Judge in Brazil denies release of crash pilots

Aviation International News » December 2006
December 5, 2006, 5:32 AM

Nearly two months after the worst aviation accident in Brazil’s history, the midair between a Boeing 737-800 operated by Brazilian airline Gol and a Legacy operated by Long Island, N.Y.-based ExcelAire, a series of questions still remains about the cause of the accident. Furthermore, as we go to press, the two U.S. pilots of the Legacy are still being detained in Brazil.

In the days following the flight, Brazilian authorities and the local media blamed the U.S. pilots of the Legacy, Joseph Lepore and Jan Paladino. After the accident, authorities confiscated their passports and prohibited them from leaving the country. The pilots’ lawyers countered with an unsuccessful attempt to allow them to return to the U.S.

But a preliminary report issued recently by the Brazilian authorities indicates that there are serious communications flaws over the country’s vast Amazon region.
According to information released by Brazilian authorities, the Legacy made contact with Brasilia ATC (Cindacta-1) at 15:51, roughly four minutes before the aircraft flew over Brasilia. While the complete transcript between the pilots and air traffic controllers has not yet been released, the air traffic controllers reportedly told the pilots to “maintain.” However, it was unclear if the controller was telling the pilots to maintain their altitude at 37,000 feet or to maintain their flight plan.

According to the flight plan, the Legacy was cleared to fly at an altitude of 37,000 feet on the UW2 airway from São José dos Campos to Brasília and was then supposed to descend to 36,000 feet on the UZ6 airway to Manaus.

After making contact with Cindacta-1 at 15:51, there was no contact between controllers and the Legacy pilots for 35 minutes, despite the fact that the air traffic controllers lost secondary radar contact with the Legacy at 16:02. Between 16:26 and 16:34, Brazilian air traffic controllers unsuccessfully tried to contact the Legacy seven times.

Between 16:48 and 16:53, the Legacy pilots tried unsuccessfully to contact Cindacta-1 12 times. At 16:53, Brazilian air traffic controllers got a message through to the Legacy, telling them to contact air traffic controllers in Manaus (Cindacta-4). However, the pilots did not copy the frequency numbers they were given and asked the Cindacta-1 to repeat the message. Less than three minutes later, the two aircraft collided.

According to Col. Rufino Antonio de Silva Ferreira, the head of the investigation, the collision occurred “exactly where there is a transition” between Brasilia and Manaus ATC.

After the collision, the Legacy made nine calls to Cindacta-1 but could not reach controllers. Roughly four minutes after the collision, the Legacy made contact with a Polar Air Cargo freighter, which was eventually able to communicate with Cindacta-4. During this time, the Legacy appeared on the secondary radar screen at Cindacta-4. Cindacta-2 sought to make contact with the Legacy, but was unsuccessful. The pilots began emergency landing procedures.

According to Col. Ferreira, Brazilian authorities will not release the final report on the investigation for about 10 months. Furthermore, investigators have not yet interviewed air traffic controllers at Cindacta-1. They also need to analyze the radio, navigation, communication and TCAS equipment of the two aircraft.

Col. Ferreira added that he “needs the cooperation of the controllers to understand what happened,” adding that the “more cooperative the interviewees are, the greater the likelihood we will improve flight safety conditions.”

“We all want conclusions...but at the moment any conclusions would be premature,” he warned.

Lawyers have already filed lawsuits on behalf of the families of the victims against ExcelAire and Honeywell, which manufactured the Legacy’s transponder. The lawsuits contend that Excel-Aire is to blame because the Legacy did not follow its flight plan and was flying at the wrong altitude. They also contend that the transponder malfunctioned.

ExcelAire lawyer Robert Torricella contends that ATC “cleared and directed the ExcelAire Legacy jet to fly to Manaus at 37,000 feet.” Torricella said that according to international aviation regulations and norms, ATC directives take precedence over a written flight plan. He added, “Repeated suggestions that the ExcelAire pilots were flying at the wrong altitude are baseless.”

No Simple Answers
Col. Ferreira admitted that the conversation that the Legacy pilots had with air traffic controllers could have played a role in the fact that they did not follow the flight plan. When asked whether the pilots can descend without radio contact from controllers, Ferreira replied, “I don’t have any simple way to answer that question. I can’t say a pilot has to do this or must do that.”

Col. Ferreira claimed that the pilots’ stay in Brazil “has nothing to do with this investigation. Nobody has to agree to an interview, but they agreed and they were cooperative about it.”

The International Federation of Air Line Pilots Associations (IFALPA) is calling for the immediate release of the Legacy pilots’ passports. In a statement, the association said that “there is no valid reason for the continued detention of the two ExcelAire pilots,” adding that international treaties would allow Brazil to pursue appropriate criminal prosecutions if sufficient evidence can be presented to prove that a crime has been committed.

IFALPA also expressed its concern about the criminalization of the accident, adding that the actions by the Brazilian authorities “reflect a disturbing trend in worldwide aviation to impose criminal sanctions on individuals who are involved in aviation accidents.” IFALPA said that such action “works against the public interest in preventing future accidents because it inhibits the free flow of information that is crucial to uncovering the causes of accidents and taking corrective measures.”

Steve Brown, NBAA senior vice president of operations, expressed similar concerns. He said that because the military manages ATC and is also in charge of the investigation, it will be challenging to have an impartial investigation. “In general, it’s difficult to investigate yourself, so outside parties will need to follow this investigation closely.”

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