Wanna Bomber Thrill Ride? Sign The Waiver

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We reported last month that in the wake of the fatal B-17 crash at Bradley Airport in Connecticut on Oct. 2, the Collings Foundation is seeking support for the renewal of its exemption to carry paying passengers in World War II aircraft. As aviation nerds, are we all supposed to line up here, click the link and hosanna the petition?

Not so fast, if you don’t mind. I want to know a little more before I say, yay, this is a great idea. In principle, I support the concept of flying older military aircraft under the Living History Flight Experience exemption that basically drives the point that exposing people to these historical airplanes is worth the risk of the airframes and whatever risk the people who fly in them as passengers assume.

I reject the argument that they ought to be simply parked in museums, safe from the ravages of regular use, corrosion and the risk of crashes. The decision to fly them or ground them is up to the people who own them, not me, not the public and definitely not the FAA. That’s as it should be. But there is a compelling public interest in how paying passengers are carried, if even they are.

To be fair, the FAA and the operators of these aircraft have done a remarkable job in trying to make warbird rides as safe as possible. The operators have to have approved maintenance and pilot training programs, pilots have to be typed in the airplanes that require that and the FAA requires fairly high time (2500 hours) for PICs that far exceed the seat time young captains and lieutenants who took them into combat had. The outlines are ably explained by B-25 owner Larry Kelley in this AOPA Live video.

Where my skepticism meter comes off the peg is when the term “equivalent level of safety” is used. Kelley implies that warbird passengers ops are the equivalent level of safety to Part 135 operations. Maybe. Maybe not. Don’t tell me there haven’t been many crashes, show me the actual accident rates with real data. Because equivalent level of safety, even for Part 135, is an admirably low 0.59/100,000 and even lower than that if you carve out the high rates unique to Alaska. Are warbird accident rates lower than that? Or higher? I’d like to know. If I had hours data, I’d figure it out myself. 

As I mentioned in a previous blog, since 1982, the NTSB has investigated 21 accidents involving World War II bombers. They resulted in 23 fatalities. Some 30 P-51s have crashed, 12 of them fatal; a dozen F4Us were in accidents, three fatal. These are hardly big numbers, but they’re also small aircraft populations.

While the goal may be equivalent safety and while the mechanisms to achieve that may be in place, are these procedures actually being followed and were they in the Collings crash? I’d like to know and I’m not going to respond to one knee jerk—the senator who called for grounding these aircraft—with another knee jerk—why, based on my passion for aviation, grounding is just absurd! Let’s see an accident investigation and some actual data.   

I’m not one to believe the government ought to step in and protect us from ourselves. My view is that you ought to be allowed to take whatever risk animates your need for adrenaline. But it’s delusional to think the FAA doesn’t or shouldn’t have a role in this. And if these operations aren’t at the equivalent level of safety—in other words, if a B-17 isn’t actually as safe as a King Air—say as much. Don’t allow an unsuspecting passenger to think otherwise just because the FAA has some paperwork.

When Congress confronted the prospect of space tourism, it realized there was no way the FAA could certify these vehicles as safe. I’m not even sure where you could start to do that sort of thing. So it followed the doctrine of informed consent for participants, which basically allows passengers to ride rockets or anything else under the understanding that the government has no role in assuring safety.

It’s even got its own regulation—460.9—and the required language couldn’t be simpler: “The United States Government has not certified the launch vehicle and any reentry vehicle as safe for carrying flight crew or space flight participants.”

The actual risk of space tourism is implied, since we haven’t done enough of it to understand the real risk. Riding in warbirds certainly isn’t on that same level, but it’s also not like getting into a King Air.

In skydiving, we have a multi-page waiver that everyone has to sign—initialing it in a dozen or more places—basically saying you’re taking your life into your own hands, you can get killed doing this and although we’ve done all we can to prevent that, it’s ultimately on you. Skydiving couldn’t exist as a sport without this. Collings has a waiver for passengers, too, but I don’t know what it says. I asked them for a copy and on the advice of counsel, they declined.

But I know what it should say. And anyone who signs it should be allowed to fly in anything they want, whenever they want. Informed consent makes certain that people who could die in a crash understand what they’re getting into without being lulled into the belief that this is a like getting on an airliner.

As for the petition, I’m thinking about it.

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23 COMMENTS

  1. Somewhat off-topic (but not really), do you have any data on the safety (crash rate) of helicopters vs fixed-wing? I’ve been subjectively assuming that my risk of helicopter flying is higher than it is in fixed-wing flying, and have accepted this assumed risk as being worth it (I thought seaplane flying was fun, but I find helicopter flying even more fun). The point I’m getting at is that there are 91 and 135 ops for helicopters, and I wonder how the FAA treats them (equivalent safety of a King Air)?

  2. Well said, Paul.

    I don’t need or want the government to protect me from anything short of foreign attacks. What I do need, is to figure out how to protect myself from government, and from geniuses who would “protect” me from cradle to grave. For my own good, of course. Stripping me of my freedoms, for the cause of my safety, always is “for my own good.”

    God save us all from do-gooders.

  3. “anyone who signs it should be allowed to fly in anything they want, whenever they want”

    Sure, do what you want; but anyone who accepts the risk must TRULY accept the risk.
    Anyone who signs a flight waiver should also sign that they personally(or their estate) agrees to pay 100% for crash and rescue if it goes bad. If you pay to support the risk, you pay if it goes bad and costs others life or property damage. Do what you want, when you want, as long as you’ll pay for any damages to others.
    Fair is fair.

  4. Waivers don’t hold up in court. Years ago the air-carriers had the passengers sign the waiver statement on the back of the plane ticket. Problem was the dependents didn’t sign it also. When the bread winner looses their life and their family has to do without the income of the person who signed the waiver the jury sides with the heart-broken children who are still alive. The dependents are considered victims also and they didn’t sign the waiver.

  5. “Waivers don’t hold up in court“

    There is one case where it did. I’m trying to find the reference but, as I recall, an experienced skydiver jumping out west (Las Vegas?) died in a landing accident. His family sued the drop zone. The drop zone counter-sued, using the waiver that said not only would they counter-sue, but the plaintiffs would be charged with the expenses. It took years, but the drop zone prevailed. They said it cost far more than they ever hope to get back, but felt it was important to establish a precedent.

    If i find the case I’ll post it. I recall reading it sometime this century.

  6. Not a bad follow up article, but Paul, quite frankly, you need to drill down into the numbers a bit. “Since 1982, the National Transportation Safety Board has investigated 21 accidents involving World War II-era bombers. They resulted in 23 deaths.”

    The fatality numbers in the above quote might be factual, and are unfortunate, but are totally misleading. The actual numbers tell a completely different story.

    The Living History Flight Experience program for B-17s involving paying passengers was started by the Collings Foundation in the early or mid-nineties, nearly 25 years ago. Since then and prior to the Collings’ accident there were no fatalities involving the B-17. Zero. The B-17 safety record speaks for itself. The B-17 has been operated safely by more than half a dozen museums and heritage groups. As such, it is, in my opinion, the safest aircraft in the Living History Flight Experience program. Apples should be compared to apples.

    • 2019 Nine-O-Nine, crash and burn
      2011 Liberty Belle crash and burn
      1989 F-BEEA, crash and burn

      Given the number of flying B-17’s and the number of B-17 crashes, statistically it is rather risky to be in a B-17. These are old planes with decades of repairs on previous repairs on previous repairs. There comes a time when maybe they need to stop carrying paying passengers as if it’s 1950.

      • In the end the insurance companies will be the ones who will ultimately determine if the risk is worth covering. I know of a B-25 owner years ago who stopped giving rides due to lack of any insurance coverage. The problem with the FAA grounding these aircraft is they will come up with criteria that will ground everything with a radial engine and ground perfectly airworthy planes. I wonder how the accident rate of these older WW2 bombers compare with piston powered twin engine light aircraft built since 1945? A lot of those airplanes are used in pt135 air carrier service and most have very marginal single engine performance. None of the small planes can come close to the engine out performance requirements of most turbine twins, and were never certified as such. I wonder how many passengers/customers of those pt135 operators inform passengers of that?

  7. Paul B…an interesting article. However, I question the term bombers in the statistics.

    Since 1982 , the FAA has investigated 22 WWII era bomber accidents. That implies B-17’s, B-25’s, B-24’s, B-26’s. But it seems to me the total number of flyable WWII bombers would be hard pressed to total more than 40, of which the highest number happens to be today with the shift to painstaking restorations.

    If the FAA is including WWII era “bombers” who were/are used for firefighting, crop dusting, and mosquito abatement ( which was relatively popular use for these types of airplanes throughout the eighties and early nineties) then the inclusion of those highly worked airplanes being flown by a variety of pilots with a variety of skills, flown consistently under less than ideal conditions, would certainly skew the stats inappropriately for those flying under LHFE exemption.

    Outside of the recent Collings accident, no one has been killed in a LHFE flight. Yes, two other B-17’s had mechanical issues that caused two more B-17 accidents, but no fatalities as I recall.

    Another side to this is not much public or media comments when a WWII fighter like a P-51, Corsair, T-6, T-28, etc, or other vintage fighter is involved in an accident with fatalities. Outside of the aviation press, hardly a mention. I am not advocating that there should be more rage for the fighter losses. And your article’s premise is waivers, passenger consent, with transparent explanation of the risks involved. But I question how the statistics are used to prove a point for or against continuation of LHFE flights with well-informed passengers signing a well crafted waiver.

  8. What is the FAA definition of a WWII era bomber? Did all of these WWII era accident aircraft ( fighters, bombers, trainers) include air racing, movie stunts, as a mentioned earlier firefighting, crop dusting, mosquito abatement activities?

    I believe the statistical accident evidence for or against continuing the LHFE flights needs to be weighed by accident statistics relevant to LHFE flights only. LHFE flight hours are accurately recorded which would make accident statistics in the LHFE arena relative to flight hours and passenger loads easy to quantify. That risk needs to be calculated to craft a valid, transparent waiver.

    To lump in all FAA data on WWII era aircraft ( whatever that term really means to the FAA) involved in accidents since 1982 with the LHFE flights is not fair to those who have complied with all of the LHFE regs, and up till the Collings crash, had a 100% safety record. Plus, we don’t know what the cause of the Collings crash was. That crash still may prove to be caused by something other than a part or maintenance failure.

    Waivers are good. Waivers are necessary. Transparency regarding safety risks is the right way of doing business in LHFE flights. We already have that. And overall, it has worked very well.

  9. Paul:

    You bucked the rivet squarely on the head: informed consent and transparency is always preferable to the alternative.

    I remember every time I climb into a GA plane what my primary instructor imparted when I was starting my trip down aviation lane: by participating in this activity, we assume a certain level of risk that is greater than lying in bed all day (which, in itself, carries some level of risk that is >0) but less than standing on the edge of a cliff and leaning over. The question becomes how far do you lean over or not, and what do you do to lessen the chance that you’ll be doing a swan dive onto the rocks below.

    There’s lots of good, some of it extremely dense, analysis of risk mitigation; certainly the feds have done at least a valiant effort to talk about it to the pilot/AP/IA/CFI community; but when it comes to the great unwashed lined up to take a ride on one of these spectacular birds, their view is colored by the experience of lining up at gate 21 for a trip for vacation.

    It’s a matter of perception…big bird, captain and co-pilot up front, memories of movies with these magnificent machines returning home…how hard could it be, right?

    Informed consent. Let’s not sugar coat it. It’s not the same. As you point out, there is no scientific data which says it’s x% worse (or better) than normal GA operations or Part 135 or 121. But, paying your donation, climbing on board a 17 or what have you, yes, you sign a waiver that acknowledges that YOU assume the risk while the organization will take all steps a reasonable man would take to be responsible for their half.

  10. IF…, Waivers Work?… Why is insurance throughout all the travel industry so high and mostly required by law?

    Commercial transportation (marine, highway and air) have to have insurance by law. Why don’t we just have everyone sign a waiver before they get onboard a vehicle and drop the insurance requirements?

    The skydiving waiver story proves my point. A lot of lawyers won a lot of money and the grieving family and the skydiving company payed a lot of money for a big courtroom drama. As most transportation companies have found, ‘Just Pay The Money Out’. Might as well pay it to the people involved or their family instead of a team of lawyers.

    Kirk W. … “They said it cost far more than they ever hope to get back, but felt it was important to establish a precedent.”
    Precedent is Never set in life loss or crippling cases. The legal industry will use the media to demonize and turn any precedence that may have been previously set. Just like the media has turned the executives at Boeing into greedy mass murdering serial killers who will kill anyone for a buck. They will do a full two hour documentary about how deadly “War Machines” are.

    • Because lawyers and huge contingency fees, period (I used to work at a large law office; money was far more important than justice). If everyone could buy their own policy, or not (which one can still do; in the olden days, right at the terminal!) I’d be quite happy with that. The policy, in today’s flying climate, would be very cheap (for 121 flying, in any case!)

      • “Because lawyers and huge contingency fees, period (I used to work at a large law office; money was far more important than justice).”

        Old legal maxim: There are few grave legal questions in an estate with no money.

  11. I think it’s easy to demonize the FAA and insurance companies, because they’re easy, anonymous targets. But in the end what kills the informed consent idea is the grieving widow, the tear-soaked mom, the broken family that doesn’t understand why irresponsible people (or at least the ones with money) took their wonderful pappa or grampa from the family bosom.
    You can’t argue with them that, in the end, we’re all just single individuals in a world of six or seven BILLION and we’d all just like to have a little fun while we’re here on this earth, and if that means risk, then so be it. We can minimize this risk, but all bell-curves have tails, and sometimes you’re the outlier.
    I don’t think that would hold up in court, though….