Ethical Approach to Loss of Control In-flight

Running head: ETHICAL APPROACH TO LOSS OF CONTROL IN-FLIGHT1

ETHICAL APPROACH TO LOSS OF CONTROL IN-FLIGHT

PAUL WESTON RANSBURY

SOUTH NEW HAMPSHIRE UNIVERSITY

19 APRIL 2015

PROFESSOR ANA PENN

ETHICAL APPROACH TO LOSS OF CONTROL IN-FLIGHT 22

Ethical Approached to Loss of Control In-flight

Abstract

Loss of Control In-flight (LOC-I) is the leading cause of

fatalities in commercial aviation worldwide over the past 10

years. National aviation authorities are interpreting guidance

from U.S. Congress through Public Law 111-216 and from the

International Civil Aviation Organization (ICAO) through ICAO Doc

10011 to address this threat. These documents require airplane

upset prevention and recovery training (UPRT) to include enhanced

stall prevention and recovery. Aviation lawmakers are faced with

financial and safety dilemmas that may ultimately require

resolution from an ethical standpoint. Going beyond simple

codified law, more modern ethical standards such as Kant’s,

rights and utilitarian theories could play a role in resolving

these dilemmas. With tight profit margins and strong air carrier


safety records, the financial impact of investment in improved

training and equipment to further address LOC-I may be a serious

challenge to the economic well being of airlines.

Recent high profile airline crashes of modern airlines have

revealed startling skill and knowledge deficiencies in

professional pilots. As a result, the general public is beginning

to lose confidence and trust in aviation air safety. Restoring

trust and assuaging misconceptions will require improved safety

and public risk communications. Despite the financial impact on

aviation businesses, air safety must be addressed ethically and

practically. Businesses have a duty to exercise reasonable care

or be found negligent and possibly even strictly liable. “Strict

liability is liability imposed by the law in circumstances the

courts [determine] require a high degree of protection” (Twomey,

& Jennings, 2014, p. 177). ICAO and Public Law guidance is in

place to help regulatory agencies develop laws to ensure

reasonable care and safety. Only time will tell how national

aviation authorities, including the FAA, address these

challenges.


Introduction

This paper addresses ethical challenges regarding the

implementations of Public Law 111-216: Airline Safety and Federal

Aviation Administration Extension Act of 2010. Specifically,

Section 208 titled Implementation of NTSB flight crewmember

training recommendations; subsection (a) (1) Stall and Upset

Recognition and Recovery Training, herein referred to as PL-SURT

(Airline Safety, 2010). The creation of timely and effective

aviation regulations by the Federal Aviation Administration (FAA)

to implement PL-SURT has had mixed success to date. The

implications of Public Law 111-216 have only recently begun to

materialize in flight training requirements.

The lack of definitive direction to the FAA in the creation

of appropriate laws – called Federal Aviation Regulations (FARs)

- reveals several legal and ethical challenges in PL-SURT

operational interpretation and implementation. This section of

Public Law 111-216 is focused on reducing loss of control in-

flight (LOC-I), the leading cause of fatalities in aviation

accidents both in the United States and globally. Subsequent to,


yet in support of, Public Law 111-216, the global aviation

community published the Manual on Aeroplane Upset Prevention and

Recovery Training, herein referred to as the ICAO UPRT Manual, to

give further guidance how to effectively address LOC-I (ICAO,

2014). Challenges balancing the legal and ethical implementation

of flight training solutions to improve air safety have slowed

the implementation of regulatory practices to meet ICAO and

Public Law 111-216 requirements.

Two specific ethical challenges faced by both of the above-

specified resource documents have been isolated for discussion in

this paper. As these regulatory-impactful processes are still

underway today, relevant and similar situations are used to

demonstrate legal and ethical discussion points within the paper.

Discussion

The discussion and analysis that follows has been organized

into topics that logically proceed through an analysis of

identified challenges concerning the implementation PL-SURT the

ICAO UPRT Manual (Airline Safety, 2010; ICAO, 2010). The analysis

will address two ‘legal versus ethical’ challenges from the


perspectives of 1) law and business decisions, 2) impactful law

principles, and 3) distrust of the law and misconceptions.

Situation

PL-SURT and the ICAO UPRT Manual have been developed to help

the aviation community improve airline safety. Due to their

uniqueness, these powerful resources are giving national aviation

authorities around the world, including the Federal Aviation

Administration (FAA), difficult ethical situations to overcome.

“The primary objectives of FAR’s [Federal Aviation Regulations]

are ensuring safe aviation procedures and programs. Besides

protecting aviation employees and the general public, FARs also

protect the national security of the United States” (Aviation

Safety Bureau, n.d.). The final decisions by FAA regulators in

the development of FARs to address the threat of LOC-I concerning

safe air travel for the general public will be influenced by the

ethical process to which the FAA ultimately subscribes. The

business law concepts that follow revolve around the FAA, the

companies its laws influence and individuals.

The Ethical and Legal Dilemmas


“Ethics is a branch of philosophy dealing with values that

relate to the nature of human conduct and values associated with

that conduct. Balancing the goal of profits with the values of

individuals and society is the focus of business ethics” (Twomey,

& Jennings, 2014, p. 33). The FAA proceeds with caution in

rulemaking, as it is aware of the impact its decisions have on

aviation businesses and the US economy. “In 2012, commercial

aviation contributed $807.1 billion or 5.1 percent to GDP (Gross

Domestic Product). Within commercial aviation, the largest

component is commercial visitor expenditures totaling $403.7

billion, or approximately 2.6 percent of GDP” (FAA, 2014, p. 13).

Regulations that cause financial hardship for commercial aviation

and associated support businesses can have a significant impact

on the economy. Moreover, government agencies like the FAA and

large companies such as airlines, have a direct impact on safety

– especially during air travel. “Businesses and government often

have the authority and the power to make decisions that

consequentially affect others’ well-being; thus, they participate

in ethical decision making” (McGuiggan, 2012).


The following two ethical dilemma situations have been

isolated for analysis. The resolution of these dilemmas will

influence the specifics of aviation law and the law’s ability to

preserve human life. “The value of preserving human life gives

rise to a genuine ethical dilemma” (Jacobs, n.d.).

Dilemma 1: Financial Dilemma. The first dilemma is a

financial one: How does the FAA require increased training time

and equipment improvements as stipulated by PL-SURT and the ICAO

UPRT Manual, when airlines cannot afford to do either and remain

profitable?

Aviation is a very cost sensitive market. “America’s

airlines are consolidating … forecasts suggest that global

profits could hit nearly $20 billion in 2014, with margins of

2.6%—pitiful in other industries but stellar for airlines” (The

Economist, 2014). The most effective method for implementing

training to meet the needs of the ICAO UPRT Manual and PL-SURT is

to add training time and improve technology in flight simulators.

Other than airlines being forced to comply with codified law and


forthcoming aviation regulations by the FAA; there is no simple

and definitive answer to this dilemma.

Dilemma 2: Safety Dilemma. The second dilemma is a safety

itself: How do we improve air safety when the necessary training

to make the improvement is potentially unsafe due to a lack of

flight instructor knowledge and skill?

Flight instructors must train all pilots – even airline

pilots. The flight instructor skill necessary to properly teach

upset prevention and recovery training (UPRT) to meet the stated

requirements of the ICAO UPRT Manual and PL-SURT do not readily

exist today. ICAO (2014) states, “Because of its large scope,

there are specific risks associated with UPRT … the safety

implications and the consequences of applying poor instructional

technique or providing misleading information are arguably more

significant than in some other areas of pilot training” (p. 501).

These deficiencies are not new; in Yates v. United States of

America (1974), “The FAA inquiry concluded that the crash was

caused by a loss of control in flight due to an encounter with

wake turbulence”. Pilot skills necessary to recover from wake


turbulence are part of the LOC-I training solution. Research by

the international aviation industry confirms these pilot skill

deficiencies continue. “Place an average modern-day pilot in

conditions leading up to an airplane upset situation; hindsight

tells us that a significant number may not recognize and avoid

it, and also may not be able to recover from the resulting upset”

(International Committee, n.d.).

With the relevant condition of the aviation industry

established, we now proceed with an academic analysis.

1) Law and Business Decisions

Airlines in the United States are businesses that are

regulated by the federal government to protect airline customers.

“The federal government … regulate[s] certain practices for the

protection of the airlines’ customers, in addition to its long-

standing role in overseeing air safety” (Tang, 2013, p. 1). The

safety rights of airline passengers are addressed in federal law,

aviation regulations and by an airline’s own policies (Tang,

2013, p. 1). When it comes to business decisions, airline

customer safety must be at the fore. “Airlines and air carriers


are held to a high standard of care for their passengers. [The

airline] is responsible for even the slightest negligence on the

part of its employees, and is required to do all that is

reasonable under the circumstances to prevent injuries from

happening” (FindLaw, n.d.). This responsibility for a high

standard of care appropriately forces the airlines and the FAA to

take safety concerns seriously and is, therefore, influential on

associated business decisions, including the LOC-I threat.

Law Decisions. Once new Federal Aviation Regulations are in

place, airlines must comply with those laws. “Laws protect our

general safety, and ensure our rights as citizens against abuses

by other people, by organizations, and by the government itself.

We have laws to help provide for our general safety“ (Judicial

Learning Center, n.d.). It is important to note that LOC-I

accidents are catastrophic with injuries and liability extending

beyond just the people onboard the crashed airplane. Collateral

damage on the ground is often substantial to include in-home

deaths and lawsuits from innocent family members, sometimes even

bystanders. In Beiter v. Colgan Air, Inc. (2012), plaintiffs


successfully sued the airline for “emotional injury from viewing

the death or serious physical injury of a … family member”.

Safety regulations improve safety, thus avert accidents and

eliminate financially devastating claims to airlines.

By what standard will decisions on new aviation laws be

made? Codified law is a simple standard – do what the law

requires and all is well. True yet codified law seems

insufficient when today’s minimum legal requirements are

resulting preventable crashes. A higher standard of decision-

making and methods of resolving ethical dilemmas are required in

the creation of new aviation regulations. Twomey, & Jennings

(2014), states, “The late Peter Drucker’s advice on ethics for

business is primum non nocere, or ‘above all, do no harm’” (p. 33).

Business Decisions. Today there are organizations that

already provide the specialize training needed by airlines but

these are small business and do not have sufficient capacity to

train the number of pilots required. These businesses would need

to expand their capabilities either privately, or through some

form of an airline / government sponsored program. Privately,


such growth could be accomplished through franchising to increase

business capacity. Legal liability associated with expansion is a

significant small business concern. Fortunately, the law offers

some protection. “Generally, a franchisor is not liable to a

third person dealing with or affected by the franchise holder.

This freedom from liability is one of the main reasons

franchisors use franchises. If the negligence of the franchisee

causes harm to a third person, the franchisor is not liable

because the franchisee is an independent contractor” (Twomey, &

Jennings, 2014, p. 863). The business decision to expand

specialized expertise in small businesses seems a viable option

to support safety training needs associated with LOC-I.

2) Impactful Law Principles

The impactful law principles here revolve around solving our

ethical dilemmas. Although there are a variety of theories on how

to resolve dilemmas, three will be addressed here. Interestingly,

the final solution based on each ethical philosophy can be

significantly different from each other despite their foundations

being similar in that they all intend to do good for the public.


To start, the baseline for our ethical dilemma discussion is

codified law. “Codified law, or law created by governmental

authority, is used as the standard for ethical behavior. Absent

illegality, all behavior is ethical under this simple standard”

(Twomey, & Jennings, 2014, p. 33). In aviation, doing the right

thing often comes down to doing the minimum required in the FAA

regulations. The rule makers, in this case the FAA, need higher

principles where public safety is concerned. Just the legal

minimum during law creation will not address society’s need to be

safe while traveling in commercial airlines. Three theories that

go beyond codified law are below.

Kant’s Categorical Imperative Theory. “Kant’s categorical

imperative theory … is that you cannot use others in a way that

gives you a one-sided benefit” (Twomey, & Jennings, 2014, p. 34).

Immediately, this eliminates the simple solution of insisting on

the highest standard of training for every aspect of the ICAO

UPRT Manual and PL-SURT. Perfect safety is very expensive and

must be balanced by the ability of the airline and aviation

training businesses to afford it. Following Kant’s theory, there


must be a balance. In Immanuel Kant’s own words, “One ought only

to act such that the principle of ones act could become a

universal law of human action in a world in which one would hope

to live” (Twomey, & Jennings, 2014, p. 34). The outcome of Kant’s

theory as interpreted above seems reasonable – implement changes

toward safety that reasonably considers cost.

Rights Theory. “The rights theory … is one of the more

modern theories of ethics” (Twomey, & Jennings, 2014, p. 34). The

rights theory “has two big elements: (1) everyone has a set of

rights, and (2) it is up to the governments to protect those

rights” (Twomey, & Jennings, 2014, p. 34). In short, everyone is

entitled to the government protecting his or her rights. This

theory is the reason U.S. Congress instituted Public Law 111-126

– to protect our people. U.S. citizens pushed this through

congress to address Colgan 3407 in 2009, in New York (NTSB,

2009). “President Obama signed PL 111-216, The Airline Safety and

Federal Aviation Administration Extension Act of 2010, into law.

The passage of this law marked the culmination of over 15 months


of tireless effort by the Families of Continental Flight 3407”

(Families, 2010).

Utilitarian Theory. “Utilitarians resolve ethical dilemmas

by doing the most good for the most people” (Twomey, & Jennings,

2014, p. 35). The utilitarian theory could be interpreted in

several ways. For example, aviation experts are fearful the risk

associated with improving the aviation training system will be

high. So high, that the losses due to LOC-I we have today are

acceptable. Utilitarians could arguably embrace this perception;

don’t spend the money to improve safety as the current risk level

is already acceptable. “A utilitarian would want the greatest

good for the greatest number … rights theorists would disagree”

(Twomey, & Jennings, 2014, p. 35).

3) Distrust of Law and Misconceptions

First, let’s reflect on the above theories being considered

to resolve our financial and safety dilemmas. It is reasonable to

assert that a ‘rights theory’ individual would not be always

pleased with ethical resolutions of certain matters by a

‘utilitarian theory’ FAA lawmaker. This individual wants action


and the lawmaker believes the risk is acceptable without action.

Spawned is mistrust by the citizen based on a misconception of

the intent of the lawmaker. Although neither person (or group) is

necessarily untrustworthy per se, or misinterpreting ethical

resolutions purposefully, the sentiments of distrust are founded

in differing philosophies. In these situations, ethical

resolutions can seem unfair, unjust, unethical and suspicious

despite everyone’s best intentions. “Justice refers not to

fairness … but rather refers to legal framework. An assurance of

justice means that someone has access to due process, legal

protections and framework” (Antonow, 2010). Sometimes, overcoming

distrust and misconceptions is a matter of good communication.

“Recent contributions to risk communication research stress the

importance of the element of ‘trust’ in the process of successful

communication” (Leiss, 2006, p. 696)

Second, any citizen reading the newspaper concerning

aviation accidents will quickly learn that LOC-I is very often

due to deficient pilot training. Training that follows aviation

regulations designed to keep the general public safe. A valid


question is: why are pilots not trained to deal with LOC-I

situations? A high profile accident with Air France 447 in mid-

2009 shocked the general public with its finding. A wide body

Airbus fell into the ocean from over 37,000’ even though the

airplane was completely recoverable if the pilots had proper

training. From the accident report we read disappointing

findings, “The stall warning sounded continuously for 54 seconds

… neither of the pilots made any reference to the stall warning

or to buffet … neither of the pilots formally identified the

stall situation” (BEA, 2012). From an ethical standpoint, trust

in businesses (aviation in this case) is central to gaining and

keeping a good reputation by being unfailingly safe. “Customers

are willing to purchase products and services from businesses

because they believe the businesses will honor their commitments

to deliver quality and then stand behind their product or

service” (Twomey, & Jennings, 2014, p. 35). When it comes to LOC-

I and pilots skill levels, the distrust of the law (aviation

training regulations) seem justified. Once improved training is

underway, misconceptions will need to be resolved through


effective communication. Those communications need to educate the

public on what’s being done to keep them safe. When safety

improves, trust will follow.

Conclusion

The implementation of aviation training solutions and use of

required equipment to meet the requirements of the ICAO Manual on

Aeroplane Upset Prevention and Recovery Training and Section 208

(a) (1) of Public Law 111-216: Airline Safety and Federal

Aviation Administration Extension Act of 2010 requires the

Federal Aviation Administration to address several ethical issues

during the creation of supporting regulations. The financial

impact on the aviation industry by aviation law in the United

States is significant and must be balanced by the increased

safety these improvement will have on the safety of individual

members of our society when travelling with commercial air

carriers. Resolving the ethical dilemma of balancing cost, which

could negatively impacting business profitability, with averting

human fatalities may ultimately be decided by the ethical theory

adopted by lawmakers. Based on our interpretation above,


utilitarians may be fine with no regulatory changes as they may

feel the risk today is already acceptable and wouldn’t want risk

to increase due to increasing training. This would seem to

support the “greatest good for the greatest number of people”.

The rights theory supporters would not necessarily be consumed

with the details of possible solutions but transfer the

responsibility of solving the dilemma to the government to

protect their individual right to safety, protection and well

being. Kant’s categorical imperative theory activists would be

supportive of actions that aren’t one-sided. If there was an

option where air safety could be improved without increasing risk

for any group or individual associated with the improvements then

that would be well received.

From a purely practical standpoint, a balance will need to

be achieved. The national aviation authorities need to address

the establishment of aviation regulations (laws) that consider a

diversity of factors that include balancing cost with the value

of preserving human life. In the end, once established as

regulation, the pilots ultimately responsible for each of us and


for the safe operation of each airline flight will approach this

issue from the perspective of codified law; in other words, they

will generally do what is required of them legally and little

more. Establishing aviation regulations that will improve air

safety concerning LOC-I is important to anyone who travels – we

place our trust in U.S. Congress, the FAA and airline policies to

ensure a high standard of care for our safety.


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Ethical Approach to Loss of Control In-flight

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