Posts about: "DCA" [Posts: 332 Page: 12 of 17]¶

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.

Thanks for assuring that disscussion of (or at least posts about) legal issues on the thread do include proper legal terms and principles. Reasonable care, in particular.

And further as you say, it is possible that a particular crew operating under particular assigned roles and responsibilities, and given knowledge and familiarity with the way DCA ATCOs handle helicopter flights in and near approach corridors - knowledge and familiarity accumulated over time at the levels of both the individual Army aviators and their unit(s) - did in fact exercise care that was reasonable under all those circumstances. I think the second sentence of your post effectively says the same thing.

I cannot adjust my view of this accident to account for a bias against blaming aviators - it's not that I'm unwilling to make such an adjustment where assignment of responsibility is clear and well-established, but as merely an interested outside observer of the aviation sector (whether writ large or down to specific cases in court, or any other rack & stack of it) I have to acknowledge this bias. (The Pakistan 8303 accident, for example, was a situation in which responsibility was clear and well-established, if I followed the accident thread including report correctly). But self-adjustment of bias is unlikely.

So, what was reasonable care in this specific set of physical and procedureal conditions in the relevant moments prior to the midair collision? It might be a logical and factual conclusion to draw that, given (what I think can fairly be called) "normalization of complacency", do the acts and omissions of the crew really amount to negligence? As other posts here have indicated, I'm doubtful of drawing that conclusion. But given the highly aberrational nature of the occurence, what is there to which to assign responsibility, then? Well, the set-up of the airspace and how it was controlled - again, not by the individual ATCOs, rather by the system.

And it is the looming presence of that "system" which gives me pause about whether the invocation of the discretionary function exception would in effect bar the courthouse door.

A friend who sometimes reads threads here asked me recently whether I have any involvement in representing any clients or potential clients with regard to this accident. I definitely do not (just in case anyone reading wonders "what's in it for . . ." WR 6-3).

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...

Disappointed to hear that. Searching for or expecting genuine emotion in the political theater of a congressional hearing is like searching for virtue in a brothel.

I also watched the hearing and learned little new from the parade of platitudes and witness obfuscation. I thought far too much time was spent on ADS-B (an acronym which Maria Cantwell is incapable of uttering correctly). No discussion on use of visual separation. There were a few new points:

1. Cause of spurious DCA TCAS alerts. ME links in related thread.
2. When NTSB examined other Blackhawks of 12th AB fleet, found significant number which did not transmit ADS-B even when ADS-B switched on. One helo (accident helo?) was found to have not transmitted ADS-B for past 700+ days.

Unfortunately, and I hate to say this, I have reached a conclusion beyond those reached by other posters to this forum, to wit:
The US Army, in order to meet its mission requirements, really does not want civilian pilots (commercial or otherwise) to know where its helicopters are. My evidence for this is: The eagerness of the US Army pilots to assume responsibility for seeing and avoiding commercial aircraft; The DCA tower procedures that do not allow civilian fixed wing pilots to hear the conversations between the tower and the helicopters; The Army practice of turning off ADS-B out while on missions and training flights that follow mission profiles (as explained by the USA general in the hearing); The Army's refusal to produce the memo regarding its use of ADS-B to Senator Cruz.
Should the policies adopted by the US Army be regarded as the fundamental cause of this accident?

ATCDumbo
I'm all ears, excellent point. This focus on ADSB-OUT, and ADSB-IN is really a furphy in terms of this investigation to determine the facts, the whole facts and nothing but the facts.

If 5342 had ADSB-IN then PAT25 not having or not displaying ADSB-OUT could be relevant depending on 5342's cockpit display, the training of the pilots and their scanning.
5342 didn't have ADSB-IN so move along, move along, nothing to see, these aren't the droids you're looking for.

**Caveat. If the TWR display were using ADS-B for their updates and to generate Collision Alerts then the absence of PAT25 ADSB-OUT could be relevant.
But would the TWR ATC even know (or care) whether PAT-25 was ADSB-OUT capable. TWR ATC involves looking out the windows and judging the relative positions of aircraft.

Note: ATC display systems are not referenced in the NTSB Aviation Investigation Preliminary Report. This seems to be a glaring omission. So perhaps the NTSB are either very dumb or deceitful or both.

To further illustrate the focus on ADSB. Figure 1 Google Earth image with preliminary ADS-B data for flight 5342 and radar data for PAT25.
The ADS-B plots are 1 seconds intervals, the radar data are 4 second interval (as stated during US Congress Q&A).
So the focus is on the whizz bang ADS-B kit rather than what the ATC saw on their display.

There is reference to ATC radios, and 5342 was on frequency 119.1 MHZ and PAT25 was on frequency 134.35 MHZ. The ATC could've had them on the same frequency (changed PAT25 to 119.1 MHZ) but this would be abnormal. ATC Voice Switch systems like Frequentis, SITTI and Rohde & Schwarz typically have a frequency coupling, whereby controller broadcasts on multiple frequencies (2 or more) and voice communications on one frequency are heard on the other. In this case, ATC would broadcast on 119.1 MHZ and 134.55 MHZ and 5342 would hear instructions for aircraft on 134.55 MHZ, and PAT25 would hear instructions for aircraft on 119.1 MHZ.

Yes, visual separation is typically used close to an aerodrome where the ATC is applying visual separation to reduce the standard from 3NM to something less, 2NM, 1NM, or even less, depending on the circumstance which includes weather (included visibility), day / night, workload to monitor the separation, plus other considerations such as equipment.

I just wonder how many of the January Route 4 Helicopter plots crossing RWY 33 Approach (post 1346) were the result of ATC issuing a control instruction to change the track to closer to the shoreline or further over water.

Use of Route 4 during RWY 33 Approaches or RWY 15 Departures is possible providing a clearance limit is imposed prior to assigning relevant traffic, positive control instruction(s) and in the case of 5342, advising them of the relative position of PAT25 and that PAT25 would be maintaining separation from them.

Example for Route 4 southbound would be a clearance limit of Hains Point. Helicopter would be released past this point when there is no conflict (nil traffic) or assigned separation to avoid (pass behind). If there is a in-line stream of arriving traffic then Route 4 may not be available.

Sydney KSA has something similar for one of their helicopter routes - BONDI 5 (yep, named after the beach), delays may occur when RWY 07 is in use for DEP, or RWY 25 is in use for ARR. Further, the route is not available when RWY 16 PRM approaches are being conducted. Sydney KSA helicopter routes are in text form - TRACK TO..., TRACK VIA..., EAST OF..., and the INBOUND routes to Sydney KSA have a clearance limit in the clearance. A map display is very useful however it should be based on route descriptions. Perhaps the committee of 17 knows the history of the helicopter routes in and around DCA.

No, I think the US Army policies with regard to ADS-B will be found to be irrelevant to this accident. Brigadier General Matthew Braman is correct in that the US Army, and other government agencies with policing, security and counter intelligence responsibilities do not want their aircraft tracked on FR24 and the like. The MOU is key and may not see the light of day in the public domain. National Security will trump (sorry) other considerations, even safety, especially with so many high profile score buildings adjacent to DCA.

Since we\x92re discussing the DCA accident, let\x92s be clear about U.S. terminology as specified by 7110.65.

There is tower-applied visual separation . That is not relevant to the DCA accident.

There is also pilot-applied visual separation . That is what PAT25 requested and the LC approved.

As for the perfectly-safe visual separation, the DCA accident might have been avoided had the LC applied all of the elements of pilot-applied visual separation; i.e.

I'm applying SLF/attorney license here (hey, there's poetic license, so why not?) of repeating - with some editing - a post I placed on the R&N thread about testing at DCA.

1) Regarding ADSB-Out being turned off, what is the reason there was such emphasis placed on this at the recent Congressional hearing (and just scoring media points per usual in Committee hearings doesn't qualify as a "reason" in this context). Is the reason that there are objections to running the kinds of tests in question (per the R&N thread) in or near DCA airspace? Is it valid to say there is no connection to the chain of causes-and-effects which led to the midair collision on Janaury 29 (but if there is, what is that connection, specifically)? Is the reason some connection with the occurence of TA's and RA's on TCAS as documented by NTSB? (although other posts on the R&N thread indicate that ADSB-out isn't connected to TCAS advisories . . . that is, if I understood those other posts). Or something else? I'm dismissing the mere fact that FR24 doesn't provide information to enthusiasts as the reason for such emphasis in the hearing.

2) If the Army operates certain "missions" with ADSB-Out turned off, and it conducts these operations based on national security concerns, my initial thought about this practice is, . . . . . . . hey, isn't there a discretionary function involved in deciding what avionics (or electronics system if this isn't within the technical definition and scope of "avionics") to operate based on national security concerns? So the Senator declaring that there is "no justification" seems to deliberately overlook the existence in the Federal Tort Claims Act of the exception. (I realize there has not been, to my knowledge at least, any lawsuits filed yet. But they're certainly going to happen.)

Of course, this all said, the indictment of the structure and operation of the portion of the NAS in which DCA is situated might (as suggested previosly) itself be adjudged inconsistent and non-compliant with basic standards of aviation safety. The only not-crazy-sounding justification for that state of affairs would seem to be "but we have to move traffic in volume." As a legal wrangle over whether that obvious judgment of a "policy" nature is or is not a proper basis for keeping federal immunity in place in a particular matter . . . I am quite skeptical such a legal wrangle would ever make it as far as an actual courtroom proceeding. But will Congress not try to manuever itself into the issue for all the usual reasons - some people want actually to address the problem constructively, some just want to please their donors, and some just follow the crowd, or so it always appears.

3) Something about discovery in civil litigation was underscored by the exchange in the video clip: there's an Army memo, dated Aug. 9, 2024 as referenced by Sen. Cruz, about operating in the NAS with ADSB-Out turned off. And the Army so far declines to turn it over to the Committee. (Applying the rough equivalent of a pre-snap read by a QB, the manner in which the Army witness replied to Sen. Cruz's questions gave the impression that the Army and DoD will strongly resist the memo in question becoming public.)

[Okay, I'll refrain from speculating how much fun it would be to decide which officer or officers would be presented as the Person(s) Most Knowledgeable about the matters discussed in this memo (on the Army side, receiving the Rule 30(b)(6) deposition notice), or similarly, how much fun would be had by counsel describing the "subject matter(s)" which must be specifically iterated in a Rule 30(b)(6) deposition notice (on the plaintiffs' side).]

4. I'm very determinedly hoping this won't be read or even misinterpreted as an offensive point. In the YT video produced by "Mover" in which he interviewed a former Army helicopter aviator (post 1228), it was possible to draw the impression that Army helicopter pilots operating in the airspace in which DCA is situated have a certain attitude toward FAA ATC. That is, the Army operates - one could get the impression - in its own "airspace system" and deals with FAA ATC only as much and only as quickly as necessary. Listening to the pertient Jan. 29 ATC R/T, and knowing the visual difficulties presented by the basic facts of nighttime in that specific area of the DCA airspace, plus NVGs, an observer could get the impression that the Army aviator handling the R/T was doing so in a perfunctory manner on Jan. 29.

To explain further, upthread (in post 1261) in the context of a Mover/Gonky YT video (post 1228) someone much more knowledgeable than myself observed that the way in which the Army pilot interviewed in the video described communications with FAA ATCOs in DCA airspace was as if Army chopper pilots view FAA ATCOs somewhat as a nuisance. Far be it from me to fault any pilot over any practice or custom in anything, including comms with ATCOs. But faulting any pilot is not the point. The point is that in that YT video, as related that other poster, --
"it was suggested that it\x92s perfectly OK to second guess what ATC might have said to you, reply to that, and then if no correction is forthcoming you can comply with your guess. As others have pointed out implicitly, that works if there\x92s only one error involved, but here there were three: an untrue statement, leading to a wrongly issued clearance, and a missing read back."

It is known that ADSB-Out is not active on the Army and other certain missions in the relevant airspace. Is there also a pattern or practice of operating with a mindset that FAA ATC is a necessary nuisance, to be indulged but not focused upon as closely as other airspace users? If any reader asserts this question accuses the Army pilots or any one of them in the helicopter on January 29 of negligence - that would be incorrect. The way in which the airspace had been designed, managed and operated handed those pilots a pre-determined normalization of complacency - so it appears, does it not?. They operated their flight within the system they had been given, which does not constitute negligence. The designers, managers, and operators of that system . . . well, it will be for the courts to sort out whether the exception to the removal of federal immunity to tort claims applies to those systemic level actions, or not. If it were not for the existence of the discretionary function exception, I personally believe the race to the courthouse would already have been a feeding frenzy worthy of the most biting negative stereotypes about lawyers.

Speaking of immunities, wasn't it generally believed that the airspace within the NAS, and especially airspace in which major airports in the United States are situated, was immune to midair collisions, in general and not only collisions sudden, without actionable warning, and with at most two or three seconds' knowledge of impending death and disaster? Mere SLF/attorney as I am, I had believed that. It follows, but only under that mindset, that what occurred was obviously negligence, and even gross negligence. The point is, expect the lawsuits to be, in a word, consistent with the ugliness one feels seeing the wreckage pulled from the Potomac, or reading about the backgrounds of 67 people. Or both.

If the US Army has to keep its flights on published routes in the nation\x92s capital \x93secret\x94 and turn off ADS-B (not saying ADS-B would have saved the day here); we\x92ve already lost the \x93war\x94. There\x92s simply no need for this training\x97in a national emergency where continuation of government mission is necessary\x97there won\x92t be any civilian traffic at DCA. We\x92re talking 9/11 or nuclear war, not \x93do you I need to get to the Pentagon for PowerPoint briefing now, CWO\x94.

There would be hundreds if not thousands of demands for entrance, egress by "critical" players... Mostly egress

I really value your contributions, as you bring an analytical and legalistic mind to bear, and help others understand some of the issues. However... from my (simplistic) viewpoint, the helo pilot explicitly requested visual separation. That's explicitly requesting the right? responsibilty? to keep themselves separated from other traffic. This they failed to do. Surely that is negligence.

There were other holes in the cheese, so the pilot was working in a compromised environment.

I'm just an SLF, so no domain expertise at all.

Hi layman54 , I think it's much more subtle than that. As you say, other bits of the system may put the pilots into danger but you then need to fully understand why the Pilot(s) didn't save the day. You sort of start off with the premise that the crew of PAT25 took off that evening and certainly didn't want to fly into the CRJ - so, why did they?

To say so-and-so got it wrong is often obvious ........ but why did they get it wrong? That's often very complex and can involve a lot more people and a raft of other factors and that's where the really valuable lessons are to be found. That's the real reason behind any "bias" - it's so we don't simply stop at that first person (or persons) who got something wrong, but look at what led to them doing what they did and what other factors contributed to the end result . That is the real way Safety is improved. You can then look at appropriate mitigation to try and prevent that same scenario from setting up another crew to fail in the same way at a later date.

As others have said, height and track is a red herring TBH as the deal with ATC was for PAT25 to "see and avoid" so they could have quite safely passed behind the CRJ at the same altitude or even above it - but not too close due to things like wake effects. If you can't manage "see and avoid" safely, you need to build in much, much bigger safety margins - such as holding PAT until the CRJ had landed. Many, including me, have asked how on earth the PAT25 crew (or, indeed, anyone) could reliably be expected to pick out the CRJ in that scenario especially at that range. For vertical/horizontal separation, relying on a few 10's of feet up/down or left/right is simply worthless given errors with altimeters and piloting accuracy in such a high-workload situation where it's "eye's out" navigating and looking for traffic all at a couple of hundred feet above land/water which is quite unforgiving if you get too low (I know ex helo crew who are no longer here because they inadvertently hit the sea) - not to mention any issues with NVGs (no idea, never used them!). What the NTSB implied was that, by suggesting that such a set-up as Route 4 passing under the approach to 33 was intrinsically safe through vertical/lateral separation, was madness. The route was pulled almost immediately pretty much on that basis.

So, for example, based on the difficulty in picking out the correct aircraft from the inbound stream, one of the many questions I've been asking myself is "Why were the PAT25 crew so willing to say they had the CRJ in sight (twice they said that) in that environment?". Had that become "normalised" on the Sqdn, or were the risks of miss-IDing a/c not being adequately highlighted in Local Orders, particularly given the geometry of that specific set-up? There may be several reasons - that's for the NTSB to dig out. I used to do a lot of visual separation stuff Commercially and I was nervous as hell - and that was in wayyyyyyyy simpler scenarios in way better conditions usually involving just one other aircraft. ATC were the same - they were very pointed in making sure I'd really seen the a/c in question. Any doubts in my mind or the ATCs mind and it was either an orbit till traffic was well clear or, if busier, it was "Contact Approach ....... lets chat again when they hand you back to me on the ILS.". OK, the ILS bit is not applicable to PAT25 but you get my drift!

There is no one reason why this accident happened - there will be quite a list with each one contributing to the final outcome. Any one of those things, had they been different decisions by those involved on the night, or, for example, by those who designed and approved Route 4 way back when, would have saved the day. So correct not just the 1st issue you find, find out and correct ALL the issues! That's what we really need to do to stop similar things happening again, not just at DCA, but anywhere.

Anyway, hope the above helps with the context of the word "bias". It was not that long ago it was "Hang the crew! Erm, oh no! Someone else has done it now! Hang them too!" Rinse & repeat! Thankfully, we are much better at digging out all the issues these days. But we have to constantly remind ourselves to "Look for everything, not just the 1st thing you find!". Cheers, H 'n' H

I refer to the case of Lufthansa identifying night visual separation as a safety issue and deciding not to allow it, then one of their aircraft having to divert from SFO because of this decision. AA banning DCA 33 might have had the same kind of result.

Anyway, after 72 pages it seems fairly clear that separating IFR from VFR at night by visual means inside the circuit pattern of a major airport is not a great plan. This could happen anywhere in the US and it would be an interesting exercise for the NTSB/FAA to see how many separation losses there were at other airports, as they have the software to do that. It is easy to fixate on this accident and the immediate environment when similar setups exist all over the place. It\x92s not just about helicopters and the military - civil and fixed wing on that kind of clearance could be just as risk-bearing.

Who knows, you may be right. I think AA rocking up at DCA and stating that, as "policy", they'd never ever use the sidestep to 33 due to their own safety assessment flagging it up, esp if based on TCAS evidence, would have led to interesting discussions at senior levels. As you say, how that would have ended is anyone's guess. Bit academic anyway as there was no AA ban and the AA flight accepted it when offered it and the next AA asked for it on initial contact ..... not realising what had just happened! That's why I had a $ sign in my earlier post! The cynic that I am........

About those discussions at senior levels . . . If your reference to such discussions was meant to include not only within a given airline, but also some or all of the cadres of senior officials in the industry, U.S. government, international colleagues, and think tanks - those are the same discussions which are supposed to be going on now, in light of the NTSB's pro-active responses to the accident. Although it is a limited sample, in the accidents in which Board processes have been involved in the time I have been trying to keep up via PPRuNe and other information sources, I can't recall a similar "urgent recommendation" addressed to FAA as NTSB issued in this matter. Safety Alerts to Operators (SAFO's) yes, such as after Air Canada "There's no one on 2-8-Right but you" 759 in San Francisco in 2017. But not the same as what has issued from NTSB now. Perhaps I missed some salient details but the review which FAA became instructed and/or motivated to conduct would have a total NAS scope.

Or maybe such a review will, regrettably, require an Act of Congress (it should not require this, but, you know, K Street, campaign donors, the seniority system, and the generally stellar academic and career experience required prior to election to the Congress . . . . too bad elected represenatives are not required to build hours first).

Hiya WR 3-6 , no nothing grandiose, just a big user of DCA services talking to DCA managers at a working level about concerns they (AA) may have had re operating into the field. Normal business practice really. Of course, that may not be the way it works in the USA........ or elsewhere tbh. Corporations (Govt or Commercial) are skilled in the art of avoiding unpleasant issues as I have seen countless times!

But I doubt AA even did the analysis in the first place to flag up the issue to start with ......................................................... Nuff said in my eyes at least!

If someone at AA had said \x93hey I don\x92t like this side-step procedure at DCA, I think it\x92s dangerous and we have safety reports to back it up, let\x92s tell the pilots not to do the side-step until further notice\x94\x85\x85how would that have been received by their colleagues and DCA? Would DCA execs have pushed back on AA and threatened delays? If AA had implemented a policy like that ( easy for me to say with hindsight) what effect would that have had on the operating crews?
Would it have been like the Lufthansa who received no end of grief over the airways while trying to adhere to company policy?
If a CP had put their foot down and implemented policy like that would they be thought of as troublesome within their own Airline?
On that note\x85.. did any Airline have policy refusing the side-step in certain conditions? ie at night?
I\x92m enjoying the conversation and appreciating the thought that people are putting into their contributions so thank you.
Framer

"Unable"

Yes , this is the word I teach and hammer my students who are afraid to contradict an ATC instruction with which they are uncomfortable with . Very difficult for a under 100 hors student to get this , but I know 10.000 h ATPLs who have the same problem
That said it does not always work , the Lufthansa SFO R/T exchange was an abnormality to stay politically correct . But , back to DCA , I I would be interested to know if previous instructions to circle 33 while on finals 01 was a commonly used procedure , and if it was occasionally refused by some pilots in the past and what was then the reaction of ATC .. divert to Dulles ?