By Gary Webb published Sep. 25, 2003
Reprinted from Asia Times Online view article source

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 attack.

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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