Airliner Groundings and Return to Service: Who Will Decide in the Future?

B-737 MAX 8 ?
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Return of the Max 8 is likely soon?

MCAS software issues being resolved

Inadequate Discussion of pilot training and competence

A return of an incredibly knowledgeable, highly respected guest writer, former NTSB Chair Hart. Based on his experiences,particularly as the lead in the Joint Authorities Technical Review, he poses an important question which remains as the world’s civil aviation authorities consider the return to service of the Boeing Max 8.

 by Christopher A. Hart[1]

The grounding of the Boeing 737 MAX (MAX) after two tragic crashes that killed 346 passengers and crew has put the international airline safety community in uncharted legal territory. The response of the international community to this grounding may establish precedent for decades to come.

Previous FAA Groundings. Prior to the MAX grounding, the Federal Aviation Administration (FAA), the U.S. aviation safety regulator, grounded airliners twice since 1979. One grounding occurred in 1979 after an engine separated from the wing of a McDonnell Douglas DC-10 immediately after it departed from O’Hare International Airport in Chicago. The other grounding occurred in 2013 after a Boeing 787 experienced a thermal runaway of its lithium-ion batteries while it was parked at Boston Logan International Airport in Boston.

DC 10 AND B 787


In those two groundings, the problems resulted from mechanical malfunctions that rendered the aircraft unairworthy, i.e., not suitable or safe for flight. In accordance with decades of international legal precedent, pursuant to multilateral International Civil Aviation Organization (ICAO) treaties regarding the certification of aircraft, the grounding decision was primarily the responsibility of the country (State, in ICAO jargon) in which the aircraft was manufactured, i.e., the U.S. for the 1979 and 2013 groundings.


Grounding the MAX. Unlike those two groundings, in which the aircraft were rendered unairworthy by mechanical malfunctions, the two crashes that led to the MAX grounding resulted from inappropriate responses by pilots to problems in the flight control system that the pilots had never experienced before and had not been sufficiently alerted to or trained to handle.

Because the two previous groundings were caused by aircraft problems that rendered the aircraft unairworthy, the competence of the pilots was not an issue. In the MAX grounding, on the other hand, the problem resulted from an undesirable interaction between the aircraft and the pilots, so pilot training and competence were central issues. This was reflected, for example, by the fact that in the first of the two MAX crashes, pilots encountered the flight control system problem in the aircraft the day before it crashed as a result of the same problem but they responded appropriately and avoided a crash.


When the problem is an aircraft-only problem, as with the previous two FAA groundings, the legal structure of giving the country of manufacture the primary responsibility for grounding and ungrounding decisions is very appropriate. When the problem results from an undesirable aircraft/pilot interaction, as in the two MAX crashes, the question arises whether the countries that certify the pilots and approve their training should also be involved in grounding and ungrounding decisions.

The Future.  A major contributor to the exemplary safety of the world’s airlines is automation. Over the years, aircraft and their systems have become more complex and capable, largely because of increasing automation. When systems were less complex and less interconnected, the failure modes were better understood, and pilots were shown the key failure modes in the simulator and trained how to respond. As a result of the training, if any of those failures occurred in operation, the pilots would be more likely to respond appropriately. As aircraft systems became more complex, the combinations and permutations of potential failures among the interconnected systems increased significantly, such that not all failures could be trained in the simulator. Consequently, the likelihood increased that pilots would encounter failures in actual operations that they had never seen before, even in training in the simulator.


The two tragic MAX crashes were the latest in a series of accidents in which pilots encountered problems in operation that they had never seen before, even in training, and they responded inappropriately and crashed. Other examples of pilots responding inappropriately to untrained situations include the Asiana Airline crash on approach to San Francisco International Airport in 2013; the crash of Air France Flight 447 enroute from Rio de Janeiro to Paris in 2009; the Turkish Airline crash on approach to Schiphol International Airport in Amsterdam, Netherlands, in 2009; and the crash of an airliner being ferried with no passengers crash of an airliner being ferried with no passengers from Little Rock, AK, to Minneapolis, MN, in 2004, after the pilots tried unsuccessfully to climb to 41,000 feet, where they had not been trained to go.



On the other hand, there are examples of pilots responding appropriately when they encountered previously untrained situations, including the landing in the Hudson River in pilots positive actions2009; the landing in the Azores in 2001 as a result of fuel exhaustion; the crash landing during an approach to Sioux City, Iowa, in 1989, after an uncontained engine failure resulted in the loss of all hydraulic systems; and the landing in Gimli, Canada, in 1983 as a result of fuel exhaustion.


Thus, history has shown that pilots sometimes respond appropriately to previously untrained situations, but all too often they do not. Moreover, the likelihood that pilots will respond inappropriately to untrained situations in the future will probably increase as a result of the combination of (a) increasingly complex and interconnected aircraft systems, (b) the loss of pilot skills that is occurring from the automation doing more of the flying and the pilots doing less, and (c) the reduced percentage of military-trained pilots and their comprehensive world-class training.


Revising the Grounding Process. The impact of these developments upon future groundings is that future groundings are increasingly likely to involve undesirable aircraft/pilot interactions, such as the MAX, as opposed to aircraft-only issues, such as engines separating from the aircraft or batteries burning, as in the two earlier groundings. Accordingly, the international aviation legal community will need to reconsider how the grounding process – that has worked well for decades but, as demonstrated by these two tragic MAX crashes, needs to be updated and improved – can be revised and improved to respond to this new normal.

That reconsideration will need to take into account whether, and the extent to which, the process of grounding airliners and returning them to service should involve countries that license and train pilots in addition to the country of manufacture. This reconsideration will help establish procedural precedent for navigating this uncharted territory for many years to come.









[1] Founder of Hart Solutions LLC, which offers consulting services re safer and more effective automation, e.g., in autonomous vehicles, and re the use of collaboration to improve process safety (e.g., preventing airplane crashes or plant explosions) and workplace safety (e.g., preventing slips, trips, and falls), with an emphasis on safer and more effective automation. Chairman and Acting Chairman of the U.S. National Transportation Safety Board from 2014 to 2017. Engaged by the FAA in 2019 as an independent outside consultant to lead the Joint Authorities Technical Review (JATR). The FAA created the JATR to obtain a “peer review” by certification experts from the FAA and nine other aviation regulatory authorities around the world, plus NASA, regarding the robustness of its certification process of the Boeing 737 MAX flight control system. The JATR completed its review and submitted its recommendations to the FAA in October 2019.


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