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Garuda
crash lawsuit finally settled
By Gary Webb
Nearly six years to the day after a Garuda Indonesia Airlines passenger jet
cartwheeled over a mountaintop in Sumatra, killing all 234 people aboard, a
lawsuit offering a startling new explanation for the crash was settled out of
court on Monday in Chicago, just hours before trial was to begin.
It is one of the few times that the victims of a plane crash in a foreign
country, involving a foreign airline, a foreign-made aircraft, and primarily
foreign passengers, have been able to collect damages in a US court and, for
better or worse, it demonstrates the indefatigable reach of the United States'
personal-injury lawyers. Only two Americans were aboard Flight 152 and Monday's
settlement does not cover their deaths. A separate lawsuit raising the
same issues is still pending in Seattle, Washington, for the American victims.
"I think American companies should be held responsible for their conduct all
over the world," said Floyd Wisner of Nolan Law Group in Chicago, who filed the
suit with Patrick T Nunan of Cleary & Lee of Toowoomba, Australia.
Nunan said that filing in a US court was probably the only way the victims'
families would ever have received adequate compensation. "Trying to sue Garuda
in Indonesia would have been like trying to sue the pope in Rome," he said.
The suit, filed in a Chicago federal court on behalf of 28 victims - most of
them Indonesian - thus demonstrates neatly the concept of joint and several
liability that has made US courts feared by the defense bar across the world.
Under the concept, plaintiffs are free to go after any of the parties
responsible for an injury for all of the damages resulting from an accident if
the other parties responsible cannot or will not pay.
If, for instance, a motorist collides with a destitute drunk driver with no
insurance, under the US legal system it is possible to sue the government if it
can be shown that the roadway was unsafe, the auto manufacturer if the car
didn't protect him adequately, the seatbelt or airbag manufacturer if he banged
his head in the accident, the makers of any obstructions if the car was forced
off the road and hit something else. The deepest pockets get to pay. The drunk
driver who caused the accident often walks away if he has no assets that the
plaintiff can attach.
The plaintiffs in the Garuda case alleged that the Airbus 300's
ground-proximity warning system was badly designed and that its US manufacturer
had known for more than a decade that it didn't work right in mountainous
regions. The lawsuit charged that if the warning system, which uses radar
signals to alert pilots to unexpected or fast-rising terrain features, had
worked as promised, the disaster could have been avoided entirely.
The system's manufacturer, Hamilton-Sundstrand Corp, formerly based in Illinois
and now a part of the giant Honeywell Corp, disputed that contention and did
not admit liability as part of the settlement. Phone and e-mail messages left
for the company and its lawyer were not returned.
The September 26, 1997, crash is the most deadly in Indonesian aviation history
and still ranks among the top 20 air disasters in the world. The Indonesian
government has yet to release an official finding assigning blame for the
crash. It has always been assumed, however, that the jetliner was doomed by a
combination of poor visibility from heavy forest-fire smoke and
miscommunication between the veteran pilot and an air-traffic controller at the
Polonia airport in Medan, which was Flight 152's destination. The flight
originated in Jakarta and crashed on descent, about 18 miles shy of the Medan
airfield.
The airport had been closed sporadically for days before the crash because of
heavy smoke and haze from uncontrollable fires that were then ravaging
Indonesia and Malaysia. In an interview shortly after the crash, the pilot's
widow insisted that her late husband had not wanted to fly because of the smoky
conditions. In addition, unofficial transcripts of the last conversations
between the crew and the control tower clearly show that while the pilot
assumed he was to make a right turn to avoid a mountainous region to his left,
the control tower insisted for several minutes that he should be turning left:
Medan: "152, confirm you're making turning left now?"
GIA 152: "We are turning right now."
Medan: "152 OK, you continue turning left now."
GIA 152: "A (pause) confirm turning left? We are starting turning right now."
Medan: "OK (pause). OK."
Medan: GIA 152 continue turn right heading 015."
GIA 152: (screaming) God is great!"
Because Indonesian authorities would not release the results of their
investigation, lawyers for the crash victims were forced to file suits in the
United Kingdom and France, two other countries that had helped investigate the
crash, to obtain the flight record data from the airliner's black boxes. It was
then, according to Australian lawyer Nunan, that the victim's lawyers
discovered what they believed to be the true cause of the accident: the warning
klaxon from the ground-proximity warning system began blaring only five seconds
before the airplane's wing clipped a treetop, which sent the plane careering
into the mountain, where it broke apart and exploded in flames. Many of the
passengers were so badly mutilated by the crash that 48 of them were unable to
be identified and were buried in a mass grave near the airport.
"The pilots made a heroic effort to save the lives of their passengers,"
insisted Wisner, who filed the suit with Nunan. "They had just five seconds to
save the plane and they almost made it over the mountain. It was the
ground-proximity warning system that failed, not the pilots." Wisner said that
if the warning system had given the veteran flight crew even one or two more
seconds of warning, the crash could have been avoided, since the pilot
immediately pulled the jet into a climb once the alarm sounded and just barely
clipped the treetop. Had the system met international design standards, Wisner
said, the alarm should have sounded between 18 and 23 seconds before the
impact.
To buttress that claim, the victims' lawyers produced a number of internal
memos from Sundstrand that strongly suggested that inherent design flaws in the
warning system prevented the pilots - who were fighting to see through
smoke-shrouded skies - from knowing that they were about to slam into a
mountaintop. According to the lawsuit, the root of the problem lay in the
design of certain filters of the warning system, and inadequate testing in
mountainous terrain. Instead, the lawsuit argued, the system was tested on
mostly flat ground with gentle slopes.
One of the most damaging internal memos was written in 1986 by Sundstrand
engineer Donald Bateman, who was slated to be one of the company's expert
witnesses in the Garuda case. In that memo, Bateman wrote: "Based on recent
flight demonstrations ... of the MK II GPWS, I have become very concerned about
the Excessive Rate Detector Circuits in the MK II computers. I believe we have
a much more potentially serious problem than was first envisioned in 1982. GPWS
warnings can be short or non-existent in some circumstances."
Bateman's memo went on to say that "the warning time for flight into
mountainous terrain and steep descent rates from altitudes above the range of
the radio altimeter can be very short and erratic at times ... From our
studies, the average escape margin is only three-and-one-half seconds for the
typical mountainous-terrain accident scenario."
According to the lawsuit, Sundstrand's in-house experts conducted their own
after-crash simulations and confirmed that a properly functioning warning
system should have sounded alarms about 14 seconds before impact. They also
concluded that the accident would have been avoided if that had occurred.
Lawyers said Monday's settlement covered only seven of the victims, which were
designated as so-called "exemplar cases". The $4 million settlement, according
to Nunan, pegged the cost per victim at roughly $500,000, and he said he
expects nearly two dozen additional settlements to be made in upcoming weeks.
Garuda Indonesia Airlines, which was not sued, had previously paid the victims'
families about $20,000 each, he said.
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