Alexandra Piechowicz

Associate Editor

Loyola University Chicago School of Law, JD 2020

On March 10, 2019, Ethiopian Airlines Flight 302 en route to Nairobi, Kenya crashed shortly after take-off leaving no survivors. It became the carrier’s most deadly crash and its first fatal crash since January 2010. Most notably, however, it was the second fatal crash involving Boeing’s new 737 MAX jet in less than five months after the Lion Air Flight 610 accident in October 2018. The day following the tragedy, Ethiopian Airlines grounded all of its Boeing 737 MAX 8 fleet until further notice. Many other airlines suspended operations of the aircraft as well and countless countries banned the 737 MAX from airspace.

Ethiopian Airlines Flight 302

On October 29, 2018, a Boeing 737 MAX 8 operated by Indonesian airline Lion Air crashed into the Java Sea off the coast of Jakarta. Just thirteen minutes into a scheduled hour-long flight, all 189 passengers and crewmembers aboard the aircraft lost their lives. Just five months later, Ethiopian Airlines Flight 302, also a Boeing 737 MAX 8, sealed its fate the same way.

The response to the common denominator – the aircraft – between the two crashes was sudden and similarities between the tragedies were quickly investigated. The new MAX planes feature an automated flight software called the Maneuvering Characteristics Augmentation System (“MCAS”) that automatically lowers the nose of the plane when external angle of attack sensors detect that the aircraft is at risk of stalling. The report following the crash of the Lion Air flight in October revealed that the crew attempted to correct the automatic system as it forced the plane’s nose down more than two dozen times during the thirteen-minute flight.

An investigation of the Ethiopian Airlines incident also revealed that the MCAS was activated before the crash. Preliminary analysis of the data showed “clear similarities” between Flight 302 and Flight 610 and that the Ethiopian Boeing experienced the same uneven climbs and descents shortly after takeoff.

The Meaning of “Grounding”

There are many ways to “ground” an aircraft. Operation bans can be issued in many ways but most frequently, airlines and sovereign states are the key players. When Ethiopian Airlines grounded its 737 MAX 8 jets, it ordered the operation of the model to cease entirely within the airline. Several airlines followed suit, grounding a total of 393 aircraft worldwide. In this case, the airline polices itself and sets its own rules. In the context of national airspace bans, however, the regulations for groundings are less cut and dry.

The Federal Aviation Association’s Response

On March 13, 2019, the Federal Aviation Association (the “FAA”) ordered a temporary grounding of all Boeing 737 Max aircraft operated by U.S. airlines or in U.S. territories based on preliminary data gatherings and evidence obtained from the Ethiopian Flight 302 crash site. Specifically, an Emergency Order of Prohibition (the “Order”) was issued that delineated the specifics of the grounding, including compliance.

The Order states that any Boeing 737-8 and 737-9 aircraft at the time of issuance must immediately “proceed to and complete their soonest planned landing, but may not again takeoff.” The Order establishes the authority of the FAA under part A (“Air Commerce and Safety”) of subtitle VII of Title 49 of the United States Code.

The scope and effect of the grounding is as follows:

• Order effective immediately;
• Prohibiting the operation of Boeing 727 MAX series airplanes by U.S. operators;
• Prohibiting the operation of Boeing 737 MAX series airplanes within U.S. territory;
• Special flight permits may be issued as well as experimental airworthiness certificates;
• In effect until there is an issuance of an FAA order rescinding or modifying this Order.

Furthermore, the Order details the consequences of failure to comply. Non-compliance will result in a civil penalty of up to $13,333 per each flight found to not be in compliance. An individual serving as an airman on a flight found in violation of the Order will receive a civil penalty of up to $1,466 per flight or a certificate action that may include revocation. An airline found in violation will receive a certificate action that may include revocation. Any individual that does not comply with the Order may be subject to a cease and desist order or a federal district court.

The Takeaway

On March 20, 2019, the FAA issued a Continued Airworthiness Notification to the International Community that reiterated its commitment to ensuring the operational safety of the aircraft model. As of March 31, 2019, the temporary grounding has not been lifted.

Aircraft groundings are not an atypical response to a safety concern for the FAA. However, Orders of Prohibition issued by the administration appear to vary greatly depending on the circumstances. Accordingly, penalties for failure to comply differ on a case by case basis.

Airlines must abide by the grounding rules, or ask for accommodations, in order to stay compliant with the FAA Order. Non-compliance puts airlines and pilots at risk of monetary penalty or even worse: revocation of a license. The Boeing 747 MAX 8 jet exemplifies the most serious implications of non-compliance – jeopardizing the safety of passengers – and perpetuates a need for proper testing and clear orders regarding aircraft grounding.