Brazil Mid-Air Collision, Three Years Later

[Photo: Damaged Legacy 600 after emergency landing in Amazon]

{Updated, with hyperlink to complaint filed against me in Brazil}:

Today is the third anniversary of the horrific mid-air collision at 37,000 feet over the Amazon between a Brazilian Gol 737 commercial airliner and a U.S.-owned large-cabin Legacy 600 business jet, in which 154 people died when the 737, a third of its wing shorn off, plunged into the jungle.

I was one of seven people on the business jet who survived.

I thought I had said all I needed to say -- and I have certainly said all I want to say -- about this horrible incident that so tragically ended the lives of 154 innocent people, while seven others unaccountably survived.

My separate blog on the crash and its aftermath went inactive a long time ago, early in January of 2007.

But as the anniversary arrives, an update is necessary. I hope to do it without adding any more comment than is necessary. I am also posting links here to various key documents in the case.

The American pilots, Joe Lepore and Jan Paladino, remain on criminal trial, in absentia, in Brazil.

They are being criminally prosecuted (on charges carrying prison sentences) despite conclusive evidence that the collision was put in place as a result of systemic errors and operational mistakes in Brazilian air traffic control that had the planes on a collision course, when controllers on duty failed to notice that the business jet was out of communications over the Amazon for over 50 minutes.

Here is the investigative report on the crash last year by the U.S. National Transportation Safety Board, which was part of the investigation because one of the planes was American-owned. The NTSB is the world's most respected aviation safety agency -- one that never pulls punches and certainly has never been accused of favoritism toward U.S. aviation.

The NTSB's conclusion is that evidence "strongly suggests that this accident was caused by N600XL [the Legacy] and Gol 1907 [the Brazilian airliner] following ATC [air traffic control] clearance which directed them to operate in opposite directions on the same airway at the same altitude, resulting in a midair collision."

As in most aviation disasters, a series of other events transpired. Chief among them was the apparent malfunction of the Legacy's transponder, a piece of avionics equipment that has an alarm called ACAS (for airborne collision avoidance system), the purpose of which is to shriek a last-minute alert about an impending collision.

The malfunctioning transponder issue is the lever that the Brazilian air force and the federal police used to indict the American pilots on criminal charges.

Anyone interested in this subject should carefully read the NTSB report, and then compare it with this voluminous report issued by Cenipa, the investigative body of the Brazilian military (which is responsible for air traffic control in that country, and therefore was investigating itself). The Cenipa report goes to great lengths to interpret the evidence in a way that lays most of the blame on the American pilots.

Other than as a passenger on an ill-fated trip, my own role in this horrible mess began the day after I got back from Brazil, when my straightforward account of the crash ran on the front page of the New York Times.

To my astonishment, that account unleashed a fury of anti-American vitriol in the Brazilian media, and among some of the public, where I was accused of insulting the honor of Brazil and trying to make "heroes" out of the American pilots. I was flabbergasted by these charges.

At the same time, I was being interviewed on most major TV and radio news outlets, and on several occasions I mentioned that I had been talking to international pilots who all said that Amazon air space is notorious for having radio and radar "dead zones."

Again, all hell broke loose in Brazil, where imperialist conspiracy theories started making the rounds in the media. (One said that the Legacy was ferrying drugs for the CIA and flying recklessly to avoid detection.)

The Brazilian defense minister, Waldir Pires, in charge of air-traffic control, even publicly stated that the Legacy had been performing reckless "aerial maneuvers" over the Amazon to impress the "American journalist," (me), when it hit the Gol 737. And that my comments were part of an attempt to cover this up. Pires was later fired.

As the story died out in the U.S., it was just getting started in Brazil. So I began writing a separate blog (www.sharkeyonbrazil.blogspot.com) to deal with the fury in Brazil, and to argue that it was a terrible mistake for the Brazilians to rush to criminalize an aviation accident before any evidence had been established as to its cause. Criminalizing an accident, as all aviation safety experts know, creates huge impediments to investigating it, because those involved go silent.

As it became more clear to everyone that the conspiracy theories were crazy and that air-traffic control blunders and systems failures did in fact play the major role in the accident, Brazil's everyday air-traffic system suddenly descended into chaos. Air traffic controllers -- mostly underpaid, overworked military personnel -- staged nationwide protests as a warning that they were not going to accept blame for the accident.

Ultimately, a handful of air traffic controllers were also indicted months after the crash. And just last week, the Brazilian military prosecutor charged 89 air traffic controllers with "mutiny" for taking part in the protests.

At any rate, the goal of my blog was to argue forcefully (and, yes, sometimes provocatively) that aviation safety is profoundly imperiled by the hysterics of blame. I took on the defense minister, some of the outrageous police prosecutors and other Brazilian authorities for not focusing on obvious flaws in air-traffic safety in Brazilian skies, while trying to scapegoat the American pilots in an atmosphere of intense anti-Americanism.

[On July 17, 2007, a few months after the air-traffic controllers protests, there was another horrific accident in Brazil when a TAM airlines A320 crashed at Congonhas-Sao Paulo International Airport, killing 200.]

In startling proof that no good deed goes unpunished, ten days ago, a process server hired by a New York law firm retained by the Brazilians showed up at my front door in New Jersey to present me with a lawsuit against me for allegedly defaming the honor of Brazil in my blog.

That suit, full of patently and demonstrably false charges, false charges, seeks about $250,000 in damages and demands apologies in every news outlet I wrote for or spoke with. Here is the link to the .pdf copy of the English translation of the complaint so you can read it for yourself.

And here is my personal account of that lawsuit, which was posted last week by the news-business magazine Editor & Publisher.

Note, incidentally, that the complaint makes the argument (unknown in first-world jurisprudence) that in causing alleged insult to the "dignity" of Brazil, I caused injury to every single citizen of that country, including the plaintiff, a person I had never heard of till the lawsuit came up, and certainly never wrote or spoke a word about.

Today, the prosecutors and lawyers for relatives of the victims are holding a congressional hearing and press conference on this awful situation in Brasilia. They are expected to demand that criminal proceedings against the American pilots be expedited.

And the lies continue unabated. In a sure indication of the expected tenor of that event, I note that news accounts in Brazil today report that I "attempted to evade" service of the suit at my home by the "U.S. Courts."

Absolutely untrue. Actually, the process server, a delivery boy hired by the New York law firm working for the Brazilians, first showed up unannounced at my house when I was out of town in late August or early September. Later, a lawyer from the New York law firm -- Grant, Herrmann, Schwartz & Klinger -- phoned me and I told him I was home and available to receive their papers. Days later, I had a call from a man who claimed that he was an officer of the "New Jersey State Constable Office." There is no such entity. He was actually just a delivery boy with a really crummy job, and I invited him to come right over and give me the papers, which he did. He looked so miserable delivering that pile of crap that I had to resist the urge to tip him.

Anyway, I don't expect that you'll be hearing much about aviation safety from Brazil today, and that's a damn shame. Because the victims of that horrible crash, the relatives and friends of those victims, deserve more than recriminations against the American pilots and me.

In honor of the dead, the relatives deserve to know when serious measures will be put in place in Brazilian aviation to ensure that this will never happen again.

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