Brazilian Mid-Air Collision Case
- An Embraer business jet and a Gol Airlines Boeing 737 commercial jetliner suffered a mid-air collision over the Brazilian jungle.
- The Traffic Collision Avoidance System (TCAS) on the Embraer was not operating.
- Legal claims for this crash could be brought in the U.S. by family members of passengers.
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.
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.
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.
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.
The reports that the transponder on the Embraer was not operating at
the time of the collision suggests three possibilities.
that the flight crew intentionally turned the transponder off. Since there is
no proper reason for a flight crew to turn off their transponder, such conduct would
the transponder could have been turned off by accident. If that were 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
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. On 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.
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
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.
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.
after fault is proven, 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
Kreindler partner and 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.