In the wake of the crashes of Ethiopian Airlines Flight 302 and Lion Air Flight 610, the United States Department of Justice has opened a potential criminal investigation concerning the manner in which the fleet of Boeing 737-8 and 737-9 Max aircraft (the “737 Max aircraft”) was certified. On Monday, April 1, 2019, a federal grand jury served a subpoena on a former Boeing flight control engineer seeking all documentation related to the 737 Max aircraft. This was at least the second federal grand jury subpoena issued in the context of the criminal probe. Last month the Associated Press reported that a subpoena was served upon a current Boeing employee who was involved in the development of the 737 Max aircraft. Criminal investigations regarding aviation-related issues in the United States are rare, and are usually conducted when it is suspected that fraud or misrepresentation is involved. In addition, the House Committee on Transportation and Infrastructure has also requested that Boeing produce documents regarding the 737 Max certification. At issue is the manner in which Boeing was able to “self-certify” critical aspects of the aircraft, including, its stall protection system known as the Maneuvering Characteristics Augmentation System (“M.C.A.S.”), which is designed to automatically lower the nose of the aircraft if a sensor located on the Captain’s side of the airplane determines that the aircraft is approaching an aerodynamic stall. It is believed that the M.C.A.S. played a significant role in the recent tragedies, causing each aircraft to enter a fatal dive from which the pilots were unable to recover.
It is expected that a preliminary report concerning the Ethiopian Flight 302 accident investigation will be released this week. Media accounts have indicated that the report will identify similarities between the crashes of Flight 302 and Lion Air Flight 610 and the role that the M.C.A.S. played in each disaster. In addition, Boeing is presently working on a number of issues regarding the M.C.A.S., including a “software fix”, increased pilot training/awareness regarding the system and possibly cockpit alerts that would advise the crew if there is a problem with the M.C.A.S. Regardless of Boeing’s plan, it is anticipated that any proposed solution to the M.C.A.S. problems will undergo stringent FAA review and, until approved, the 737 Max fleet will remain grounded.