Wednesday, May 09, 2007

Brazil: We Know How It Happened ... But Pilots Will Face Charges Anyway

The Federal Police in Brazil, having quickly finished what strikes me as a very dodgy investigation, are rushing to file criminal charges against the two American pilots as soon as they can.

The police will apparently claim that pilot negligence caused the crash, in that the Legacy's transponder (which is connected to the TCAS, the anti-collision alert) was not working for 55 minutes before the collision with a Gol 737 that sent all 154 aboard the 737 to their deaths on Sept. 29.

The police evidently will also trot out the long-discredited charge that the American pilots were also at fault because they failed to follow the filed flight plan (which -- and this is no longer in any dispute -- was superseded, as flight plans routinely are, by explicit instructions by air-traffic control to maintain 37,000 feet altitude).

We know that the transponder was not signaling. But why the transponder was not working is very much an open question -- unless one believes (as no one with the common sense of a turnip does) that the pilots deliberately turned it off.

Was the transponder mechanically defective -- with perhaps a bad connection that could have accounted for its suddenly coming back on line with the jolt of the impact? ExcelAire says it learned only after the crash that the transponder equipment in the Legacy had previously been repaired before being installed in the new plane. (Neither the plane's manufacturer, Embraer, nor the maker of the transponder equipment, Honeywell, has commented on that).

Or did one of the pilots somehow inadvertently jostle the transponder housing, perhaps with a foot, and knock it off line without realizing it? That's considered unlikely, but the possibility has not been entirely ruled out. (Meanwhile, the U.S. National Transportation Safety Board said last week that aircraft transponders don't adequately alert pilots when they go off line, as transponders sometimes do).

So as to the transponder, there are unknowns.

It is, however, also well known that the transponder -- which controls the anti-collision alert -- was only the final fail-safe measure that could possibly have at the last-minute averted a collision at 37,000 feet that had already been firmly set in place by air traffic control and its faulty systems on the ground.

But the Federal Police wish to hear nothing more than that the American pilots are at fault. They have already said that if air-traffic control itself contributed to the crash -- and as is now well known, a breakdown in air-traffic control systems and human operations was the actual cause-- that is not the concern of the Federal Police.

Ridiculously, the Federal Police chief says that, since the Brazilian military runs air traffic control, and the controllers are military personnel, investigations into culpability by air-traffic control are the responsibility solely of the Defense Department and its estimable minister, Wonderful Waldir Pires.

Along with the police, the Defense Department has also been blaming the American pilots from day one and admitting no fault. And of course the Defense Department has an obvious interest in maintaining turf, in holding onto that honeypot of an annual budget for air-traffic control, and of course in saving face politically in Brazil.

Yet while the fix is in, the truth is emerging forcefully -- even as the American pilots are about to be railroaded again in Brazil, where nobody is ever at fault except outsiders.

In a lengthy magazine report, the International Federation of Air Traffic Controllers Associations (IFATCA) recently documented how the accident happened.

In essence, the IFATCA magazine, and an earlier report on the accident issued by IFATCA in November, don't differ in detail from the report that ExcelAire filed (here's another link to that) with the Federal Police last month. The IFATCA report was scathing in its indictment of Brazilian air-traffic control technology as "unsafe and dangerous."

The article in the March issue of "Controller," published by IFATCA, said of the Brazil disaster:

"Operators in the air (the pilots) and on the ground (the controllers) fell victim to unacceptable systems traps brought on by 'non-error tolerant' and 'bad system design' of air traffic control and flight equipment in use."

Readers who have closely followed the reporting on this blog since early October about this tragedy will find few surprises in the 18-page magazine report by IFATCA, which represents air traffic controllers all over the world and had representatives on the scene in Brazil within a day of the crash.

But what you will find is a detailed and sobering account from a source totally independent of ExcelAire, the Long Island company that operated the business jet and employed the two accused pilots. ExcelAire has already sent its own detailed account of the accident to Federal Police report. (See my post of May 4 for that link).

The ExcelAire report and the IFATCA report do not differ in any significant factual way.

Some highlights of the report by IFATCA, which is based in Germany:

--"How come, on a beautiful sunny day,... two brand-new aircraft equipped with the latest technology and under surveillance of a relatively modern ATC system (or so we were told) collide in 2006 like they would have in the 1950s?

Legacy (tail number N600XL) was under ATC orders to maintain 37,000 feet from San Jose all the way to its destination in Manaus, as the pilots and others looking into this accident have always said.] "There is no record of a request from N600XL to the control agencies to conduct a change of altitude ... there is also no record of any instruction from Brasilia Center to the aircraft directing a change of altitude."

-- [At air traffic control in Brasilia, as the crash scenario was well in place with both aircraft coming at each other in the middle of the same airway at 37,00 feet], "there was a difference of 1,000 feet between the level shown by the ATC system [36,000 feet for the Legacy] and the aircraft's actual and cleared flight level" [37,000 feet]

-- [In October, Brazilian authorities reacted with violent denunciations when I reported that there are notorious radar blind zones and "black holes" in ground-air radio communication in Brazil's air space, especially over the Amazon.] "IFATCA's team's observation indicated that ... the losses of two-way communication and the bad intermittent radar returns are 'normal and frequent occurrences,'" the IFATCA report says.

-- [Despite that, the Brazilian media, reflecting reckless statements by the Defense Minister Waldir Pires and others], "reported almost immediately after the September collision .. that the Legacy pilots may have voluntarily turned off their transponder to perform some 'maneuvers or stunts' to test their new aircraft. This suggestion of reckless flying put the 'blame' of the collision squarely on the pilots."

-- [The coalition of scapegoating between the Brazilian authorities and the Brazilian news media] reflects "another episode of 'trial by public opinion'..."

--At times after the accident, as controllers job actions protesting various inquiries severely disrupted Brazilian air travel, public opinion began shifting and some elements of the Brazilian media did begin reporting on "what was wrong with the Brazilian ATC system: mis-management, old equipment lacking sufficient redundancy, poorly trained controllers, many near-misses unreported or not investigated, insufficient staffing levels, low salaries and complete lack of planning."

-- "What the tragic collision between Gol Flight 1907 and N600XL has again clearly demonstrated is that, for a mid-air to occur, a chain of events is required where long-standing problems may come to light. They must align in such an unlucky way that, at the end, all layers of the ATC system are crossed."

--"Of course, the fact that a transponder ceases to function or is disabled in flight (being either voluntarily or involuntarily), is not yet sufficient to explain a mid-air collision in itself. It is just a contributing factor, and may be the start of a chain of events. There must be failures or underlying problems occurring simultaneously before this can actually become so critical that the worse must be feared ... a mid-air collision."

--[After the crash and onward], "the Brazilian media [reacted] with sensationalism and drama-for-effect .. looking for and finding someone to blame for the accident" rather than trying to investigate the complex causes.

-- [In Brazil, which was a military dictatorship under 25 years ago], "the press is still very much controlled by the Military and ... rather scared to make open attacks without having firm evidence." [My note: "Firm evidence" in Brazil is primarily defined as official accusation, not independent reporting or inquiry]

So that's where we are today. Rushing to get the media firmly focused on the American pilots as not-in-dispute evidence of what actually caused the crash piles up, the federal Chief of Police now ready to file his charges.


From Brazzil Magazine (an English-language daily online at

"Brazil's Federal Police has finished its investigation on the causes of the worst Brazilian air accident ever, which killed 154 people ...

Roberto Sayão, the police chief in charge of the case is writing his final report, but his conclusion is already known. Sayão has determined that the two American pilots should be blamed for the tragedy. ...

According to the federal police inquiry, the American pilots not only disrepected the flight plan putting their small jet in a collision course with the Boeing, but also were negligent for only turning on the transponder - the anti-collision equipment - minutes after the collision between the two planes.

Weren't the Brazilian air controllers also negligent? This is not for me to say, responds Sayão. They are military men and he cannot probe their actions as he was told in no uncertain terms by the military brass. This is the job of the Air Force, he argues.

[My note: That's a crock. The military's prosecutor general has already said publicly that the Federal Police, if they had the grounds, could file charges against the air traffic controllers].

From the A.P. today:

RIO DE JANEIRO, Brazil (AP) -- Federal investigators have concluded that two American pilots of an executive jet were responsible for a collision with an airliner that killed 154 people, Brazilian news media reported Wednesday. ...

The Web site for O Globo, one of Brazil's largest newspapers, reported that federal police found the pilots failed to notice the plane's transponder wasn't working until after the crash. ... Tamares Carvalho, spokeswoman for federal police investigator Renato Sayao, confirmed that the criminal investigation into the accident had been concluded and sent to the Justice Ministry. ...

A lawyer for the pilots denied they were to blame. "From the press reports, it would appear that the police have prematurely accused the pilots in response to public pressure and have not conducted a complete and thorough investigation of the facts," attorney Joel R. Weiss wrote in an e-mail. "The pilots are not at fault. We have not yet seen the report and will comment further after having an opportunity to review it," he said. ..."

And from today's O Estado de S. Paulo, Brazil's largest newspaper. (Translation by our Sao Paulo bureau chief, Richard Pedicini):

Federal Police accuse pilots in inquiry
Inspector ends inquiry and asks military to punish controllers
Catarine Piccioni, CUIABÁ

Seven months after the accident with the Gol Boeing, the Federal Police in Mato Grosso concluded the inquiry into the case maintaining the accusation against the Legacy pilots, the Americans Joe Lepore and Jan Paladino, and suggesting that the competent instances investigate and punish the air traffic controllers. The Federal Police cannot accuse them because they are in the military, which places them under the jurisdiction of the Military Prosecutors' Office and the Military Courts.

Forensic reports produced by the National Criminalistic Institute (INC) confirm that there were lapses by the pilots and the air traffic controllers who were working in the Brasilia air traffic control center, Cindacta-1, on the day of the accident. The collision between the Gol plane and the Legacy, which happened on September 20 of last year, caused the deaths of 154 people on board the Boeing which fell in the Amazon Forest, in Mato Grosso.

The police inspector responsible for the investigations, Renato Sayão, had asked for another 30 days to finish the inquiry, however, the forensic reports from the INC arrived before the extension. The inquiry's final report should be delivered this week to the federal court. After this, the federal prosecutors' office (MPF) should decide if it will or will not hand up an indictment (formal accusation) of the pilots, accused of "exposing an embarkation or aircraft to danger", without intent. The MPF can also ask for additional investigations. The pair is in the USA.

For the pilots' lawyer, the criminal lawyer Theo Dias, the Federal Police inquiry is inconclusive. "I've never seen an inquiry concluded so rapidly", he said ironically. "The police are succumbing to popular demand, without investigating the facts. To have an idea, they have not called anyone from Embraer [the Legacy's maker] to testify, much less investigated possible failures in the aircraft's equipment."

Dias reaffirmed that Lepore and Paladino have wide experience in planes similar to the Legacy. "The accident would not have happened without the controllers' errors". O Estado anticipated in December that the inquiry would point to imprudence and negligence on the pilots' part, based on the black-box dialogs. They perceived that the transponder (the equipment that communicates with the radars) was off only after the accident.


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