92-00472

 

 

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92-00472 Crashes in Afghanistan

 

 

 

 

17 February 2007: SHAHJOI, Afghanistan - A U.S. helicopter suffered a “sudden, unexplained loss of power” and crashed Sunday in southeastern Afghanistan, killing eight American troops, the military said. Fourteen people on board survived.

A NATO spokesman denied the helicopter had been shot down, saying the pilot had radioed ahead to report engine problems. It was the deadliest U.S. crash in Afghanistan since last May.

The CH-47 Chinook helicopter was carrying 22 U.S. service members under overcast skies when there was a “sudden, unexplained loss of power and control and crashed,” U.S. military spokesman Lt. Col. David Accetta said. The 14 survivors suffered injuries and were air-lifted out of the area for medical treatment. Eleven of the 14 survivors were subsequently air-lifted by a C-17 Globemaster III aircraft to Germany for further treatment at Ramstein Air Base. An accompanying video, below, details the air lift operation.

The helicopter crashed in the Shahjoi district of Zabul province, about 50 yards from the main highway between Kabul and Kandahar, and appeared to be destroyed and scattered in several pieces. The aircraft was about 300 feet above the ground when it experienced a sudden loss of power.

The remains of the aircraft was quickly destroyed with explosives to prevent exploitation of the wreckage by enemy forces.

 

 

2-160 SOAR Fatalities

 

CW3 John A. Quinlan, PC

CW3 Hershel D. McCants Jr, P

SPC Brandon D. Gordon, UNK

SPC Travis Vaughn, UNK

SGT Adam A. Wilkinson, UNK

PFC Ryan C. Garbs, UNK

PFC Kristofer D. Thomas, UNK

 

 

USAF Fatalities

 

TSGT Scott Duffman

 

 

Video

 

 

Watch a video concerning 92-00472.

 

 

Legal Issues

 

 

MH-47E Chinook Crashes During Special Ops Assignment in Afghanistan — California Federal Court Dismisses Claims Against UK Manufacturer/Tech Supporter of Digital Engine Control Units. by William B. Ingram, for Ribbeck Law

 

 

On February 17, 2007, a 160th Special Forces Aviation Regiment MH-47E Chinook helicopter was on a transport mission when a sudden loss of power developed. The chopper then crashed in eastern Afghanistan. Eight soldiers died and the other fourteen aboard were injured. While Taliban militants were known to have been active in the region, the military subsequently expressed with confidence that the crash was not due to enemy action. According to an Army Report, the preponderance of evidence indicates that the primary cause of the accident was the sudden catastrophic failure of the number two engine. The Army Report’s Investigative Findings indicated that the single remaining operational engine could not provide the power required to maintain sustained flight. However, the MH47E Operator Manual suggested that continued flight may have been possible with only one working engine. According to the Army Report’s findings, the pilot’s decision to enter an avoid range of 400 feet, rather than to descend to a lower altitude, may have made continued flight impossible. The Army Report listed a number of possible reasons why the pilot did not descend to a lower altitude, including the fact that he lost all primary instrumentation in the last few seconds of flight, that the standby instrument displays [were] poorly located, and that he had no visual references because of poor weather conditions.

While the root cause of the helicopter’s engine failure was not determined, investigators ruled out Foreign Object Damage. They also found no evidence of friendly or hostile fire in the relatively benign … valley over which the helicopter was flying at the time of the crash. Although the Army Report’s Investigative Findings ruled out icing damage as a possible cause of the accident, witness reports uniformly mentioned seeing serious icing on the aircraft right before the crash. The Army Report also listed several factors that may have contributed to the severity of the accident, including a potential component and or system failure of the engine fuel system, poor weather (WX) forecasting and monitoring capabilities in Afghanistan, … and improper pilot inputs.

Heirs of six of those who died, four survivors, and the wife of a survivor filed suit in California federal court against Boeing (which manufactured the Chinook in Pennsylvania), Honeywell (which manufactured the Chinook’s engine in Arizona), Goodrich (which manufactured the Chinook’s controls in Connecticut), Chandler Evans Control Systems, and At Engine Controls Ltd. (ATEC), a corporation which manufactures and provides technical support for digital engine controls. They claimed that the defective design and production of engine number two (installed only seven months before this incident) was the primary cause of the crash. Recovery was sought under theories of negligence, strict liability, and breach of express and implied warranty.

ATEC moved to dismiss the claims against it for lack of personal jurisdiction. According to ATEC, the Chinook in this case was equipped with a Full Authority Digital Electronic Engine Control (FADEC) system, comprised of a Hydro Mechanical Fuel Metering Unit (HMU) and a Digital Electronic Control Unit (DECU). The latter component, ATEC continued, was designed in the 1980s by Hawker Siddeley and later manufactured by Vosper Thornycroft Ltd., which subsequently changed its name to Vosper Thornycroft Engine Controls Ltd., and delivered the DECU at issue to Chandler Evans Control Systems in Connecticut in 2002. Chandler Evans then combined the DECU with the HMU to make up the Chinook’s FADEC. According to ATEC’s chairman, ATEC was organized in 2004 and has maintained offices and conducted business in the United Kingdom since that time. ATEC was served with process after the case was removed to federal court.

The district court granted ATEC’s motion. It found that plaintiffs did not allege that ATEC, on its own, had any contacts with California. While they did allege that, through its predecessor entities [based on the assertion that ATEX was a successor to the developer of the unit] ATEC had minimum contacts with California, the court found that no facts were provided to support that allegation. Moreover, according to the court, plaintiffs provided no facts demonstrating that the DECU was distributed in California, or that any activities conducted by ATEC or its predecessors were purposefully directed towards, or were transactions consummated with, California or a resident thereof. Plaintiffs did not point to any act performed by ATEC or its predecessors by which it purposefully availed itself of the privilege of conducting activities in California, thereby invoking the benefits and protections of California’s laws. Finally, the court found, it was uncontested that ATEC operates its business under the laws and regulations of the United Kingdom and that ATEC itself has never sold or delivered any product or performed any service to any person or entity located in California. Consequently, the court ruled, specific jurisdiction had not been established.

The court also rejected plaintiffs’ argument that personal jurisdiction could be exercised, because ATEC was a foreign defendant with sufficient contacts with the U.S. as a whole under Rule 4(K)(2), F.R.C.P. On that issue, the court found that the rule was inapplicable since the cause of action did not arise under federal law, but instead arose entirely under California law.

Thereafter the remaining defendants sought summary judgment based on the government contractor defense.

The district court granted the defense motions. It started from the proposition that the government contractor is an affirmative defense which must be established by a defendant. In short, the court found, “stripped to its essentials, the military contractor’s defense under Boyle is to claim, ‘The Government made me do it.’ Boyle displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor’s contractual obligations, thereby limiting the contractor’s ability to accommodate safety in a different fashion,” [quoting In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992)]. The court then found that each defendant had met that burden.

As to Honeywell, allegedly liable under state tort law for its role in designing, manufacturing and failing to provide adequate warnings with respect to the T55-GA-714A engines, the court found that in May, 1984, Honeywell’s predecessor, Lycoming, and the Army began working together to build the T55-L-713 helicopter engine model. With the addition of the Full Authority Digital Engine Control (FADEC), the engine was designated the T55-L-714. The court concluded that the evidence showed that the Army and Lycoming continuously communicated back and forth during the development of the T55-L-714 specifications. Nothing was included in the T55-L-714 engine that was not approved by the Army. The Army provided Lycoming with clear specifications as to the requirements to build a turbine engine — Military Specification AV-E-8593D entitled, “Specifications: Engines, Aircraft, Turboshaft and Turboprop.” The T55-GA-714A Engine Prime Item Development Specification (PIDS) was prepared in January, 1999 by Allied Signal to comply with, and was drafted based on, Military Specification AV-E-8593D. Through its Aviation Engineering Directorate, the Army determined and developed the design and qualification requirements for the T55-GA-714A. During the AED qualification process for the engine, AED reviewed contractor submittals, evaluated design analyses and reports and attended many formal and informal design review and technical interchange meetings aimed at meeting the design and qualification requirements for the engine.

Once the PIDS was drafted, in July of 1999, the court continued, Allied Signal completed the T55-GA-714A Qualification Substantiation Report which described the numerous tests that were undertaken to ensure compliance with the PIDS. The report also noted all of the tests that were furnished to the government throughout the testing process. In December 1999, Allied Signal merged with Honeywell and took the name Honeywell International, Inc. In July 2002, after the report concluded that the T55-GA-714A engine satisfactorily complied with the tests, the Army directly certified that Honeywell had “successfully completed the applicable design analysis and test requirement” of the PIDS. The Army also granted a Qualification Rating to Honeywell for the T55-GA-714A engine line, which demonstrates the government’s involvement in the development and qualification process for the engines. Further, the Army did extensive flight testing as part of the qualification for the T55-GA-714A engine.

In sum, the court concluded, the T55-GA-714A engine was not merely “rubber stamped” by the government. Instead, the Army was heavily involved throughout the qualification process of the T55-GA-714A engine. Its involvement continued through the entirety of the development process including testing and installation. This is precisely the type of “back and forth dialogue culminating in approval,” and “continuous exchange between the contractor and the government” required to satisfy Boyle’s first condition. The undisputed evidence established, the court ruled, that the government approved reasonably precise specifications for Honeywell’s T55-GA-714A engine. The court then found that the execution of DD Form 250, which certified that each article delivered was inspected and conformed to the specifications and standards established by the Army established compliance with the second prong under Boyle (that the equipment conformed to government specifications), the court ruled.

As to the third Boyle prong that the contractor warned the government about dangers in the use of the product that were known to the contractor, but not to the government [based on plaintiff’s claim that Honeywell failed to warn of the danger of flame out due to water ingestion], the court expressed its agreement with the defense that Honeywell did not need to warn the Army about the dangers of the engine flaming out when it ingested water because the Army already knew of this danger. The court employed the same analysis and reached the same conclusions with respect to Goodrich and Boeing. Deborah Getz, et al v. Boeing Company, et al, U.S. District Court N.D. California No. 07-6396. Contact Monica Kelly, monickelly@ribbecklaw.com, if you have any questions.

 

 

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