Victims' Lawyer On What Could Be Behind Ahmedabad Dreamliner Crash

Two months since the tragic Air India 171 crash in Ahmedabad that killed 241 people on board and 19 on the ground, many questions remain unanswered, the chief one being: Was it a fault with the fuel switch locking mechanism or was it human error? Principal Attorney and Aviation Accident Lawyer, Michael Andrews from law firm Beasley Allen, explains:  

Mr. Andrews you are representing at least 65 families who lost their loved ones in this crash, first off what are the charges you are making and what are the demands? 

Currently we are actually over 70. Meetings with families who are reaching out to us are continuing but the common theme that we are hearing from every single family is a request for transparency, a request for information. The families want to know what happened. 

They want to know why it happened and they want to know how to prevent it from happening again. So the initial demand that all of the families have is transparency in terms of the information that is held by Air India into the cockpit voice recorder and flight data recorder. 

Would you move the courts against Boeing or Air India or both? What is the plan?

The plan rather than starting with what court we would be, we start with what happened. And so in this case if we are able to obtain the flight data recorder and cockpit voice recorder, we can put those two together with our experts and put together a plan that shows us exactly what happened. We can overlay both of those. We will know what happened, when it happened, what inputs are being made by the pilots, what changes may be commanded by the computers that are not called for by the pilots.

Once we do that, we will find out what happened and then after we know that then we will be in a position to determine who may be accountable for it. If the evidence on the black box data indicates that there is an issue with the design or manufacturing defect of some sort, then we would certainly seek to hold the manufacturers responsible in courts in the United States under American product liability laws. If, however, the data shows that it is an Air India or pilot issue, then those claims would most likely fall under the Montreal Convention.

Can these switches move without intent? Since the Flight Data Recorder only detects changes in electrical current, not manual switch movements, what do you suggest could have happened? 

That is an excellent question. So we have heard a snippet, a small piece of information that indicates the switches were moved. What we don't know is if the switches themselves were actually moved or if the flight data recorder is detecting a change in current flowing to or from that switch, and that's important because the 787 is a highly complicated, very complex aircraft, largely computerized. It is basically a computer that flies, okay, and so we know there are systems on board that can actuate by themselves. In other words, they can require or call for uncommanded inputs.

They can control things like the flight surfaces and engines. In fact, there's a system known as the FADEC, which is the full authority digital engine control system. If it detects certain conditions, it can make changes in the engine settings, and so one of the questions we have is if there is a change in current detected in these switches, was that manual or was that something the computer did on its own? 

Precisely, so this is something that you're saying that could only be found out if we have the FDR data, right? 

That is correct. There's no camera in there to show us who is moving things or who is doing things. We do, however, have another recorder, the cockpit voice recorder, and so that recorder picks up the sounds of the conversations, but it may also pick up ambient background noise. Beeps and clicks and things like that, so that when we have both of these records, we can look at changes on the flight data recorder and hopefully pair that up to noises that we hear in the cockpit. So by doing that, we hope to get a better picture of what's going on with these switches. 

How does a law firm go about this case? Considering you don't have access to FDR, CVR data and ICAO Annex 13 doesn't allow you to produce the final report in the court

Right, so the first thing we do is look at what evidence is available, right. We have the video evidence that we have all seen taken from a few different angles. We know what the evidence looks like after the fact from photographs that were taken on the scene, but again, because the flight data recorder is so crucial, we begin with a request, a simple request to the AAIB and Air India to please release the information to the attorneys and the experts so that we can conduct an independent evaluation so that the families can begin to receive these answers. After that, we will write a formal request and if that is not successful, follow that up with a series of petitions that we understand are available under Indian law.

Have you already gotten in touch with any of the regulatory bodies that India has -- the investigation body AAIB or the ministry, Air India? Are you in talks with? 

So far, we have tried to stay out of that process. We don't want to unduly influence or affect what they are doing. We think that India has correctly maintained the data, obviously, and is working through it.

However, at this point, we are two months after the crash and we feel it is time to begin to ask to release that data. We have obviously pushed for this in the press and we have begun the formal request now. 

Here we have a dual engine loss on takeoff, and RAT is deployed, which is rare right? The preliminary report doesn't mention when RAT was deployed. For the benefit of our viewers, how crucial is this information and why? 

It is extremely crucial. It is a critical piece of information. The timing of when the RAT deploys tells us so many things. We have been told that the RAT should only deploy in the event of a dual engine failure or loss of power, both engines, or loss of hydraulics or electrics.

However, we know from another incident recently that a 787 that took off from Los Angeles bound for Santiago experienced a RAT deployment apparently in the absence of engine failure, hydraulics, or electric failure. That plane was able to circle and come back and land, right? Those pilots were not blamed, right? Because everyone survived and the pilots survived on that case. That raises the question of what circumstances can actually trigger the RAT deployment. If we look at the video that's taken of this, we can see that it appears the RAT is deploying almost at the instant of liftoff, right? So that raises the question -- what is triggering that RAT deployment and when does that begin? Because it's not instantaneous. When a computer system calls for the RAT to be deployed, it's not that millisecond.

There is a certain amount of time that goes and so we have to back that up to determine what is that initiating event. Is it the loss of both engines while it is on the ground? Did the RAT deploy before the switch current changed? That's critical. If that occurred, then obviously it appears to us that there would be a deeper computer issue at play here.

So if you're suggesting that the RAT may have been deployed right at the moment of takeoff, that does indicate then that the engines were already failing. But then it did come from run to cutoff and then it went back to run again, right? The pilots did try as per whatever we understand from the preliminary report as of now. So how does that happen then? 

Let me back up a little bit. If the RAT deploys before there's any change in the switch current, it doesn't mean the engines are failing. It does not mean that. In fact, it may be a symptom of something else going on.

That is why the data is so important. Your question though is, we have evidence apparently, we have not seen it, but we have been told there is evidence that the switches were moved off and then back to run, right? And so the question is, well, how do you explain that? Our understanding is that in the event of an engine power failure, the procedure is that the pilot should cycle the engines off and back on. It is altogether possible that what we see there is an effort by the pilots to restart engines that were shut off by the computer.

We don't know that. That's why it's so critical to see all of the evidence in context. If we only see this small snippet, that can be interpreted or argued one way or the other. The context of what's going on with all the other computer actions and what the pilots are doing, what they are seeing, the warnings, the things that they are seeing, just crucial. So it is a possibility that this could have been an internal software malfunction? Yes, that's entirely possible. We don't know that yet.

Turning our attention to Boeing now -- in 2018, Lion Air crash in Indonesia was a 737 MAX 8. Boeing blamed the pilots... Then about 5 months later, there was the Ethiopian airline crash, again a 737 MAX 8 aircraft -- a case you investigated. And now we have a Boeing 787 Dreamliner crash. In the Ethiopian airline crash we know that an issue with Boeing's MCAS. Is there a possibility that with the Air India crash there Could be a software malfunction? 

Yeah. And that's really sort of a history that leads us up to that question.

Because in those prior crashes, we know that an automated onboard computer system called for uncommanded inputs that changed the flight path of the planes and ultimately resulted in the crash. This has been widely reported in the media, obviously for both cases. The question that we have is, is that what we're looking at here? Because after the first crash of Lion Air in Indonesia, right, no changes were made, as far as we know, to the architecture of the plane or those kinds of things.

A few months later, as you mentioned, we had another crash in Addis Ababa, Ethiopia. Following that, the world learned that the computer system called for changes in the flight control surfaces that resulted in the crash, uncommanded by the pilots. After that, changes were made, widely reported in the media.

And as far as we know, since then, there has not been another crash of a 737 MAX with the new MCAS system. So now we are here in India, looking at a case in which we don't know yet what may have caused changes in the switches. We don't know what changes may have been called for in the FADEC system or the throttle control malfunctioning accommodation system. And so again, those are possibilities. We have systems on board this plane that are highly automated and may have called for those changes.

So Boeing has an Organization Designation Authorization where its employees act as their own regulators. This Self-Regulation policy brought under the Trump administration, Are there any concerns with it?  

I think anytime that you have an organization self-policing to meet regulatory requirements, you have the potential, at least for abuse of that process. So it is important to know that under the ODA, as we understand it, Boeing employees would act as self-regulators to ensure that the aircraft they are building meet the FAA regulations and requirements.

The problem is the obvious potential self-interest, right? Because the employees that are acting in the capacity of FAA inspectors and regulators are also simultaneously on the Boeing payroll. So you get into the situation of, are they making decisions that are more influenced by their position rather than their responsibility, right? So I think that answers your question. It is the potential for abuse is there.

Western media has built this narrative of pilot sabotage in this case, how do you view such speculations from such reports, is it a way to shift focus?

So what we see typically is that this narrative doesn't really originate with the media. It has been picked up by the media and reported, but it is largely reported in a vacuum as a result of the lack of all of the evidence, right? This gets me back to the small, out of context pieces of information that have been released. The small piece of conversation in which we are told, and we have not heard it, but we have been told that one pilot says, why did you turn off or why did you switch off? And the other one says, I did not. I did not. We don't know how that's said. We don't know the context in which that is said. And so that is a small piece of out of context information that can be interpreted in many ways, right? Coupled with the small piece of information in the preliminary report, which talks about the switch position.

So depending on the focus and how the narrative is pushed in one way or another, I think that's what tends to perpetuate that. It generally does not begin in the media.

It is just based on small pieces of information. Now, in terms of deflecting from responsibility, certainly it fits a narrative that is more geared toward blaming the pilots than toward looking at the actions of the aircraft, the design of the aircraft, or anything to do with Boeing. 

Because why is that not the first question is what I'm also questioning at this point? And because even in the case of the Lion Air crash, Boeing immediately blamed the pilots in this time round. Also, there is this similar narrative that is doing the round... We know from experience that a good number of aviation accidents do result from pilot error. In fact, it is a very high number when you initially look at the reports. The more in-depth, the more exhaustive the research is and the investigation, that number typically goes down some.

Because what you start to look at is did the pilot do something that caused the problem? Or is the pilot presented with a set of facts and circumstances that make it difficult for him to respond to in a timely manner? And in this case, we know they were very close to the ground. They didn't have a lot of altitude, a lot of time, a lot of space to deal with. And so things happen very rapidly.

The question is going to be, is this a situation that was caused by or initiated by human input? Or is this a situation that was set up by a computer in a set of circumstances that made it impossible for pilots to respond to? 

What is the status quo right now on the compensation of the families of the victims whom you are representing? Have all of them received their compensation? Have they not? 

So far, we have not been involved in that compensation fund process. We have applauded the fact that compensation funds have been established. We think that's vitally important. My understanding is there were hiccups in the early stages of establishing that process. Certainly no one anticipates this kind of disaster. And so I don't think anyone was ready immediately to administer a fund like this. My understanding is that it has evolved over time. Families have begun to receive compensation, but we still hear stories that reflect some sort of bureaucratic problems.

In fact, yesterday, we were in Diu meeting with clients and understood from one family that an elderly woman who is bedbound from various medical conditions had been depending on her son, who is now deceased. He was a passenger on the plane. She was depending on her son's income to pay for the necessary medical care that she has to have.

Now that he is dead, obviously that income has stopped. She is at a loss as to how she is to live daily, how she is to receive her medical care. They have not received their fund yet.

So that's a concern because these are families that obviously are suffering in every way imaginable. It seems to add insult to injury if there's this bureaucratic process that delays the receipt of the compensation. We are not talking about a big amount of compensation in the big picture. No amount of compensation is ever going to be appropriate for human life, ever. But certainly now, in a time when families are dealing with so many other issues, it is crucial that there not be this bureaucratic roadblock. 

We know in the US a little bit about Ratan Tata. We know from experience, based on what we have heard, that his focus was more on the person, the human aspect of it, and not really a business enterprise, but how things that happen every day affect individuals. It seems to us that if he were here, this might be administered a little bit differently. Things would have been different? We think so.

Finally, What are your expectations from the final report? 

My hopes and my expectations are two different things. I would be hopeful that the report would be exhaustive, that it would contain every piece of information, that it would lay bare all of the data that is available in both recorders. My expectation is that it is going to fall short of that, unfortunately. That is not casting blame in any way. There is a lot of information to be had here. It takes truly an independent investigation to sift through all of this information.
We would hope that there will be a concrete finding at the end. Frequently, however, you see reports that end up with inconclusive evidence, that we can't tell something one way or another. Then we're left to question, what was the motivation for that type of finding.