Southwest Pilots Blast Boeing in Suit for Deception and Losses from “Unsafe, Unairworthy” 737 Max

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At first blush, the suit filed in Dallas by the Southwest Airlines Pilots Association (SwAPA) against Boeing may seem like a family feud. SWAPA is seeking an estimated $115 million for lost pilots’ pay as a result of the grounding of the 34 Boeing 737 Max planes that Southwest owns and the additional 20 that Southwest had planned to add to its fleet by year end 2019. Recall that Southwest was the largest buyer of the 737 Max, followed by American Airlines. However, the damning accusations made by the pilots’ union, meaning, erm, pilots, is likely to cause Boeing not just more public relations headaches, but will also give grist to suits by crash victims.

However, one reason that the Max is a sore point with the union was that it was a key leverage point in 2016 contract negotiations:

And Boeing’s assurances that the 737 Max was for all practical purposes just a newer 737 factored into the pilots’ bargaining stance. Accordingly, one of the causes of action is tortious interference, that Boeing interfered in the contract negotiations to the benefit of Southwest. The filing describes at length how Boeing and Southwest were highly motivated not to have the contract dispute drag on and set back the launch of the 737 Max at Southwest, its showcase buyer. The big point that the suit makes is the plane was unsafe and the pilots never would have agreed to fly it had they known what they know now.

We’ve embedded the compliant at the end of the post. It’s colorful and does a fine job of recapping the sorry history of the development of the airplane. It has damning passages like:

Boeing concealed the fact that the 737 MAX aircraft was not airworthy because, inter alia, it incorporated a single-point failure condition—a software/flight control logic called the Maneuvering Characteristics Augmentation System (“MCAS”)—that,if fed erroneous data from a single angle-of-attack sensor, would command the aircraft nose-down and into an unrecoverable dive without pilot input or knowledge.

The lawsuit also aggressively contests Boeing’s spin that competent pilots could have prevented the Lion Air and Ethiopian Air crashes:

Had SWAPA known the truth about the 737 MAX aircraft in 2016, it never would have approved the inclusion of the 737 MAX aircraft as a term in its CBA [collective bargaining agreement], and agreed to operate the aircraft for Southwest. Worse still, had SWAPA known the truth about the 737 MAX aircraft, it would have demanded that Boeing rectify the aircraft’s fatal flaws before agreeing to include the aircraft in its CBA, and to provide its pilots, and all pilots, with the necessary information and training needed to respond to the circumstances that the Lion Air Flight 610 and Ethiopian Airlines Flight 302 pilots encountered nearly three years later.

And (boldface original):

Boeing Set SWAPA Pilots Up to Fail

As SWAPA President Jon Weaks, publicly stated, SWAPA pilots “were kept in the dark” by Boeing.

Boeing did not tell SWAPA pilots that MCAS existed and there was no description or mention of MCAS in the Boeing Flight Crew Operations Manual.

There was therefore no way for commercial airline pilots, including SWAPA pilots, to know that MCAS would work in the background to override pilot inputs.

There was no way for them to know that MCAS drew on only one of two angle of attack sensors on the aircraft.

And there was no way for them to know of the terrifying consequences that would follow from a malfunction.

When asked why Boeing did not alert pilots to the existence of the MCAS, Boeing responded that the company decided against disclosing more details due to concerns about “inundate[ing] average pilots with too much information—and significantly more technical data—than [they] needed or could realistically digest.”

SWAPA’s pilots, like their counterparts all over the world, were set up for failure

The filing has a detailed explanation of why the addition of heavier, bigger LEAP1-B engines to the 737 airframe made the plane less stable, changed how it handled, and increased the risk of catastrophic stall. It also describes at length how Boeing ignored warning signs during the design and development process, and misrepresented the 737 Max as essentially the same as older 737s to the FAA, potential buyers, and pilots. It also has juicy bits presented in earlier media accounts but bear repeating, like:

By March 2016, Boeing settled on a revision of the MCAS flight control logic.

However, Boeing chose to omit key safeguards that had previously been included in earlier iterations of MCAS used on the Boeing KC-46A Pegasus, a military tanker derivative of the Boeing 767 aircraft.

The engineers who created MCAS for the military tanker designed the system to rely on inputs from multiple sensors and with limited power to move the tanker’s nose. These deliberate checks sought to ensure that the system could not act erroneously or cause a pilot to lose control. Those familiar with the tanker’s design explained that these checks were incorporated because “[y]ou don’t want the solution to be worse than the initial problem.”

The 737 MAX version of MCAS abandoned the safeguards previously relied upon. As discussed below, the 737 MAX MCAS had greater control authority than its predecessor, activated repeatedly upon activation, and relied on input from just one of the plane’s two sensors that measure the angle of the plane’s nose.

In other words, Boeing can’t credibly say that it didn’t know better.

Here is one of the sections describing Boeing’s cover-ups:

Yet Boeing’s website, press releases, annual reports, public statements and statements to operators and customers, submissions to the FAA and other civil aviation authorities, and 737 MAX flight manuals made no mention of the increased stall hazard or MCAS itself.

In fact, Boeing 737 Chief Technical Pilot, Mark Forkner asked the FAA to delete any mention of MCAS from the pilot manual so as to further hide its existence from the public and pilots.

We urge you to read the complaint in full, since it contains juicy insider details, like the significance of Southwest being Boeing’s 737 Max “launch partner” and what that entailed in practice, plus recounting dates and names of Boeing personnel who met with SWAPA pilots and made misrepresentations about the aircraft.

If you are time-pressed, the best MSM account is from the Seattle Times, In scathing lawsuit, Southwest pilots’ union says Boeing 737 MAX was unsafe

Even though Southwest Airlines is negotiating a settlement with Boeing over losses resulting from the grounding of the 737 Max and the airline has promised to compensate the pilots, the pilots’ union at a minimum apparently feels the need to put the heat on Boeing directly. After all, the union could withdraw the complaint if Southwest were to offer satisfactory compensation for the pilots’ lost income. And pilots have incentives not to raise safety concerns about the planes they fly. Don’t want to spook the horses, after all.

But Southwest pilots are not only the ones most harmed by Boeing’s debacle but they are arguably less exposed to the downside of bad press about the 737 Max. It’s business fliers who are most sensitive to the risks of the 737 Max, due to seeing the story regularly covered in the business press plus due to often being road warriors. Even though corporate customers account for only 12% of airline customers, they represent an estimated 75% of profits.

Southwest customers don’t pay up for front of the bus seats. And many of them presumably value the combination of cheap travel, point to point routes between cities underserved by the majors, and close-in airports, which cut travel times. In other words, that combination of features will make it hard for business travelers who use Southwest regularly to give the airline up, even if the 737 Max gives them the willies. By contrast, premium seat passengers on American or United might find it not all that costly, in terms of convenience and ticket cost (if they are budget sensitive), to fly 737-Max-free Delta until those passengers regain confidence in the grounded plane.

Note that American Airlines’ pilot union, when asked about the Southwest claim, said that it also believes its pilots deserve to be compensated for lost flying time, but they plan to obtain it through American Airlines.

If Boeing were smart, it would settle this suit quickly, but so far, Boeing has relied on bluster and denial. So your guess is as good as mine as to how long the legal arm-wrestling goes on.

Update 5:30 AM EDT: One important point that I neglected to include is that the filing also recounts, in gory detail, how Boeing went into “Blame the pilots” mode after the Lion Air crash, insisting the cause was pilot error and would therefore not happen again. Boeing made that claim on a call to all operators, including SWAPA, and then three days later in a meeting with SWAPA.

However, Boeing’s actions were inconsistent with this claim. From the filing:

Then, on November 7, 2018, the FAA issued an “Emergency Airworthiness Directive (AD) 2018-23-51,” warning that an unsafe condition likely could exist or develop on 737 MAX aircraft.

Relying on Boeing’s description of the problem, the AD directed that in the event of un-commanded nose-down stabilizer trim such as what happened during the Lion Air crash, the flight crew should comply with the Runaway Stabilizer procedure in the Operating Procedures of the 737 MAX manual.

But the AD did not provide a complete description of MCAS or the problem in 737 MAX aircraft that led to the Lion Air crash, and would lead to another crash and the 737 MAX’s grounding just months later.

An MCAS failure is not like a runaway stabilizer. A runaway stabilizer has continuous un-commanded movement of the tail, whereas MCAS is not continuous and pilots (theoretically) can counter the nose-down movement, after which MCAS would move the aircraft tail down again.

Moreover, unlike runaway stabilizer, MCAS disables the control column response that 737 pilots have grown accustomed to and relied upon in earlier generations of 737 aircraft.

Even after the Lion Air crash, Boeing’s description of MCAS was still insufficient to put correct its lack of disclosure as demonstrated by a second MCAS-caused crash.

We hoisted this detail because insiders were spouting in our comments section, presumably based on Boeing’s patter, that the Lion Air pilots were clearly incompetent, had they only executed the well-known “runaway stabilizer,” all would have been fine. Needless to say, this assertion has been shown to be incorrect.

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  1. Titus

    Excellent, by any standard. Which does remind of of the NYT zine story (William Langewiesche
    Published Sept. 18, 2019) making the claim that basically the pilots who crashed their planes weren’t real “Airman”. And making the point that to turn off MCAS all you had to do was flip two switches behind everything else on the center condole. Not exactly true, normally those switches were there to shut off power to electrically assisted trim. Ah, it one thing to shut off MCAS it’s a whole other thing to shut off power to the planes trim, especially in high speed ✓ and the plane noise up ✓, and not much altitude ✓. And especially if you as a pilot didn’t know MCAS was there in the first place. This sort of engineering by Boeing is criminal. And the lying. To everyone. Oh, least we all forget the processing power of the in flight computer is that of a intel 286. There are times I just want to be beamed back to the home planet. Where we care for each other.

    1. Carolinian

      One should also point out that Langewiesche said that Boeing made disastrous mistakes with the MCAS and that the very future of the Max is cloudy. His article was useful both for greater detail about what happened and for offering some pushback to the idea that the pilots had nothing to do with the accidents.

      As for the above, it was obvious from the first Seattle Times stories that these two events and the grounding were going to be a lawsuit magnet. But some of us think Boeing deserves at least a little bit of a defense because their side has been totally silent–either for legal reasons or CYA reasons on the part of their board and bad management.

      1. Anon

        …but then you have no knowledge that the Lion Air pilots had something to do with the crash. Langewiesche is simply assuming that somehow the pilots should have been omniscient, and therefore culpable.

        1. Carolinian

          He gives an example of the same problem occurring a couple of day earlier when a crash did not happen. There have also been MCAS failures during US airline operations when a crash did not happen. Or at least there was one that I read about where the plane had the problem on leaving Phoenix, pilots mastered it, and then continued on to Reno. They were later reprimanded for not returning to the airport. Bear in mind the plane had been flying for several months before the problem cropped up due to the AOA sensor failure.

          So logically speaking if the same problem occurred on other flights and they did not crash then those that did crash probably had some pilot error unless you assume that those that did not crash did not because their pilots hit that off switch out of sheer luck.

          The NYT article was making the point that there are other dangers in flying that aren’t being talked about while everyone fixates on Boeing. I saw it as trying to present another view of the accidents rather than some sort of whitewash. Obviously blame will be sorted out in the courts, not in the press.

          1. Carey

            Cool. So, by and large, all that’s needed is a third person in the cockpit of the 737 MAX, for troubleshooting purposes (they used to be called flight engineers, back in the day) which competing aircraft do not need?

            stop digging.

            1. Carolinian

              In the US instance I cited there were the usual two pilots.

              And there’s no digging. Some of us simply suspect that the anti-Boeing pile on is overkill. What may be unusual about these air crashes is that the causes, the AOA and the MCAS, have been known practically from the beginning. But a few news stories–the “first draft of history” after all–do not make any of us experts on piloting or airliner design. One of the commenters did claim to be an actual 737 pilot who had flown the Max and said, yes, the pilots did have some of the blame. For that he was roundly attacked.

              1. Dave Chapman


                I would say that the problem was 90% design / corporate stupidity and maybe 10% pilot training issues. The proof is that MCAS problems were reported many times before the fatal crash, but the pilots managed to deal with it. In the case of Lion Air, their sub-standard maintenance was a major contributing factor.

                Unfortunately for Boeing, the majority of the blame falls on them.

                Boeing paid $9/hour to the Software Engineers who wrote the flight control system, and is now paying $10,000/hour to the lawyers. I believe the word for this sort of thing is “karma”.

          2. Yves Smith Post author

            I suggest you read Moe Tkacik’s New Republic Air piece. The Lion Air pilot pulled the plane out of IIRC 22 MCAS-induced dives, and the plane finally went down ONLY when he handed the plane over to the co-pilot to consult the manual to try to decide WTF was happening.

            She points out the Lion Air pilot kept the plane in the air twice as long at the Ethiopian Air pilots, who did follow the manual.

            Moe also reports privately that no pilot she interviewed blames the pilots.

      2. d

        And it seems that military version of plane, doesn’t have the problem the commercial version does

        1. Dave Chapman

          That’s because the software in the military version was written by US citizens.

          The 737 Max software was written by H1-Bs, with fake degrees.

  2. Brooklin Bridge

    Classic addiction behavior. Boeing has a major behavioral problem, the repetitive need for and irrational insistence on profit above safety all else, that is glaringly obvious to everyone except Boeing.

    1. d

      Well this seems to be new, as opposed to the we are doing some thing new and have no real idea what the result will be. Today designing a plane is very different, more use of cad and other software, plus we have a better what will work, or won’t. But Boeing seems to have caught the American business culture. Which made safety an option, since hadn’t seen many disastrous problems in years, but neglected that it was important. Guessing they learned the hard way that you cut some things, you vastly increase the cost of others

  3. Summer

    “The engineers who created MCAS for the military tanker designed the system to rely on inputs from multiple sensors and with limited power to move the tanker’s nose. These deliberate checks sought to ensure that the system could not act erroneously or cause a pilot to lose control…”

    “Yet Boeing’s website, press releases, annual reports, public statements and statements to operators and customers, submissions to the FAA and other civil aviation authorities, and 737 MAX flight manuals made no mention of the increased stall hazard or MCAS itself.

    In fact, Boeing 737 Chief Technical Pilot, Mark Forkner asked the FAA to delete any mention of MCAS from the pilot manual so as to further hide its existence from the public and pilots…”

    This “MCAS” was always hidden from pilots?

    The military impletmented checks on MCAS to maintain a level of pilot control. The commercial airlines did not. Commercial airlines were in thrall of every little feature that they felt would eliminate the need for pilots at all. Fell right into the automation crapification of everything.

  4. VietnamVet

    After the Lion Air Crash when the elevator jackscrew was found in the full nose down position making flight impossible, Boeing and the FAA should have grounded the 737 Max. They did not and killed 157 people in Ethiopia. Profit over life. This is the ultimate corruption that is so rampant in the USA today. Only jailing those responsible for manslaughter will clean up the mess.

    The fraud includes Purdue Pharma, PG&E’s destruction of Paradise CA, and the failed forever wars. Massive power shutoffs across Northern California for 600,000 customers may happen Wednesday and Thursday due to high wildfire risk from climate change and dilapidated infrastructure. Establishment Democrats ignore the corruption. This will reelect Donald Trump. It is intolerable.

  5. marku52

    Of course, the fact that Boeing implemented a safe version of MCAS for the tanker–makes the Max implementation criminal.

    Also, not mentioned is that Boeing removed a previous standard feature, an “AOA Disagree” light. Pilots might have previously relied on that feature (and it would have alerted them that much of the instrumentation on one side of the flight deck was offering bad information) (AOA is used in airspeed and and other measurements)

    Instead Boeing made “AOA Disagree” an option. That Lion and Ethiopia didn’t purchase.

  6. Darius

    Bravo to SWAPA and it’s legal team. Everyone else is leaving money on the table. Boeing is trapped. They should settle now. If Boeing does what it needs to to get the MAX back in the air, they’re admitting to what SWAPA alleges. Boeing is now screwed whatever they do.

  7. hub

    That voice and flight recorders were cut out at the same time, and damage to parts recovered from the forward cargo bay consistent with a blast, established that it was probably a bomb near the forward cargo hold that brought the plane down suddenly.

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