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?

FMI: http://www4.law.cornell.edu/uscode/49/1154.html, www.silkair.com, www.parker.com