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Grounded Boeing Jets, Crashes Prompt Liability Questions

03/12/2019

The European Union joined China, Indonesia, Australia and other countries Tuesday in grounding Boeing’s 737 MAX 8 aircraft days after an Ethiopian Airlines crash killed 157 people, adding to liability questions for the plane maker amid global pressure for a U.S. regulatory crackdown.

The Federal Aviation Administration continued Tuesday to back the safety and airworthiness of Boeing’s 737 Max 8 jets, the aircraft involved in Sunday’s crash of Ethiopian Airlines Flight 302 just minutes after taking off from Addis Ababa for Nairobi. The same type of plane was involved in October’s crash of Lion Air Flight 610 in the Java Sea that killed 189 people, prompting lawmakers, government officials, labor unions and consumers to draw connections between the two accidents.

As the European Aviation Safety Agency followed authorities in Britain, France, Germany, China, Indonesia, Singapore, Australia and others in grounding the jet, legal experts said Boeing will have to answer a host of liability questions related to the jet’s engineering and design, and how much it trained and warned pilots on the jet’s automated flight control systems.

“This is unprecedented to have two accidents of the same model of brand new aircraft with professional flight crews and relatively good weather,” Ladd Sanger, a licensed commercial airplane pilot and aviation attorney with Slack Davis Sanger LLP, told Law360. “These are new airplanes. It’s a design defect, frankly.”

Boeing, which has said it’s releasing a software update for flight control systems in its 737 MAX jets by next month, said in a statement Tuesday that safety is its No. 1 priority and that it is fully confident in the safety of the jets.

“We understand that regulatory agencies and customers have made decisions that they believe are most appropriate for their home markets,” Boeing said Tuesday. “We’ll continue to engage with them to ensure they have the information needed to have confidence in operating their fleets. The U.S. Federal Aviation Administration is not mandating any further action at this time, and based on the information currently available, we do not have any basis to issue new guidance to operators.”

Any potential regulatory implications from the Ethiopian Airlines incident will rest on what Ethiopian accident investigators — with help from the National Transportation Safety Board and the FAA — ultimately determine likely led to the crash.

Preliminary reports and eyewitness accounts indicate that the Ethiopian Airlines flight didn’t maintain a stable vertical speed, which made for an erratic takeoff. The Boeing 737 MAX 8’s so-called Maneuvering Characteristics Augmentation System has come under intense scrutiny for being a potential major factor in both the Ethiopian Airlines and Lion Air crashes.

MCAS is an automated system that’s meant to help compensate pitch and certain maneuvering situations, like when the plane’s nose is too high compared to the angle of the jet, and prevent stalling. Boeing has said pilots can always override the automation system.

“This is the second Boeing 737 Max 8 to crash in a few months — both were in the same phase of flight and new aircraft, allowing Boeing to certify successor models through limited testing, short-cutting the typical, arduous testing process,” said Mike Slack, a licensed pilot, former NASA engineer and aviation attorney with Slack Davis. “There is something about the Max 8 that is defeating the best efforts of experienced pilots in emergency situations like Lion Air and Ethiopian Flight 302.”

In the “Continued Airworthiness Notification to the International Community” that the FAA issued Monday, the agency said all data will be closely examined during the investigation and that the FAA will take appropriate action if the data indicates the need to do so.

“External reports are drawing similarities between this accident and the Lion Air Flight 610 accident on Oct. 29, 2018,” the FAA said. “However, this investigation has just begun and to date we have not been provided data to draw any conclusions or take any actions.”

Given how thorough the FAA wants to be in its investigations, it’s no surprise the agency hasn’t similarly grounded Boeing’s 737 MAX 8 jets just because there’s pressure to do so, according to Mark Dombroff, co-leader of LeClairRyan's aviation industry practice.

“They’re the ones who know the most about the airplane, are intimately aware of the systems and obviously the FAA is involved in the investigation,” Dombroff told Law360. “I suspect they haven’t satisfied themselves that there’s linkage between the two accidents, but that doesn’t mean that in another hour, tomorrow or the day after that they’re not going to take action.”

Read the full article in Law360 here.

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