Sunday, October 22, 2000


Why does it take an air crash to raise the public's concern about aviation? Even though air travel is still the safest means of transportation (based on the percentage of fatalities compared to the number of people who fly), there are hundreds of accidents just waiting to happen ... and US Air 1016 was one of them. The FAA has known, for years, about the dangers of wind shear during hazardous weather conditions, and in fact, has been installing special Doppler radar systems at busier airports. However, the FAA never moves quickly enough. Charlotte-Douglas International Airport doesn't have their Doppler radar yet. The scheduled delivery for 1995 wasn't soon enough to have protected the 37 killed last week. While the FAA is bogged down in bureaucratic red-tape of its own making, pilots, who are the ultimately responsible for the safety of the flight, are denied timely information that can help prevent accidents like the one in Charlotte. Unfortunately, the FAA's ineptitude doesn't stop there. All too often, the FAA knows about manufacturing defects that will clearly affect the safety and/or crashworthiness of airplanes. The FAA doesn't do anything about those either, or it acts too late.

Between December of 1992 and December of 1993, 13 people were killed in two airplane crashes caused by hurricane force turbulence in the wake of Boeing 757 jetliners. The FAA knew, as early as 1989, that the 757 would, sooner or later, cost lives. Again, the FAA did nothing.

Why didn't the FAA react? By mandating safe distances between aircraft, the number of flights leaving from and arriving at airports would be cut down, which would cut into industry profits.

In the early '70s, the FAA was aware that the DC-10 baggage door had a design flaw. It did not act, and 350 people were killed in a Turkish Airlines disaster.

The FAA knew if it allowed Boeing Company to glue certain airliner sections together, they would have to monitor the long term effects. They did not, and the roof blew from an Aloha Airlines Boeing 737, while the side blew out of a Boeing 747. More fatalities resulted in both cases.

The FAA knew there were service problems with the engine attachment bolts on the Boeing 747. It did not act, and two engines came off an El Al 747, killing 45 people in the Netherlands.

The FAA has known for years about flaws in various general aviation aircraft -- everything from pilot seats that slide suddenly rearward, causing loss of aircraft control, to undrainable contamination in fuel tanks which result in engine stoppage, to tails that fluttered off hundreds of times, killing hundreds of people, to engines used in helicopters which are so unreliable that the Justice Department sued the manufacturer for fraud in regard to the engine's unreliability, while the FAA continues to certify the engine safe for flight.

The list goes on and on, but the one thing is clear. It is time to overhaul the FAA from the top down, and bottom up.

The people within the FAA who want to do their jobs and are interested in safety cannot because they are overruled by managers. People with the agency who want to change things to make the FAA more safety conscious are overruled by political considerations imposed on the FAA by influence wielded by the aircraft manufacturers -- the same manufacturers the FAA is supposed to regulate.

There is even a product liability bill that would not permit the imposition of punitive damages against an aircraft manufacturer, if the FAA certified the aircraft before it was marketed. Though everyone in government calls the FAA incompetent, Congress still wants to make the FAA's approval the difference between people being compensated and manufacturers punished, and their not being held liable at all.
The FAA has the responsibility to ensure the safety of flight and to promote aviation. Aviation does not have to be promoted anymore, but safety of flight needs a lot of work. The new FAA needs to have as its sole job the enforcement of existing regulations, the streamlining of regulations to make them more effective, and the enforcement of those regulations (for a change) against those responsible to make flight safe: the aircraft manufacturers who can make the airplanes safe.

While the FAA may not put time and money into forestalling accidents until there is a tragedy, the FAA is itself a tragedy. Somebody needs to do something about its many faults before more lives are tragically and unnecessarily lost.

Wednesday, August 30, 2000


Investigation into the crash of Air France Concorde has brought into question the serviceability of its American-built tires. Findings of a tire carcass on the runway lead investigators to question whether a tire explosion could have caused foreign object damage to both engines and punched holes in the wing fuel tank, causing the huge fire seen on amateur video.

Concorde tires are critical to the safe operation of the aircraft because they are inflated to 184 lbs. per square inch. A failure of a tire means an explosion with tire pieces flying in all directions, like pieces of shrapnel from a hand grenade. Exploding tires have brought down other aircraft. Both hydraulic lines and fuel tanks have been pierced in the past.

In 1995, for example, a taxiing Concorde suffered an exploded tire that penetrated the wing fuel tank, causing a massive fuel leak. An extensive investigation at the time was to consider wing fuel tank penetration from such a cause and to correct it. Parts of a metal water deflector designed to prevent water ingestion also disintegrated and compounded the problem. It was to be redesigned.

Other examples of tire explosions have plagued the Concorde, as well as other aircraft, resulting in near tragedies, as well as crashes resulting in deaths. Indeed the Concorde suffered tire explosions to such an extent that the NTSB recommended changes in procedures to avoid a disaster.

The Concorde tires are special as well. The French use U.S.-built Goodyear tires and the British use Dunlop. They are attached to magnesium wheels and are in turn equipped with sophisticated anti-skid and brake overheat warnings. In the past, tire explosion has been suspected to have been caused by malfunction of brake actuators, overpressure, overheating, and deterioration, to name a few.

A likely scenario of Air France Flight 4590 is a tire explosion on takeoff that shed debris into both left side engines and penetrated the fuel tank on the left side. The engines cannot accept this foreign object damage and, while the loss of thrust from one engine would not have resulted in a crash, the loss of two engines on one side made a crash at that point in the flight inevitable. The loss of fuel that was probably lit off by the engines was likely not the cause of the crash, but a symptom of the severity of the explosion that penetrated the fuel tank.

The French investigation must focus on why this tire exploded on this aircraft at this time. Was it due to unobserved excessive wear and tear? Was it due to overheated brakes on taxi that overheated the tire? Was it the failure to account for past lessons of tire explosion and failing to protect critical systems like fuel tanks from collateral damage? These questions are important, not only for this investigation, but also, hopefully, will result in standards applicable to all aircraft that will lessen the chance of catastrophic accident from something as benign as tire failure.

Current investigation focus is on a sixteen-inch piece of metal on the runway found after the crash, which is claimed to be not from the Concorde. It is viewed as the possible initiator of the tire explosion that brought down the plane. This finding, although important, must be weighed against the many Concorde tire failures where no piece of metal was the initiator, and the fact that a single tire failure by regulation and commonsense cannot be permitted to take down an airliner at a cost of one hundred and sixteen lives. There will never be a runway at a commercial airport entirely free of debris, so a small innocuous piece of metal cannot be permitted to cause such a tragedy.

There is no doubt that Concorde will fly again. If Concorde is grounded forever because of this accident, then every B-737, Airbus, and any other airplane that has crashed should also be collecting dust. Fortunately, because of the scrutiny paid to the tire problem, especially on this aircraft, means will be devised to minimize engine damage in the future, which hopefully will also make its way to other aircraft.

To this day, the Concorde is the crowning achievement in aviation. It flies faster and farther with greater payload than any other aircraft ever has. It is faster and flies higher than most new military aircraft do today or will in the near future. It can cruise supersonically longer than any military aircraft ever has, all on internal fuel, and it can deliver one hundred people safely and in comfort internationally and on time. It earns an operating profit and is maintainable in spite of its age in years. In short, if Concorde has suffered, it has been a victim of the politics of the seventies when innovation wasn’t acceptable unless it was invented here. If the United States had not nearly bankrupted itself on the Vietnam War, it too would have had an SST and this Country and the rest of the world would have enjoyed transcontinental and intercontinental supersonic travel as only the U.S. can deliver it, in a big way. The U.S. supersonic transport design carried two hundred passengers and could fly at Concorde speeds over vastly longer routes, which would have made supersonic flight available to so many more.

What are the lessons of the crash of Concorde? They are not new, but are sadly refreshed.
First, aviation safety is no accident. It is the result of taking effective steps to prevent an incident from one day becoming an accident. The tire problems known for decades weren’t solved in spite of near accidents, so now people are dead.

Second, no matter how great a pilot you are, or how well trained you are, if the airplane is broken, even the best pilot can become a victim. The flight deck crews of all Concordes are the best of the best, far above a pilot of average piloting skills to which all aircraft must be designed. When both of the port engines lost power at the critical juncture of takeoff, the airplane, its crew and passengers were doomed. These men fought valiantly to save their passengers, but were unable. They, too, were victims of the system that failed them.

Third, if timely steps are taken by regulatory authorities, further to their mandate of insuring safety of flight, aviation can be accident-free. The French DGAC and the CAA in Britain failed to adequately address years of tire failures and near accidents on Concorde. Had the steps now being taken been taken when the problem first arose, which undoubtedly was in flight test before it ever went into service; this accident would have been prevented. They didn’t, and now there are deaths.

Concorde is who we are. It is one of the greatest examples of our desire to go further, faster, and higher than ever before. It is like all of us -- flawed. It can, like its creators, be fixed if the desire exists to make that sacrifice. We can all learn a lot from this tragedy and the years of glory that preceded it.

August 30, 2000
For further comment contact, contact Arthur Alan Wolk, aviation attorney and pilot at 215-545-4220.

Tuesday, May 23, 2000

EXECUTIVE AIRLINES' JETSTREAM 31 - What The Public Needs to Know

EXECUTIVE AIRLINES' JETSTREAM 31 What The Public Needs to Know

The NTSB is investigating Sunday’s (May 21, 2000) crash of Executive Airlines’ Jetstream 31 at the Wilkes-Barre/Scranton International Airport.
Apparently, the flight crew reported that they were losing both engines shortly before the ill-fated craft crashed into hilly terrain near the airport.
The Jetstream 31, with nineteen people aboard, can only carry fuel for 450 nautical miles, or a little over 500 statute miles. That’s less than two hours’ flight time for this airplane. It has been reported that after the flight from Long Island to Atlantic City, the crew did not refuel. Total flight time for these two legs would make the airplane about out of fuel when it reached Wilkes-Barre, which would explain the double engine flameout and inability to restart. Since the Jetstream 31 has an auto-relight feature, if flameout occurs, only the lack of fuel common to both engines would seem to explain this accident. The unusable fuel in the Jetstream 31 is ten gallons, more than enough to create the fireball seen by witnesses and set fire to the cabin of the aircraft.
In 1985, another Jetstream 31 suffered a dual flameout while in a holding pattern in icing conditions. The crew had turned on the engine inlet anti-ice, but not the continuous engine ignition. A slug of ice or water ingested into the engines and shut them down, but they were quickly restarted, averting a disaster. While temperatures on the ground at Wilkes-Barre were well above freezing, at an altitude of as little as six thousand feet above the ground, the temperature in the clouds was near freezing or below, resulting in mixed icing likely encountered on the trip from Atlantic City. If the continuous ignition were not selected, another incident of dual engine failure could have occurred with insufficient altitude remaining for a restart before crashing.
The manufacturer of this aircraft recommends not using the continuous ignition for more than one hour. So, if the crew turned it off before its descent, it would not have been available when needed as temperatures near the ground warmed the aircraft and dislodged the ice.
While the NTSB must examine the engines, the chance of dual engine failure for mechanical reasons is virtually out of the question. Sending them back to their manufacturer for this purpose is of questionable judgment, especially when the recently completed Rand Report on NTSB investigative practices criticized this procedure as fraught with conflicts of interest.
All aspects of this crash must be investigated -- the maintenance of the aircraft, the training and experience of the pilots, the fueling of the aircraft, and the procedures used for ensuring that adequate fuel reserves were aboard for all flights, especially in bad weather. Complicating this process are the notoriously unreliable fuel gauges in aircraft. That is the reason aircraft operators and their flight crews must rely not on the gauges, but rather on the time in the air to manage their fuel. The weather conditions at Wilkes-Barre/Scranton on Sunday were such that any flight crew, properly trained and experienced, should have been able to execute a safe landing, unless the fuel reserves were inadequate or the procedures for descent in icing conditions were not followed. Either of these possibilities is high on the list of likely causes of this preventable accident.
For further comment contact, contact Arthur Alan Wolk, aviation attorney and pilot at 215-545-4220.

Friday, March 17, 2000


The Congress of the United States just last Wednesday, March 16, 2000, enacted passed the FAA Reauthorization Bill, including an amendment to the Death on the High Seas Act anxiously awaited by the victims of air crash disasters since the crash of TWA 800 in July 1996.

The Death on the High Seas Act was originally enacted in 1920 to provide a recovery for victims of marine disasters on the High Seas because recoveries for death were limited to the salvage value of the ship. So, as in the example of the Titanic sinking, no salvage value meant no recovery for the victims. Interestingly, the Act allowed for recovery of only pecuniary (economic) losses, not the real value of a human life such as companionship, comfort, guidance, love, affection, grief, and so forth.

It was the courts, not Congress, that extended the application of the Death on the High Seas Act (called DOHSA) to aviation, the rationale being that aviation was beginning to perform a traditional maritime activity, therefore, recoveries for death should be determined under the same law. The result, however, was to have a patchwork of laws applicable to airline flights, one law if the airplane crashed within one marine league from shore (about three nautical miles), and another if the airplane crashed further out to sea (like three and one-half miles). If the flight were an international flight, then another law applied, too, the Warsaw Convention, which back then, but not now, limited recovery to Seventy-Five Thousand Dollars with one exception. Even more weird was the way the courts applied Warsaw. If you bought a ticket from Chicago to Philadelphia and your friend bought a ticket from Chicago to Philadelphia to London, and the airplane crashed en-route from Chicago to Philadelphia, there would be no limitation on the amount your family could recover for your death, but the recovery for your friend’s family would be limited to Seventy-Five Thousand Dollars because he was on a segment of an international flight. Warsaw only applied to the airline’s liability, however, there was no limit on the recovery against the manufacturer of the airplane. Go figure!

You can imagine the inequities that befell families who lost children on aircraft that crashed more than three miles from shore. Since most families aren’t dependent economically on their young children, the damages recoverable were horrendously low, not only an insult, but worse a further assault on the grief-stricken families. How could one explain to parents that the life of a priceless child was worth so little?

TWA 800, a crash of a Boeing 747 just five miles off Long Island, New York in July 1996 caused critical scrutiny to be brought to bear on DOHSA. There were many children aboard that airplane and the thought of DOHSA’s damages limitations making a mockery of their lives was too much for their families and the politicians who were answerable to them. Even the judge to whom the case was assigned wasn’t about to allow this archaic law to limit recoveries, so he decided that since the airplane crashed only five miles from shore and President Ronald Reagan proclaimed United States territorial waters to extend out twelve miles, the crash could not have occurred on the High Seas, thus DOHSA was inapplicable. That decision was appealed by the airline and the airplane’s manufacturer, and the appeals court decision was pending when the amendments to DOHSA were passed.

So what did Congress do in the face of the crashes of TWA 800 (five miles offshore), Swissair 111 (in Canadian waters), and Egyptair 990 (some sixty miles offshore)? Congress made DOHSA applicable to only some of them! For the crashes more than twelve miles offshore, families can recover pecuniary damages (economic losses), together with non-pecuniary damages, such as loss of care, comfort and companionship. That makes sense and gives some predictability to the recovery, no matter where it happens, as long as it’s more than twelve miles from U.S. shores. On the other hand, if the crash occurs twelve miles or less from shore, the Act now reads that DOHSA does not apply, but "rules applicable under Federal, State, and other appropriate law shall apply." What does that mean?

In short, what Congress has done is leave the decision as to what law applies up to the courts to be decided in each instance. In other words, no predictability whatsoever as to who recovers, how much, and for what items. Having the chance to fix the law, Congress instead punted and guaranteed litigation to answer that question for generations to come. The airlines and manufacturers involved have already served notice that they will contend that Congress making this change retroactive to July 16, 1996 is unconstitutional and, thus, the changes should not apply to either TWA 800 or any crash that occurred before the change in the law. Of course, if the law were more restrictive, instead of less so, that argument would never have seen the light of day!

So what does all this mean? Hopefully, it means that general maritime law supplemented by state wrongful death and survival laws will apply to any crash twelve miles or less from U.S. shores. That means that dependent upon each state’s allowable recovery, damages will vary from crash to crash and maybe from claimant to claimant. In the case of TWA 800, if a court were, for example, to apply New York state’s draconian wrongful death law, the parents of children on that airplane might recover less than they could if the airplane had crashed seven miles further out to sea. A court might find that general maritime law should be supplanted by the state law of the place of domicile of the victim, in which case a larger recovery may be possible. The problem is that this legislation creates, in some instances, more uncertainty than the law it replaced. That’s unfortunate because in this day when even the Warsaw Convention has no limits, the need for DOHSA in airplane crashes is absent.

This change in the law was a product of an election year compromise, and to the extent it arguably allows, in some instances, a predictable full and fair compensation for victims of airline crashes it is better than what preceded it. On the other hand, it would have been more helpful to victims’ families had the change allowed a consistent and well-defined recovery that applied to all airline crashes, regardless of the purely "accidental" location where they impact the water.

March 17, 2000

Friday, February 11, 2000

ALASKA AIRLINES FLIGHT 261 - A Preliminary Analysis

Eighty-eight people needlessly gave their lives in the crash of Alaska Airlines Flight 261. Another eighty-eight who will be missed by their families, mourned by their loved ones, remembered in stunned disbelief. Why them? It just doesn’t seem fair that having enjoyed what must have been a joyous vacation in Mexico these marvelous people in the prime of their lives have been silenced forever.

Sound familiar? We uttered these laments just last year for two hundred seventeen in the crash of Egyptair 990, two hundred thirty-two in the crash of Swissair 111 the year before, and so on and so on, year after year. While the causes of these crashes are different, the myths surrounding them are the same.

The official investigation into this crash has just begun. A lot more needs to be learned, but enough information has been released so a preliminary analysis can be made.

Alaska Airlines Flight 261 was most likely caused by a stabilizer trim that got so far nose down that there was no longer sufficient elevator authority to counteract the nose down pitch. In simple terms that means that the leading edge of the horizontal stabilizer (that’s the little horizontal wing on top of the tail) moved upwards on its motorized jackscrew (it’s hinged at the back) so far that the movement of the elevators (they’re the little flaps that attach to the rear of the horizontal stabilizer on the tail) couldn’t pitch the nose of the airplane back up. The reason the airplane was seen to move so wildly in the air before impact may have been due to the crew trying to regain control even to the point of rolling inverted so they could use the down pitch in reverse (the pitch would tend to cause the aircraft to climb if the airplane were upside down). It may also have resulted from loss of a control surface or flap departing the aircraft on one side.

Pundits on television and in the press have all lauded the MD-83’s safety record. Indeed, like all big airplanes, the MD-80’s accident record is pretty good, but that’s not the true test of an airplane’s reliability. Each time there is a problem reported with the stabilizer trim it is an accident that didn’t but could have happened. There have been hundreds of reports of stabilizer trim problems and several Airworthiness Directives issued by the FAA to correct stabilizer trim problems that could result in loss of aircraft control. One of these AD’s was not yet complied with by Alaska Airlines, the one that requires an extensive inspection for corrosion. That’s because the FAA gave the airlines eighteen months to complete the inspections!

Just as it does after every airline accident, the FAA ordered inadequate inspections of a suspect part, this time the stabilizer trim jackscrew. Had the FAA ordered immediate inspections for corrosion instead of allowing eighteen months for compliance, damaged jackscrews and other failed or nearly failed components would have been immediately discovered.

The stabilizer trim system on the MD-83, and all DC-9 based aircraft like it, is a very complex yet redundant control system. As with every complex aircraft system, it requires constant maintenance and strict adherence to a principal that in aviation allows no exceptions. That principle is simple. Every airplane will telegraph its intention to fail long before the failure takes lives. Here the MD-83 and its predecessors for years warned the FAA, the aircraft manufacturer and the airlines that its stabilizer trim system needed attention, immediate attention, otherwise there would be a crash. Neither of the three entities who should have heeded these warnings did enough, in a timely way, to prevent the loss of eighty-eight lives.

The engineers at McDonnell Douglas built into the stabilizer trim system many redundancies so if a trim problem occurred, it could be stopped before the loss of aircraft control. There were switches on the pilots’ control yokes that could stop the trim motor. Suitcase handles on the control pedestal to apply a motor brake, a guarded switch to turn the system off, and three circuit breakers to cut off the power. There was also a standby trim motor to substitute if the primary motor failed. Either all of these systems failed (extremely unlikely) or the flight crew was troubleshooting a failing system in-flight and the stabilizer trim was allowed to progress beyond the point where aircraft controllability could be maintained.

Communications between the cockpit crew of Alaska Airlines Flight 261 and ground based mechanics in Seattle and Los Angeles reveal an effort to analyze the problems being experienced in the air with the stabilizer trim system while the aircraft was still under control. It had successfully taken off and climbed to thirty-one thousand feet. Control trouble was experienced and it descended to twenty-six thousand before experiencing uncontrollability out of seventeen thousand. Cockpit communications revealed thus far suggest continued troubleshooting, even when the aircraft was still under control. The system could have been shut off electrically before loss of control occurred and an emergency landing made even with the stabilizer trim inoperative, but after the stabilizer was allowed to run beyond the limit of elevator effectiveness, a safe landing is much more difficult. Since the accident, the aircraft manufacturer has warned all MD-80 series pilots not to troubleshoot stabilizer trim problems in-flight, but instead land at the nearest suitable airport.
Information now disclosed by the investigation reveals that the autopilot was shut off and the aircraft hand flown during much of the two-hour flight. That likely means that the stabilizer trim was not working properly, since MD-83s are otherwise flown on autopilot most of the time, especially at higher altitudes.

Airline pilots are retrained every six months. That’s why they are so good. We look at them in awe and respect them (and pay them pretty well, too) because they are , as we see it, all there is between us passengers and our worst nightmare come true, a crash. Unfortunately, recurrent training in an MD-83 simulator does not include troubleshooting a stabilizer system failure, except to recognize a runaway trim and deal with it before it gets to aircraft uncontrollability. No training is conducted to demonstrate loss of aircraft control or how to regain it if the stabilizer limits are exceeded. Thus, troubleshooting in the air a malfunctioning stabilizer trim system is like taking passengers on an experimental test flight! Aircraft maintenance is designed to be performed on the ground, not in the air. Malfunctioning flight controls are an emergency that requires an immediate landing at the closest airport, period! Unfortunately, without training to the limit, the pilots can’t know how dangerous it is to test a failed stabilizer system in-flight. Alaska Airlines failed to train, and the FAA failed to require it. This made victims of the flight deck crew, as well as the passengers of Flight 261.

What can be expected from this point forward? Alaska Airlines will engage in damage control, putting a sympathetic face on a very, very sad and preventable accident that took the lives not only of innocent passengers, but also innocent co-workers. The NTSB will raise portions of the tail and determine whether corrosion, a failed trim motor or failed safety devices allowed the stabilizer to run beyond controllable limits. The FAA, the agency in charge of safety, will fall all over itself defending the indefensible, which is its continuing failure to order correction of known aircraft problems in a time frame sufficient to prevent loss of life. The NTSB will criticize the FAA and make safety recommendations, which the FAA will either ignore or delay. The families of the victims will cry a lot, suffer disbelief and anguish, become angry and tormented that the Federal Government has let them down again, and file lawsuits to help assuage in the smallest ways their indignation over what has occurred again, needless loss of life.

God bless the memories of all aboard Alaska 261, God bless their families, their loved ones and friends. God’s speed to all those who investigate. We hope that others will be spared for the sacrifice of all that were not.

February 11, 2000

This preliminary analysis is offered so those interested can participate in a dialogue of information gathering in the hope that this tragedy will not fuel unwarranted fear of flying, one of the safest of all human endeavors.

Wednesday, January 5, 2000


While no definitive answer to the tragedy of Egyptair 990 is yet available, some facts are known, some are still under investigation and some won't be known until legal discovery is commenced.

It is known that the co-pilot was not intended to fly the aircraft for hours into the flight. It is known that for some reason just one-half hour into the flight he came to the cockpit and asked to fly sooner rather than later. It is known that the captain left the cockpit soon after and neglected to ask one of three other pilots to take his place. It is known that all aircraft operational parameters appeared normal at thirty-three thousand feet when, while by himself, the co-pilot apparently disconnected the autopilot and pushed forward on the control yoke, forcing the aircraft into a dive. It is known that the captain returned to the cockpit and asked, "What's going on?" It is known that before and apparently during the sequence the co-pilot recited a prayer, and during the descent the captain asked the co-pilot to pull back together with him to arrest the dive, but while he pulled the co-pilot pushed, resulting in a wild pitch-up and an in-flight breakup of the aircraft.

What is unknown is the "why" of all this. No one can reverse these events. No one can bring back our loved ones. The only task that remains is to heal, to investigate, to learn how this horrible event could have occurred, to prevent its reoccurrence, and to compensate the families, those who live for those who do not.
The investigative system under the NTSB is flawed. While the Egyptian Ambassador to the United States, admittedly with no air crash investigative background, was permitted to hear the cockpit voice recorder, the families will never have that right, as it is precluded by law. Lawyers who represent the families and their experts, however, will likely be afforded that right, but only after a judge in a court of law orders the release of the tape and only with restricted access.

The flight data recorder will be analyzed by the NTSB, which in the past has misread such data, and then it will likely be put into the airplane manufacturerís flight simulator, a simulator that has never been programmed to replicate such a violent flight profile of a B-767. In past investigations, the manufacturer has proved deliberately deceptive and misleading to Board investigators, hindering and delaying the early resolution of the accident's probable cause.

But for healing to begin, these questions must be answered now, not years from now. The only way to get them answered is to commence litigation now. The only way the cockpit voice recorder will be released is to commence litigation now. The only way for the flight data recorder information to be released in a timely way is to commence litigation now.

It sounds aggressive to suggest litigation only weeks after the accident took 217 lives, but the litigation following the crash of United 585 in Colorado Springs in 1991 ended in 1998, the litigation following the crash of USAir 427 in Pittsburgh in 1994 continues to this day, as does TWA 800 which crashed in 1996, and American 965 which crashed in Cali, Colombia, as well as many others. Time is on the side of the defense, documents will be "lost", memories will fade, witnesses will disappear, and worse, the official investigation will drone on, dancing to the tune of the political winds of who complains the loudest about its direction and likely outcome. The only voices that are not heard by government are those who cry out for their loved ones.

Once litigation is commenced, a plaintiffs' steering committee will be formed. That committee will be charged with the task of proving who is liable for the crash. Only when that task commences in earnest will offers of settlement be forthcoming. It is of vital importance that only those lawyers who have the will, the wherewithal and the desire to get into that fight be selected for the steering committee. Too often in the past, lawyers who successfully marketed themselves to grieving families fell far short when it came to getting to the formidable job of working to create risk of an adverse verdict and, therefore, the desire on the part of airlines and the manufacturers of aircraft to settle to settle. Egyptair is a government owned airline. It, therefore, enjoys protections afforded by legislation (the Foreign Sovereign Immunities Act) designed to protect governments from liability. For example, there is no right to a jury trial against Egyptair. There is no right to punitive damages against Egyptair or its employees. Unless the law is changed by the United States Congress (now under consideration), the Death On The High Seas Act will serve to limit damages to only the pecuniary losses suffered by the families of those killed. That Act allows for recovery of only the financial losses directly attributable to the deaths, and not the real measure of life or the loss of it to be recovered. Egyptair must be persuaded to do the right thing and waive the application of these Acts and offer settlements to the grieving families consistent with their losses, not hide behind a patchwork of laws passed to deny compensation for the benefit of those who owe it. It will be the lawyers who accomplish this.

Hopefully the U.S. Congress will do its sworn duty and repeal the Death On The High Seas Act as it relates to aviation accidents. Hopefully the U.S. Congress will avoid the temptation to give into lobbyists and their millions in "contributions" and for once do the right thing for the people, you know the people who elected them.

Choosing the right lawyer, especially at this horrific time, is a task no one should have to make, but it is so important. You must summon the energy to make the right choice. Here are some important considerations:
  1. The lawyer you choose must have aviation litigation experience. Without it, he will simply not know the players, procedures, or critical steps necessary to get the process started.
  2. The lawyer you select must be recognized in the field of air crash litigation and respected by both the plaintiffs' and defense lawyers as competent, skillful and honest. Without respect, nothing your lawyer says or does will advance your cause and get results.
  3. The lawyer you select should be a pilot who understands the language of aviation and can on his own conceive of and prove his theory of the accident in a court of law. Otherwise, the lawyer is at the mercy of hired experts alone, who often fail to understand the legal objectives of the case.
  4. The lawyer you select must be willing to work and have demonstrated that in past cases. Doing nothing until the trial date arrives and using the efforts of the lawyers who have done the work will result in those cases being left behind if the case actually goes to trial.
  5. Cheap is what you get. You want the job done in your lifetime? You want a lawyer to treat your case like he lost his own relative? Don't go for cheap, go for excellence. If a lawyer has fifty cases at a ten or fifteen percent fee, expect to wait until well into the next millennium before your case is resolved. Lawyers who are willing to work need to get paid more than that.
  6. Interview, interview, interview. Eyeball the lawyer who has your financial future in his hands. Do you like him? Do you respect him? Do you see and feel his concern over your welfare and that of your family? Is there compassion? If not, go elsewhere. Will he give you the name and phone number of a client who will vouch for his credentials, experience and compassion? If not, go elsewhere.
There is only one reason to interview The Wolk Law Firm, we do nothing but air crash litigation for plaintiffs. We specialize in a field that is a complex legal science and have for decades. We are pilots. We are scientists. We are lawyers who work. Every defense lawyer involved in aviation litigation and every plaintiffs lawyer in or out of the field respects us. We have settlements and verdicts that are among the largest ever recovered in aviation litigation. We have tried hundreds of cases in virtually every State. We treat every client like they are related. We have no dissatisfied clients, period! If you want to talk to a client, either current or past, that's easy because they are happy to do it for us and for you. If they can help ease your pain, just ask, whether you hire us or not. Every client from every crash over thirty-one years agrees with the way we do our job. If you give us the opportunity to be interviewed you will select The Wolk Law Firm.


Sunday, January 2, 2000


A Letter to U.S. Department of Transportation Dockets

August 24, 1999
U.S. Dept. of Transportation Dockets
Docket No. FAA-1999-6001
400 Seventh Street, S.W.
Room Plaza 401
Washington, DC 20590
Re: Docket No. FAA-1999-6001; Notice No. 99-14

I oppose the introduction of a regulation that would allow the Federal Aviation Administration to afford protection of voluntary submitted information.

The predicate for this regulation is that those persons who might provide the FAA with useful safety or security information won't do so if they are fearful that the information will be disclosed in response to a FOIA request. Historically, this has been demonstrated to be an entirely false assumption. The FAA has had in place a Service Difficulty Reporting System for at least forty years to my knowledge. Mechanics and others, without any compensation or hope for it, or any fear of the disclosure of this information, have provided the necessary safety information concerning the failure or near failure of aviation components that could affect flight safety for years. Unfortunately, they are frustrated because they recognize that year after year the information they have provided is not utilized by the FAA to improve aviation safety. Many mechanics I have spoken to have said that they stopped providing service difficulty reporting information because they see model after model of aircraft with no improvements and no changes and failing for the same reasons.

Thus, the paucity of information now provided to the FAA in connection with safety has nothing to do with fear of this information being disclosed under FOIA, it has to do with the disgust by the people who are responsible for providing such information with those who are responsible for using the information effectively to prevent accidents, i.e., the FAA. Thus, the basic predicate for the regulatory change is unfounded in fact.
Indeed, the FAA in response to pressure from manufacturers has refused to divulge information provided both by the manufacturers and those in the field on the basis that it is proprietary and confidential. Thus the FAA has effectively introduced, without regulatory authority for the same, the protection that it now hopes to introduce by way of a new regulatory scheme designed for one purpose and one purpose only preventing the public from knowing and obtaining access to safety information which has been previously withheld from them by both the Government and the private sector. That is the purpose of this rule, that is the thrust behind it, that is the reason it is introduced, and it is really so blatant that the FAA must really think the public are stupid by introducing a rule that is purportedly designed to enhance safety, but in reality is nothing more than an attempt to cover up the blunders of both the FAA and the industry with respect to aviation safety.
Indeed, even thought the FAA had no authority for it, even though the FAA kept from the public all the information concerning certification blunders (like the Boeing 737 rudder system), certification and safety blunders (like the lack of fire safety on all commercial aircraft wiring and insulation systems), and the list could go on and on, now the FAA wants to turn the Government into a secret repository of information that should be disclosed to the public anyway.

Why shouldn't the public know that an aircraft is unsafe, and then make a choice not to fly it? Why shouldn't the public know that there are failure rates of aircraft of such a magnitude they shouldn't buy or fly in it? Why shouldn't the public know that there are airlines not operating safely because they are conducting paper inspections and paper repairs? In short, what the aircraft manufacturers, the airlines and others want the FAA to do, and the FAA is falling all over itself to comply with, is to make everything a secret so nobody knows how bad it is out there and how badly the FAA is doing its job.

One example strikes me as being especially telling. I wrote a FOIA request, repeated FOIA requests as a matter of fact, arising out of the crashes of United 585 and USAir 427, two Boeing 737s that crashed because of the failure of the rudder servo valve, a probable cause found after nine years of investigation by the NTSB. Of course, the FAA in the State of Washington didn't have any information that it found releasable, and when we took the deposition of Ken Frye, the FAA person in charge, FAA's lawyers shut him down when we were asking sensitive certification questions. Of course, we didn't get the information from the defendants because they cited all sorts of reasons why the information was either unavailable, or they couldn't find it, or they couldn't supply it.

Well, something surfaced that was kind of remarkable, a copy of which I am providing to you, which are minutes of the certification meeting of the Boeing 737. Well, lo and behold, it turns out that the FAA did question the certification of this aircraft, the single slab rudder, the single actuator, and even suggested that it was prone to a single point failure. Well, it's pretty obvious that if this document had gotten out officially, it would have been pretty embarrassing to the FAA, and probably to the managers who overruled the guys who figured out that the 737 shouldn't have been certified this way, so it didn't get out officially, it got out unofficially.

That's the problem, you see, with your proposed regulation. Your proposed regulation is a simple attempt to hide the truth from the public, to hide the truth from victims' families, to hide the truth from the press, to hide the truth from everyone who has to make an intelligent decision about aviation safety.
In short, this regulation is a cruel and arrogant attempt to deny access to the public from the people who are on the public's payroll to find out whether the job for which Government is being paid is, in fact, being done honestly, accurately and effectively.

I oppose this regulation, because it has been bought and paid for by industry, because it is the FAA's continuing attempt to hide its ineptitude because it is completely and absolutely unnecessary.
Even the FAA should understand that it is the threat of public disclosure of critical safety information and the legal liability that may result from it that is the most effective tool at implementing aviation safety improvements, not hiding behind some regulatory device to keep the public in the dark.

Read the Constitution.

Very truly yours,