Saturday, April 21, 2007



By now, we know how the horrible chain of events happened to cause the mid-air collision at 37,000 feet over the Amazon last Sept. 29. In that crash, 154 people on a Gol Airlines 737 died, while 7 on a Legacy 600 business jet (me among them) inexplicably survived after a harrowing landing at a jungle air strip.

But the plot has thickened, with ExcelAire, the U.S.-based owner of the Legacy, finally taking the offensive by issuing in Brazil a 134-page report that details step-by-step the chain of on-ground mishaps and failures that put the two planes on a collision course, and also charges that important avionics equipment installed in the $24.7 million business jet, including the transponder unit, had a history of defects and were essentially used parts installed on a new jet.

“Embraer never revealed to ExcelAire that these components were not new, and neither did it inform that they had been returned to Honeywell for repair,” the report quotes ExcelAire lawyers José Carlos Dias and Theo Dias as saying.

So after six months of relative silence while Brazilian authorities (and much of the Brazilian media) denounced the company, the pilots and even the passengers on the Legacy as reckless murderers, ExcelAire has come out swinging. The report is causing the usual hysteria in Brazil, and being met with the usual indifference in the American media, which still has a few days left of wringing its collective hands over how the Virginia Tech massacre could possibly have happened, and how society failed the poor, alienated killer before he went on a rampage. (Hey, Scoops: I got it for you in six words, save you lots of paper and ink and electricity: Homicidal Maniac On Loose With Guns)

Anyway, the background on the crash:

As early as last November, the International Federation of Air Traffic Controllers Associations -- worried (correctly) that the Brazilian authorities were rushing to criminalize the accident and scapegoat the two American pilots on the business jet -- issued a summary report on what it had found.

That IFATCA report, though sketchy, stands up today: "Facts will show that the Air Traffic Management system in place in the airspace of Brasilia [the air-traffic control center that had responsibility for the Legacy and the 737 at the time of the collision] did not register nor correctly detect the true altitude of the American-registered aircraft," it says in part, adding: "... there is apparently an air traffic control system in operation that is showing false and/or misleading information to the operators."

"We are confident," the global air traffic controllers federation said, "[that] said equipment is responsible for starting the fatal chain of events of Sept. 29, 2006..."

Here also is the National Transportation Safety Board's preliminary report on the crash, issued in late November, which discusses the 19 failed attempts by the Legacy crew to make radio contact with ait traffic control in Brasilia before the crash. The NTSB has completed its investigation, but is required under international protocols to withhold its release till the Brazilians complete their several investigations.

From the get-go, Brazilian authorities viciously denounced anyone (especially me) who pointed out well-known and longstanding problems with Brazilian air traffic control, including dead radar and radio zones and old, malfunctioning equipment -- not to mention a work force of demoralized, badly paid and insufficiently trained military controllers (the military runs ATC in Brazil), many of whom don't have adequate English skills to do their jobs properly in an international aviation system. Those assertions are simply not in dispute by anyone not directly involved with the Brazilian military and/or Federal Police, who have sought to pin the blame for the disaster solely on the American pilots.

The one unanswered question in the investigation, however, has been what caused the transponder device on the Legacy to stop signaling some time before the crash. It's not in dispute that the Legacy transponder began transmitting again immediately after the impact of the crash.

The transponder triggers the air-to-air anti-collision alert system that is what the global-controllers federation calls a "last ditch" safeguard in a mid-air collision that has already been set in motion.

In other words, with the two planes, bearing down on each other at a closing speed of over 1,000 miles an hour, already mistakenly assigned by ATC to the same altitude on a collision course, the very last possible chance to have narrowly prevented the crash would have been the anti-collision system -- which works only when the transponder is working.

For more than 45 minutes before the crash, air traffic controllers in Brasilia -- the center handling the plane at the time -- failed to notice that the Legacy's transponder was not signaling. It's part of their job to notice things like that. (Correction added April 22: I was wrong saying that controllers "failed to notice" the non-signaling transponder for 45 minutes. In fact, they did notice it and failed to do anything about it.)

After we landed in the jungle, the pilots, Joe Lepore and Jan Paladino, were utterly flummoxed about the transponder (and don't forget, I was with them during two and a half days of custody and questioning after the crash. From my close observations, they had no idea what had malfunctioned or why).

They certainly hadn't turned the transponder off. Why would they do that? (Oh, I forgot: deliberately turning off the transponder would allow them to be undetected while performing illegal "aerial maneuvers and show off the new plane" over the endless skies of the Amazon, as the bumbling Defense Minister, Wonderful Waldir Pires, kept idiotically insisting).

By now, it's basically acknowledged that the transponder was not signaling well before the collision. Honeywell, its manufacturer, and Embraer, the big Brazilian aircraft manufacturer that made the Legacy, have insisted that the transponder was not defective.

But the plot thickens.

Weeks before the Sept. 29, 2006, crash, as I noted many months ago, the FAA had issued an advisory, called an airworthiness directive, that cited various models of Honeywell transponders and said they needed to be fixed, by Oct. 17, 2006, to prevent them from "erroneously going into standby mode."

Among the specific transponders cited (see page 6 of the advisory) were some used on some Embraer commercial regional jets, as well as on the ERJ-135-BJ -- a business jet that is also known as the Legacy 600. When inquiries were made about this back in October, I was informed that the directive did not cover the transponder in the Legacy that crashed.

Honeywell has said in the past that the advisory did not apply to the unit installed in the the Legacy, which had been checked out to comply with the FAA advisory on inadvertent switching to standby before the deadline and before ExcelAire took possession. So the problem with the Legacy transponder seems to have been something other than it switching inadvertently into standby.

But the fact remains that that transponder model had at least one defect that required repair. And that was the model in the Legacy. The F.A.A. Registry for the aircraft N600XL, issued Sept. 29, 2006 to ExcelAire LLC, lists the manufacturer as Embraer and the model as "EMB-135BJ." That's the self-same Legacy 600 plane involved in the crash.

As you can see on Page 3 of the FAA advisory, the airworthiness directive, Embraer requested (and received) extra time to comply -- 14 days beyond the "effective date" of Oct. 17, 2006. "Embraer asserts that the loss of the transponder does not pose so great of a hazard as to justify such an urgent compliance time," the advisory says.

Embraer probably had a valid point there.

In fact, other pilots have told me time and again that transponders of all sorts sometimes flip into standby or go off-line for one reason or another, sometimes evidently on their own. Air traffic control on the ground routinely advises pilots when a transponder is not signaling. But that, as we know, was not done in Brazil.

In recent interviews with Brazilian media, Mauricio Botelho, the soon-to-retire president of Embraer, said flatly that the Legacy transponder was functioning normally on Sept. 29.

I know and respect Mr. Botelho, who had originally importuned me to come to tour Embraer's factories as a freelance writer for Business Jet Magazine, which is why I was in Brazil in the first place. (I basically hitched a ride home on the Legacy, which had 9 empty seats).

When Mr. Botelho phoned me at police headquarters in Cuiaba the night after the crash (my phone wasn't working -- someone at police headquarters handed me a phone when he called), the deep anguish in his voice was for the dead, and the concern he expressed was for the well-being of the 7 of us who had walked away physically unharmed. Though he knew full well that I would be writing a story on the disaster as soon as I was released from custody and could reach a computer, he made no attempt to "spin" me on Embraer.

I do know that the current investigations, once the chain of errors and breakdowns on the ground were established and the planes were placed on a collision course, have focused closely on the transponder, which was pulled from the unsecured Legacy as it sat on the runway in the jungle and shipped to a Honeywell facility in Phoenix for testing.

(And by "unsecured," I mean that during the 24 hours I and the others from the Legacy spent detained on that base, Brazilian military personnel were crawling all over the cockpit, pulling equipment and running tests. And the plane -- by definition a crime scene, since Brazilian investigators were clearly detaining and working to charge the pilots, who were in fact kept in Brazil for 70 days afterward, The Legacy is still sitting on that air base ramp in the jungle 7 months later.

ExcelAire is the Long Island company that bought and operated the Legacy 600, and faces tens of millions of dollars in liability claims in lawsuits filed on behalf of families of the dead. The pilots, who were released from Brazil in December, still face possibly serious criminal charges, and Brazilian authorities have remained adamant in their stance that pilot error caused the accident, even as overwhelming evidence accumulated showing otherwise.

As I said to our small and shaken group not long after the crash, "I think the fix is in."

The long report ExcelAire filed recently with Brazilian authorities giving a precise countdown of the chain of ATC errors and charging that both Embraer and Honeywell were responsible for installing a used transponder unit that had previously been repaired in the plane, without informing ExcelAire.

The report stresses -- and every informed observer outside the Brazilian government agrees with this -- that a dysfunctional air-traffic control system triggered the horrendous accident. Any in-flight equipment failure merely made the unfolding disaster absolutely inevitable, rather than highly probable.

From the Brazilian newspaper Folha today, translation via our heads-up and indefatigable Sao Paulo bureau chief Richard Pedicini:

ExcelAire accuses Embraer for flaw in plane

Company that owns Legacy that collided with Gol Boeing also blames air traffic control and manufacturer of Transponder

In report to Federal Police, ExcelAire alleges that Embraer, manufacturer of the Legacy, did not notify it of previous problems in components

By Eliane Catanhêde
Folha Columnist

Besides directly accusing the failures of Brazilian air traffic control, the North American company ExcelAire, owner of the Legacy jet that collided with the Gol Boeing in 2006, also accused the Brazilian Embraer, manufacturer of the airplane, and the North American Honeywell, manufacturer of the transponder.

It's the first time that the manufacturers are accused in one of the accident's great mysteries: why the transponder, equipment which transmits data from the plane to other aircraft and to the earth radar stations, stopped working before the collision.

In a 134-page report to the Federal Police, ExcelAire's lawyers said that one of the components where the transponder and part of the radio system are installed had previously presented defects, in an aircraft no longer in production. It was sent back to Honeywell by Embraer, returned to Brazil and was installed in the Legacy.

Besides this, one of the Legacy's radio management units was also returned to Honeywell for problems in another plane. Despite the problems and having already been used in other planes, the devices were installed in the Legacy, which was new and making its maiden flight on the day of the accident, September 29, without the knowledge of the purchasers.

"Embraer never revealed to ExcelAire that the cited components were not new, much less informing that they had already been returned to Honeywell for repairs," lawyers José Carlos Dias and Theo Dias said in their text.

According to their report, two days before the accident, Embraer's test pilots noted in an acceptance flight for the Legacy that the images on the flight management system "were flickering and trembling."

In the text, they say that Embraer's own later inspection "revealed that the systems were incorrectly connected, which motivated the suspicion that other systems may present, in the same way, defective connections."

In the first investigations after the accident, the Air Force was already working with the possibility of a "loose contact" between the transponder and the aircraft.

During the course of the investigation, the Folha published [my note: make that 'copied from this blog'] that Honeywell had "recalled" transponders, because they entered into "stand by" incorrectly precisely because of a contact problem with the plane's radio unit. The Legacy [model] was included in the recall, but Honeywell sustained that the unit installed in the plane that suffered the accident was not one of those with problems.

The Air Force Investigative Committee also concluded that the transponder, in itself, was free of defects. However, it advised that other analyses were being done and that neither the hypothesis of flaw in installation nor in operation had been discarded. There is still no official result.

According to the lawyers, in the text to the Federal Police, "additionally, various maintenance problems were registered in the flight logs of the Legacy sold to ExcelAire, providing evidence of defects in the aircraft that may have contributed to or explained the transporter failure."

They cite examples. One of them: inoperative panels were identified by Embraer during a production flight on July 12, 2006, a little more than two months before the collision, which was the worst accident in the history of Brazilian aviation and resulted in the deaths of all 154 people aboard the Boeing.

Another example was the meteorological radar did not pass a flight test, and even after being fixed, failed again. The text was sent on April 10 to chief Renato Sayão, who is investigating the accident.

A third example was a test of the plane on September 11, when the crew was advised by the plane's general alarm system of a possible overheating during the landing procedure. Seven days later, the panel units had to be adjusted.

One of the systems that failed to function due to the disactivation of the transponder was the TCAS, the anticollision device that could have avoided the accident.

ExcelAire affirmed that, in later and still unfinished tests at Honeywell, it was found that the TCAS received a signal indicating that the plane had "weight on the wheels" when it was flying at a stable altitude of 37,000 feet (11,000 meters). That is: it may not have worked because it "understood" that the plane was on the ground. The TCAS does not function on the ground.

The text also indicated problems in the assembly of the equipment, such as "an excessive quantity of non-conducting silicone inside the transponder antenna connectors".

In the report, there are also references to "significant problems" with the Legacy, before the initial flight. The lawyers cite failures in the FMS (flight management system) panels, one having presented navigation problems and the other failing to indicate frequencies during the test flight.

One of the several possible causes of the accident was precisely the failure of communications between Cindacta-1 (the air traffic control center located in Brasilia) and the plane. There were more than 20 attempts, without success, before the collision with the Boeing.

According to the report to the Federal Police by the North American firm ExcelAire, a "series of errors by air traffic control constitute the direct cause of the accident" between the Legacy jet it owns and the Gol Boeing. The word "negligence" is used in at least four subtitles about air traffic control.

"This accident was caused by serious failures in the Brazilian air traffic control system", it says on page 59, enumerating six of these flaws, after the control tower in São José dos Campos (São Paulo) authorized the jet to fly at the altitude of 37,000 feet to Manaus, when it should have descended to 36,000 feet after Brasilia.

The report, signed by lawyers José Carlos Dias and Theo Dias, says that the air traffic control system was "negligent" and erred by not determining an altitude change when the plane approached and passed Brasilia and for not taking the necessary measures after this error.

Citing international aviation rules, the lawyers said that pilots Joe Lepore and Jan Paladino could only have altered the flight level at this point if they had had a determination from Cindacta-1. Without it, the jet stayed on a collision course with the Boeing.

The lawyers also questioned Cindacta-1 for having neither notified the Legacy that the transponder had stopped sending data to the radar, nor increased the vertical and horizontal safety margins, an obligatory procedure in these cases.

They further said that the control wasted the chance to confirm the exact altitude at which the Legacy was flying, during the period in which the transponder was still working, remaining content with imprecise information.

Another accusation is that, in the face of the uncertainties and the lack of communication with the Legacy, the air traffic control system should have done the basic: warn the other planes at similar altitudes and orient them to assume other altitudes. (Eliane Catanhêde)


  • Component where the transponder and part of the Legacy's radio system are installed presented defect in another plane, was sent to Honneywell for repairs and later installed in the Legacy
  • ExelAire was not informed by Embraer that the equipment had already been used and presented defects
  • An inspection by Embraer itself showed that the systems were "connected incorrectly", giving rise to suspicions that other systems might also have defects
  • The meteorological radar failed during the test phase
  • Negligence by Cindacta-1 (Brasilia) in failing to note the incompatibility between the real altitude and that indicated in the system
  • Negligence for not having contacted the jet to determine a change of altitude to 36,000 feet on passing Brasilia
  • Negligence for not warning Cindacta-4 (Manaus) and the aircraft in the same area, such as the Boeing, as soon as the transponder ceased functioning
"Other Side: Embraer and FAB do not comment on report".


Sought by the paper, Embraer informed, through its public relations firm, that it would have nothing to say about the report sent by ExcellAire (sic) to the Federal Police.

As there is an ongoing investigation, coordinated by the FAB (the Brazilian Air Force), Embraer considered that it had no motives to comment on the topic.

The Air Force also did not care to say anything. According to the press secretary, the investigation is still ongoing.

However, in a letter sent to the victims' families in March, the commission which is investigating the causes of the accident concluded that the Legacy's transponder, anti-collision system and radio were operating normally.
--end of Folha report

Meanwhile, the newspaper O Estado has weighed in. According to our man in Sao Paulo Mr. Pedicini, O Estado dismisses the ExcelAire report as "dossier," which Mr. Pedicini explains by e-mail "isn't quite the same in Portuguese" as in English. Though a French word, dossier should be translated in the Portuguese context as "not a defense or a search for truth, [but rather] an underhanded attack," he says.

--My Note: When Embraer, the Brazilian authorities and Honeywell do comment on these allegations, I will post it as soon as I get it. Likewise, I will post the complete copy of the 134-page ExcelAire report when I get the text.

--Later: Here is a link to the ExcelAire report from O Estado, unfortunately in Portuguese. As soon as I get the English text I'll post it.


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