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Boeing 737 Max Recertification Testing - Finally.

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Boeing 737 Max Recertification Testing - Finally.

Old 18th Jan 2021, 19:15
  #661 (permalink)  
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FlightlessParrot

My point exactly. I thought two people were not to be required ? Also, how would they have done in a high G load environment, nobody can tell. And it got certified somehow, beyond me. Time will tell if they were right.
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Old 19th Jan 2021, 10:59
  #662 (permalink)  
 
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EASA will unground the MAX by next week according to a statement of Patrick Ky as of today. Ky expects Ryanair to be able to use theirs this summer.
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Old 19th Jan 2021, 15:17
  #663 (permalink)  
 
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So, the experts have determined that the flaws of the 737 MAX that lay behind the two fatal accidents have been remedied. I certainly hope so.

Of course, there are also institutional flaws that permitted the original design and approvals of the 737 MAX. Perhaps such institutional flaws have permitted other flawed type designs and approvals we are not aware of, and hopefully do not lead to catastrophic consequences. But it is these same flawed institutions that have determined the redesigned 737 MAX now complies with safety standards.

The work has only begun. Is anyone at work to diagnose the institutional flaws and resolve them? The infection runs deep.
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Old 19th Jan 2021, 15:33
  #664 (permalink)  
 
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Boeing has pushed all their chips to the center of the table and all the cards have now been dealt. One more MAX accident that has any nexus to a system or design/manufacture failure and Boeing is done.
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Old 19th Jan 2021, 16:41
  #665 (permalink)  
 
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Legal Update - part 1

Realizing that too much commentary on legal developments in any of the various lawsuits (or legislative initiatives) which are ongoing in the wake of the 737 MAX debacle can rapidly become unwelcome here, this post reports some relevant (and, to this SLF/attorney very interesting) changes in status of some pending lawsuits. Realizing too that even any legal commentary can be rapidly criticized, this post might be questionable. But on the other hand, there have been several exhortations to impose harsher punishments on the corporation, its officials and leaders as well as for stricter scrutiny of the regulatory authorities, and surely no responsible aviator would condone so-called rough barnyard justice, replacing rule of law.

One change in legal status is that the U.S. District Court in Chicago has dismissed a proposed class action lawsuit that was filed on behalf of a (proposed) class of Southwest flight attendants. I'm not attaching the court ruling here (but it's easy to find on Pacer). It's the Christensen case.

The gist of the dismissal by the District Court is there were insufficient allegations that the problems with the aircraft (as already admitted by Boeing as well as still in controversy), even if all true and valid, add up to legal claims that these specific litigants can make in court against Boeing. (known as "failure to state a claim upon which relief may be granted", technically).

But the case has relevance beyond its short life on the court docket. In the proposed class action against Boeing by a large group of pilots from a good number of different countries and airlines, Boeing filed a motion seeking to consolidate the SW flight attendants' proposed class action along with the lawsuit by the pilots. That has become a moot issue now, since the flight attendants' action has been dismissed. Here's a link to a reliable legal news outlet article on this case:
Southwest flight attendants' lawsuit over Boeing 737 MAX grounding tossed | Business Information & News | FE | Westlaw Today

There was another lawsuit centered on Southwest but it too has been dismissed. It was filed by the SWAPA, the labor organization of Southwest pilots, and ended up with a dismissal in Texas state court in early November. From a lawyer's viewpoint there is a lot more to discuss about the legal claims, and factual allegations and context, of the pilots' suit. Anyway, here it'll just be noted as having been dismissed.

(No comments in this post or otherwise should be taken as any opinion or legal advice about the appellate prospects in either case.)
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Old 19th Jan 2021, 17:11
  #666 (permalink)  
 
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Legal Update - 2nd/end

Probably of more interest here - and especially to folks who advocate stronger measures against Boeing and its officials and leaders - are a couple of court filings in the proposed class action on behalf of a large number of pilots qualified on the 737 MAX in various countries around the world. The case was briefed on Boeing's motion to dismiss some months ago. There were some skirmishes procedurally prior to this defense motion. Like the dismissal motion in the Christensen lawsuit, this one argues that even if all the allegations of fact made by the proposed class of pilots are true, Boeing owed the pilots no legal duties whatsoever in these matters. In other words, everything alleged is assumed to be true, but - or so Boeing argues - the allegations do not add up to a valid legal claim (and in a few aspects, are not stated with the necessary degree of detail or particulars required by federal court procedural rules).

Enter the Federal Aviation Administration and also, the United States Department of Justice. Or, at least their work-product. To explain...

Courts can take "judicial notice" of facts that are more or less indisputable. The score of the Bucs-Saints game in the playoffs could be judicially noticed. It's got to be something that is truly a matter of fact.

A few weeks ago attorneys on behalf of the proposed class filed a motion asking the court to take judicial notice of four documents - each centrally and critically important (in my view) - relating to the return of the aircraft to service. These are: 1) Recission of Emergency Order of Prohibition; 2) Airworthiness Directive, 14 CFR Part 39, 2020-24-02; 3) Continued Airworthiness Notification to International Community; and 4) Flight Standardization Board Report (revision 17). Familiarity with these documents, issued by FAA and on its website as of or about 18 November of last year, is presumed - at least enough to realize quite quickly that they certainly do weigh heavily on the basic legal issues in the pilots' proposed class action - and taken collectively?....well, this post is seeking some measure of objectivity.

Surprisingly or not, the District Court judge ruled these FAA documents not relevant. (I haven't had time or a bill-paying client sufficient to read and study the various court decisions about who is correct on the legal point of what can be "judicially noticed" when a defense motion like the pending one is at issue. Still, on basic legal-thinking first impression, I cannot imagine what legal reasoning conceivably could support a ruling that FAA's administrative action as reflected in these documents is not sufficiently relevant to be judicially noticed in context of the pending motion.)

Then, the attorneys for the proposed class of pilots filed a second motion - I'd venture a nice wager people following this thread already have guessed what it covers - seeking judicial notice of the Deferred Prosecution Agreement and the Criminal charges filed in Texas federal court. You know, the court documents in which Boeing formally admits that information provided to FAA and for pilots was materially false, inaccurate and incomplete. By which Boeing evades, escapes and otherwise is unfettered by criminal prosecution for fraud and conspiracy. This second motion seeks notice by the judge of the DPA and specifically the lengthy Statement of Facts which is part of it.

Only what little measure of lawyerly discretion I sometimes think I may have left, keeps me from spouting off about how obviously relevant these Department of Justice, federal court filing documents are to the issues in the motion to dismiss.

(Again, no legal advice or opinion should be or can be taken as part of this post, with regard to any appellate prospects of any ruling or otherwise.)
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Old 19th Jan 2021, 19:15
  #667 (permalink)  
 
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In an attempt to deal with a possible desire of passengers to avoid the MAX AirCanada has developed a policy to allow bookings changes. I wonder if other carriers will follow suit?
https://canadianaviationnews.wordpre...d-the-737-max/
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Old 19th Jan 2021, 22:13
  #668 (permalink)  
 
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Willow Run,

Thank you for this update. I do not think that many of those who post here have your level of overview and understanding of the legal dimensions of this disaster. Your inputs are real value.
Clearly the old Boeing we knew from the Seattle days is dead, with the Max as its tombstone.
The challenge now is whether there is a possibility of setting a legal basis for honest dealing. Clearly the District Court has a different view, but hope springs eternal.
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Old 19th Jan 2021, 23:25
  #669 (permalink)  
 
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The “old Boeing is dead”! Oh really? Hundreds of passengers and crew are, yes. But Boeing is alive and kicking, building and selling airplanes. People trade Boeing stock daily.

I don’t want to see Boeing dead, either, but Boeing and it’s regulators need a heart transplant. The well-being of so many people, employees, suppliers, etc., desperately need a healthy Boeing. But today’s Boeing is not good enough. Perhaps, some positive changes are underway, I hope so, but there needs to be a corporate personality transformation.
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Old 20th Jan 2021, 04:39
  #670 (permalink)  
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WillowRun

With respect,
I consider your response quite obtuse, so say what you want, lawyers/solicitors are all the same IMHO.
Regarding your comment quote," it seemed to be clear that pilots, first of all, generally aren't in the business of conversing with people who don't know what the pilots are talking about" unquote.
There have been several posts that I have responded to in various forums over the years to SLF and "spotters" (look that up) to try and answer their questions.

This isn't a "lawyers forum" it is a professional pilots forum so please take your "legalese" speak" and be more respectful of every professional pilots on this board who has respected you and tolerated your points of view in your posts.

You may uphold the "oath of adherence" which I am reasonably familiar with, but certainly that isn't reflected in the lawyers representing Boeings position with regard to the MAX accidents in wanting "to move the court cases to another country" as stated when asked by the committee during the congressional hearings!

IOW, the judicial system is broken in the US, period dot. Nuff said!
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Old 20th Jan 2021, 09:00
  #671 (permalink)  
 
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Willow. A simple question (without page sapping repetitive quotes and re-quotes).

The 737Max crashes involved an assumption, by Boeing, that crew would be able to detect and manage the failure.

Within Boeing there was prior evidence that this assumption was incorrect (sim tests - reaction time) and should have been reconsidered, vetted and checked (safety oversight - process failure). Also, that the assumption should not have been justified based on Boeings knowledge and experience of building aircraft, a policy for automation to keep the pilot in the loop, and previous accidents. (Examples of flawed assumptions - crew's perceptions from THY and Asiana accidents - Boeing failed to learn).

Would the above be a foundation for a claim against Boeing for the wide ranging consequences?
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Old 20th Jan 2021, 12:55
  #672 (permalink)  
 
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alf5071h . . . yes.
IIRC the Federal Air Regs or one of the related although less authoritative other types of FAA regulatory items referred to "the average pilot". I don't recall whether that regulatory item, in turn, defined the reaction time as 4 seconds. Regardless, what you describe about what Boeing people knew and when they knew it, and to what extent the corporate entity is legally accountable for the acts and omissions of its people, does provide a basis for liability actions in my view. I've avoided commenting here on the main liability lawsuits against Boeing brought on behalf of the surviving family members or other representatives of the individuals who died in the two crashes, for reasons .... for lawyer-type reasons. But it could very well be the case that in those lawsuits, the very point you raise is receiving major play. (I know, were I involved as attorney of record for those people in those kinds of actions, I would certainly have a modest regiment of attorneys getting ready to present, in terms a jury will understand, the flight testing process, the role of the two technical pilots whose conduct led to the DPA, and much more.)

To 568, I am very apologetic for continuing to give offense. It was in no sense the intent. If it is possible to tolerate one further comment, though....
The defense motion to transfer a case from a court in the U.S. where juries are likely to award large damages amount, to a court in a different country, is indeed a very cynical move when viewed from many perspectives. Yet it is stock in trade for the defense bar, which -- I agree -- is a reflection on the sad state of much of the legal profession.

One last point I'd suggest for your consideration, is that there isn't any other forum where lawyers interact with professional aviators. In fact the state of legal education in the field of public and private international air law is in many senses anemic, quite ineffective, and overall proceeding with barely more modernity than tail fins on large Caddys from 1965. And in the world of practice, well, it's all about the equivalent of Show Me The Money, as you know.

But the issues presented by the 737 MAX debacle aren't going to be addressed successfully without participation by attorneys. The Inspector General of the Dep't of Transportation is an attorney; that report was a major positive factor in the DOJ reaching the Deferred Prosecution Agreement - yes with largely unsatisfactory penalties but with significant binding admissions of very, very damaging facts by Boeing. Same with the attorneys who staff the House and Senate Committees whose reports have done a lot to advance the reining in of a degenerated Boeing corporate entity. And a similar case can be made about a large portion, maybe a majority, of the contemporary issues in civil aviation. The courtroom system is flawed but until there is a better system ready to launch, is there an alternative? I don't think you would say the lawsuits against Boeing should just be dropped because one lawyer on some internet site offended one pilot.
It's fine (not that anyone needs permission in a free speech environment) to loathe the status of the legal system, attorneys in general, and particular individual legal counsel. The question becomes, however, what will improve the situation? That's the only reason this post and the rest I've posted exist here at all.
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Old 20th Jan 2021, 17:15
  #673 (permalink)  
 
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The old Boeing was founded on the explicit strategy of 'Let no advance in aviation pass us by', so an engineering culture, with hard nosed management and marketing to keep that in check.
That was replaced by a more 'shareholder value' oriented approach starting with Phil Condit. The consequences were apparent very early, seen in the wretched performance of the company on the 767 tankers for Japan and Italy.
No course corrections were ever made, just more Power Point engineering fixes.
Now we are facing the logical outcome of this change of course, a firm staffed with two decades or more of hires who have been indoctrinated with the 'shareholder value' mantra.
It will take a long time to rebuild the lost competences, especially as there is no obvious center of excellence from which a restoration could begin.
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Old 22nd Jan 2021, 01:08
  #674 (permalink)  
 
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Leaked news about settlement discussions with Ethiopian Airlines

Seattle Times reporting that attorneys advising Ethiopian Airlines with regard to the company's claims against Boeing have advised the company that it should reject a reported settlement offer by Boeing. Among other things the article states that the Deferred Prosecution Agreement, in which Boeing made admissions of fraud and conspiracy by its employees, would provide a basis for an award of punitive damages by a jury. As well, the article states the value of the settlement offer is far below what would be projected as recovery by trial.

Also discussed are various settlement factors as seen by the airline, such as the amount of its attorneys' fees, the risks of trial, its need for cash, and others. Some of the prominent attorneys who are involved in suing Boeing are quoted in the article (by the aviation writer at Seattle Times, Dominic Gates).
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Old 22nd Jan 2021, 03:42
  #675 (permalink)  
 
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What ever happened to the allegations that the MAX simulator re-certification tests were gamed by Boeing by having the regular line pilot test subjects get coaching on what was to happen and how to react, before the simulator event ?
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Old 22nd Jan 2021, 07:37
  #676 (permalink)  
 
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"What ever happened to the allegations that the MAX simulator re-certification tests were gamed by Boeing by having the regular line pilot test subjects get coaching on what was to happen and how to react, before the simulator event ?"

I'd have thought that any pilot involved in MAX simulator re-certification tests would have a pretty good idea of what might be thrown at them in the sim, without needing coaching.

Unless they have been living on another planet for the last year-and-a-half.
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Old 22nd Jan 2021, 09:38
  #677 (permalink)  
 
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My understanding was that the pilots were divided into two groups, one who received the coaching and one who didn't, to determine the difference between them. Seemed reasonable. Of course, this approach then lends itself to claims that "the pilots were coached", when it was just the control group.
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Old 22nd Jan 2021, 15:26
  #678 (permalink)  
 
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Children of Lake Wobegon

Willow. Thanks, #672 . Re 'average pilot'.
Although there are some documents which refer to an average pilot, the term is meaningless in safety regulation.
There should be no statistically below average pilots flying an aircraft assessed as suitable for 'an average' pilot.
Children of Lake Wobegon; https://psychology.wikia.org/wiki/Lake_Wobegon_effect

The regulations relating to flight crew action are based on qualitative assessment - expert judgement; i.e.
"… a potential failure condition can be alleviated or overcome during the time available without jeopardizing other safety-related flightcrew tasks and without requiring exceptional pilot skill or strength," AC 25.1309

"… provided overall flight crew workload during the time available to perform them is not excessive and they do not require exceptional pilot skill or strength. Unless flight crew actions are accepted as normal airmanship, they should be described in the approved Aeroplane Flight Manual. ' CS AC 25.1309

Boeing's certification failures were in the issues above; misjudging human capability, task, and nature of malfunction without any safety margin.

The FAA's failures similarly misjudged the human aspects, also with limited oversight of Boeing tacitly agreeing with their view..

The differences now required by EASA and Canada highlight this; whilst their changes are a polite, public view, the regulatory view is more 'a judgement too close to the limit - OK now, but not a precedent'; which in non-regulatory terms; you've still got it (judgement) wrong.

Last edited by alf5071h; 22nd Jan 2021 at 16:06.
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Old 22nd Jan 2021, 17:06
  #679 (permalink)  
 
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alf5071h - Thanks for the clarifying explanations.

It was somewhat early in the aftermath of the two accidents that the regrettable "average" term cropped up - and though my understanding of it (as just SLF/attorney) doesn't matter at all, I should have used more precise description instead.

There's an interesting and quite active thread over on Tech Log about whether MCAS was needed actually, in the first place. (For purposes of understanding how the FAA reform legislation is going to be implemented, and also for several different purposes relating directly to various court actions currently in progress, the reasons for Canada and EASA to have taken somewhat divergent positions compared to FAA, is a subject deserving close study.)

Last edited by WillowRun 6-3; 22nd Jan 2021 at 18:47.
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Old 22nd Jan 2021, 23:25
  #680 (permalink)  
 
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If there were to be a rite of passage for any old SLF/attorney poster in these parts, I'd say being addressed directly by the eminent gums (saluting, here) would be qualified as it.

It might reactivate the sense of being angered, if the real aviators consider the argument being advanced by Boeing's high-priced big law firm attorneys in federal district court in Chicago. In that case, Boeing is arguing that everything that Boeing has done wrongly, illegally and unlawfully, improperly - and this now includes the admittedly criminal conduct by its two technical pilots - is entirely beside the point. Boeing argues the court must rule that it had no legal obligation whatsoever NOT to lie, defraud, hide the ball from, any pilots anywhere. It's true. Boeing has argued that the amount or degree of legal responsibility owed to pilots who qualified to fly the 737 MAX, with regard to telling them or NOT telling them about the existence and operation of MCAS, is NO greater than the legal responsibility Boeing owed to baristas who work in airports. You can read it in their briefs. Too bad for you fly-boys and -girls, sayeth the once-mighty planemaker.

It's an outrageous argument. It hurts my mind even to read it. All the discussion about stick gradients in certain corners of the flight envelope, but if the planemaker lied and committed fraud and conspiracy about how the systems worked, and this led to the aviators suffering harms to their careers because the two crashes and then the grounding occurred, well too bad. So the stick gradient is supposed to convey certain feel, or some other system effect is supposed to occur so that the variant is perceived, comprehended and anticipated (3 phases of SA) just like the NG, but if it all is a fraud, well too bad. [correction: stick force gradient]

I don't know much about mods. I don't even recall always all the fast-movers my informal advisor flew in the era of the nasty Southeast Asia mess, though I do recall the mil career he had ended up in some Thuderous type stuff.

Last edited by WillowRun 6-3; 23rd Jan 2021 at 09:13. Reason: error in terminolgy noted by later poster
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