Cultural Collision: Why Brazil Blew The Legacy Probe

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It's been more than two years since the shot-in-a-million collision over Brazil of a GOL 737 and an Embraer Legacy 600 that killed all 154 people aboard the Boeing. The Legacy was damaged, but the crew landed it with no injuries to any of its occupants. Immediately after the accident, Brazil outraged the aviation world by criminalizing the accident investigation and detaining the two Legacy pilots for more than two months before finally releasing them.

If anyone thought cooler heads would prevail as the accident investigation matured, they would have been disappointed by last week's decision by CENIPA, Brazil's accident investigation bureau, to cite the Legacy crew's negligence as a probable cause when clearly the report fact pattern shows that ATC ineptitude and lax procedures were primarily at fault. That's not to say the Legacy crew had no role, but the overall responsibility for separation of IFR aircraft is ATC's responsibility. Period. And Brazilian ATC failed to do that.

The CENIPA report made an issue of the fact--or at least claimed--that the Legacy crew accidentally switched off its transponder and suggests this was possibly due to minimal experience with the airplane and its avionics, plus poor CRM that distracted them from noticing. Also, the two Legacy pilots had never flown together and had little experience in the region.

It's a fair point to make. Had they been more intimate with the Legacy's glass, would they have noticed the transponder in standby mode? Either way, had the transponder been on, it's likely that the approaching GOL 737 would have gotten a resolution advisory in time to initiate evasive maneuvers. But again, that's a side issue. As far as ATC's responsibility to separate traffic is concerned, TCAS might as well not exist.

Another issue that can't be so easily dismissed is lost comm procedures, where there's a cultural divide between the U.S. and the rest of the world. The Legacy had lost contact with its controlling center, something that's not unusual in the Amazon region, where comm coverage is intermittent. But the loss of comm went on for nearly an hour. In this case, a workable comm link probably was available, but due to a cascade of ATC errors, it was never established. Similarly, other aircraft were on the frequencies the Legacy tried, but no relay was attempted. Although the Legacy wasn't in continuous radar contact, the lost transponder was detected but not acted upon by ATC.

In the U.S., the lost comm expectation is to remain at the last ATC-assigned altitude, terrain clearance issues notwithstanding. It's right there in FAR 91.185. Elsewhere in the ICAO world, the expectation is less well defined, but adhering to the flight plan has more primacy. In the Legacy's case, that called for a descent after a turn to a westerly heading that required an even rather than the odd cruising altitude that the Legacy had been on. This would be counter-intuitive to a U.S.-trained pilot. But the fact that many U.S. pilots aren't even aware of the ambiguity appears to have led Brazil's CENIPA to charge the Legacy crew with being unfamiliar with Brazilian regulations.

That's a stretch, in my view, but the point is still valid: Many U.S. pilots are so accustomed to the warm womb of full radar and radio coverage that they sometimes don't have the vaguest notion of what's expected when either or both are unavailable. Worse, they're not even aware that such cultural differences exist. (Exception: those seasoned international crews whose survival depends on knowing such fine points, not to mention variations on the theme due to local custom.)

In its appendix to the Brazilian report, the U.S. NTSB noted that the Legacy crew wasn't as aggressive as it should have been in resolving the ambiguous comm situation, this despite the fact that it tried to contact ATC 19 times. Still, the vastness of the blue sky all but assures a safe outcome following lost comm or radar. But as the engineers say, sometimes 10-to-the-9th comes early, as it surely did for the Legacy crew. The NSTB disagreed with the Brazilian claim that the Legacy crew's poor flight preparation was a contributing cause.

This accident reveals a seamy underside of the glass cockpit revolution and that's this: Pilots routinely launch behind glass technology that they haven't mastered. And there's not much choice to do anything else. However good the best glass training is, the systems are so complex and, in some cases, badly engineered, that it takes hours to master the routine and many more hours to adeptly handle the novel, never mind just flying the airplane and dealing with systems other than avionics. Too bad glass cockpits don't have the equivalent of Control-Z.

That the Legacy crew became distracted in fussing with their avionics is less surprising than it is expected. A few years ago, a friend of mine who's a sim instructor for a major airline, sent me a tape of a pair of line-qualified captains completely bollixing a simple approach procedure setup on an FMS. Between the two of them, they simply couldn't make the thing play right. My guess is that this is not a widespread lapse, but it's not unusual, either.

In this sense, pilots are no different than the population at large. Some are tech oriented and take to glass naturally, some adapt slowly and get by and a fraction shouldn't be allowed near it. That's no judgment call for or against the Legacy pilots, merely an observation about the state of training and technology in the industry. If passengers in the back think the guys up front are always all over those impressive displays and controls, they should understand that fake-it-till-you-make-it is still alive and well in aviation.

And now there's something new. This accident is probably the first GPS/RVSM-assisted collision, but mostly RVSM. According to the CINIPA report, thanks to RVSM, the two airplanes tragically achieved bullet-hits-bullet accuracy along the exact centerline of the airway, something that would have been unlikely with old-world VOR and baro altimeters. Had the Legacy been five feet lower, the two aircraft might have missed. Given the closure rates--about 1400 feet per second or the muzzle velocity of a musket--they might not have even noticed. As it was, the crew felt and heard the collision, but didn't know another airplane was involved.

Much has been written about the Legacy accident, but there's none better than this long article by the superb William Langewiesche. Here's the link. This piece contains links to cockpit audio recordings.

Comments (18)

Concur that criminalizing mistakes is not in anyone's best interest, but if they really did depart without meaningful / working awareness of the flight rules in the airspace they were operating, or were less than fully proficient with the necessary avionics (not necessarily all of it) to safely conduct the flight in all airspace, and did all of this KNOWINGLY and WILLINGLY, then they WERE acting negligently.

Though I am a product of a the computer age, and find glass to be as intuitive and easy as analog "steam" systems, I understand that transitioning and/or learning advanced systems can be daunting, but taking off without complete working knowledge of critical elements of glass systems (I consider FMS "critical" as navigation under IFR in ATC is almost impossible without it) is dangerous and unprofessional. If one can't learn the systems to proficiency, one needs to look for different type of aviation work.

Posted by: Avi Weiss | December 24, 2008 9:31 AM    Report this comment

Unbelievable and yet believable!

Posted by: judd ring | December 25, 2008 5:33 AM    Report this comment

All people in all professions must go through a learning period; pilots being no exception. If one has brain surgery there is an excellent chance that one of the attending physicians is a "newbie" but not all of them. The people whom I believe are more at fault than the pilots is the company that owned the Legacy. They scheduled two pilots together, neither of whom were familiar with South American (ICAO) ATC procedures or the avionics installed in that aircraft. One pilot can be new to the environment but not both.

Now that being said I fully agree that the Brazilian ATC problem was the immediate cause of the collision. The crew's failure to continue attempting to establish communications was certainly an event that kept the "error chain" going. ATC communications is the number one priority in all operations, especially in a foreign country. In addition, no pilot should leave the lower 48 states without "International Procedures" training which is available through several good aviation schools. It is the responsibility of the aircraft owner/operator to see that the pilots are trained properly. I would be interested to know if these two pilots had that training.

Unfortunately, accidents such as this always bring poor training to light.

Posted by: Gerald Gay | December 25, 2008 11:41 AM    Report this comment

Notwithstanding our desire to maintain precise postioning in all three dimensions, why not program these super-accurate GPS-based systems to automatically offset flight paths both laterally and vertically? This could save lives.

Posted by: Roger Newcomb | December 25, 2008 1:22 PM    Report this comment

I can't believe that you published that tripe from Langenwiesche. His anti-aviation bias doesn't belong in this discussion.

Posted by: Frederic Clarke | December 29, 2008 10:19 AM    Report this comment

I am responding to Mr Tom Clarke.What was "anti-aviation" about Langenwiesche's article ?What are you, a pal of Joe Sharkey's?
It was an excellent piece of journalism and the guy is a former commercial pilot to boot.

Lupo Rattazzi

Posted by: LUPO RATTAZZI | December 31, 2008 5:16 AM    Report this comment

Well, Lupo, comments such as "among airplanes like Gulfstreams, Challengers, and Falcons—which by political, ethical, and environmental measures are abhorrent creations, but..." set the negative tone for me. No I am not a "pal" of Sharkey, and I resent the inference. Keep it civil.
Tom Clarke

Posted by: Frederic Clarke | December 31, 2008 8:36 AM    Report this comment

Tom,I apologize for the inference.It's just that your comments seemed to echo those of Sharkey's,who defined the article as "outrageous".And I have found Sharkey constantly out of line on this event from the getgo,recently also blasting the CENIPA (Brazilian NTSB) 288 page report on the accident (which I have read) and referring to some of the Brazilians involved as "nitwits".On the other hand I really doubt that Langewiesche,with his strong aviation background is an "enemy" or a demagogue.Read his excellent "Atlantic" October 2001 article on Egyptair 990,by the way.

Lupo Rattazzi

Posted by: LUPO RATTAZZI | December 31, 2008 12:29 PM    Report this comment

From Lupo Rattazzi, continued.
I thinks Sharkey, as the reporter on board the Legacy at the time of the accident and as a layman, had a supreme duty to thread very very carefully on this pretty complicated issue,instead of making inflammatory statements and turning this into a Brazil vs. Lepore/Paladino war.
Brasilia ACC was definitely at fault for this accident but Paladino and Lepore behaved pretty unprofessionally in this circumstance.

Lupo Rattazzi,Rome,Italy

Posted by: LUPO RATTAZZI | December 31, 2008 1:13 PM    Report this comment

Lupo, Thanks and I agree with your observations. Brasilia definately dropped the ball, but even though the pilots technically did well (walked away from the landing!) their unprofessionalism did not help their case. Calling names as Sharkey did usually doesn't help. Happy New Year.
Tom Clarke/Pax River, MD

Posted by: Frederic Clarke | January 2, 2009 8:15 AM    Report this comment

Thanks Tom.I have now thoroughly reviewed the CVR of the Legacy and, quite frankly,Lepore and Paladino did not fare as badly as I initially thought.
Only if they had monitored very very carefully the radios could they have detected that the last audible transmission from Brasilia Center was at T-33 minutes from the accident and that thereafter only the aircraft side could be heard in the exchanges with Brasilia Center.But the Legacy did start to contact Center at T-8minutes from the accident with no reply.
The reality is that BRS Center let them go out of comm range,forgot about them and didn't accurately interpret their data block on the radar screen.
Lupo Rattazzi,Rome,Italy

Posted by: LUPO RATTAZZI | January 2, 2009 9:31 AM    Report this comment

I would be careful characterizing Langewiesche as anti-aviation. I read him as being against certain types of aircraft as manifestations of decadence not so very unlike how some people think about Hummers and other large SUVs. A great many automobile enthusiasts I know dislike Hummers intensely and yet that does not make them 'anti-car'. By the same token, one can be pro-aviation but against luxury business jets. There is no obligation, just because you are a pilot, to love every aspect of aviation.

Posted by: Steven Sacco | January 15, 2009 1:57 AM    Report this comment

Always worth reading your view, Paul. I also read the article you recommended by William Langewiesche, which seemed excellent, but I was stunned by his words: "the corrupted tax structures that allow airplanes as questionable as the Legacy to be built, sold, and flown". WTF?

Posted by: BOB GILCHRIST | May 18, 2011 3:52 AM    Report this comment

Where does Brazil get the authority to revoke a pilot's license issued by the FAA? Where in the USA is a four year jail sentence issued for "simple negligence? Driving drunk is one thing, but accidently failing to stop at a stop sign is another. I think the Legacy pilots might be at fault for the latter, if at all. Can you imagine going to jail because your turn signal bulb was burned out and you caused a car crash?

Posted by: DAVID AFFINITO | May 18, 2011 6:45 AM    Report this comment

The question should be asked. Did the accident investigation take such a political and criminal prosecution direction because all involved did not perish? Did the fact that the Crew of the Legacy got their aircraft on the ground safely, make them a target for CENIPA as a representative of Brazilian public opinion, demanding that someone pay for the loss of their loved ones?

I have some experience in Brazil and you must be proactive to prevent problems. Brazil is like a lot of the Second and Third World ATC environment, a lot of non-radar airspace and gaps in VHF communications. ATC does not have the resources to provide services like it does in the U.S., Western Europe and other locations and you have to keep after any losses of communication. Sector frequencies are published on enroute charts and can be very helpful, but many U.S. only pilots are not aware and never used such resources. Did automating enroute charts remove that resource?

Posted by: THOMAS OLSEN | May 18, 2011 3:25 PM    Report this comment

Paul’s comments are spot on as regards the deficiencies in training for the automation in modern production large aircraft. Aircraft automation has become so complex and pervasive that the new systems of the current production aircraft require intense study and actual experience before real proficiency is achieved. On top of that, pilots normally use only a fraction of the system’s capability for normal operations. As a result, the more esoteric operations often escape even the most proficient.

These pilots were “qualified” to fly the aircraft. They passed all tests and qualification on the aircraft and its systems. Was that the problem of the pilots or the deficiencies in the training provider’s training?

Also, the pervasive intrusion of the automation in many systems of the aircraft that were not previously linked in older aircraft creates confusion in those new to the system. Plus is a tendency not to question the system when it is going where you want it to go.

Posted by: THOMAS OLSEN | May 18, 2011 4:03 PM    Report this comment

On older aircraft the transponder switch was visible and so is the “reply” light. One has to wonder what the safety implications are of systems that are so complex and pervasive that it becomes difficult to recover from a small problem, if the crew is not completely system proficient.

CENIPA and the Brazilian Justice(?) System did not do themselves any favors by creating criminals out of those whose only crime is saving their aircraft, their own lives and the live of their passengers.

As to the automation, it seems that some of the automation incorporates other systems mostly because it can be done, not because there is some operational or cost advantage. Does eliminating the weight of a transponder switch panel really meet the cost-benefit analysis or was that done just because it could?

Posted by: THOMAS OLSEN | May 18, 2011 4:09 PM    Report this comment

Tom, you say "whose only crime is saving their aircraft, their own lives and the live of their passengers". Was not this crew incompetent? They let down themselves, their profession and their employers. Blindly flying along using systems they did not understand was a level of irresponsibility which was surely unforgiveable. Whether their acts of comission and omission are technically criminal, I wouldn't know. But I am suprised they are still entrusted with a command. I wouldn't fly with either of them. Would you? Bob

Posted by: BOB GILCHRIST | May 18, 2011 4:16 PM    Report this comment

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