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Too little, too late - safety concerns and corrective action not afforded Max priority by Boeing

Posted: 25/11/2019

On 29 October 2018, an Indonesian Lion Air flight crashed into the Java Sea, 12 minutes into its intended journey, killing all 189 people on board. Fewer than five months later, on 10 March 2019, an Ethiopian Airlines flight to Nairobi crashed just six minutes after take-off, killing all 157 passengers and crew.

In both crashes the airplane involved was the now-grounded Boeing 737 Max. Flaws in that plane’s stabilising software, known as the Maneuvering Characteristics Augmentation System (the MCAS), are widely considered to be the principal cause of both crashes.

The speed and efficiency of Boeing’s response in the immediate aftermath of these crashes was met with criticism. Despite widespread worldwide grounding of the 737 Max, albeit only following the second tragic crash, Boeing issued a statement confirming that it had “full confidence in the safety of the 737 MAX[1]. It then took some 26 days following the Ethiopian Airlines crash for Boeing’s CEO Dennis Muilenburg to issue a video apology.

As investigations have continued, it has transpired that the fault with the MCAS is just one of many safety issues facing Boeing. A recent report published by Lion Air identified nine inter-connected factors leading to the Lion Air crash, including concerns regarding the training of pilots, maintenance of aircraft flight manuals and, most significantly, the safety certification of the 737 Max.

It appears Boeing’s safety failings were not adequately identified or remedied by the relevant regulatory authorities, as passengers might reasonably have expected. For instance, the Federal Aviation Administration (the FAA), which regulates civil aviation in the United States, certified the 737 Max as safe for service on 8 March 2017. In that connection, worryingly, the Joint Authorities Technical Review (the JATR) commissioned by the FAA after the crashes found that the FAA had delegated approximately 40% of its certification process to Boeing. Further, according to the JATR, only 45 FAA employees were found to be supervising the 1,500 Boeing employees at its Organization Designation Authority office.

Alongside the delegation of its regulatory oversight, the FAA has been criticised for failing to train safety inspectors adequately. Confirming the underlying failings in the safety framework, the US Office of Special Counsel, a federal investigative agency that assists whistleblowers, found in its investigation, in September, that 16 out of 22 FAA safety inspectors lacked proper training and accreditation.

Given the extent of criticism levelled against Boeing, it has faced a slew of litigation in recent months. The bereaved families of those who lost their lives in both crashes have initiated proceedings against it, with the families of those lost in the Lion Air crash purportedly agreeing to a recent settlement of at least $1.2 million per victim. Meanwhile, over 400 pilots are said to have joined a class action against Boeing for loss of wages arising out of the worldwide grounding.

Beyond such litigation, Boeing will inevitably suffer from reputational damage that will take years to heal and is felt nowhere more acutely than in its faltering financial position. In July, Boeing announced that it would take an accounting charge totalling $4.9 billion to cover disruptions arising from the grounding of the 737 Max. In October, Boeing revealed that its profits had fallen by 51% in the previous quarter.

As Boeing reportedly prepares to re-launch the 737 Max fleet in January 2020, both it and the FAA must take steps that go beyond resolving the technical faults on board the aircrafts. The process of re-integrating the 737 Max must involve systematic evaluation of operational policies and procedures, including: developing comprehensive emergency response systems; product recall / corrective action assessments; training procedures; and ongoing monitoring schemes.



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