The Court of Appeal yesterday overturned a $3.5 million damages award to Bahamasair, finding that the airline had failed to install an upgraded part that may have prevented a 2007 crash landing.
The appellate court’s 36-page verdict overturned the October 2014 findings by former Chief Justice, Sir Michael Barnett, that “negligence” by the part’s designer/manufacturer had caused the landing gear on one of Bahamasair’s Dash-8 aircraft to collapse upon landing.
Apart from ‘negligence’ in manufacturing the actual part, the ex-Chief Justice also found that the Canadian firm had failed to inform Bahamasair that the ‘damper ring’ - a key component in a Dash-8’s landing gear - also suffered from ‘fragmentation’ problems.
But Appeal Justice Jon Isaacs, in a written judgment supported by his two colleagues, found that Sir Michael’s ruling against Messier-Dowty was “unreasonable and cannot be supported by the evidence”.
Justice Isaacs said Messier-Dowty had informed Bahamasair about its new, upgraded ‘damper rind’ and upper bearing, but the national flag carrier had continued to use an old part - one that had ceased to be manufactured since 1998.
And he found it was fair for the Canadian company to “assume that the end user will not so abuse or misuse his product” such that it wears down more quickly than expected - a development that does not mean the product is defective.
The Court of Appeal’s verdict represents a second blow for Bahamasair within the space of three days, given that the national flag carrier is already grappling with the threat of industrial unrest as it approaches the peak Christmas travel season (see other article Page 1B).
Apart from the $3.5 million damages reversal, money that will come in especially handy given its cash-strapped situation, the judgment raises major questions over Bahamasair’s aircraft maintenance procedures, and whether it is employing the latest parts and staying abreast of changes in industry technology.
It is unclear whether the findings will impact how Bahamians and the travelling public perceive Bahamasair, especially since it has a relatively good safety track record compared to many airlines.
However, Appeal Justice Isaacs criticized Bahamasair’s failure to produce the Maintenance Control Manual (MCM) that was used by Bahamasair’s employees to replace a cylinder on the crashed aircraft’s landing gear on May 19, 2006.
Describing the Court of Appeal’s “disquiet” over the situation, Appeal Justice Isaacs wrote: “This document would have been crucial in assisting a tribunal to determine whether or not the respondent [Bahamasair] was carrying out the requisite maintenance properly.
“The appellant [Messier-Dowty] was unduly hamstrung by the failure of the respondent to produce the MCM and, ultimately, an omission which may have proven fatal to their counterclaim.
“The MCM should have been in the possession of [Bahamasair] and it should have been produced during discovery. Its non-production has not been adequately explained.”
And the Court of Appeal also criticized Sir Michael for effectively ignoring the 2007 accident report produced by the Civil Aviation Department’s Flight Standards Inspectorate, finding he failed to consider all available evidence in the case as a result.
The September 9, 2007, report listed four possible causes for the January 18, 2007, crash at Governor’s Harbour, Eleuthera. It also saw Bahamasair “contest the conclusions that they did not perform the May 2006 repairs in accordance with industry standards, and that their maintenance program was not up to industry standards”.
The Court of Appeal verdict recorded that the Dash-8 involved in the accident had been manufactured in 1989, and purchased by Bahamasair the following year - meaning it had spent 17 years in the national flag carrier’s service.
“On 18 January, 2007, the aircraft departed New Providence for a flight to Governor’s Harbour, Eleuthera,” the verdict recalled.
“The take-off and flight were uneventful. When the aircraft landed on the runway at the Governor’s Harbour Airport, almost immediately it began to vibrate violently.
“As the aircraft continued down the runway the vibrations increased in intensity, making it difficult for the pilot to maintain directional control of the aircraft,” the Court of Appeal continued.
“About five to 10 seconds after landing, the left main landing gear (LMLG) collapsed, causing the aircraft’s fuselage, the number one propeller and left wing-tip to come into contact with the ground for approximately 150 feet before the aircraft came to a stop. This resulted in extensive damage to the aircraft.”
Charles Taylor Aviation (CTA) was retained by Bahamasair and its insurers to investigate the accident’s cause, and the Flight Standards Inspectorate report listed four possible causes for the crash - an under-services shock strut (low hydraulic fluid); a broken damper ring; no damper ring; or a damaged damper ring.
Sir Michael found for Bahamasair, finding Messier-Dowty was “negligent” in the design and manufacture of the ‘damper ring’ - a verdict that the latter appealed.
The Court of Appeal noted the trial evidence of Winslow Moss, a 35-year Bahamasair employee, who “could not explain” why the Task Card requiring him to perform a specific job - changing the upper bearing and ‘damper ring’ on the Dash-8 involved - was blank.
“In the absence of an explanation for the apparent discrepancy by Mr Moss, the Chief Justice was left with the state of the evidence being Mr. Moss was aware of Transport Canada Airworthiness Directive 14 (TCAD14), and performed the work pursuant to task card 3210/15, but did not change the upper bearing and damper ring as mandated by TCAD14,” Appeal Justice Isaacs wrote.
“Further, the extension check of the MLG shock strut was to have been done as soon as possible after five landings. There was no evidence that was done. In those circumstances, it was not open for the Chief Justice to conclude the appellant had failed to give [Bahamasair] notice of the damper ring problem.”
The Court of Appeal also disagreed with Sir Michael’s finding that Messier-Dowty’s old ‘damper ring’ design was “inadequate”, instead ruling that it was trying “to improve on an already solid design”.
And previous air accidents involving the part had stemmed from poor maintenance by airlines, rather than design or manufacturing flaws.
“Expending the effort to make your product better does not mean that the original is bad,” Appeal Justice Isaacs added.
“A manufacturer is entitled to assume that the end user will not so abuse or misuse his product that it wears down sooner than it ought to if maintained properly. Excessive wear does not translate into defective products.”
He also found it was ‘unreasonable” for the ex-Chief Justice to have found that Messier-Dowty did not give Bahamasair warning about deficiencies with the original ‘damper ring’, especially since it had not been identified as the key cause in previous accidents.
The Court of Appeal found there was “no lack of transparency” by the Canadian manufacturer, and that country’s regulator seemed satisfied there were no defects of the kind alleged by Bahamasair.
The Court of Appeal judgment alluded to the fact that “warning signs”, such as vibrations and a ‘blown tyre’, were present before the Eleuthera crash, but were interpreted as signs of a different problem.
“It is likely that had [Bahamasair] conducted the extension test by jacking up the aircraft as recommended by the appellant’s manual as soon after five cycles as possible, the emerging problem would have been discovered and rectified,” Appeal Justice Isaacs wrote.
“[Bahamasair] was afforded an opportunity to examine the product before it failed, but declined to do so. Ultimately, therefore, the failure of [Bahamasair] to install the new damper ring and upper bearing was not due to the negligence of the appellant in advising it of the new product, but from the respondent’s decision to continue using a ring it ought to have known was no longer being produced since 1998.
“It is unclear whether [Bahamasair] investigated the cause of the cracked cylinder which was replaced by Mr Moss. This may have been of some moment to the problem subsequently experienced in Eleuthera. A witness referred to this point but it does not appear to have made an impression on the Chief Justice.”
Bahamasair chairman Valentine Grimes did not return Tribune Business messages left at his law firm and on his cell phone seeking comment.
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