Features Operations
Waypoint: A question of justice

A court in Brazil has convicted two American corporate aviation pilots for their roles in a 2006 mid-air crash with a Brazilian airliner. The two U.S. pilots, Joseph Lepore and Jan Paladino, have been found “guilty of negligence for actions taken.” The incident took place over the Amazon River and killed all 154 people on the Boeing B737-800, while everyone on the Embraer Legacy business jet survived. In late 2006, Brazilian police charged the two ExcelAire Legacy pilots, who were detained in Brazil for more than two months after the crash, with “endangering aircraft safety.” They were then allowed to return home with a promise of co-operation for the resulting trial.

In his sentencing, Judge Murilo Mendes pronounced a sentence of four years and four months in prison, but immediately reduced it to community service, which the two men will be permitted to carry out in the United States. Both Lepore and Paladino took part in the proceedings – by videoconference. Mendes also ruled that air traffic controller Jomarcelo Fernandes dos Santos was not guilty of wrongdoing in the collision of the two aircraft.

Mendes also called for the suspension of their pilot licences for the duration of the sentence period. The suspension is an intriguing part of the case. While Brazil is a member of ICAO, the ability of a civil trial judgment to be applied to international aviation rulings is raising questions for some. This is somewhat precedent-setting and deserves a good debate and challenge for many reasons – not the least of which, in this case, some questions surrounding the “inquiry” credibility and findings.

So, how did the judge come to his decision? Basically, he was working off the findings of an official Brazilian inquiry that “found” the accident occurred in part because the ExcelAire aircraft was flying about 300 metres higher than instructed to by its approved flight plan. However, a probe by the U.S. National Transportation Safety Board (NTSB) put most of the blame on Brazilian air traffic control (ATC).

According to the NTSB initial report of 2007, the ExcelAire Legacy departed Professor Urbano Ernesto Stumpf Airport in São Josè dos Campos, Brazil (the home of Embraer), with a planned stopover in Manaus. After takeoff, the pilots were issued a number of interim altitudes during climb, the last of which was to the initial cruise altitude of FL370. At about 15:51 hours, the Legacy flight crew performed a routine frequency change to ATC at a point just south of Brasilia. Radar and radio communications indicate that the airplane was level at FL370. ATC acknowledged and instructed the crew to “ident,” or provide an enhanced radar return from its transponder. ATC radar data indicates that the Legacy’s transponder return was observed. This was the last radio communication between the Legacy crew and ATC.

Data from the FDR indicates the Legacy crew did not perform any abnormal manoeuvres during the flight, and the plane was level at FL370, on course, and at a steady speed when it made contact with the B737 at a point about 460 nautical miles north-northwest of BRS.

NTSB investigators determined, “for reasons which at that time were not yet determined,” the collision avoidance system in the Legacy airplane was not functioning at the time of the accident, disabling the ability to detect and be detected by conflicting traffic. In addition, CVR data indicates the flight crew was unaware of this until after the accident. NTSB concludes by the evidence that the flight display warning was available to the crew but not noticed and acted upon until after impact. NTSB also states that the flight crew of the Legacy, although not in violation of any regulations, was not aware of the loss of transponder and collision avoidance functionality, lack of ATC communication, and the flight’s progress reference altitude convention.

In its followup, the Federal Aviation Administration has been asked to require an enhanced aural and visual warning requiring pilot acknowledgment in the event of an airborne loss of collision avoidance (ACAS) system functionality for any reason. As NTSB notes, ACAS systems are an integral component of current airspace safety, and this accident highlights the need for upgraded cockpit warnings whenever functionality is compromised.

In the bigger picture, the incident is evidence of the need for pilots to be prepared and secure in their awareness of and planning for aircraft operations at all times – but in particular, away from home. Foreign airspace involves someone else’s oversight, governance and interpretations; individual rights are very different in such circumstances. As aviation operations grow and expand, pilots need to be vigilant and prepared for anything.

Rob Seaman is a Wings writer and columnist.