LEGAL COMMENT: Coincidence or defect? Boeing faces safety questions after Ethopian Airlines crash

Partner Andrew Krausz and Solicitor Harriet Edwards from the Weightmans aviation team look at the latest incident involving the 737 Max 8 jets..

Partner Andrew Krausz and Solicitor Harriet Edwards from the Weightmans aviation team look at the latest incident involving a Boeing 737 Max 8 jet and ask, 'is there too much coincidence for comfort in Ethiopia?' 

After years of hearing the message of ‘aviation has never been safer’, the aviation industry has been rocked by several separate incidents this weekend, two of which were fatal to all aboard.

The first, an internal DC-3 flight from Columbia’s San Jose del Guaviare to Villavicencio, carrying 14 occupants, reported an emergency at 10.40 on Saturday morning. The wreckage was later found in La Bendición, near Villavicencio, according to Colombia's Civil Defense, with no survivors. The cause of the crash is unknown.

Then, 30 passengers were injured whilst aboard a Turkish Airlines flight, which was 45 minutes away from its destination of New York’s John F. Kennedy International Airport. Flight 001, a Boeing 777, which departed from Istanbul with 326 passengers on board, encountered severe turbulence causing non-fatal injuries to 28 passengers and two crew members who required hospital treatment after landing.

Perhaps the most devastating incident occurred on Sunday when an Ethiopian Airlines flight to Nairobi lost contact with authorities shortly after take off from Bole International Airport (Addis Ababa). The aircraft, which is reported to have had no recorded maintenance issues, was found 37 miles south-east of its departure city, having been airborne for only 6 minutes. Shortly after take-off and at around 8,000ft, the pilot in charge of flight ET302 had requested authority to turn back. The aircraft, a Boeing 737 Max 8, is then reported to have dipped to 7-7,500ft before climbing to 8,600ft. It then disappeared from radar. All 157 persons on board tragically died.

Ethiopian Airlines has a good safety record and holds itself out as complying with ICAO and IATA standards of best practice. With investigators still trying to determine the cause of the crash, it is not surprising that comparisons have quickly been drawn with the doomed Lion Air flight of October 2018, which plunged into the sea off the coast of Indonesia shortly after take-off. That aircraft was also a brand new Boeing 737 Max 8, prompting US firm Boeing to release an emergency notice, warning airlines of a problem with the aircraft’s anti-stall system that had been engaged due to erroneous readings from an angle of attack sensor.

The Boeing 737 Max 8 has only been in commercial use since 2017 and preliminary findings from the Lion Air crash suggest that the anti-stall system repeatedly forced the aircraft’s nose down, despite the pilots’ best efforts to keep the aircraft in its ascent. Ethiopian Airlines have now grounded all of its 737 Max 8s, as has Air China, China Eastern Airlines, China Southern Airlines and Cayman Airways, pending further investigation.

The two Boeing 737 Max 8 incidents could be coincidental. While too early to comment on cause of the loss, alarming preliminary factual similarities between Lion Air and Ethiopian are inescapable and that is having a material effect on passenger confidence, operations of the aircraft by other users and the manufacturer. Following Lion Air, a bulletin informing pilots of the new anti-stall system on the aircraft had been issued by Boeing in late 2018.

Dependents of the passengers on board will invariably bring their claims against the carrier under the banner of the Montreal Convention 1999, which doesn’t require ‘fault’ for primary liability. However, both passengers and airline might ultimately be asking questions of Boeing, the US-based manufacturer, the USA also being a more expensive jurisdiction in terms of awards.

Meanwhile, other operators of the aircraft will be balancing the cost of grounding their aircraft, (which might not be a recoverable cost), versus the potential cost of operating the aircraft where passenger confidence will be understandably shaken and where a further incident, before accident investigations are sufficiently complete, could be devastating to an airline brand.

Insurers for the airlines and the manufacturer will be braced for another expensive process.

Boeing, which suffered a huge drop in its share price today, will be anxious by the grounding of its aircraft and concern regarding safety of its product, particularly in China, which is the world’s fastest growing aviation market, and where Airbus and Boeing are fighting for market share.

As such, all stakeholders will be anxious to receive the accident report quickly, which we expect will have the benefit of analysis of the data recovered from secured aircraft flight data recorders and input of accident investigating authorities from a number of interested nation states, (as well as information from the airline and manufacturer). While such reports can take some time, there will be pressure for the benefit of an interim report, which gives a steer on the safety of operation of the aircraft type.

For more information, please contact Andrew or Harriet:

Harriet.Edwards@weightmans.com

Andrew.Krausz@weightmans.com

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