Lion Air flight JT610

Lion Air flight JT610, (registration PK-LQP) with 189 people on board, crashed into the waters of Karawang, West Java shortly after take-off on 29 October 2018. The Boeing Max 8 aircraft had departed from Jakarta’s Soekarno Hatta International Airport and was headed for Pangkalpinang, off Sumatra. We express our condolences to all tragically affected by this accident, including the families of both passengers and crew.

The information provided herein was gathered in the two months since the accident and is for information only – for families and supporters of those affected by the accident: passengers and crew.

For specific information about your rights and potential remedies, or support in advocating for your rights with authorities, please seek legal advice – our contact details are at the bottom of this article.

Official reporting and factual information

The official Preliminary Report containing factual information about the accident was published on 28 November 2018 and relevant information from that Report is discussed below. The Report can be found here.

Summary 

  • The preliminary results of the official investigation have been released, indicating a variety of circumstances which will contribute to the final outcomes.
  • Preliminary Reports do not contain conclusions and analysis – it not their role to apportion blame or liability. Legal responsibility is judged according to a variety of criteria, based on evidence and the procedures of the jurisdiction and rules applicable to a claim being made – and those claims and jurisdictions will vary depending on the outcomes of independent legal inquiries and investigations done by firms like ours, and the likelihood of their success are also determined by a range of complex jurisdiction-specific and strategic factors.
  • Under Indonesian law, the air carrier, Lion Air, is liable to pay compensation to families in respect of the deaths of the passengers.
  • Lion Air’s insurer has begun making advance compensation payments to families of the victims.
  • Families should seek legal advice before accepting any compensation payment (including advance payments) or signing any “release” document as this may prevent claims to other compensation they may be entitled to.
  • Families may pursue claims for further compensation outside of Indonesia against the manufacturers of the aircraft and its components under a variety of legal theories and if this is being contemplated expert aviation legal advice should be sought. Non -Indonesia claims require specific expertise and care – many legal teams have attempted this in the past with a lack of success – see below regarding failed attempts to bring MH370 claims in the USA.
  • Anyone who has queries about, or has been affected by, this air disaster is invited to contact Joseph Wheeler for more information: enquiries@ialpg.com.

The aircraft and carrier

Lion Air is a Jakarta-based low-cost carrier that started operations in 2000. The aircraft was new, manufactured in 2018, and had only been in operation with Lion Air since August. The aircraft was a Boeing 737 Max, the latest upgraded version of the Boeing 737.

Registration Mark : PK-LQP
Manufacturer : Boeing Company
Country of Manufacturer : United States of America
Type/Model : 737-8
Serial Number : 43000
Year of Manufacture : 2018
Certificate of Airworthiness
Issued : 15 August 2018
Validity : 14 August 2019
Category : Transport
Limitations : None
Certificate of Registration
Number : 43000
Issued : 15 August 2018
Validity : 14 August 2021
Time Since New : 895 hours 21 minutes
Cycles Since New : 443 cycles
Last Major Check: None
Last Minor Check: None

Engines

Manufacturer: CFM International
Type/Model: LEAP-1B25
Serial Number-1 engine: 602506
Time Since New: 895 hours 21 minutes
Cycles Since New: 443 cycles
Serial Number-2 engine: 602534
Time Since New: 895 hours 21 minutes
Cycles Since New: 443 cycles

Compensation in Indonesia

The Lion Air Indonesia Conditions of Carriage Contract confirms that domestic carriage is subject to the regulations of the Indonesian Air Transportation Act (1939/100). For more information regarding the conditions of carriage see here.

Compensation for the death of a passenger during an airplane crash in Indonesia is fixed at IDR1.25 billion. These amounts are reported to arise from the Transportation Ministerial Decree No. 77 of 2011 for the Responsibility of Air Transport Operator which is made under Indonesia’s Aviation Law.
Lion Air have reported that it is covering expenses for the families, including:

“the waiting allowance to the families of IDR5 million, grief money of IDR25 million and compensation for death according to ministerial regulation- 77 year 2011, which is IDR1.25 billion as well as reimbursement of baggage at IDR4 million under the said rules. However, the reimbursement of baggage by Lion Air is offered at IDR50 million”.

Source: http://www.lionair.co.id/

Compensation for Aircraft Accident Claims in other jurisdictions and multiple entities

We are presently investigating a variety of theories under which families may consider claims in jurisdictions other than Indonesia. Families may be able to sue the aircraft manufacturer, or manufacturer of specific aircraft components if there is evidence that those companies did not comply with the relevant law under a variety of theories including product liability, negligence and others. We are presently reviewing the potential for claims to be pursued on behalf of the families of victims against:

  • Boeing (aircraft manufacturer and designer);
  • United Technologies Corp and UTC Aerospace Systems (angle of attack sensor manufacturer);
  • Honeywell International Inc (Air Data Inertial Reference Unit – ADIRU) manufacturer;
  • and CFM International Inc (engine manufacturer).

These early and initial inquiries are solely based on the information which has been publicly released through a variety of sources and is preliminary only – our detailed inquiries may lead to additional, different or alternative legally responsible entities when official and private investigative information is available.

Among our inquiries are the potential for families to consider claims which may arise against the US Federal Aviation Administration for potentially wrongful approval or certification of the aircraft and its systems. However, claimants are usually barred from suing agencies of the United States Government, except where that is permitted under the US Federal Tort Claims Act.

Lion Air advance compensation to victims’ families – cautions

Lion Air’s insurer has reported that it is making advance payments to the families of the victims. This is a usual first step in aviation accidents and there is a requirement to do so under international law (for international flights under the Montreal Convention 1999 where certain conditions exist) and under the domestic laws of many countries (for domestic flights).

However, before accepting an advance payment, families should seek legal advice. It is especially important for families to understand the contents of any release document they may be asked to sign before accepting an advance payment as some release documents may affect the family’s right to further compensation for which they may be entitled, and/or prevent them from taking certain further legal steps that may be required to access full compensation for their tragic losses.

Also, we caution against providing detailed personal information to the airline and its insurers without legal advice as such requests for information may be unnecessary for the purpose of providing emergency advance compensation payments.

Assistance to victims’ families

There is international guidance for countries affected by aircraft accidents detailing the way in which assistance should be provided to the families of victims by airlines and Governments. The types of assistance that are advised include:

o Information about the occurrence;
o Support for immediate financial needs;
o Information about the recovery, identification and disposition of remains;
o Information regarding the recovery, management and return of personal effects;
o Social, emotional and psychological support; and
o Information about the progress of the investigation and its objectives.

For more information see the International Civil Aviation Organisation’s (ICAO) “Policy on Assistance to Aircraft Accident Victims and their Families” (1st edn, 2013) as available here.

Preliminary official investigation

The preliminary investigation report – typically providing the factual information that is known and recoverable within the first month of an air accident is linked above. It does not make any final conclusions as to causality or attribute legal blame, but it does represent clear indications as to where such (legal) blame may be investigated. Official investigations are not designed to determine legal liability as that is left for relevant and appropriate legal processes. The aim of the Indonesia investigation, which is being supplemented by assistance from a variety of other States including Australia, is to determine what contributing causes resulted in the accident, and identifying means of ensuring they never recur.

Air accidents are always caused by a multitude of expected and unexpected failures, whether they be individual, corporate or systemic.

Caution should be had with respect to relying on early second hand reports attributing blame to any one or specific cause for the tragic demise of the aircraft and loss of all onboard. This is particularly so given the complexity of the factual matric with respect to known maintenance issues, and the fact that the cockpit voice recorder (CVR) has not been found at the date of writing.

Technical and Operational Responses

Our inquiries will focus on the facts as presented by Indonesia’s official air accident investigation team, and the actions of foreign regulators and manufacturers in the wake of the accident, who have responded to the accident in several ways:

1. The National Transportation Safety Commission (KNKT) head Soerjanto Tjahjono said the Flight Data Recorder (FDR) of Lion Air JT 610’s FDR gave evidence of damage to the plane’s airspeed indicator. “The black box reveals that four flights underwent problems,” said Soerjanto in the KNKT office on Monday, November 5. Flights previous to the accident flight (to Manado, Manado to Denpasar, Denpasar to Jakarta, and Jakarta to Pangkal Pinang) indicated such problems: see https://en.tempo.co/read/news/2018/11/05/055923171/FDR-Black-Box-Data-Lion-Air-JT-610s-Airspeed-Indicator-Faulty

Further, “the Aircraft Flight Maintenance Log (AFML) recorded that since 26 October 2018 until the occurrence date several problems occurred related to airspeed and altitude flag appeared on Captain (left) Primary Flight Display (PFD) three times, SPEED TRIM FAIL light illumination and MACH TRIM FAIL light illumination two times and IAS (Indicated Airspeed) and ALT (Altitude) Disagree shown on the flight Denpasar to Jakarta the day before the accident flight” (Preliminary Report at p 16). These errors may well be indicative of underlying causes relevant to the accident.

2. Boeing issued a Flight Crew Operations Bulletin (TBC-19 dated 6 November 2018 – See Appendix 5.11 of the Preliminary Report) to airline users of its 737 MAX aircraft following its own analysis that “if an erroneously high single angle of attached (AOA) sensor input is received by the flight control system, there is a potential for repeated nose-down trim commands of the horizontal stabilizer. This condition, if not addressed, could cause the flight crew to have difficulty controlling the airplane, and lead to excessive nose-down attitude, significant altitude loss, and possible impact with terrain.” (FAA AD 2018-23-51)

3. The FAA responded immediately by publishing and mandating an Emergency Airworthiness    Directive (AD# 2018-23-51) on 7 November 2018 for all Boeing 737-8 and -9 airplanes to “revise certificate limitations and operating procedures of the airplane flight manual (AFM) to provide the flight crew with runaway horizontal stabilizer trim procedures to follow under certain circumstances”: see here.

Also, Boeing corresponded with operators about the Manuevering Characteristics Augmentation System (MCAS) on B737 MAX aircraft (See Preliminary report, at Appendices).

4. Additionally, Lion Air recognised deficiencies in its own training and issued Safety Notices to its crews regarding certain procedures and fault reporting. (See Preliminary Report, at Appendices).

Similarities with incidences in the past

There have been other instances of aircraft moving uncommanded in pitch, attributable to certain component errors on the aircraft.

The ADIRU on an Airbus A330 was found to have design limitations which were partially causative of the strange aggressive/unexpected pitching behaviour of Qantas Flight QF72 in 2009 which the Australian ATSB reported on in summary, in the following terms:

“On 7 October 2008, an Airbus A330-303 aircraft, registered VH-QPA and operated as Qantas flight 72, departed Singapore on a scheduled passenger transport service to Perth, Western Australia. While the aircraft was in cruise at 37,000 ft, one of the aircraft’s three air data inertial reference units (ADIRUs) started outputting intermittent, incorrect values (spikes) on all flight parameters to other aircraft systems. Two minutes later, in response to spikes in angle of attack (AOA) data, the aircraft’s flight control primary computers (FCPCs) commanded the aircraft to pitch down. At least 110 of the 303 passengers and nine of the 12 crew members were injured; 12 of the occupants were seriously injured and another 39 received hospital medical treatment. Although the FCPC algorithm for processing AOA data was generally very effective, it could not manage a scenario where there were multiple spikes in AOA from one ADIRU that were 1.2 seconds apart. The occurrence was the only known example where this design limitation led to a pitch-down command in over 28 million flight hours on A330/A340 aircraft, and the aircraft manufacturer subsequently redesigned the AOA algorithm to prevent the same type of accident from occurring again.

Each of the intermittent data spikes was probably generated when the LTN-101 ADIRU’s central processor unit (CPU) module combined the data value from one parameter with the label for another parameter. The failure mode was probably initiated by a single, rare type of internal or external trigger event combined with a marginal susceptibility to that type of event within a hardware component. There were only three known occasions of the failure mode in over 128 million hours of unit operation. At the aircraft manufacturer’s request, the ADIRU manufacturer has modified the LTN-101 ADIRU to improve its ability to detect data transmission failures.” See here.

Recent unusual incidents with Boeing 737 MAX aircraft

As recently as 14 November 2018, some Boeing 737 MAX’s have shown indications of faulty ADIRUs in aircraft only 6 months old.

See here in relation to a Sunwing Airlines incident while flying over the Eastern USA which safely landed after a PAN PAN call, and which resulted in the airline replacing the left ADIRU immediately thereafter.

Cautions about cases in US Courts

In a timely reminder that non-US claimants (and sometimes US claimants) are not necessarily welcomed with open arms in US courts, when seeking justice following foreign air crashes, the US District Court for the District of Columbia recently held that claims of a significant number of claimants (42) seeking compensation against Boeing for the loss of flight MH370, were most connected to Malaysia, and should be heard there: see In re Air Crash Over Southern Indian Ocean, on March 8, 2014, MDL Docket No. 2712, 2018 WL 6133070.

In this decision issued on 21 November 2018, Judge Ketanji Jackson, a US District Judge,  analysed the legal arguments  put by a variety of firms representing Chinese, Malaysian, and even American relatives of the lost passengers, to find that their various claims (including international compensation claims under treaty against the airline, and state law wrongful death and products liability claims against Boeing) were going to be more “conveniently” litigated outside of the US.

Courts in these circumstances undertake a balancing exercise as between both public and private interests involved with agitating issues for non-Americans in American courts, particularly when a Defendant or Defendants are American based – but some or many of the circumstances giving rise to compensation rights occurred outside the US.

One of the tests involved includes the adequacy of alternative for a to hear such claims and the Court held that Malaysia was an adequate forum.

The concerning actions of the cases, including some American claimants, being brought together in the US at the time it was and with the limited evidence available (the cases were filed in early 2016) resulted in a significant loss of opportunity (potentially) for the concerned families to seek justice in the US.  The strategic attempt at accessing perceived high compensation payouts in the US thus failed the families involved.

The case and its decision raise many cautions for families affect by JT610 – these include to ensure the firms you are dealing with are clear about their ability to execute a strategy and the nuances and foibles of international and the various domestic laws involved with non-US air crashes.  These accidents have sadly become the playground for firms jostling for cases in the past.  A key to avoiding poor outcomes will be to work with teams such as ours who patiently advise on prospects rather than rush into costly and unhelpful litigation too early. Beware of law firms that make promises that seem “too good to be true”.

Final cautions

It is important not to prematurely point the finger at such coincidences as being conclusive in the Lion Air case.

Incorrect airspeed indications and subsequent uncommanded aircraft behaviour can come from a variety of causes including, recently, one reported in Australia by the ATSB where a pitot probe was almost totally obstructed by an insect nest, consistent with mud-dauber wasp residue, during a two hour turnaround of an international aircraft in Brisbane.

While it is unlikely the events of JT610 were due to anything so innocuous, in light of the facts presented in the Preliminary Report of the accident including a recent history of reported defects on the accident aircraft, investigators will be charged with examining all aspects of the matrix of facts surrounding this tragic loss, to ensure the same fact pattern does not again lead to loss of life.

Our investigations and experience

Our inquiries will be guided by not only specific causes of the accident as indicated by official investigation reports, but also the conduct of those involved in the case and regulators responsible for the certification of the aircraft type in the immediate aftermath of the accident.

Joseph Wheeler and International Aerospace Law & Policy Group (IALPG)

Joseph has previously assisted families with a variety of legal claims involving working with foreign counsel and legal teams, for example:

  • MH370 (Malaysia Airlines disappearance of a B777, representing several Malaysian clients);
  • MH17 (shoot down of Malaysia Airlines B777 over Ukraine representing Dutch and Australian clients);
  • FZ981 (crash of a B737 NG at Rostov on Don, Russia, representing the majority of Russian, and Ukrainian clients of the 55 who lost their lives onboard);
  • 9W2374 (runway overrun of a Jet Airways B737 in Goa India, representing Australian clients), and
  • Other air charter, airline and general aviation cases throughout Australia and Asia.

IALPG, otherwise known as Australia’s Air & Space Lawyers was founded by Joseph Wheeler, in 2015. Joseph is an alumnus of the McGill University Institute of Air and Space Law in Montreal and his practice is in the field of law predominantly for aviators and those who derive their ability to travel or incomes from the air – ie, pilots, remote pilots, the industry, and air passengers.

Through IALPG Joseph consults as Aviation Legal Counsel to the Australian Federation of Air Pilots, which is the largest professional association of airline pilots in the country by membership number. IALPG globally and in Australia works on air accident compensation claims cases often in conjunction with foreign counsel, to provide aviation legal expertise.

Joseph is a Vice Chair of the Legal Committee of the International Federation of Airline Pilots’ Association, or IFALPA, which represents over 100,000 international pilot members and their professional interests globally. He is also a member of the Professional Government Affairs Committee of IFALPA. Joseph is also a regular commentator on aero legal and aero political affairs for various media outlets.

Contact: jwheeler@ialpg.com
NB: this accident (JT610) is presently not the subject of litigation in Australia.

Photo credit: Tribun Jakarta – Tribunnews.com 

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