AA5342 Down DCA

[AirScotia]

Does anyone know whether DCA (via the FAA database) has a significantly higher rate of dodgy incidents per movement than other airports? Unless it has, I can't see how blaming the airlines is a starter.

[Hot 'n' High]

Originally Posted by AirScotia

Does anyone know whether DCA (via the FAA database) has a significantly higher rate of dodgy incidents per movement than other airports? Unless it has, I can't see how blaming the airlines is a starter.

I may have a dig round on the stats when I get time (currently sorting out heating in the house so quite busy with pipework everywhere!). But I'm sure many in the FAA etc have done exactly that and it's why the NTSB came down on the setup at DCA like a ton of bricks. IIR, they suggested that the FAA look to see if there were other similar risks at other airfields as well.

Also, there were some comments a while back in this Thread that there had been a number of "incidents" (ie TAs) at DCA. Also, it's not how many compared to X, Y or Z. It's not just down to simple numbers - risk assesment is way more than that. It's down to the SME's involved.

Just a few incidents should prompt a much more detailed analysis which then reveals the true risk. If there are more happening elsewhere, all that should do is make you look across the board and ask "Where else is this risk present?" despite no evidence to date - in other words they should have indirectly flagged up DCA.

The danger is an accident can happen the very first time a risk comes home to roost - if you are fortunate, you may get some "near-misses" first as a warning ..... but you may not! But, from what I've read, I'm not sure the NTSB saw this as an "out the blue" event - rather an "accident waiting to happen". Finally, safety is not purely numbers - it's appropriate/intelligent interpretation of those numbers. One event can be more significant than a history of 1000 of similar, but slightly different, events

Anyway, I've had my say and much of this has been said before anyway so I'll return to lurk mode! And my plumbing..... Deep joy!!!!!

[Sailvi767]

Originally Posted by missy

Actually, it's not the exact same scenario.

In the case you quote, Tower reported the traffic had you in sight. In the case in question, AA5342 was not provided traffic by the DCA LC.
In the case you quote, did Tower say that the traffic was going to maintain own separation? Did Tower provide a bearing/direction and distance to this traffic? Did Tower provide the height of the traffic?

This was a lot of years ago. I believe what was said was, “out of the turn VFR helo traffic will be at your 10 o’clock 1 mile. They have you in sight, cleared to land RWy33”. Don’t recall if a altitude was mentioned. Their altitude was on TCAS as 200’.

[layman54]

Originally Posted by BFSGrad

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

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

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

[layman54]

Originally Posted by WillowRun 6-3

On layman54's summary of the Complaint;

Sorry to return to law prof mode for a moment. The Federal Tort Claims Act waives, that is it removes, federal sovereign immunity. ..."

As long as you are in law prof mode one immediate issue appears to be the fact that the complaint asks for a jury trial but the FTCA does not provide for jury trials. So I guess the case may have to be split in two. But another possibility appears to be the case may proceed with a jury trial but the jury's decision will only be advisory as regards the government defendants. Speaking of the government defendants is the government obligated to provide a consistent defense or could we see one government lawyer representing the FAA blaming everything on the Army and another government lawyer representing the Army blaming everything on the FAA?

[Seabreeze]

dfierent

Aussie bush lawyer here, but I think the below is a common feature of democratic states. (Have seen such in Aus).

Congress passes laws to establish different agencies, and each set of laws provides powers and obligations etc. So each federal agency will have different viewpoints depending on their own legal establishment. And will retain their own lawyers. Could be overridden by government in power, however.

Seabreeze

[Musician]

Originally Posted by layman54

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

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

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

[artee]

Originally Posted by Musician

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

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

Weren't the jet and helo on different frequencies?

[Musician]

Originally Posted by artee

Weren't the jet and helo on different frequencies?

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

[Capn Bloggs]

I think it's not unreasonable to assume that words being exchanged in the cockpit/the extra workload prevented the pilots from noticing the ATC transmissions to the helicopter, and that would have impaired their situational awareness.

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

Originally Posted by Musician

Situational awareness is required for safe flight, especially in congested airspace.

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

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

[vegassun]

Originally Posted by Capn Bloggs

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


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

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

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

[WillowRun 6-3]

Originally Posted by layman54

As long as you are in law prof mode one immediate issue appears to be the fact that the complaint asks for a jury trial but the FTCA does not provide for jury trials. So I guess the case may have to be split in two. But another possibility appears to be the case may proceed with a jury trial but the jury's decision will only be advisory as regards the government defendants. Speaking of the government defendants is the government obligated to provide a consistent defense or could we see one government lawyer representing the FAA blaming everything on the Army and another government lawyer representing the Army blaming everything on the FAA?

I seriously doubt that this case would be split into two trials. You are (of course) correct that the FTCA does not provide for jury trials, but there are many examples of advisory juries being used by federal district court judges (as you also suggest) in FTCA matters. My inclination is to think that district court judges have little apparent reluctance to empanel advisory juries in FTCA matters because negligence claims would - other things being equal - be precisely among the archetypes of claims for which juries serve as the finders of fact.

The practice of using an advisory jury in FTCA matters is, nonetheless, not without its critics. (See, e.g., "Advisory Juries and Their Use and Misuse in FTCA Cases", 2003 BYU L. Rev. 185) (2003)). Perhaps interestingly, the cited law journal article opens with reference to the use of an advisory jury in a trial arising from the incident in Waco, Texas involving federal law enforcement.

But in the current matter, let it be recalled that there are non-federal defendants. So there will be a jury serving as fact-finder already, and it would seem an even less difficult or concerning step for the U.S. District Court judge to assign the jury for the "ordinary civil case" the additional advisory role for the FTCA claims. WIthout claiming any knowledge at the level of aviator or related aviation or engineering role, the overall factual development needed to present the claims against the federal defendants on one hand, and the civil defendants on the other, are so closely related that the advisory role also makes sense from that perspective.

But are there federal defendants, plural? The Complaint names as defendant the United States of America (and includes the nice touch of giving the country a defined term identifier, i.e., "USA" - Complaint, para. 8). So on two levels, I would not anticipate* divergent let alone clashing attorneys representing, on one side FAA, the other the Army. A litigant in federal district court, to the best of my knowledge, has one lead counsel, and I'm unfamiliar with any practice of splitting the defendant. It might have a nice ring to it; I can almost phrase a law journal article built upon it..... "Splitting the Defendant: the Perils of Beat-Generation Hipster Slang in Federal Practice"...... but I digress.

Secondly, I have serious doubts that the "federal powers that be" will fail to coalesce around the essential facts and defense arguments. (There is a sub-sub-agency within the Department of [formerly Defense] War known as the Policy Board for Federal Aviation. I have no experience working with the Board but I have worked information about it - or tried to do so - into academic work. My understanding, provisional (or provincial) as it may be, is that a conflict between U.S. Army PAT helicopter training requirements, and associated practices and habits of the units involved on one hand, and proper structure and operation of the DCA airspace on the other, would be precisely the kind of matter to be brought before the worthies of the PBFA - but I don't "know that for a fact".) In any event, the FAA and the Army, with the NTSB about to levy some pretty heavy criticisms against them, are very unlikely I think to confront each other. In court, anyway.

* How exactly the USA will deal with representation of the FAA on one hand, and its statutory parent Department of Transportation, and also of the U.S. Army, is of course a matter to be considered, evaluated, and decided upon by the Justice Department. There have been sufficient divergences from what conventional wisdom would say DoJ would do (or not do) in particular situations in recent weeks such that I think it wisest not to venture any comment about the overtly political nature of the decisions which will have to be made. Besides, in my career I have not had the occasion to represent the United States in any legal matter, so.

[Musician]

Originally Posted by Capn Bloggs

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

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

I did not use the words "maintain situational awareness". I'd be hard pressed to pin down when SA is "maintained" and when it is not. To my understanding, SA is something you can have more or less of, and having more is safer, and has prevented some accidents in the past.

I also don't advocate for that issue taking center stage, but to taboo it and to say we can't talk about it ever doesn't seem right, either. The central issue in this accident is ATC's decision to routinely leave separation in the hands of a heli crew with night vision goggles and less than 75 feet of procedural separation. But we all know this by now if we've watched the NTSB presentation, so please excuse me for not repeating this with every post.

The central issue of the lawsuit is whether the level of safety provided by FAA rules, FAA/ATC procedures, Airline decisions and SOPs, Army decisions and SOPs, and pilot performance on the day are sufficient to legal standards. It's a complex interplay of factors, and even though it's clearly far from the deciding factor, I'm not going to say that a late approach briefing did not matter at all.

[WillowRun 6-3]

Originally Posted by Hot 'n' High

.......
WR 6-3, again, my apologies and please rest assured my comment was very tongue-in-cheek hence my initial apology! That those who suffered from this tragic accident receive recompense as a very poor substitute to not still having their loved ones with them is absolutely essential! My comment was more along the lines that it looks like determining culpability will be quite convoluted...... hence the "lawyer" quip. If it came across as otherwise I, again, unreservedly apologise!
.......!

There was no need to apologize in the first instance, H 'n' H, as far as I was concerned - and in retrospect I should have said so. I mean, among other reasons, although I'm a guest on this forum it is not in the form of some sort of self-proclaimed representative or spokesman for lawyers in general or any of them.

In a contingency fee matter, it obviously is not certain that the lawyers will do well (that's the entire point of making the fee contingent on the outcome). But in this particular matter, both sides of the equation are fairly obvious - there is very high likelihood for a large damages award (or settlement) - the facts are too compelling. And therefore, the attorneys will do well too.

I guess the intended humour eluded my limited sense thereof, or just plain limited sense.
Cheers!
WR 6-3

[ATC Watcher]

Originally Posted by BFSGrad

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

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

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

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

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

[MechEngr]

Not doing a briefing on this approach would be an argument if the briefing included out-of-position traffic crossing the flight path. I suppose that admonition is a constant, but the physical arrangement of the windows in the jet and the near constant bearing camouflaging the helicopter against the city lights may have rendered that an impossible task. The same admonition applied to the helicopter crew who would have had a view of the landing lights and the navigation lights well above the horizon, but had purposely been equipped for this flight with view-limiting goggles.

The benefit of suing the airline may be to allow the airline to use that as leverage against the FAA and the Army over their losses and maybe pressure both to take steps to eliminate the possibility of happening again.

Have I just missed it or has the US Army been very quiet about this event and what changes in procedures and equipment they might make?

[WillowRun 6-3]

Originally Posted by MechEngr

.....

The benefit of suing the airline may be to allow the airline to use that as leverage against the FAA and the Army over their losses and maybe pressure both to take steps to eliminate the possibility of happening again.

Have I just missed it or has the US Army been very quiet about this event and what changes in procedures and equipment they might make?

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

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

[Hot 'n' High]

Originally Posted by WillowRun 6-3

..... I guess the intended humour eluded my limited sense thereof, or just plain limited sense. .....

Way more likely my inability to express myself clearly ..... plus the dark humour I've been infected with from my Mil days.....

Back on topic, let's hope real good comes out of this dreadful accident..... in many areas.....

[WillowRun 6-3]

Originally Posted by ATC Watcher

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

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

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

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

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

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

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

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

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

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

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

[ATC Watcher]

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

To answer your 2 questions , the fist one is easy , over my nearly 50 years of aviation experience , except recently where we start to discuss seriously Human factors, Fatigue , Mental well being , it was always to blame the Pilots or the controllers first when you can , and protect management and manufacturers was the priority
Al Wiener had even a law for that in the 1980s : .

Law # 21. :In aviation, there is no problem so great or so complex that it cannot be blamed on the pilot.

To the second question , concrete examples, yes there are . For instance ,nearly all the Japanese accidents and serious incidents resulted in pilots or controllers" being thrown under the bus" as you say , ,some sent to jail, and fired , because in their legal system someone has to be blamed . Watch the upcoming Haneda one .
It you want one , the one I know pretty well is . the Nantes ( France) collision , 2 civil aircrfat under military ATC ) Iberia and Spantax) back in 1973 , at the first trial the Spantax pilot was blamed to protect the military ATC institution , (but overturned in appeal a few years later )
In the US I do not immediately recall any particular involving military ops but there must be some similar to KDCA,, maybe someone has time to run through a proper judicial database .