Company smacked with $43 million judgement for Indonesian
pilot's suicide in 1997 Silk Air crash
By ANN Associate Editor Juan Jimenez
On December 19, 1997,
Silk Air flight MI 185 was straight and level at FL350 after taking
off from Jakarta enroute to Singapore's Changi Airport. The
aircraft was a Boeing 737-300, operated by Silk Air as a subsidiary
of Singapore Airlines. At the controls was Captain Tsu Way Ming,
41, ex-military pilot and top gun after 17 years in the Singapore
Air Force, married to Evelyn and father of three; Duncan, Benjamin
and Samson. The first officer was Duncan Ward, 23, a native of New
Zealand who had grown up watching small airplanes take off and land
from an airstrip in Auckland (NZ).
Everything seemed to be proceeding normally; radio traffic
between the crew and ATC was routine. Suddenly, events took place
that defied explanation. The cockpit voice recorder was turned off,
something that could only be accomplished by the cockpit crew,
given that radio communication continued and there were no power
problems reported. A few minutes later, the flight data recorder
was also deliberately turned off. A few minutes later, the
passengers were faced with the ultimate horror. The aircraft
maneuvered into a banking climb, then a steep, controlled,
spiraling dive, at full power. In the two minutes it took for the
aircraft to descend from 35,000 feet, its airspeed exceeded Mach
1.2, well beyond the aircraft's Vne, or Never Exceed speed.
Passing FL190, the
aircraft's transponder stopped working. Finally, it crashed into
the mud of the Musi River near the city of Palembang. The airliner
had already begun to break up prior to impact due to the forces of
the dive, which clearly exceeded its structural limits. However,
that was nothing compared to the forces of the impact. According to
Brent Hayward, president of the Australian Aviation Psychology
Association at the time, and an accident investigator, "The
wreckage was like confetti." Total number of souls aboard were 104;
97 pax, 5 cabin crew and the two pilots.
That was just the beginning of what was to become an
international saga leading to attempts to fleece a corporation that
had nothing to do with the accident, but simply presented itself as
a juicy deep-pockets target under California law.
Captain Tsu Way Ming began his flying career in the Singapore
Air Force at age 19. He worked his way through the ranks and,
presumably due to his flying abilities and extensive experience,
was appointed to a position as a stunt aerobatic pilot in the
country's elite Black Knights, flying A-4 Skyhawks. He flew with
the demonstration squadron on many missions throughout Asia. During
his career he had demonstrated keen talent in such things as
air-to-ground bombing trials. He also graduated at the top of his
class in a pilot attack instructor course, and appeared to have
earned the respect of his peers.
His career was, however,
marred by tragedy. On a four-aircraft formation on a training
mission in 1979, he developed mechanical problems on his A-4, and
had to leave the formation to return to base. The mission was about
getting experience flying in IMC in mountainous regions. Shortly
after he broke formation, the other three aircraft flew into a
mountain, killing all three pilots.
The date? December 19. Eighteen years to the day, Silk Air MI
185 crashed into the Musi River.
At age 35, Tsu decided that it was time to move on, and chose to
become a civilian pilot. He embarked on a career with the airlines
by joining regional carrier Silk Air. His plans were to build time
at the smaller airline, move quickly to a captain's seat and
eventually transfer to parent company Singapore Airlines. Clearly,
his goal was the prestigious position of international captain on
heavy jets, flying glamorous routes to foreign countries, not
shuttling small groups of people from airport to airport in smaller
aircraft like the 737-300.
However, fate had other plans for Tsu. He worked his way up the
company to the position of instructor pilot and check airman, but
some of his peers did not share the management's opinion of the
ex-military stunt pilot. There were a number of informal complaints
made about him, and he did not get along very well with some of the
company's first officers. He had been reprimanded three times
during his short career with Silk Air.
The situation finally
reached a boiling point when a complaint was filed against Tsu by
one of the first officers with which he had flown. The first
officer told management that Tsu had miscalculated an approach into
an airport in Indonesia, and had to execute a go-around. That in
and of itself was not illegal, but what he did afterwards was: he
tampered with the CVR to cover up his mistake.
Tampering with the CVR is considered analogous to destroying
evidence, and Tsu was disciplined and demoted from his position as
check airman and instructor to line pilot. He tried to appeal the
decision with the company, but the appeal was dismissed,
essentially destroying Tsu's career as an airline pilot, and
certainly his hopes of rising through the seniority list to a
position at Singapore Airlines.
Who was that first
officer that complained about Tsu's tampering with the CVR? ANN has
not been able to find out, but we do know one thing, his
nationality. He was also from New Zealand. Professor Oetarjo Diran,
head of the Indonesian investigation team stated that Tsu had a
history of disagreements with Duncan Ward, first officer on flight
MI 185, but he didn't say whether or not it was Ward who filed the
complaint that ended Tsu's dreams of a left seat in a heavy
jet.
The investigation of the crash began the day after the accident.
It took weeks to dredge the remains of the aircraft and the black
boxes out of the mud. Investigators were surprised to find that the
FDR and CVR both stopped recording within minutes of each other,
and within minutes of the descent that ended in the river. Clearly,
the facts made no sense. The engines were determined to have been
operating at full throttle when the airliner impacted the ground.
Why would the pilots not have throttle back to try to recover from
the descent? Could the pilots have been disabled?
Separate studies and simulations by Boeing as well as Indonesian
and Singaporean investigators proved beyond any shadow of a doubt
that the flight path of the aircraft, documented by radar track
records and reinforced by the transponder, could not be duplicated
under conditions other than positive pilot control inputs. Had the
pilots been disabled, the aircraft would not have dropped straight
down in a corkscrew maneuver; it would have bobbed up and down, due
to the effects of aerodynamic forces on the flight control
surfaces, as well as due to the design of the airframe.
In addition to these facts, many others were uncovered, such
as:
- No reports of maintenance issues prior to the flight on the
CVR, FDR, rudder control system, PCU, servo valves or the onboard
electrical systems
- No problems reported by the crew during take off or cruise to
climb
- No problems reported to ATC during any phase of the flight
- The CVR operated normally until it was turned off a little
after 0900, and there was no evidence of any problem with the CVR
circuit breaker
- There was evidence that the captain moved from his seat just
before the CVR stopped recording
- The CVR circuit breaker could be pulled without it being heard
on the CVR
- Tsu had previously pulled the CVR circuit breaker on another
flight to cover up a mistake
- The FDR did not report any electrical problem that would cause
loss of the CVR, and there were no in-flight problems with the
FDR
- The first officer contacted ATC at 0910 and did not report any
problems
- The FDR was turned off at 0911
- The transponder continue working after the FDR was turned
off
- There was no radio call to information that the FDR "Off" light
had come on, or that any of the master caution lights had
illuminated
- No further radio reports of any problems
- No MAYDAY broadcast
- No distress signal was received from the aircraft's
transponder
- No evidence of any radio failure
- No evidence of autopilot failure
- No evidence of auto-throttle failure
- No evidence or reports of clear air turbulence
- No evidence of any inadvertent engagement of the rudder
pedals
- No evidence of an aircraft system or outside weather that would
cause the initial descent from FL350
- No evidence whatsoever of any attempt on the part of the crew
to recover, even though the captain was an experienced military
pilot who could easily handle the "G" forces of the descent
- No evidence of the aircraft itself attempting to recover from
the dive through natural aerodynamic tendencies
- Had the rudder been at its right blowdown limits, the aircraft
would have turned without crew input in response -- no evidence of
that
Nevertheless, there were two additional pieces of crucial
evidence that were uncovered. At the time of flight MI 185, Captain
Tsu was having serious financial problems. He had made some bad
investments and lost a significant amount of money. Between 1993
and 1997, Mr. Tsu had pocketed some 2.5 million Singapore dollars
from the same of real estate. However, during the same period, he
lost 2.25 million Singapore dollars in bad stock trades, and two
weeks before the crash, on December 4, he was suspended from
trading when his account reached a negative balance of just over
118,000 Singapore dollars.
The icing on the mountain of evidence piling up against Captain
Tsu came when it was reported that the had purchased an insurance
policy worth US$3 million just before the flight. The first premium
payment was made on December 16 and the policy had gone into effect
the day of the crash.
Singapore finally released its final report on the crash in late
2000. In it, Singapore's National Transportation Safety Committee
(NTSC) reported that they were "...unable to find the reasons for
the departure of the aircraft from its cruising level of FL350 and
the reasons for the stoppage of the flight recorders." They
concluded that "...the investigation has yielded no evidence to
explain the cause of the accident."
This prompted a rare rebuke on the part of the NTSB towards a
foreign counterpart, in which NTSB Acting Chairman Jim Hall told
Prof. Diran, chief investigator from the NTSC, that "...our review
of the draft final report revealed that several sections required
correction, clarification, or the inclusion of additional
information. Of greatest concern are the statements in the draft
report..." that stated the NTSC's conclusions in the above
paragraph. "Additionally," the letter continues, "the draft final
report contains recommendations that are not supported by the
factual evidence."
The next paragraph in
the letter deserves a verbatim reproduction: "The examination of
all the factual evidence is consistent with the conclusions that 1)
no airplane-related mechanical malfunctions or failures caused or
contributed to the accident, and 2) the accident can be explained
by intentional pilot action; specifically, 1) the accident
airplane's flight profile is consistent with sustained manual
nose-down flight control inputs, b) the evidence suggests that the
cockpit voice recorder was intentionally disconnected, c) recovery
of the airplane was possible but not attempted, and d) it is more
likely that the nose-down flight control inputs were made by the
captain than the first officer."
Faced with this mountain of evidence, and lacking anything other
than weak and contradictory circumstantial evidence, Francis
Fleming, an attorney with the New York firm of Kreindler and
Kreindler that represented several Silk Air victim families,
angrily responded to speculation that Tsu committed suicide and
took the lives of 103 other persons.
"There is no evidence, absolutely and unequivocally, that this
is suicide," he said. "What we have here is a story that picks out
the most bizarre circumstances such as the crash 18 years earlier
of his colleagues during their Air Force days. I have even heard a
reference to a fictional novel in which a Federal Express pilot
does the same thing." Some people appear to have problems
separating fiction from fact. This may be one of those
instances.
Mr. Fleming, whose firm won $500 million in damages from the
defunct Pan Am airline as a result of the Flight 103 bombing over
Lockerbie, Scotland, had filed suit at the time against Boeing and
other companies on behalf of the family of passenger Suzan
Picariello, an American Express executive. His belief is that the
Silk Air crash, notwithstanding all the evidence to the contrary
"...is related to control problems of the 737 and the rudder and we
are trying to explore that the best we can. But if evidence
develops to suggest suicide, it would be suicide and a series of
murders. And I believe the claims in such a case would be against
Silk Air."
Back in Singapore, five families decided to sue Silk Air for the
deaths of the loved ones. The rest of the families had accepted
offers of approximately $200,000 as payment for their losses, which
barred them from filing lawsuits. The plaintiffs attempted to seek
damages against the airline, but the case was dismissed because the
courts in that country determined that the evidence was
circumstantial. In essence, the plaintiffs were unable to prove to
the courts that Tsu had committed suicide.
Some observers have
commented, however, that the real reason that the plaintiffs were
not able to prove suicide had nothing to do with the facts, but
rather with the religious beliefs of the chief investigator on the
Singapore side. In October 2000, the Sydney Morning Herald ran a
story by Roy Masters in which he stated that highly placed sources
in the Singapore government claimed that the strong Muslim beliefs
of the chief investigator of the NTSC, Prof. Oetarjo Diran, could
prejudice a finding of pilot suicide as the single cause of the
crash. The sources claimed that Prof. Diran had admitted he did not
want relatives of the victims receiving insurance monies from an
event that was the will of Allah.
"Professor Diran does not want his investigation involved in
litigation," one highly placed source said. "He says if today is
your day to die, so be it. He said it is not proper to claim for
God's will."
Fast forward to 2003, and we now have a case in California's
Superior State Court in Los Angeles, after a District Court of
Appeals ruled the trial could proceed. The plaintiffs, represented
by attorney Walter Lack on behalf of three of the victims of the
crash, have filed lawsuit against Silk Air and Parker-Hannafin,
among others, suggesting that the reason for the crash had nothing
to do with suicide, but rather by undocumented claims of a rudder
control failure. Consider, however, the fact that the NTSB
concluded that the rudder was in working order when the aircraft
crashed, based on these facts:
- No evidence that the aircraft followed its own aerodynamic
tendency to turn to the right if there were no crew input, and the
rudder were at its right blowdown limit
- The plaintiffs' expert witness admitted that for the airplane
to have flown into the ground the way they claimed it did, flight
crew inputs would have been required
- The plaintiffs' expert witness admitted as well that if the
flight crew had countered the roll the aircraft was undergoing
during the descent with full flight control input, the aircraft
would have recovered to wings level, basically dismissing the
theory that there was a mechanical failure and the pilots tried to
recover
- There was evidence that the flight crew was specifically
trained to handle the situation that the plaintiffs were alleging
took place (rudder failure)
- There were procedures in place to eliminate the result of a
rudder hardover to blowdown limits, to wit: 1) counter aileron, 2)
disengage yaw damper, 3) disengage rudder control hydraulic systems
A and B and d) engage standby rudder control system
- Further into the technical side, there was physical evidence
that the servo valve secondary slide was found in the neutral
position when it was recovered from the crash site, which would
negate an allegation of servo failure
- The servo valve primary slide was not jammed when it was
recovered, further negating the allegation of a rudder problem
You would think that with such a veritable mountain of evidence
on its side, the defendants in this case would easily get this case
dismissed, no? Think again, because this is where the Attorney
Retirement Lottery System -- otherwise known as Tort Law -- takes
over. Add to that a piece of legislation known as 49 USC Section
1154(b) which states: "No part of a report of the Board, related to
an accident or an investigation of an accident, may be admitted
into evidence or used in a civil action for damages resulting from
a matter mentioned in the report." The "Board" in this sentence
refers to the National Transportation Safety Board, despite the
fact that the summary reports are public documents and represent
the best possible and independent study of an aviation accident of
this nature!
Now, according to our sources, the courts have conveniently
interpreted this to mean that the summary findings cannot be
introduced as evidence. What does that leave? The NTSB technical
supplements, which can stack six feet or higher. However, the
reality -- and lawyers as well as the legislators who are mostly
lawyers know this -- is that very few average jury members can
digest such detail to reach an informed conclusion. That, if I
remember correctly, is the reason that we have an NTSB in the first
place -- to digest all the raw information and provide us with a
summary finding that lists the most probable cause(s) for the
accident. In this case, no reports were allowed as evidence in this
trial.
The same thing happened
in the Carnahan case I wrote about some months ago. The judge, who
was himself appointed by the late Gov. Mel Carnahan, and who
refused to recuse himself based on this very important fact,
refused to allow not only the NTSB findings, but any testimony by
expert witnesses from the defense side. There was, however, a
common expert plaintiff witness in both cases, a Dr. Richard
McSwain. Dr. McSwain rolled in his electron microscope and cited
alleged submolecular burrs found in mechanical parts -- burrs that
apparently seem to pop up when any mechanical part in question
during trial is called into question. In the Carnahan case, it was
a vacuum pump which was determined to be operating just fine when
Randy Carnahan decided to fly in one of the worst weather days in
the history of Missouri and his primary attitude indicator went
south -- apparently along with his partial-panel instrument flight
skills.
This time, Dr. McSwain found the "burrs" in the rudder control
valve -- you know, the one that was determined, through evidence
found on other parts, to be working fine at the time Tsu buried
that 737 into the mud at Mach 1.2? In the Carnahan case, Parker was
vindicated. In this case, however, we're talking California and
their deep pockets attitude. Once the facts were in, the jury
turned around and, notwithstanding the fact that Parker-Hannafin
had nothing to do with the crash, hit them with a whopping FORTY
THREE MILLION DOLLAR judgement.
I ask you again, readers. If this is not yet another
picture-perfect demonstration of why this great and magnificent
country of ours is way overdue for tort
reform, what is? Isn't it high time for someone to take 49 USC
1154(b) all the way to SCOTUS? If we are paying tax dollars to fund
an agency tasked with independently and impartially determining the
most probable cause(s) of transportation accidents, why are we not
allowing those reports to be used in a court of law to prevent this
kind of tort abuse?