FAA Orders Grounding of Boeing 737 Max Aircraft

There were three fatal accidents within a six-month period involving aircraft manufactured by Boeing. Two of those accidents occurred during passenger operations and both involved "low hours" aircraft from the company's best-selling 737 line. The third accident occurred during an air cargo operation and involved an older, "high hours," 767 model that originally entered service as a passenger aircraft but had been refitted for air cargo.

Lion Air 610 29 October, 2018

Lion Air 610, a Boeing 737 Max 8 that had been delivered only two months earlier, departed Jakarta (Indonesia) at 6:20 a.m. local time on a scheduled 1-hour flight. About eight minutes into the flight, the pilot contacted Jakarta air traffic control requesting an immediate return to the airport. That request was granted, but communication was lost when the aircraft disappeared from air traffic control radar at 6:33 a.m.

About an hour later, word was received from workers aboard an offshore drilling platform that they had observed Lion Air 610 crash into the Java Sea a few miles from their work site. When those workers later gave sworn statements to Indonesian accident investigators, they agreed that the aircraft appeared to be intact when it struck the water's surface at a markedly nose-down angle. None of the 189 passengers and flight crew survived.

Atlas Air 3591 23 February, 2019

Atlas Air 3591, a Boeing 767-375 that had been refitted as a cargo carrier, left Miami International Airport at 11:33 a.m. local time (10:33 a.m. at its destination) en route to George Bush International Airport in Houston. The flight's last communication was with Bush International's approach control, when the aircraft was some 40 miles east-southeast of the airport, was routine and gave no indication of distress.

At approximately 12:45 p.m. local time, witnesses in and around the town of Anahuac and the Trinity Bay area reported seeing the aircraft enter a steep, nose-down, descent over Trinity Bay before crashing into the marshland / shallow water along its northern margin. Local media sources quoted witnesses as saying they did not see a trail of smoke behind the aircraft and that the aircraft appeared to be intact prior to impact.

Ethiopian Airlines 302 10 March, 2019

Ethiopian Airlines 302, a Boeing 737 Max 8 that entered service the previous November, left Addis Ababa (Ethiopia) at 8:38 a.m. local time. Some six minutes later, the pilot declared an in-flight emergency and requested a return to Addis Ababa. The aircraft then disappeared from flight tracking radar and its pilot did not respond to further attempts at communication from controllers. The aircraft crashed about 40 miles southeast of the airport, killing all 157 passengers and crewmembers.

Early reports quoted flight controllers as stating that the aircraft's altitude became "erratic," which could have been the reason the pilot requested an emergency return to the airport. Photographs taken at the scene show what is identified as an "impact crater" created when the aircraft struck the ground. Based on the photos of the crater and its surroundings, experienced aircraft accident investigators stated that the aircraft was probably intact when it struck the ground at an extreme nose-down angle.

What the Accidents Had in Common

Although these accidents were widely separated by both time and distance, they have several factors in common:

1. All three aircraft were manufactured by Boeing, although the Atlas Air 767 was considerably older than the two 737 Max 8s.
2. None of the accidents occurred during poor weather conditions, although there is some evidence that Atlas 3591 may have encountered air turbulence.
3. The pilots of both the Lion and Ethiopian flights reportedly experienced problems that were severe enough for them to request an emergency return to the airport. Media sources quote NTSB investigators as saying that the "Black Boxes" recovered from Atlas 3591 indicate that the flight crew seemed to have lost control of the aircraft about 20 seconds before impact.
4. According to witnesses, and the available physical evidence, all three aircraft appeared to be intact when they impacted at an extreme, nose-down angle.

Although we are attorneys and not accident investigators, we feel that the available evidence suggests that some problem with the avionics and/or the "fly-by-wire" flight control system (the electronic hardware and software that allows the flight crew to control an aircraft) appears to have been the both the common and immediate cause of these accidents. Before explaining why we speculate all three aircraft crashed due to some electrical/computer malfunction, we need to explain how these systems function.

Generally, "avionics" now refers to the computerized mechanisms that monitor and regulate an aircraft's internal state (e.g. engine performance, fuel status, and cabin pressure), its navigation, and its communication with ground controllers or other aircraft. On the other hand, its "flight control system" is what the flight crew uses to safely fly the aircraft. The flight control system relies on numerous sensors that "feed" information such as the aircraft's speed, the position of the aircraft relative to the ground, and other data of immediate importance to the flight crew. In modern aircraft, the human flight crew still retains control of the aircraft although the flight control system will automatically attempt to correct any flight situation that it interprets as a danger to the aircraft. Obviously, if a flight control sensor malfunctions or the flight control misinterprets sensor data, the aircraft is in danger.

1. Although inexperienced pilots have been known to become disoriented during flight and, as a consequence, "fly the aircraft into the water" (as was the case in JFK Jr.'s accident), it is inconceivable that three professional flight crews, each with thousands of flight hours' experience, would make the same errors in judgement.
2. Witness reports indicate that all three aircraft were intact at the moment of impact seems to rule out an inflight catastrophe, such as a fire or explosion, as the cause of the accidents.
3. On the flight previous flight (the day before Lion 610), another crew noted that the aircraft's flight control system seemed to be behaving erratically and seemed to be having difficulty determining the aircraft's "nose up or nose down" relative to the horizon (a critical factor in normal flight operations).
4. Two flight crews declared inflight emergencies due to control problems, and the third flight crew (Atlas 3591) may not have had time to notify air traffic controllers of their emergency.
5. All three aircraft impacted at an extreme nose-down angle.

At this time the exact causes of these accidents have yet to be determined. However, if the flight control avionics are implicated as we suspect, this leads to the question of where liability for the loss of life and property may lie. We see this issue as follows:

1. If Boeing manufactured the avionics, and the avionics are found to have caused the accidents, then Boeing could be held fully liable.
2. If Boeing did not manufacture the avionics, and the avionics are found to have caused the accidents, then the manufacturer and Boeing could be held "jointly and severally" liable.
3. If there was a suspected issue with an aircraft's flight control system, and the aircraft was allowed to remain in service, then the airline (and probably Boeing) could be found liable.

Again, note that we are only speculating as to the causes of these accidents. We will provide updates to this post as they are warranted.