Brazilian Air Collision — U.S. Courts May Be Available To Brazilian Families Following Mid-Air Collision

The mid-air collision of two jets in Brazil on Friday is the type of aviation disaster that new technology was specifically designed to prevent. Since TCAS - Traffic Collision Avoidance System - became widely available in the late 1990s, there have been just two commercial mid-air collisions - a 2002 disaster over Germany, in which 71 people were killed, and last week's collision between two airplanes flying over the Brazilian jungle.

While it is too early to determine why the American-owned Embraer business jet and the Gol Airlines Boeing 737 commercial jetliner were flying at the same altitude of 37,000 feet, and why the traffic collision avoidance systems available on both planes did not warn the flight crews prior to impact, it is certain that this accident should not have occurred, according to Daniel O. Rose, a former military pilot and an aviation legal expert and partner at the New York City aviation law firm Kreindler & Kreindler LLP.

Flight Issues: According to Mr. Rose, in the Mato Grosso area of Brazil, where the accident occurred, aircraft flying in a Northwest direction, such as the American-owned Embraer, should not have been flying at 37,000 feet. The portion of the flight from Brasilia to Manaus, during which the collision occurred, is northwest. If the aircraft were in RVSM (Reduced Vertical Separation Minimums) airspace the Embraer should have been flying at even-numbered altitudes, such as 36,000 or 38,000 feet. This would have provided 1,000 feet of vertical separation from aircraft flying in an easterly opposite direction at 37,000 feet, such as the Gol Airliner. If the aircraft were outside the RVSM airspace at the time of the collision, then the Embraer jet could have been properly flying at odd-numbered altitudes such as 35,000 or 39,000 feet, which would provide 2,000 feet of vertical separation. But under international air route guidelines, the Embraer should not have been flying at 37,000 feet.

Mr. Rose notes that the American flight crew piloting the Embraer jet ultimately had responsibility for the safe planning and conduct of the flight. If, as reported by the company that employed the pilots, ExelAire Services, Inc. in New York, the pilots filed for a flight plan that specified an altitude of 37,000 for their entire route of flight, that would be a mistake on their part that could at least partially explain why this accident occurred.

TCAS/Transponder Issues: The reports that the transponder on the Embraer was not operating at the time of the collision suggests three possibilities.

First, that the flight crew intentionally turned the transponder off. Since there is no proper reason for a flight crew to turn of their transponder, such conduct would be reckless.

Second, the transponder could have been turned off by accident. If that was the case, either the flight crew would be responsible for being careless or the manufacturer of the TCAS/transponder system, Honeywell, could be responsible for a negligently designed system that was prone to being accidentally shut off.

Finally, if the transponder failed for mechanical reasons, the manufacturer, Honeywell, could be responsible for designing and manufacturing a defective product. In this regard, it should be noted that the Honeywell transponder system has previously been found to have a performance problem where it shuts off by itself. In July 29, 2005, Honeywell identified this problem in an Alert Service Bulletin warning that it issued to operators of the Embraer aircraft. See Airworthiness Directive 2006-19-04.

Legal Issues: The first legal issue is whether a lawsuit can be brought and maintained in the United States. Because the Embraer business jet was an American registered aircraft owned by an American charter company based in New York, flown by an American flight crew based in New York; and because the TCAS and transponder systems on both the Boeing built 737 Gol Airlines jet and the Embraer jet were designed and manufactured in the United States; there is a good basis that legal claims can be brought in the United States by the families of the Brazilian passengers who were on board the Gol Airlines jet. While it will be a very difficult legal hurdle to keep these cases in the United States, Kreindler & Kreindler has had much success in doing so in the past in similar situations.

In the Silk Air crash, which occurred in December 1997, Kreindler was able to convince the judge that the case should remain in the United States. See Judge's Order.

Another legal issue will be proving who is at fault. Aside from the piloting issues, the TCAS/transponder issues pose a complex product liability challenge. Kreindler has successfully prosecuted aviation accident claims more times than any other firm. See examples of our work.

Finally, after fault is proved, the issue of how much compensation the families are entitled to receive will arise. Kreindler & Kreindler has obtained some of the highest awards and settlements, including very successful results in similar cases such as Silk Air Flight MI 185, where foreign families received compensation many times more than they would be able to receive in their own countries.

Kreindler & Kreindler aviation attorney Daniel O. Rose a former navy pilot with experience flying in foreign and uncontrolled airspace, is available to discuss details about the altitude assignment system and how collision avoidance technology works, as well as the many legal issues associated with this disaster, including legal options that may be available to families of those killed in this tragic accident.