Airlines, Pilots Say Safety Plan in Jeopardy

[CD]

Airlines, Pilots Say Safety Plan in Jeopardy

By Del Quentin Wilber
Washington Post Staff Writer
Saturday, February 16, 2008; Page D01

Airlines and pilot groups say they may be forced to curtail a critical federal safety program after a federal judge's order requiring a regional carrier to disclose pilot incident reports to families suing the airline over a fatal 2006 crash.

Pilots and other workers, including flight attendants and mechanics, voluntarily file incident reports as part of a federal program to encourage disclosure in exchange for confidentiality. The workers are almost never punished for revealing their errors if they quickly report them and if their statements are the only source of information about the incident. Workers have filed tens of thousands of such reports in the past decade, which regulators and the airlines analyze to find potential hazards.

Safety experts worry that the judge's decision may lead some airlines to leave the program or deter employees from participating.

"It is a dangerous precedent," said Kenneth P. Quinn, general counsel for the Flight Safety Foundation. "There will be a chilling effect on employees desiring to voluntarily cooperate in the programs."

Dozens of airlines participate in the Federal Aviation Administration's Aviation Safety Action Program, which started in the mid-1990s.

Airlines may also stop participating in a program that allows them to cull data retrieved from planes that help pinpoint problems that might go unnoticed or unreported by pilots, airlines and safety experts said.

More than two dozen families are suing Comair, a wholly owned subsidiary of Delta Air Lines, over the fatal crash of one of its regional jets on Aug. 27, 2006, in Lexington, Ky. The pilots tried to take off from the wrong runway, which was too short for their plane. The jet hit a berm and exploded, killing 49 people on board. Only the co-pilot survived. The National Transportation Safety Board determined that the pilots were mostly to blame for the crash.

Lawyers representing the families requested the airline's pilot reports detailing other runway incidents because they think the documents might show that Comair did not take action after learning of similar previous problems.

"The reports . . . directly relate to whether Comair appropriately evaluated and/or considered the safety information its own pilots were reporting," the families' lawyers argued in court papers.

Comair, the Air Line Pilots Association, which represents pilots at the airline, and trade groups filed briefs seeking to block the request. They argued that Congress and the FAA intended the reports to remain confidential. They also worried that carriers would abandon the reporting program because the information could be used against them in lawsuits. They noted that the program has helped regulators and airlines reduce a variety of threats.

But Magistrate Judge James B. Todd ruled that the reports must be turned over to the families because Congress did not bar the release of such documents in such circumstances. He also wrote that he did not believe that disclosure of the documents would hamper the safety program.

"There are many incentives for reporting to continue, not least of which is the future personal safety of the crew and passengers," Todd wrote, adding that such programs reduce safety threats that could lead to lawsuits.

Representatives of Comair, which is seeking to reverse the ruling, declined to comment. Lawyers for the families did not respond to voice-mail messages.

In legal filings, the FAA said it would prefer that the incident reports not be "subject to broad use in litigation." Its lawyers wrote that regulators thought that employees would be less likely to provide information if the reports were not kept confidential. A spokeswoman for the FAA declined to comment about the case.

The Air Transport Association, a District-based trade group that represents many major airlines, and Southwest Airlines became so concerned about the ruling's potential impact that they filed motions last week urging the judge to reconsider.

"Quite simply, if airline industry personnel know that filing an ASAP report has the potential to embroil them in civil litigation, they will be much less likely to report potential safety problems," Southwest's lawyers wrote.

Southwest said its pilots filed 2,973 reports in 2006. Nearly all -- 2,920 -- were "sole-source" statements, meaning that regulators and the carrier learned about the incidents only from the pilots, the carrier's attorneys said.

The loss of such reports "could deprive the airline industry of key safety information," its lawyers argued.

Full article here...

[Smitty]

This sure is a doozy in the making and could result in the aviation safety culture (one which allows us to continually revise and improve procedures for the better) to go the way of the dodo. The Judges really take a long hard look at the precedent they are about to set and make a decision for the greater good.

[twistedoldwrench]

Should the judge allow the safety reports to made public, it will be a precedent that will cause industry and especially individuals to seriously look at the non-punitive aspect of Safety Management Systems!! SMS will be an easy target for lawyers to find a noose to hang companies and individuals with IMO.

[Widow]

It doesn't sound as though the judge is saying the reports should be made public, but "disclosed" to the families. And not because they seek action on those who made the reports, but those who failed to identify a problem existed. ALPA seems to be objecting because they are "worried that carriers would abandon the reporting program because the information could be used against them in lawsuits", not that pilots would stop reporting.

If I was a pilot (or mechanic), and I reported a problem, and no action was taken on that problem, and someone subsequently died because (at least in part) the report had not been acted on ... I wouldn't have a problem testifying in court. Would you?

Whistleblower protections is for protecting whistleblowers (doing something right) not those against whom the whistle has been blown (doing something wrong).

[CD]

Comair safety reports sought in suit
Information is usually kept secret

Tuesday, March 4, 2008
By Andrew Wolfson
The Courier-Journal

Lawyers for the families of victims of Comair Flight 5191 have asked a federal judge to sanction the airline for failing to comply with an order to surrender confidential safety reports that describe safety violations and at least four runway errors by its pilots.

Such reports are normally kept secret to encourage pilots and mechanics to report safety problems voluntarily. But U.S. District Judge Karl S. Forester ordered Comair's reports to be disclosed on Feb. 19.

The plaintiffs' lawyers say that Comair has intentionally failed to produce the records for more than three months, and yesterday they asked Forester to punish the airline by deeming it an "established" fact that Comair had notice of "serious safety problems" and failed to take "reasonable and appropriate measures" to address them.

The proposed sanction also would include an acknowledgement that Comair's failure constituted "a gross and wanton disregard for safety" and was a substantial factor leading to the crash of Flight 5191 at Lexington's Blue Grass Airport on Aug. 27, 2006.

The commuter jet crashed on takeoff from the wrong runway, which was too short for the aircraft. Of the 50 people aboard, only the co-pilot survived.

The National Transportation Safety Board ruled that pilot error was the principal cause of the crash.

The trial of the lawsuits against the airline is set for Aug. 4, and lawyers say reports from the Aviation Safety Action Program could be important in proving punitive damages.

Forester gave Comair until noon Friday to respond to the request for sanctions.

Kate Marx, a Comair spokeswoman, said the airline is considering its legal options for appealing Forester's earlier order.

She reiterated the airline's belief that confidentiality is essential to preserving the effectiveness of the 12-year-old self-reporting program. It allows crew members to submit safety errors -- such as falling asleep during a flight -- to the Federal Aviation Administration without fear that the government or their airline will act against them.

The Air Line Pilots Association, the Regional Airline Association and the Air Transportation Association, which represents major carriers, all have filed briefs saying that using the reports in litigation would inhibit self-reporting.

But the plaintiffs' lawyers said it would harm air safety and the public if airlines could refuse to take corrective action after receiving warnings of a safety issue, "then hide that information from victims."

Forester noted that Congress, while exempting the reports from disclosure to the public under the Freedom of Information Act, allows them to be produced in lawsuits if ordered by a court. He also noted they would be given to the plaintiffs under a protective order keeping them from being disclosed to the media or public.

The plaintiffs asked for safety reports regarding runway incursions, planes that lined up on the wrong runway and other wrong-runway events at Blue Grass Airport.

They said in court papers that if Comair's reports "relate to these issues or the flying practices of Captain Jeffrey Clay and/or First Officer James Polehinke, and it is shown that Comair did not appropriately address these safety-related concerns, Comair must be held accountable for its failure to do so. This is unquestionably relevant and important information in this litigation and for purposes of preventing yet another crash."

In depositions, Comair employees were unable to recall specific runway errors until an executive on Jan. 23 recalled four such events: a flight that took off from the wrong runway in 2003 in Corpus Christi, Texas; an incursion at Blue Grass; a flight that lined up to land on the wrong runway at the Dallas-Forth Worth airport; and a flight in 2004 that began its initial descent into the wrong airport in Knoxville, Tenn.

Full article here...

[snaproll20]

Thank you, CD for another important revelation.

Wow, did we expect to see (legislated) SMS derailed from this direction?........or even legitimate, natural SMS?
There is a huge dilemma here as the thin end of the wedge has been pushed under all of our butts. You fess up to a mistake, two years later, you are in court because someone now has evidence that you maybe did wrong. Conceivably, you may have to squander you life savings proving you were totally detached from the law suit.
Lawyers just love the scatter-gun effect in these issues.
Litigation is one of the curses of the modern day. Now, honesty and professional concern for safety itself is being made into a liability.

Perhaps this underlines the risks involved in being a "leader" in questionable processes. Transport Canada decided to go legislation on SMS before the FAA and other major nations' aviation bodies had pioneered the way. They seem to like to follow usually, so, I wonder who pushed for legislated SMS and what kind of back-pedalling will result.

[CD]

...I wonder who pushed for legislated SMS...

That would be ICAO:

ICAO Safety Management Website

Here is another good read:

Deterring Criminalization 6 pages. [PDF 347K]

Aviation safety leaders face a challenge in dissuading prosecutors from filing criminal charges against pilots, controllers and others involved in accidents.

AeroSafety World - March 2008

[rd1331]

I think my last SMS report will be the one i wrote about a week ago, and if i could take it back i would.

If I was everyone else I would do the same. In Canada we have already had a pilot personally sued over an accident. Now we are just adding fuel to the fire by writing basically a confession, SMS Report. This is a HUGE step backwards, but i'm not risking my future on any SMS reports anymore after that. I think SMS is a great program and should continue, but TC needs to make it rock solid that pilots, FAs, Mechanics, whoever that write and SMS report, can't have that SMS report used as evidence.

Just my 2 cents.

[Widow]

The NTSB said the accident was due to pilot error. The lawsuit is trying to establish that the "pilot error" was based in previously identified problems. How is the release of the reports to the families/legal team going to make things any worse for the pilot(s)? If anything, it would seem that by releasing the documents, the pilot(s) would be relieved of some of the burden of "fault".

Remember, the US of A has a national "Whistleblower Protecton Program", something we in Canada are sorely lacking.

[CD]

Working Group on Voluntary and Non-Punitive Reporting Programs - Final Report - June 2002
AvCanada - Re: Bill C-7: An Act to Amend the Aeronautics Act

[Widow]

So the Working Group linked above, ends with the NPAs that insert SMS/SMP into the CARs. It also recommended that MOU's be developed ...

14: Do we need to develop MOUs between government agencies?

Conclusion: It is recommended that memoranda of understanding (MOUs) be developed. Inter-government cooperation between agencies such as the Transportation Safety Board, the National Research Council and Transport Canada is vitally important to the success of the national voluntary and non-punitive reporting program.

Background: When considering the advantages and disadvantages associated with the various data collection options discussed in this report, it became clear that in Canada, safety related information is not being shared as effectively as it could be. It became increasingly clear that to maximize the benefits of a national voluntary reporting program, cooperation and the sharing of information is extremely important. As such, the Working Group recommends that MOUs be developed to facilitate the sharing of knowledge.

What has been done to facilitate MOUs?

[hawker driver]

The company I work for takes part in the ASAP program which is the center of the discussion. I can confirm that it is a great program and will only work if the pilots know that anything they self disclose will not be used against them.
Many of my co-workers are now thinking twice before they fill out the form.

[snowshoe]

I attended a briefing given by a couple of SMS types form Ottawa in Halifax last month. I left the meeting with the understanding that any info gathered under the SMS program would be available to anyone that wanted to use the " Freedom of Information" act. So I would guess if this is correct, the number of "non punitive" self reports will fall very short of the number that was hoped for when this program was first cooked up.

[SeptRepair]

The NTSB said the accident was due to pilot error. The lawsuit is trying to establish that the "pilot error" was based in previously identified problems. How is the release of the reports to the families/legal team going to make things any worse for the pilot(s)? If anything, it would seem that by releasing the documents, the pilot(s) would be relieved of some of the burden of "fault".

Because of this gets allowed then it will set legal precedent and all them scum sucking maggot lawyers/insurance companies will fight tooth and nail to lynch and attach blame for monetary compensation for every little incident from here on in. It wont stop till every last person who may have ever made a mistake or knowingly allowed a mistake to be made to be held liable. I trust lawyers as far as i could through them. Perhaps Comair should enlist the services of Rafeal Zurr(sp?).

[ScudRunner]

Because of this gets allowed then it will set legal precedent and all them scum sucking maggot lawyers/insurance companies will fight tooth and nail to lynch and attach blame for monetary compensation for every little incident from here on in. It wont stop till every last person who may have ever made a mistake or knowingly allowed a mistake to be made to be held liable. I trust lawyers as far as i could through them. Perhaps Comair should enlist the services of Rafeal Zurr(sp?).

Didn't Rafael Zurr die in a plane crash in the States a number of years ago in a Baron?

[carholme]

The End of ASAP?
Greedy Plaintiff attorneys may put an end to one of the most valuable safety programs ever created.....:(:(


Thursday, March 13, 2008

Comair to release safety reports
Documents detail errors, violations

Comair has agreed to produce for the courts confidential reports that
describe safety violations and at least four runway errors by its pilots.

The airline had contended that the reports need to be kept secret to
encourage pilots and mechanics to report safety problems voluntarily.

But in the face of a request for sanctions from lawyers for the families of
victims of Comair Flight 5191, the airline has surrendered the documents,
known as ASAP reports, for the Aviation Safety Action Program.

The documents were produced under a protective order that bars the
plaintiffs from making them public. Comair also maintains that they are
unrelated to the crash, and it is continuing to litigate whether ASAP
reports should be subject to disclosure, said Comair spokeswoman Kate Marx.

Comair has resisted orders to turn over the reports, and plaintiffs' lawyers
had asked Judge Karl S. Forester to punish the airline by forcing it to
acknowledge that its failure to take reasonable steps to correct serious
safety problems was a substantial factor leading to the crash of Flight 5191
at Lexington's Blue Grass Airport on Aug. 27, 2006.

The commuter jet crashed on takeoff from the wrong runway, which was too
short for the aircraft. Of the 50 people aboard, only the copilot survived.
The National Transportation Safety Board ruled that pilot error was the
principal cause of the crash.

Forester last week said the request for sanctions was moot because Comair
had turned over the first batch of ASAP reports on March 3, the day the
sanctions were requested. The plaintiffs' liaison counsel, David Royce, said
production of additional reports is ongoing.

Marx said yesterday that Comair decided to comply with the court's order to
surrender the reports but still believes they should remain confidential.

The Air Line Pilots Association, the Regional Airline Association and the
Air Transportation Association, which represents major carriers, all filed
briefs saying that using the reports in litigation would inhibit
self-reporting.

The trial of the lawsuits against the airline is set for Aug. 4, and lawyers
have said the ASAP reports could be important in proving punitive damages.

[carholme]

This issue presents a case of openly reporting safety violations/concerns but as well brings into question the safety of all in house documentation under SMS. SMS purports openess and honesty in reporting, allowing for the operator to provide rectification of it's deficiencies. The system is open to audit by the regulator and now we have to realize that at any time, even the best of operators may have to disclose confidential reports to a legal system bent on finding the lowest common denominator to include in their lawsuits.

We are entering an era of "self regulation" no matter what TC wants to call it. They are trying to divest themselves of their responsibilities, like governments by downloading everything to the operator. In this case, why don't we just save the taxpayers a lot of money, dump the ineffective regulator and turn aviation regulation over to the courts. Why the hell do we need aircraft inspectors at their inflated salaries to do basic accounting/auditing of our paperwork, they sure as hell do not need to know anything about aircraft or safety.

carholme

[flyinhigh]

I think that we should now have waivers for EVERYONE to sign stating that...

"Airplanes do have accidents and sometimes people DIE or are seriously injured. By boarding this aircraft I am accepting this and my family can not come after the pilots or any airline personel should this happen."

People want to sue us for bullshit, so start this and see how fast they get on the plane.

Thats just what I think though.

[The Hammer]

Why are you any different than a doctor, or even a mechanic????

You charge a fee for your skills so you are expected to do the job to the best of your abilities. I expect my doctor not to leave surgical equipment inside of me and my mechanic to correct repair my brakes once the problem has been diagnosed.

When you make such a glaring mistake as in this case you must expect legal repercussions

I hate lawyers but the responsibility has to fall somewhere (I know, that's not what they teach in school anymore, it's really your parents/ teachers/ therapists' fault)

[foxmoth]

So, Hammer, are you suggesting all pilots take out insurance the way doctors do?

Maybe the legal system, especially lawyers, should be sujected to the same kind of performance scrutiny.
Two failures to win in Court, and you are disbared.

[The Hammer]

Maybe not to the extent of the doctor (simple errors happen but negligence doesn't just happen) but your company has insurance to cover your mistakes.

If you relieve pilots/ management of even more of their responsiblity, where is the incentive to doing things properly/ legally.


I pay good money to get my car fixed and I expect the mechanic to assemble it correctly so that I don't die driving it on the highway. If it falls apart and it can be proven that the mechanic was negligent ie hung over, overtired, or in a hurry and didn't follow company procedures, then their ass should be on the line. Why should pilots be any different??

Here's my example
Crew takes off without doing C of G (probably in a hurry or just can't be bothered) even though all the tools including whiz wheel, company training, etc are in order/available. Aircraft crashes on rotation because C of G is too far aft, killing 3 pax. Should the crew really not be liable for such an instance? Those pax had the right to expect the crew to perform all the required duties as per their SOP's, training and the CAR's. Is it the pax resonsiblilty to ensure the crew is doing their job correctly ie C of G , deicing , etc.

The above example would be different if the crew did the C of G but made an error.

I personally love this industry but I think it is often forgotten the decisions you make at work can/ will affect the rest of your life (not just if it kills you). I personally find it much easier to tell my boss to stuff it when I put it into this context. It is not a game.

[Widow]

What if, under your scenario Hammer, the tools to do the C of G were not available? What if pilots had made reports under SMS and the operator had ignored the reports? Maybe the pilots should have refused to fly, but would the op not be equally responsible for not carrying through on it's SMS reported issues?

I agree with Hammer in that if negligence can be PROVEN, then those responsible ought to be held accountable. I also feel that ALL those responsible, not just the "bottom line" pilot (or Captain in the case of the Queen of the North) ought to be accountable.

[The Hammer]

Aviation is filled with accidents where the tools/training are there but they were not used.

Widow, ie C of G, park the plane or do it the old fashion way with the Aircraft Flight Manual. You know, the document that is required to be on the a/c to make it airworthy....

A
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['effin hippie]

I think you guys are getting off track.

This is not about liability in a specific instance or in general, nor whether data is available for public scrutiny.

I order to improve safety, data about risk needs to be collected. It is well-proven that voluntary reporting programs provide an essential portion of that data, which would otherwise remain an unknown.

If self-reporting by either a company or an individual can lead to prosecution, the reporting will essentially stop, as surely as night follows day. Then system safety suffers, as, for that matter, does accident investigation.

The greater good is NOT served by EVER allowing self-reported risk information to be used for litigation. Anyone seeking that information for legal action in the present is sowing the seeds of future tragedy, no matter how justified they may feel.

ef

[Widow]

So, if someone does something wrong and someone dies as a result, it's okay for that fact to be hidden forever?