July 30, 2010

http://blog.seattlepi.com/aerospace/archives/216339.asp

A federal judge improperly dismissed a lawsuit by Egyptian and Brazilian passengers booted off an Alaska Airlines flight in 2003, an appeals panel ruled Friday.

The ruling is significant as it is, according to the majority ruling, the first U.S. case and the second anywhere to interpret the 1963 Convention on Offenses and Certain Other Acts Committed on Board Aircraft. That treaty authorizes pilots to forcibly restrain and boot off passengers and deliver them to law enforcement, and grants airlines immunity from liability if pilots have reasonable grounds to support their actions.

“We are mindful of the claims … that flight commanders must be given wide latitude in making decisions to preserve safety and orderly conduct aboard an aircraft in flight,” Ninth U.S. Circuit Court of Appeals Chief Judge Alex Kozinski wrote in the ruling. “But passengers also have a legitimate interest in being treated fairly and with dignity; they are, after all, captives of the airline for the duration of the flight, and may be stranded far from home if not allowed to continue on the flight they have paid for.”

Reacting to the ruling Friday, Gilbert Gaynor, a lawyer for the passengers, said: “It really is a reminder to the airline industry that passengers are human beings and that, while security is very important and the law recognizes that security is very important, you still have to treat people reasonably, and that includes people from other cultures.”

Alaska Airlines, which is based in Seattle, did not immediately respond to a request for comment.

The lawsuit stems from a Sept. 29, 2003, flight from Vancouver, B.C., to Las Vegas. A group of nine — Egyptian businessmen headed to a convention to meet with a manufacturer of natural-gas equipment, plus their wives and a Brazilian fiancee — took up all but three first-class seats.

Here’s the account from the group and a separate American passenger providing the only independent version:

Flight attendants told Egyptian passengers who stood to stretch that they couldn’t stand outside the flight deck

One flight attendant told passenger Reda Ginena, who complained of back and circulation problems, that he could stand in the rear of the first-class cabin. But then another flight attendant, Robin Duus, rudely told him to sit down, continued to hector him after he did so and then ordered him to fill out an inflight disturbance report, which was designed to be filled out by flight crew, not passengers.

When the Ginena pointed out that he wasn’t supposed to fill out the form, Duus started pacing and yelling. When Ginana’s wife complained of this treatment, Duus thrust an inflight disturbance report at her and then called to the flight deck to have the pilots land the aircraft.

The American passenger said Duus “had been glaring at (the Egyptian) group every time she passed through the first class cabin. She wasn’t looking at me like that.”

The pilots diverted to Reno, where police and Transportation Security Administration officials removed the group but, despite the entreaties of Captain Michel Swanigan, declined to arrest them and, in fact, cleared them to continue flying.

Swanigan refused to reboard the group, but the passengers were able to fly to Las Vegas on American West, even though Alaska urged America West not to allow them to aboard.

After the Alaska flight took off again, a flight attendant announced to the remaining passengers that plaintiffs had interfered with the flight crew and were responsible for the diversion. Following the incident, Alaska issued a statement saying “many of us feel that we were let down because these people were not arrested and also puzzled and dismayed” that the group was able to fly on America West.

Alaska also reported the group to the Joint Terrorism Task Force, leading FBI agents to publicly detain the businessmen on the afternoon of their rescheduled meeting with the natural-gas equipment maker.

The passengers’ version of events is important because a judge must consider the evidence in the light most favorable to the plaintiffs in deciding whether to dismiss a lawsuit in summary judgment.

U.S. District Judge Robert Clive Jones of Nevada granted Alaska Airlines summary judgment in dismissing the passengers’ claims for damages due to delay under the 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air. Jones ruled that the 1963 convention gave the airline immunity to the claims.

But Kozinski, writing for himself and Circuit Judge N. Randy Smith, said that the evidence, viewed in light most favorable to the plaintiffs, could lead a jury to conclude the captain did not have reasonable grounds to believe that plaintiffs posed a threat to the security or order of the aircraft.

Furthermore, international convention only allows pilots on international flights to deliver passengers to police, as Swanigan did, if he has reasonable ground to believe they have committed a crime, the judges noted. “Viewing plaintiffs’ version of the facts, they did absolutely nothing that anyone could reasonably believe was criminal.”

Concluding, the judges wrote:

A jury may reasonably conclude that there was no emergency here. None of the passengers had made any threats, brandished a weapon or touched a flight attendant. Nor had any of the flight crew informed the captain that any of the passengers had done anything to endanger the plane. Even assuming the truth of everything that Captain Swanigan and his crew now say happened, a jury could conclude that the captain acted unreasonably in diverting the plane to Reno, forcing plaintiffs to disembark, turning them over to the authorities and then refusing to let them re-board the flight after the police had cleared them. …
The record contains substantial evidence that would support a jury’s finding that Captain Swanigan and his crew acted unreasonably toward the plaintiffs.

In a partial dissent, District Judge S. James Otero argued the standard should be whether the captain’s actions were arbitrary and capricious, not unreasonable.

Swanigan’s decision to divert the jet to Reno was not arbitrary or capricious, and was properly dismissed by Jones, Otero wrote. He said the captain’s decision to have the group removed from the jet in Reno should go to trial, but using the arbitrary and capricious standard.

All three judges agreed that Jones properly ruled that defamation claims regarding statements Swanigan and other crew members gave to police and the TSA in Reno were not allowed under international treaty because they were part of the disembarkation process. But the appeals judges also agreed in reversing Jones’ dismissal of defamation claims regarding comments a flight attendant made after the passengers were gone.

Finally, the three judges upheld Jones’ dismissal of seven new defamation claims based on statements Alaska’s employees made to America West Airlines, to the Joint Terrorism Task Force and in internal newsletters.

The judges agreed that the plaintiffs brought their motion to file the supplemental complaint under the wrong rule. They said it’s up to the trial judge whether to allow the passengers to refile the motion correctly.

The case drew briefs from Egypt and the U.S. Department of Justice, American-Arab Anti-Discrimination Committee, Air Line Pilots Association, International Air Transport Association and Air Transport Association of America.

“American Airlines still loves its MD-80s, an excellent reason to never fly American.”

I posted that just two days ago. And as if on cue, another American Airlines Flying Casket MD-80 pulled up lame today. Worse, it exhibited the exact symptoms that both Alaska 261 and my January 2000 flight experienced.

“…Passengers and crew heard “kind of a bang” and the plane lost cabin pressure.”

Click on this for the AP feed.

Eight of American’s nine daily flights from Dallas to Seattle and SFO are MD-83s. And these weasels charge you extra for baggage, too.

A personal word from your Webmaster:

Like thousands of others, 10 years ago today I was horrified to learn of the crash of Alaska Flight 261.

The plane left from Puerto Vallarta, the same day my parents flew home from there on Alaska. It is sheer luck they weren’t on that plane. Other people I knew weren’t so lucky.

I was in Mexico myself at the time. I almost didn’t get there, thanks again to Alaska and their POS MD-80s. My flight from Seattle 11 days earlier experienced a problem so severe on take-off that we were forced to make an immediate emergency landing. Something literally blew at the back of the plane. We heard several loud bangs, like minor explosions, and the plane lurched to the right. We all thought we were going to be tarmac dust. Even the stews were fighting back tears, while trying to reassure the passengers. I’d already written my family a good-bye note with a Sharpie on the drop-down tray. One of the stews asked me to come with her to the back of the plane, just in case they needed help forcing the rear door open. She was crying about her two young children she feared would soon be motherless.

Nothing like looking out the window and seeing the runway lined with fire engines and emergency vehicles. We were all lucky to make it off that plane in one piece, and at least Alaska gave me free drinks on the replacement flight.

But 11 days later, another piece-of-crap Alaska MD-80 flipped upside down and killed 88 people. I tried to get some answers. Ten years later I’m still waiting for them.

1. The FAA told me that Alaska filed a “minor” incident report on my plane’s problem. They never went into specifics.

2. After Flight 261 crashed, CBS News reported that “several loud bangs were heard coming from the back of the plane” before the crash. That’s EXACTLY the sound we heard on my plane.

3. For ten years I’ve been trying to find out if my plane was the same as the one used for Flight 261. Nobody’s talking.

4. Ten years ago I wrote everyone I knew in the Seattle media, asking them to chase this info down. I gave them plenty of specifics. Not a single one of them ever answered me.

5. Alaska made a big deal in August 2008 when they “retired” their last MD-80. That would be about 8 years too late for the victims of Flight 261. Those death traps should have been permanently grounded at least ten years earlier, but Alaska kept flying them long after it was clear they had recurring problems. In the few days and weeks after Flight 261 crashed, an MD-80 pulled into SFO with an engine on fire. In Dallas, another MD-80 full of people nearly plowed up a field. (And btw, American Airlines still loves its MD-80s, an excellent reason to never fly American.)

I’ve saved all my e-mails and letters regarding Flight 261. I will try to post them here.

Meanwhile, here’s a ten year anniversary story from the Seattle Times. Please take some time to read how the surviving friends and families have had to deal with their loss.

Only a brief passing mention is made of Tom and Peggy Stockley, who were killed on 261. Tom had been the wine writer at the Times for years, an exceedingly credible journalist whose reviews and opinions were highly regarded by consumers and wine industry people alike. There is a memorial bench dedicated to the Stockleys at the foot of East Lynn Street in Seattle, looking out over Lake Union. It’s right across the street from Pete’s Market, one of Seattle’s better known wine outlets.

The tag at the end of the Times article says, “Seattle Times staff reporter Steve Miletich contributed to this report…” Miletich and I worked together at the Bellevue Journal-American 30 years ago. He was one of the first media people I contacted about 261. He was also one of those who didn’t respond.

>>>

For the record, I did not start this web site because of Flight 261. That tragedy was only one in the ongoing saga of Alaska’s poor service, cheap shortcuts, shoddy maintenance and insults ranging from outrageous baggage fees to “random” personal searches and — this really happened — being told that I could not have a seat on a plane because I would “imbalance the load.” I weigh 170 lbs and had one 30-lb. bag.

There are many good people who work for this airline, and they try hard to make things right. Sometimes they succeed, despite all odds. But there are also unmitigated, greedy, bean-counting assholes who run this airline, and gate agents in Puerto Vallarta, Manzanillo and Burbank (among others) who are either ragingly incompetent or criminally insane. You can be the nicest, most accomodating passenger in the world (which is me 99.9% of the time) and still have some pre-menstrual, man-hating, honeybunch on a bender glare at you and sneer, “Sir, if you’re going to be argumentative I’m going to have to call security!”

Yeah, well, F you, too, bizzatch! Next time go ahead and call. Let’s see what they say when I tell them YOU’RE the one with the attitude problem.

I’ve had it with Alaska’s abusive control freaks, fools and idiots who’ve risen to the level of their own incompetence. (Which, in some cases, doesn’t take much effort.) And I’ll bet lots of you have, too.

Admin

FAA considers tighter scrutiny of airlines

Oversight of Alaska Air caused concern

Saturday, June 17, 2000
SEATTLE POST-INTELLIGENCER STAFF and NEWS SERVICES

The Federal Aviation Administration may change the way it monitors safety at the nation’s airlines after audits at Seattle-based Alaska Air Group Inc. showed potential weaknesses in the agency’s oversight.

The agency is preparing to announce next week whether it plans to take the dramatic step of suspending Alaska Airlines’ authority to perform heavy maintenance, FAA Administrator Jane Garvey said yesterday.

That move could force the carrier to park planes as they come due for heavy maintenance.

As Alaska awaits the FAA’s judgment, the broader changes could spark increased near-term scrutiny and audits for other U.S. airlines, Garvey said. She didn’t provide specifics of changes her agency is considering.

“I am not opposed to the audit of airlines because I think it is good to monitor ourselves as a precaution,” Garvey said. “With these audits we can make improvements to our training, oversight and maintenance systems. . . . We may, (although) I’m not sure we will.”

The FAA itself is coming under some scrutiny.

The Seattle Post-Intelligencer first reported in April that federal agents investigating the crash of Alaska Airlines Flight 261 in January and the airline’s maintenance operations are also examining the FAA’s oversight of the carrier.

The FBI’s preliminary inquiry into the FAA was undertaken to determine if a formal criminal investigation is necessary, federal criminal justice sources said.

Agents with the FBI and the Transportation Department’s Office of Inspector General have been interviewing current and former FAA inspectors and supervisors along with Alaska Airlines personnel in the course of conducting the inquiry into the airline, the sources said.

One high-ranking criminal justice source told the P-I that the question facing prosecutors and agents “is how broad is (the investigation) going to be.”

A criminal investigation of the FAA would focus on whether Alaska encouraged criminally improper maintenance practices that were either sanctioned or ignored by the FAA.

The P-I reported last year that several FAA inspectors in the agency’s Flight Standards Division office in Renton say they had been pressured by superiors to take it easy on Alaska and were punished when they tried to strictly enforce federal regulations.

One Alaska mechanic working at the airline’s Sea-Tac hangar told the P-I that a San Francisco-based FBI agent questioned him a few weeks ago about the FAA and its relationship with Alaska.

“I told them, ‘The most I know of the FAA is they don’t come around very much,’” said the mechanic, who recounted the interview on condition he not be named.

The newspaper last year found many instances where the FAA appeared to have given a higher priority to maintaining a cordial relationship with the airline and operators of unrelated aircraft repair facilities than to imposing tough penalties for regulatory violations.

Some federal inspectors assigned to Alaska Airlines said they were penalized by supervisors when they were strict in enforcing federal regulations. Inspectors have been disciplined and moved to other jobs after airline managers or pilots campaigned against them.

Asked to comment on reports that local FAA inspectors, who spend all their time working with a particular airline, might get too close to the people there, Garvey defended the professionalism of her staff.

But, she added, she has begun rotating inspectors at an airline through various aspects of that carrier’s work and may move inspectors to other carriers for 60- to 90-day visits to bring in “fresh eyes.”

Regularly moving inspectors around the country, however, would be very expensive, she said.

The crash that sparked the Alaska FAA audit was Flight 261, which plunged into the ocean Jan. 31 about 20 miles northwest of Los Angeles International Airport after reporting trouble with its stabilizer trim. The reason for the crash is still unknown.

Garvey said part of the investigation included an internal audit of Alaska Airlines’ flight and maintenance systems by the FAA.

“All the facts are not yet in from the crash, so there is not a need to jump to any conclusions,” Garvey said, “But we have serious questions to ask ourselves, and this internal audit may be a basis for a change.”

She said she received a full report on June 9 from Alaska on why the agency shouldn’t suspend the airline’s ability to do heavy maintenance on their aircraft.

Alaska officials have said they expect to be able to resolve the FAA’s questions. They also say the carrier is close to wrapping up its own report. The carrier commissioned a panel of 13 safety professionals to examine its safety operations, and it could release the report in the next two weeks, according to Greg Witter, a spokesman for the company.

“It is our belief that we will be able to address all of the FAA’s concerns before any suspension of our authority to do heavy maintenance occurs,” Alaska Airlines President Bill Ayer said in a statement posted on the company’s Web site.

This copyrighted story just came from the Seattle Times website.

For those of you keeping score: I blasted Alaska Airlines with an e-mail from Melaque, accusing them of cutting corners and letting bean counters dictate airline policy. Therefore, this latest revelation comes as no surprise to me. I still have not been able to get any substantive information on my own MD-80′s emergency landing (on take-off) at Sea-Tac on January 20th. The FAA says Alaska filed “virtually nothing” on the incident that most of us thought was our last experience on earth.

In case you don’t feel like reading all the way to the end of the article, here are the last two paragraphs. They refer to the fact Alaska is under criminal indictment for falsifying maintenance records at its Oakland, CA service center in 1998. This also involved MD-80s.

In the Oakland case, the FAA, in an administrative inquiry, has proposed a $44,000 fine against Alaska, saying the airline violated federal aviation rules. The FAA also has recommended revoking the mechanic’s licenses of three Alaska supervisors.

Alaska and the supervisors are appealing.

In the criminal probe, the grand jury has requested the records of 11 MD-80 planes that were inspected and repaired at the Oakland facility and other Alaska facilities.

“Thank you for flying Alaska Airlines — for the same price you’re just seafood!”

Hasta luego,

Jefe

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Alaska Airlines places manager on leave over repair questions

by Steve Miletich, Byron Acohido and Eric Nalder
Seattle Times staff reporters

Copyright 2000, The Seattle Times Co.

Alaska Airlines has placed a top manager on administrative leave after 64 mechanics at its Seattle maintenance hangar delivered a strongly worded letter to company officials saying they had been “pressured, threatened and intimidated” to cut corners on repairs.

Federal Aviation Administration investigators and Alaska officials this morning began jointly interviewing the mechanics after the airline notified the agency of the letter.

Alaska also notified federal prosecutors and the National Transportation Safety Board, which is investigating the Jan. 31 crash of Alaska Flight 261, which killed 88 people off the Southern California coast.

The letter refers to ongoing maintenance problems.

But according to mechanics contacted by The Seattle Times, it was triggered by mechanics’ concerns about a recent repair to the horizontal stabilizer and jackscrew assembly on an Alaska MD-80 jetliner – the same type of plane and parts that are a focus of the investigation into the fatal crash.

Mechanics interviewed by The Times said the MD-80 involved in the recent repair was only properly fixed after heated discussions.

FAA spokesman Mitch Barker said the agency was aware that there had been recent “debate” at the Alaska hangar over a horizontal stabilizer repair. He said the plane was ultimately returned to service in proper condition.

In a statement released early this afternoon, Alaska said as of 12:30 p.m. today, about 12 mechanics had been interviewed.

“The first question for each person interviewed is whether or not they are aware of an aircraft that has been returned to service in an unairworthy or unsafe condition,” the statement said, adding that so far no violation of a federal regulation or a safety concern has been uncovered warranting any action involving Alaska aircraft.

“Alaska will take whatever steps are dictated by these interviews, including immediately grounding any aircraft involved, in order that we all may have this assurance of safety,” the statement added.

The letter was delivered Thursday to John Kelly, Alaska’s chief executive, and Bill Ayer, the company president.

The airline didn’t release the letter, but a draft was provided to The Seattle Times by an Alaska employee Wednesday.

In it, the mechanics say, “Our consciences constrain us to make you both aware of an ongoing situation on the heavy check which we have heretofore brought before management in the hangar, but our pleadings have gone unheeded and have not stopped the following pattern of behavior.”

A “heavy check” is a repair to a key flight-control part.

The letter has stunned the airline, which is already the subject of a criminal investigation over alleged maintenance violations at its Oakland, Calif., maintenance base. A grand jury in San Francisco is investigating whether Alaska supervisors signed for repairs that weren’t done or they weren’t authorized to approve.

The letter specifically raises questions about the leadership of Robert Falla, manager of Alaska’s Seattle maintenance base.

Falla has been placed on administrative leave, an Alaska official and federal investigators said, but the company’s statement didn’t name him.

Falla drove up to his home late this morning, where he told a Times reporter, “No aircraft under my authority has ever gone out unairworthy or unsafe.”

He also said, “There is nothing I have to hide, and there is nothing Alaska Airlines has to hide.”

Falla said he had seen the letter and signatures but declined further comment on it.

The letter pointedly refers to the Flight 261 crash. “Amazingly,” the letter says, “in the midst of our grief and shock subsequent to the crash of Flight 261, many amongst us have been pressured, threatened and intimidated by Mr. Falla in the daily performance of our work.”

The letter, without providing specific information, alleges Falla “has directed us to do things specifically contradicting” federal aviation regulations, “not the least of which is his persistent demand that we put unserviceable parts back on the aircraft.”

During the recent repair of the MD-80, mechanics have told The Times, Falla told them not to replace worn parts on the plane.

In their letter, the mechanics said, “When confronted by groups of mechanics or by individuals, Mr. Falla cites his experience, but we have serious questions regarding his technical expertise and knowledge.”

The letter urges Kelly and Ayer to “personally address this matter immediately for the safety or our passengers, for the future of our operation as well as for our very livelihoods.”

“By our signatures, we signify to you that we believe him to be dangerous to our operation and incapable of releasing . . . aircraft into service in an airworthy manner,” the letter says.

It was signed by mechanics and inspectors over the past several days, said one mechanic who helped prepare the letter and signed it. It notes that the events since the crash “have taken their toll on all of us.”

“We are still grieving each in his own way and here in base maintenance, the effects are incalculable,” the letter says. “Let us state from the outset that paramount in our thoughts are the lives of those lost on Flight 261 as well as the flying public who implicitly puts their trust in our abilities as professionals to run a safe operation.”

In its statement, Alaska said, “These allegations . . . demanded immediate, decisive and direct action to either confirm and correct any such violations or assure ourselves, the FAA and our customers that such allegations and concerns are unfounded.”

In the Oakland case, the FAA, in an administrative inquiry, has proposed a $44,000 fine against Alaska, saying the airline violated federal aviation rules. The FAA also has recommended revoking the mechanic’s licenses of three Alaska supervisors.

Alaska and the supervisors are appealing.

In the criminal probe, the grand jury has requested the records of 11 MD-80 planes that were inspected and repaired at the Oakland facility and other Alaska facilities.