Aviation attorney suggests technical issues related to aircraft type as one possible cause
By Patrick Galey
Editor’s note: The following is the second article in a two-part report on the 2010 crash of Ethiopian Airlines flight ET409.
BEIRUT: For all the other factors which may have contributed to the demise of Ethiopian Airlines flight ET409, which crashed last year after taking off from Beirut, a London-based team of investigators have removed poor weather from the equation.
Although, according to readouts at Rafik Hariri International Airport at the time of takeoff, there were thunderstorms in the vicinity on Jan. 25, 2010, wind speeds of 8 knots and visibility of 8 kilometers were hardly enough to adversely affect takeoff.
Even if the plane was struck by lightning, as reports at the time suggested, “these planes are designed to withstand that,” Peter Neenan, a member of aviation attorney James Healy-Pratt’s investigative team and a fellow air crash expert, told The Daily Star.
Healy-Pratt’s team, using information known about the doomed flight, and drawing on over 20 years experience in air disasters, have struck upon the likelihood that ET409 plunged into the sea due mainly to its pilot becoming spatially disorientated and failing to correctly engage the plane’s autopilot.
That is not to say there were no other factors at work in the crash. When the London investigation fed data screened from ET409 flight plans and radar readings into a Boeing 737-800 simulator, their results were surprising.
The banking angle of 85 degrees experienced by ET409’s pilot would have placed the plane in severe peril, as tests confirmed. But in each practice run in which a test subject was handed simulator control with the aircraft behaving in such a way, the test pilot was able to regain control from an altitude of 5,000 feet. ET409 got into trouble at 8,000 feet, so why was the pilot unable to save the flight?
“Because we haven’t got anything from the Lebanese authorities, talks [on crash causes] will go one of two ways: First, [it could be due to] systemic failure from Ethiopian Airlines in terms of training, safety and piloting,” said Healy-Pratt. “Second, pilot error maybe played a part but there were other issues in relation to the aircraft.
“We cannot take it any further until the report is published and we see the findings of the investigation.”
Clues remain nonetheless. The report into the May 2007 flight of Kenyan Airways flight KQ507, which bore striking similarities to ET409, said that a Boeing 737-800 is inherently asymmetrical by manufacture. As a result, the plane tends naturally to roll to its right during flight, a defect shared among 737s and which can be counteracted by controlling a plane’s yaw (left to right lateral movement) through manipulating the rudder trim at its rear.
During takeoff, according to the investigation, KQ507 should have had its steering column set approximately 8 degrees left in order to neutralize its natural tendency to roll right, advice the pilot failed to follow. This may have been the case with ET409, according to Healy-Pratt, as the flight path shows an increasingly tight right-hand bank before loss of control. KQ507’s investigation recommended that 737-800 pilots be better instructed in future regarding correctional rudder trim.
Finally, ET409’s flight actuators – the parts of a plane’s wing which extend during landing to act as airbrakes – may have been faulty. Once actuators are deployed during landing, there is no indication in the cockpit that they have been successfully withdrawn; it is down to the pilot to check, visibly, on the outside of the aircraft before flying again. In 2007, Boeing issued an emergency airworthiness directive following two separate instances of failed flight actuators. It is not clear whether or not the pilot or co-pilot checked ET409 fully, but faulty actuators could have contributed additional roll during takeoff, which may have hampered the pilot’s attempt to rescue the stricken aircraft.
While the world waits for the finding of the Lebanese Civil Aviation Authority’s official investigation findings, the relatives of ET409’s 90 victims wait for answers.
One Chicago firm, Ribbeck Law, announced in February last year that it was filing a lawsuit against Boeing after the lawyers’ air crash expert said it was likely mechanical failure that caused the disaster. Several requests by The Daily Star to contact the firm went ignored.
Other firms, such as London-based Stewarts Law, which represents 27 families of victims, and U.S.-based O’Reilly Collins are in regular contact with Lebanese authorities and frequently visit Beirut to offer counsel. But whoever is representing families entitled to compensation, it remains virtually impossible, without more information from the official investigation, to confidently predict how much each will receive.
Hassan Wazni, an engineer from south Beirut who lost his wife, daughter and son-in-law in ET409 said he wasn’t interested in reimbursement: all he wanted was answers.
“I am not that interested in a financial compensation, my loss is too big to be compensated,” he told The Daily Star. “All that concerns me is knowing how the incident occurred, and why search efforts were not up to expectations.”
Wazni’s attempts to ascertain the investigation’s duration have been met with silence from Lebanese authorities.
“They said everything would end within a maximum of six months, but up to now, the investigations were neither finalized, nor the compensation paid,” he said.
Healy-Pratt said that although compensation would not make up for the loss of loved ones, financial punishment was a necessary way to enforce future higher safety standards.
“If the aviation insurers pay [compensation], they then have to charge higher premiums to the airline responsible. Safety audits and greater safety intervention can also be insisted on by the insurers,” he said.
“It is also entirely foreseeable that following the accident report, if it is found that [Ethiopian Airlines] and/or Boeing is responsible, that criminal proceedings will be commenced in Lebanon against Ethiopian Airlines and Boeing.”
Last year, families of victims on UTA flight 141, which crashed after takeoff from Cotonou, Benin, on Christmas Day 2003, were provided with compensation following the in absentia sentencing of the pilot. At least 136 people aboard the Boeing 727 were killed, the majority Lebanese.
Healy-Pratt was hopeful that a swiftly issued accident report could lead to judicial proceedings in the near future.
“We hope that we will have some positive developments by Easter and we will be back here in Lebanon after Easter to discuss the potential options [for relatives of victims],” he told The Daily Star.
News cannot come soon enough for Wazni. “Since the incident occurred, we received no information regarding how it happened,” he said. “I don’t know [why we havent’ been informed], but you know we’re in Lebanon, and not in Europe or America.”
The nationality of the victims is a point not lost on Healy-Pratt. Due to idiosyncrasies in various national courts, the family of a plane crash victim in, for example, Brazil, could expect to receive more than double the compensation received by relatives of victims in Thailand.
In the U.S., the average payout per victim of an air disaster is over $4 million – the highest in the world and more than twice the $1.7 million per victim paid out by Australian or French courts.
As such, Healy-Pratt, whose firm represents French Ambassador to Lebanon Dennis Pietton, who lost his wife in ET409, estimates that many families will seek additional financial reward by launching legal action against Boeing in a U.S. court.
Nabil Abou Jaoude, a Beirut-based lawyer representing several relatives of victims, said that compensation levels would vary even among the Lebanese.
“The amount of compensation depends on the number of individuals for whom the victim was a breadwinner, how much he or she use to spend on them, and how much they need,” he told The Daily Star.
“It will not work that the same compensation is paid for a single person and the father of five young children.”
Insurance firm Lloyds of London is charged with paying out reimbursements on behalf of victims. As a business, it will naturally wish to keep compensation to a minimum, which is where legal representation for families comes in.
Abou Jaoude said he had given Lloyds a formal two-month deadline. If by which time it had not offered satisfactory compensation, another lawsuit may be launched.
“I can tell you that a minimum of $250,000 will be paid as a compensation for the single person, but I consider this to be cheap because we will not be able to receive our fees,” he said.
Healy-Pratt predicted the payouts for his clients would total between $30-35 million. While this amount could easily increase to $100 million if taken through U.S. courts, he admitted it would be difficult to get Boeing to accept damages without proof that mechanical failure was at play.
Healy-Pratt was nevertheless confident that proper compensation would eventually be forthcoming, following the issuance of a crash report in conjunction with Ethiopian Airlines.
The European Union is the only administrative body in the world that has an aviation blacklist, banning certain air carriers from flying over European airspace. Before the list’s launch, airlines routinely failed to issue comprehensive crash reports after accidents. Now, with the financial threat of blacklisting hanging over it, Ethiopian Airlines should be keen to get compensation processes moving rapidly forward, he said.
“We are being told by Lebanese authorities that they will publish something but traditionally counties have a vested interest in the reports,” Healy-Pratt said. “Ethiopian Airlines doesn’t want to be on a blacklist and the Lebanese government wants to prove that it regulates its airspace.” – Additional reporting by Wassim Mroueh