(Please note, this matter is not currently being litigated in Australia)
The accident at San Francisco International Airport on 6 July 2013 killed 3 Chinese teenagers and injured, many seriously, most of the remaining passengers on board. The passengers were a mix of Chinese, Korean, American, Canadian, Indian, French, Japanese and Vietnamese. There were also Thai crew aboard. The last injured passenger was only released from hospital this week after recovering from critical wounds she suffered in the accident, and following 30 surgeries. The patient will now continue her recovery in a rehabilitation centre.
Potential causes, state of investigations and government response
The crash has been variously reported to have been caused by a combination of pilot error and inattention, pilot training deficiencies, malfunctioning or inadvertent disengagement of the autothrottle system, and even deficiencies in the seat belts and evacuation slides (which some are arguing have contributed to the high numbers of spinal injuries among those injured).
The principal investigative body, the United States National Transportation Safety Board (NTSB), has not released its final investigation report, and this is not expected for some time. What is known is that the aircraft was too low and too slow on its short final (visual) approach to runway 28 L. The aircraft used a visual approach as the instrument landing system approach for runway 28 L was unavailable. It’s main landing gear and then tail struck the sea wall at the threshold of the runway, the tail and engines separated from the aircraft, and then the aircraft then came to a halt nearly a kilometre along the runway.
The United States, with prompting by Democratic Congresswoman for California Jackie Speier, has taken action to provide the Federal Aviation Administration (FAA) US$500,000 to research whether all commercial aircraft should be required to install verbal low airspeed warning systems. The hope is to introduce rules which require aircraft to have easily understood signals alerting pilots to dangerously low airspeed conditions. Present audible alerts in Boeing aircraft are “tones” whereas some other aircraft manufacturers use systems which provide verbal signals.
Update 3 December 2013: The NTSB has announced it will conduct a 2 day hearing on 10 and 11 December 2013 in Washington DC, as part of its investigation of the crash at San Francisco. This will assist with the gathering of additional factual information relevant to determining the safety factors responsible for the accident.
The NTSB has announced it will focus the hearings on “pilot awareness in highly automated aircraft, emergency responses, and cabin safety”.
The issue of highly automated aircraft was recently the focus of a study published by the Federal Aviation Administration (FAA) on 21 November 2013, which reviewed 26 accident reports worldwide from 1996 – 2009. The report revealed that pilots sometimes rely too much on automation, particularly given the modern prevalence of automated flight path management systems, and thus they may be reluctant to intervene with such systems, in certain circumstances, as a result. The FAA has made 18 recommendations which will lead to regulatory changes in future. The recommendations in the comprehensive (279 page report) include, in summary:
- Develop and implement standards and guidance for maintaining and improving knowledge and skills for manual flight operations.
- For the near term, emphasize and encourage improved training and flight crew procedures to improve auto flight mode awareness as part of an emphasis on flight path management. For the longer term, equipment design should emphasize reducing the number and complexity of auto flight modes from the pilot’s perspective and improve the feedback to pilots (e.g., on mode transitions) and ensure that the design of the mode logic assists with pilots’ intuitive interpretation of failures and reversions.
- Develop or enhance guidance for documentation, training, and procedures for information automation systems, e.g., Electronic Flight Bags (EFB), moving map displays, performance management calculations, multi-function display) or functions.
- In the near term, develop or enhance guidance for flight crew documentation, training and procedures for FMS use. For the longer term, research should be conducted on new interface designs and technologies that support pilot tasks, strategies and processes, as opposed to machine or technology-driven strategies.
- Research should be conducted and implemented on processes and methods of verification and validation (includes validation of requirements) during the design of highly integrated systems that specifically address failures and failure effects resulting from the integration.
- Flight crew training should be enhanced to include characteristics of the flight deck system design that are needed for operation of the aircraft (such as system relationships and interdependencies during normal and non-normal modes of operation for flight path management for existing aircraft fleets).
- Develop guidance for flight crew strategies and procedures to address malfunctions for which there is no specific checklist.
- For the near term, update guidance (e.g., Advisory Circular (AC) 120-71A) and develop recommended practices for design of standard operating procedures (SOPs) based on manufacturer procedures, continuous feedback from operational experience, and lessons learned. This guidance should be updated to reflect operational experience and research findings on a recurring basis. For the longer term, conduct research to understand and address when and why SOPs are not followed. The activities should place particular emphasis on monitoring, cross verification, and appropriate allocation of tasks between pilot flying and pilot monitoring.
- Operators should have a clearly stated flight path management policy as follows:
- Highlight and stress that the responsibility for flight path management remains with the pilots at all times.
- Focus the policy on flight path management, rather than automated systems
- Identify appropriate opportunities for manual flight operations
- Recognize the importance of automated systems as a tool (among other tools) to support the flight path management task, and provide policy for their operational uses
- Distinguish between guidance and control
- Encourage flight crews to tell Air Traffic “unable” when appropriate
- Adapt to the operator’s needs and operations
- Develop consistent terminology for automated systems, guidance, control, and other terms that form the foundation of the policy; and
- Develop guidance for development of policies for managing information automation.
- Discourage the use of regional or country-specific terminology in favor of international harmonization. Implement harmonized phraseology for amendments to clearances and for re-clearing onto procedures with vertical profiles and speed restrictions. Implement education and familiarization outreach for air traffic personnel to better understand flight deck systems and operational issues associated with amended clearances. In operations, minimize the threats associated with runway assignment changes through a combination of better planning and understanding of the risks involved.
- Continue the transition to performance based navigation (PBN) operations and the drawdown of those conventional procedures with limited utility. As part of that transition, address procedure design complexity (from the perspective of operational use) and mixed equipage issues. Standardize PBN procedure design and implementation processes with inclusion of best practices and lessons learned. This includes arrivals, departures, and approaches.
- Ensure that human factors expertise is integrated into the aircraft design process in partnership with other disciplines with the goal of contributing to a human-centred design. To assist in this process, an accessible repository of references should be developed that identifies the core documents relevant to “recommended practices” for human-centred flight deck and equipment design. Early in the design process, designers should document their assumptions on how the equipment should be used in operation.
- Revise initial and recurrent pilot training, qualification requirements (as necessary) and revise guidance for the development and maintenance of improved knowledge and skills for successful flight path management.
- Review and revise, as necessary, guidance and oversight for initial and recurrent training and qualification for instructor/evaluator. This review should focus on the development and maintenance of skills and knowledge to enable instructors and evaluators to successfully teach and evaluate airplane flight path management, including use of automated systems.
- Improve the regulatory processes and guidance for aircraft certification and operational approvals, especially for new technologies and operations, to improve consideration of human performance and operational consequences in the following areas:
- Changes to existing flight deck design through Supplemental Type Certificates (STCs) Technical Standard Orders (TSOs), or field approvals
- Introduction of new operations or changes to operations, to include implications for training, flight crew procedures, and operational risk management
- Actions: The new part 25 rule will help improve processes. Multiple efforts to streamline policy and procedure are ongoing.
- Develop standards to encourage consistency for flight crew interfaces for new technologies and operations as they are introduced into the airspace system. Standards should be developed which establish consistency of system functionality (from an airspace operations perspective) for those operations deemed necessary for current and future airspace operations.
- Encourage the identification, gathering, and use of appropriate data to monitor implementation of new operations, technologies, procedures, etc., based on the specified objectives for safety and effectiveness. Particular attention should be paid to human performance aspects, both positive and negative.
- Develop methods and recommended practices for improved data collection, operational data analysis and accident and incident investigations. The methods and recommended practices should address the following:
- When reviewing and analysing operational, accident and incident data, or any other narrative-intensive dataset, ensure that the team has adequate expertise in the appropriate domains to understand the reports and apply appropriate judgment and ensure that the time allotted for the activity is adequate
- Explicitly address underlying factors in the investigation, including factors such as organizational culture, regulatory policies, and others
- Provide guidance on strengths and limitations of different data sources and different methodologies and taxonomies
- Encourage the use of multiple, dissimilar data sources to provide better coverage of events
- Encourage the wide sharing of safety related information and analysis results, especially lessons learned and risk mitigations.
Update 13 December 2013: The NTSB has commenced its hearings into the accident, and early indications are it is focusing on the issue of the Korean pilots’ over reliance of automated systems over manual control skills. This focus was predicted in light of the recent FAA study which considers this to be a more generally applicable safety issue which is in need of more direct attention by regulators in the face of ever increasing technological advancement in cockpit systems. The focus on so called “automation addiction” follows the investigation into the Air France Flight 447 crash which was partially attributed to a lack of training of commercial pilots at manually flying aircraft at high altitudes due to the high level of automation pilots are becoming accustomed to.
Update 13 January 2014: Litigation has been commenced by representatives for the family of Ye Meng Yuan, the Chinese student who was tragically killed in the aftermath of the accident. A civil claim was brought by her parents (Gan Ye and Xiao Yun Zheng), and a more detailed, amended, claim was filed on 6 January 2014.
The defendants named include the City and County of San Francisco plus a number of its employees, agents and contractors such as the San Francisco Fire Department, Police Department and the San Francisco International Airport. The claim is based on numerous alleged state and federal statutory and other breaches of duties which resulted in the death of Ye Meng Yuan when she was run over and killed by emergency vehicles in the aftermath of the crash. The allegations include “failing to mark Ye Meng Yuan’s presence and/or location and/or protect her from vehicles in the area”, and “failing to remove Ye Meng Yuan from a hazardous location in the vicinity of the aircraft, where they [ie, City Employees] knew vehicles would be operating, spreading fire-suppression foam, and traversing”.
Interestingly, one of the allegations is that the City did not have suitably equipped vehicles citing the American norm is to have vehicles fitted with properly operating infra-red detection systems. A major theme of the claim was the training failures that the alleged breaches of common law and statutory duties signify. Over 38 individual City Employees were personally named as being involved with these breaches in a comprehensive 15 page claim document. Since the accident new training measures have been adopted for firefighters.
The damages and losses claimed by Ye Meng Yuan’s parents reveal that the magnitude of the loss for the family cannot be easily enumerated. In such claims in California there is no statutory cap on the damages which may be payable if the claim involves a sum of more than US$25,000. This claim will certainly result in a resolution significantly in excess of that figure.
Update 28th February 2014: In January 2014 the Shine Lawyers Aviation Law site ran an article which noted Qantas had fallen afoul of a regulatory requirement in the US enforced by the Department of Transportation (DOT) in its first enforcement proceeding for 2014 (here). The DOT seems to be ramping up its enforcement actions against non-US carriers and, yesterday, fined Asiana Airlines $500,000 USD for not adhering to its “family assistance plan” in the wake of the crash at San Francisco. Such plans are a requirement of non-US airlines under the US Foreign Air Carrier Family Support Act of 1997 (the Act).
The consent order (Docket Number DOT-OST-2014-0001, dated 25 February 2014) sends a message that compliance with family assistance plans put in place under the Act is not negotiable. The policy behind the Act is to assure the US DOT and NTSB that non-US airlines serving the US will provide various services to passenger and their families following an accident which results in major loss of life.
Eighteen assurances must be given in a family assistance plan, and 3 were the subject of allegations which were made out pursuant to this consent order:
- Asiana’s failure to establish a reliable, toll-free telephone number and provide staff to take calls from families of passengers involved in the accident (until 18 hours and 32 minutes following the crash). This was found to be in breach of the regulation.
- Asiana’s failure to notify families as soon as practicable after the carrier had identified the passengers. Asiana took 2 days to successfully contact the families of just three quarters of the passengers, and some families took 5 days to be contacted. This was found to be in breach of the regulation.
- Asiana was considered to have committed insufficient resources to carry out its family assistance plan, based on its response to the crash which involved using assistance from another air carrier to, for example, secure a hotel for affected and stranded passengers in San Francisco.
The breaches of the statutory obligations were all characterised by the US DOT as “unfair and deceptive practices and unfair methods of competition” in contravention of federal law.
In mitigation of the penalties, Asiana explained that it had faced substantial challenges in responding to the accident, and made monumental efforts to assist passengers and their families in the aftermath of the accident. It noted the accident occurred on the Saturday of the 4th of July holiday weekend in the US, and at 3:28am Seoul time. Furthermore, Asiana’s regional staff from Los Angeles had to drive the 8 hour journey to San Francisco because SFO was closed following the crash. The matters Asiana pleaded in its defence also included identification of practical difficulties in locating passengers’ families as some had booked through intermediaries like travel agencies in China (where the booking practice is not to give anything other than the travel agent’s phone number and such agents did not have contact information for families).
Notwithstanding these factors the US DOT concluded that the statutory violations were still considered serious enough to warrant enforcement action in order to deter such future unlawful practices by Asiana and other carriers.
Written by Shine Lawyers on . Last modified: November 13, 2017.