Friday, July 10, 2015

Boeing Keeps Suits Over Asiana Crash in Federal

Courthouse News Service

(CN) - Lawsuits over the 2013 Asiana Airlines crash that killed three people and seriously injured 49 others belong in federal court, the Seventh Circuit ruled.

Reversing the judge who remanded the cases against Boeing to Illinois state court, a unanimous three-judge panel found Wednesday that admiralty jurisdiction applies to the accident, which began over navigable water.

Three teenagers from China died in the crash and more than 180 other passengers were injured when the Boeing 777 that had taken off in Seoul, Korea, hit the seawall that separates the ocean from the end of a runway at San Francisco International Airport.

The National Transportation Safety Board attributed the accident to pilot error last year.

While many of the passengers filed federal complaints in California, some of the passengers filed negligence lawsuits in Illinois state court, alleging that Chicago-based Boeing was aware of several similar incidents but did not require the low-airspeed warning system on its 777 aircraft, such as on the Asiana plane that crashed.

Boeing removed the suits to federal court, asserting admiralty jurisdiction, as well as federal officials' right to have claims against them resolved by federal courts.

U.S. District Judge Judge Harry Leinenweber in Chicago remanded the suits, concluding that Boeing did not act as a federal officer and that the accident happened on land when the plane hit the seawall, rather than over navigable water.

The Seventh Circuit disagreed on the second point Wednesday, noting that the NTSB's June 2014 report, issued after the Leinenweber's ruling, determined that the crash began approximately 10 seconds before the plane hit the seawall.

The board concluded that a collision was certain while the plane was over San Francisco Bay because a 777 aircraft lacks the ability to accelerate and climb fast enough, no matter what the pilots did in the final 10 seconds.

"Given the NTSB's findings, it is possible for Boeing to show that this accident was caused by, or became inevitable because of, events that occurred over navigable water," Judge Frank Easterbrook wrote for the court.

The panel also found that the airplane functioned as an "ocean-going" vessel when flying over navigable water not within the continental United States.

"Asiana 214 was a trans-ocean flight, a substitute for an ocean-going vessel - as flights from the contiguous United States to and from Alaska, Hawaii, and overseas territories also would be," which allows for general admiralty jurisdiction, the panel said.

Because the passengers could have filed their suits directly in federal court under admiralty jurisdiction, Boeing was entitled to remove the complaints to federal court, the panel ruled.

Boeing was less successful, however, with its argument that it represented a federal officer because it was "acting under" the Federal Aviation Administration's authority to carry out some self-assessment to ensure compliance with aviation regulations.

Easterbrook called it "linguistically possible to call self-certification a form of 'acting under' the FAA," but said "all businesses must ensure that they comply with statutes and regulations."

Every regulated firm must use its own staff to learn whether it has satisfied federal regulations and the list of people who have to certify things is exceedingly long, the judge added.

Rulemaking rather than rule compliance seems to be the key ingredient to obtaining "acting under" status, and the FAA does not allow Boeing to change substantive rules, the panel found.

The passengers applauded this finding but wish the court did more than recognize that Boeing is not a federal officer for removal purposes, one of their attorneys, Colin Dunn, said.

"The opinion is unprecedented, and conflicts with clear Congressional intent that appellate review of remand orders is extremely limited," Dunn, a partner at Clifford Law Offices, said in an interview.

Dunn added that his team is weighing their next step.

Boeing has not returned a request for comment.

Original article can be found here:  http://www.courthousenews.com

NTSB Identification: DCA13MA120

Scheduled 14 CFR Part 129: Foreign operation of Asiana Airlines
Accident occurred Saturday, July 06, 2013 in San Francisco, CA
Probable Cause Approval Date: 02/03/2015
Aircraft: BOEING 777-200ER, registration: HL7742
Injuries: 3 Fatal, 50 Serious, 137 Minor, 117 Uninjured.

NTSB investigators traveled in support of this investigation and used data obtained from various sources to prepare this aircraft accident report.

The Safety Board's full report is available at http://www.ntsb.gov/investigations/AccidentReports/Pages/aviation.aspx. The Aircraft Accident Report number is NTSB/AAR-14/01.

On July 6, 2013, about 1128 Pacific daylight time, a Boeing 777-200ER, Korean registration HL7742, operating as Asiana Airlines flight 214, was on approach to runway 28L when it struck a seawall at San Francisco International Airport (SFO), San Francisco, California. Three of the 291 passengers were fatally injured; 40 passengers, 8 of the 12 flight attendants, and 1 of the 4 flight crewmembers received serious injuries. The other 248 passengers, 4 flight attendants, and 3 flight crewmembers received minor injuries or were not injured. The airplane was destroyed by impact forces and a postcrash fire. Flight 214 was a regularly scheduled international passenger flight from Incheon International Airport (ICN), Seoul, Korea, operating under the provisions of 14 Code of Federal Regulations (CFR) Part 129. Visual meteorological conditions (VMC) prevailed, and an instrument flight rules (IFR) flight plan was filed.

The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
The flight crew's mismanagement of the airplane's descent during the visual approach, the pilot flying's unintended deactivation of automatic airspeed control, the flight crew's inadequate monitoring of airspeed, and the flight crew's delayed execution of a go-around after they became aware that the airplane was below acceptable glidepath and airspeed tolerances.

Contributing to the accident were (1) the complexities of the autothrottle and autopilot flight director systems that were inadequately described in Boeing's documentation and Asiana's pilot training, which increased the likelihood of mode error; (2) the flight crew's nonstandard communication and coordination regarding the use of the autothrottle and autopilot flight director systems; (3) the pilot flying's inadequate training on the planning and executing of visual approaches; (4) the pilot monitoring/instructor pilot's inadequate supervision of the pilot flying; and (5) flight crew fatigue, which likely degraded their performance.

NTSB Report:  http://www.ntsb.gov

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