Continental Connection Flight 3407

The attorneys and staff of Baumeister & Samuels extend their sincere condolences to the families of the victims of Continental Connection Flight 3407. We know there are no words to comfort the family and friends of the passengers, and seek only to offer some preliminary information which may be of assistance to those seeking to learn more about issues related to aviation safety as well as the legal process.

On March 25, 2009 the National Transportation Safety Board released its most detailed update concerning the crash of Continental Connection Flight 3407 on February 12, 2009 during its approach to runway 23 at the Buffalo-Niagara International Airport in Buffalo, New York.  The turboprop aircraft, a Bombardier Dash 8-Q400, registration number N200WQ, departed from Newark Liberty International Airport, and all forty five passengers and four crew members, as well as an individual on the ground, were fatally injured in the crash.  The update confirmed what the attorneys at Baumeister & Samuels had originally suspected was the primary cause of the accident, namely pilot error, as opposed to some malfunction with the aircraft or other cause. (Click here to read the March 25, 2009 update issued by the NTSB).

Indeed, the National Transportation Safety Board stated that its preliminary examination of the airplane systems “revealed no indication of pre-impact system failures or anomalies.”  The update disclosed that maintenance records for the aircraft had been reviewed and no significant findings were identified, meaning that maintenance was not a cause of the crash.  Additionally, it stated that the Air Traffic Control Group completed a review of controller communications with the flight crew and conducted interviews with air traffic controllers on duty at the time of the accident.  No additional work is planned by this group, leading to the assumption that like maintenance issues, air traffic control was not a factor in the crash. 

In announcing the decision to hold a public hearing into the crash on May 12-14, 2009 at its headquarters in Washington, D.C., the Acting Chairman of the NTSB stated that “the circumstances of the crash have raised several issues that go well beyond the widely discussed matter of airframe icing”.  These issues include icing effect on aircraft performance, cold weather operations, sterile cockpit rules, crew experience, fatigue management and stall recovery training.  The NTSB's preliminary evaluation of data demonstrates that although some ice accumulation was likely present on the airplane prior to the initial upset, it continued to respond as expected to flight control inputs throughout the entire flight.  The Flight Data Recorder or FDR, which is responsible for recording pilot and system inputs and aircraft movement, indicated that the aircraft’s stall warning and protection system, which includes stick shaker and stick pusher, activated at a speed and angle of attack consistent with that expected for normal operations when the de-ice system is active.  It is also likely that the activation of that system was captured on the cockpit voice recorder or CVR, which is responsible for recording all conversations and sounds in the cockpit of the aircraft.

The Q400's stall warning and protection system consists of stick shaker and stick pusher.  The stick shaker is an automatic warning that causes the control column to vibrate or shake to alert the flight crew to an impending aerodynamic stall.  The system is designed to activate at speeds above the stall so that the crew can take the necessary corrective action to avoid entering a stall.  The stick pusher is also an automatic stall protection system that causes the control column to push or move forward thereby lowering the nose of the aircraft, decreasing the angle of attack and increasing the aircraft’s speed which is vital to preventing an aerodynamic stall caused by loss of lift on the wings. 

The term “stall” in aviation refers to the condition that occurs when the aircraft is no longer able to produce lift necessary to keep it flying.  An aerodynamic stall can occur when air flow over either the wings or the tail’s horizontal stabilizer is disrupted causing the air to separate from the wings or tail resulting in an inability to maintain lift.  Training to recognize the differences between a wing or tail stall is critical since the appropriate recovery technique for each type of stall is opposite the other. 

In a stall caused by a disruption of air flow over the wing, the appropriate and necessary response is to lower the nose of the aircraft which increases speed and lowers the angle of attack of the wing.  By increasing speed, the air flow is able to normalize which allows the wing to produce the necessary lift to keep the aircraft flying.  On the other hand, when an aerodynamic stall is created by the disruption of airflow over the horizontal stabilizer on the tail, the necessary corrective action is directly opposite; the pilot must raise the nose of the aircraft to normalize the airflow over the tail to maintain the lift necessary to allow the aircraft to continue to fly.  Recognizing the difference between the two types of aerodynamic stalls is critical for a flight crew to react appropriately and correct the condition to avoid a catastrophic event.

Immediately after the crash, the attorneys at Baumeister & Samuels focused on the fact that the crash was likely caused by flight crew errors, including, but not limited to, their inability to recognize the impending stall and their inappropriate response to the potentially catastrophic inflight condition.  This theory was confirmed by the NTSB in their recent update.

As mentioned above, the Q400 is equipped with a stall warning and protection system called stick shaker and stick pusher.  The NTSB has determined through its analysis of the FDR and CVR that the stall warning and protection system worked as designed.  This means that as the aircraft was approaching the impending stall, the stick shaker activated causing the control column to vibrate to alert the crew that unless corrective action is taken, the aircraft will enter an aerodynamic stall.  Instead of allowing the stick pusher to function normally and automatically lower the nose of the aircraft to increase speed so that the proper airflow could be re-established over the wing, the NTSB reports that there was a 25 pound pilot-induced pull force on the control column that raised the nose of the aircraft increasing the wing’s angle of attack and decreasing the plane's speed causing it to enter into an aerodynamic stall and ultimately crash.  The issue of training will be a central focus of the NTSB’s investigation as well as the litigation surrounding the crash given the flight crew’s improper understanding of the condition that the aircraft was in as well as their inappropriate response to the impending stall. 

The use of auto-pilot during the crash sequence will also play a significant role in the litigation.  The FDR has confirmed that until the stick shaker activated, the flight crew was flying the plane on auto-pilot.  The onset of the stick shaker automatically caused the auto-pilot to disengage.  In addition, the NTSB has determined that at the time of the accident, the aircraft was operating in known light to moderate icing conditions during the aircraft’s approach to the airport. The use of auto-pilot in icing conditions has long been subjected to serious criticism within the aviation industry as its use prevents a flight crew from assessing the degradation of the aircraft’s handling qualities due to the accumulation of ice across the wings and tail.  Since as far back as 1998, the NTSB has recommended to the FAA that when the de-ice system is activated in known icing conditions, the auto-pilot should be disconnected and the flight crew be required to hand-fly the aircraft.  As recently as two months before the crash, the NTSB warned the aviation industry yet again of the inherent dangers associated with the use of auto-pilot in icing conditions by issuing a Safety Alert advising flight crews that they should “turn off or limit the use of auto-pilot [in icing conditions] to better feel changes in the handling qualities of the airplane.” (Click here to read the NTSB’s December 2008 Safety Alert regarding flight in known icing conditions.)

As was believed by the attorneys of Baumeister & Samuels when we first analyzed this tragic event, the use of auto-pilot in known icing conditions will be a focus of the NTSB’s investigation as well as the litigation.  The use of auto-pilot in known icing conditions masks the degradation of the aircraft’s flight capabilities as a result of ice build-up on the aircraft.  It is for this reason that most commercial airline carriers prohibit auto-pilot use in severe icing conditions, and discourage its use in moderate icing conditions.  As the aircraft is building up ice, the auto-pilot makes virtually imperceptible changes to the aircraft to keep the aircraft on its assigned heading and altitude.  Although the Q400 is equipped with an auto-pilot, it is not equipped with auto-throttle which would keep the aircraft at a designated speed.  As such, when a Q400 flight crew is flying on auto-pilot in known icing conditions, it is critical for the crew to pay particular attention to the aircraft’s speed because as ice accretes on the airframe, the stall speed increases due to the disruption of airflow thereby causing a stall to occur at higher speeds than would otherwise occur without ice accretion. 

When a pilot manually flies an airplane, he or she will be able to feel the effect ice is having on the aircraft, and will be able to make appropriate judgments as to whether any action is necessary to fly out of the icing conditions.  With the auto-pilot engaged, the flight crew may not detect the change in the aircraft’s flight capabilities, or notice the adjustments for ice accumulating on the aircraft the auto-pilot may make to keep the airplane within its normal flight parameters.

After a number of commercial accidents caused by ice accretion, including the crashes of Comair Flight 3272 and American Eagle Flight 4184, the NTSB criticized the FAA for not adequately addressing icing issues.  Since then, the NTSB has recommended to the FAA on numerous occasions that it require flight crews to disengage the auto-pilot when the de-ice system is activated in known icing conditions.  In 2006, the FAA recommended that commercial carriers operating turboprop aircraft in known icing conditions instruct its flight crews to disengage the auto-pilot at least once every five minutes to feel whether the aircraft’s flight capabilities have changed as the result of ice accretion.  Although the FDR for the accident flight indicates that the auto-pilot was not disengaged until the onset of stick shaker, critical to this analysis will be a review of Colgan’s policies and procedures as well as their training curriculum for their flight crews during flight in known icing conditions.  As the attorneys at Baumeister & Samuels believed, a detailed inquiry into Colgan’s policies, procedures and training will be necessary to determine why the flight crew reacted in the manner that they did and to see what, if any, changes Colgan made or should have made as a result of the various recommendations made by the NTSB and the FAA regarding flight in icing conditions.  These issues have unfortunately been the focus of other aviation tragedies, and the attorneys at Baumeister & Samuels have the specialized expertise necessary to properly analyze these issues.

In addition to the issues associated with flight crew training, the effect of ice on aircraft performance, cold weather operations, fatigue management and stall recovery training, the NTSB has also stated that the public hearing will focus on sterile cockpit rules and procedures.  Unfortunately, violations of sterile cockpit are all too common in analyzing aviation tragedies.  Sterile cockpit rules are part of every commercial air carrier’s flight operations manuals and indeed are required under federal law as set forth in § 121.542 of the Federal Aviation Regulations.  These rules mandate that no flight crew member is permitted to engage in any non-essential conversation or conduct during critical phases of flight which include flight operations conducted below 10,000 feet.  Although the NTSB has not yet released the transcript of the recorded conversations on the CVR leading up to the upset, Continental Connection Flight 3407 should have been operating under a sterile cockpit environment.  As a result, the only activity or conversation allowed should have been related to the safe operation of the flight.  Given the NTSB’s statement that the public hearing will focus on these rules, it is likely that sterile cockpit violations did occur during the time leading up to the initial upset. 

Flight crew experience will also be examined in the crash investigation.  Here, the total time of both flight crew members in the Q400 was less than 900 hours.  The pairing of a crew with such limited experience could have been a factor in their failure to recognize the impending stall as well as their inappropriate response in pulling back on the control column which caused the aircraft to stall and crash. 

The attorneys at Baumeister & Samuels are already working on this matter, and have been retained to represent families who lost loved ones in the crash.  Unlike other law firms, Baumeister & Samuels has the necessary experience and expertise to properly analyze and litigate all of the issues associated with this tragedy.  Unfortunately, this is an event that could have been prevented had the airline properly trained its flight crews and implemented appropriate procedures.  These issues are similar, if not identical, to other cases in which Baumeister & Samuels has been involved.

Families of those who perished in the crash of Continental Connection Flight 3407 should not be pressured to take immediate legal action.  It is critically important that they take the necessary time to deal with the devastating loss of their loved ones.  The statute of limitations to commence a wrongful death lawsuit is two (2) years in New York and New Jersey.  Other states have similar statutes, none of which is shorter than one year.  Should the accident investigation suggest that there were any failures on the part of air traffic control, which doesn’t seem likely given the NTSB’s most recent update, the time within which to file an Administrative Claim, also known as a Form 95, against the appropriate federal agency is also two (2) years.