical expertise or even knowledge about airspace design, management and operation, it would be best to stop trying to refine an understanding of the causes and effects and instead leave the puzzle-solving aside until the NTSB report is completed and released. That said, the way Sen. Cruz pressed witnesses last week suggests that waiting for the report will be a difficult task.

I appreciate any and every acknowledgement of efforts to make positive contributions to this forum - thank you for your post!

As other posts have admitted I am biased against assigning responsibility in situations such as this one to any aviator. There additionally may be a somewhat unique factor in this case too (involving some personal history about Army aviation maintenance training circa 1975, enlistment as an alternative to dead-end mindless jobs, and studying German in high school and for a couple of semesters in college so that if I ever went to Germany in the Army . . . ).

"I will be neither surprised nor shocked if the lawsuits also name American Airlines, which has no protection obviously under the FTCA. It didn't do anything wrong ..."

Well presumably any lawsuit naming American Airlines will have to allege they did something to incur liability. The only such theory I can come up with is that the jet pilot should have refused the rerouting to runway 33 because he should have known that would increase the jet's exposure to reckless helicopters. Which is sort of blaming the pilots squared. Is that what you want to go with or do you have an alternative way of dragging American Airlines into this? Of course American Airlines is already involved in that they have a FTCA claim against the government for at least the value of their plane.

If my post is open to misinterpretation, then that's on me. In other words it's not a matter of affirmatively wanting to "drag" the airline into a lawsuit in which it would not be a legitimate party. Rather, in the exercise of forecasting the inevitable lawsuits (or at least applying some analytic foresight), and trying to think like counsel for the victims' families, a non-frivolous claim against the airline could open the case in total to claims for punitive damages. As you note, although in the role of claimant, for its hull loss the airline would likely be involved anyway. And so would its insurers.

Beyond that, and because my referring to making the airline a party is not meant to be trivial, the underlying idea is that establishment of a fund and claims process would be one of two main components of an approach to resolving the matter. The other component would have to be some - and I realize this is perhaps too much magical thinking - hard-truth reform and rework of airspace configuration and usage rules, nationwide. I don't wish to preach or pontificate, but this catastrophic accident happened after the Safety Call to Action, after the National Airspace Safety Team report, after the intense public, political, and international attention to and focus upon FAA in the aftermath of Lion Air and Ethiopian. So the underlying and motivating objective is to follow and apply former U.S. Amb. to Japan Rahm Emanuel's aphorism, "a crisis is a terrible thing to waste."

And yes, though it's hopefully non-frivolous, and despite it being a placeholder claim rather than an entirely direct claim, telling ATC "Unable" in re: Rwy 3-3 given the known airspace complications would appear the most viable option.

WillowRun

From your perspective then, could you clarify :

Controlled Airspace, See and Avoid re same, duty of care re ATCre controlled Airspace, specifically short finals, etc?
May as well add split or proportional liability??

I am trying to get even a basic understanding of how a large helicopter flew in visual flight rules into a jetliner on short final, which was on an IMC approach, on slope. Both were “legal”. The helicopter busted altitude by 125 feet vertically, and just exactly enough horizontally. Que?

The entire thread is devoted to that!
The airplane was not in IMC, it was a clear night. They were on a visual approach to 33 and got hit by a helicopter. The helicopter said they had the traffic in sight and obviously didn't. That is the short version.