Story ID: 013
FlyNYON Tragedy Results in Hefty Jury Award
By: Mark Huber
Caption: Jury awards $116 million for doors-off crash victim
Word Count: 1594
In September, a New York jury awarded $116 million to the mother of the front seat passenger who died after a doors-off helitour flight autorotated into Manhattan’s East River in 2018. Trevor Cadigan, 26, and four other passengers died after his supplemental harness became entangled with the floor-mounted fuel shut-off control lever (FSOL) on the single-engine 2013 Airbus AS350 B2 being operated by Liberty Helicopters on behalf of “shoe selfie” photo aerial tour firm FlyNYON. The entanglement caused the engine to stop.
While the pilot was able to successfully autorotate into the river, the Dart Aerospace skid-mounted pop-out emergency floats failed to fully inflate and the helicopter rolled inverted. The pilot, who was not wearing the supplemental harness, extricated himself; however, the passengers were unable to do so and drowned. At 2019 hearings, then NTSB Chairman Robert Sumwalt said the use of the construction-grade harnesses turned the flight into a “death trap” and the accident was otherwise survivable.
In making the award, the jury assigned liability at 42% to FlyNYON, 38% to Liberty, and 20% to Dart. Airbus Helicopters was not found at fault. The accident, and the litigation it triggered, drew fresh attention to the raging popularity of doors-off helitours and the attendant safety questions they raise.
Following the accident, Airbus began offering customers a new design FSOL. In a related Safety Information Notice (3570-S-76), the company noted, “Despite the absence of any airworthiness requirement to protect the FSOL from accidental activation due to external influences from passengers and because the safety of crew and passengers is always our highest priority, Airbus Helicopters has developed a design modification (MOD 075101) to the FSOL. As a product safety enhancement, it will allow to minimize the risk of accidental activation while still allowing the FSOL to be easily activated by pilots in case of an emergency. So, Airbus Helicopters strongly recommends that customers take advantage of this important product safety enhancement by applying the SB N° AS350-76.00.24 replacing the current FSOL by the new one (MOD 075101) on AS350 B2 & B3 versions” as well as other models of the AS350/EC130 legacy fleet having a floor-mounted FSOL.
The retrofit modification consists of changes to the metallic top plate for the FSOL, by adding a lower detent as an additional means to keep the lever in the stowed position. The European Union Aviation Safety Agency (EASA) issued an attendant Safety Information Bulletin on the modification (SIB No. 2021-05R1) on April 8, 2022. While EASA recommended the modification, it noted, “At this time, the safety concern described in this SIB is not considered to be an unsafe condition that would warrant Airworthiness Directive (AD) action.”
Another contributory factor was the failure of the Dart Aerospace emergency pop-out floats to symmetrically inflate following pilot activation. This caused the aircraft to roll over seconds after impact, even though the pilot had made a successful autorotation.
The typical tri-bag float system requires semi-annual, annual, and three-year inspections, with full inflation during the last. They usually also have a maximum forward deployment speed. However, even if the floats were functioning properly, that was no guarantee that the helicopter was going to stay upright, according to a 1996 FAA study—the last of its kind—titled, “Survey and Analysis of Rotorcraft Flotation Systems.” The study concluded, “Rotorcraft, in both ditching and water impact scenarios, were found to overturn immediately upon impact. Overturns occurred to rotorcraft both with and without deployed floats.”
During its December 2019 public hearing on the accident, the NTSB criticized the FAA’s STC approval of the floats for the AS350, specifically with regard to the position of the float activation lever on the cyclic, the inordinate amount of pull force required to activate that lever (greater than 59 pounds), and the failure of the year 2000 crossfeed tube modification to prevent asymmetrical float inflation in the event that one of the gas cylinders failed.
Specifically, the NTSB recommended that the FAA “Revise miscellaneous guidance 10 in Advisory Circular (AC) 27 and AC 29 to include design objectives for emergency flotation systems that consider human factors design objectives, such as activation handle pull-force characteristics; provisions for clear, unambiguous, and positive feedback to pilots to indicate that the float system was successfully deployed; and inspections to ensure that an installation of a manual activation system does not preclude a pilot’s ability to deploy the floats, as designed, after it has been fielded.”
Dart suggested that the pilot had used improper technique to activate the floats by not fully pulling the inflation lever, which led to the asymmetry. Counsel for FlyNYON suggested that Dart knew of the possibility of asymmetry and acknowledged as much when it issued a post-accident Service Bulletin SB-2018-3, which advised that the cyclic mounted float activation handle needed to be pulled fully aft “until there is no travel left available” to “prevent asymmetric inflation.”
Subsequently, Dart issued SB-2018-07, which mandated customers with floats installed on Airbus AS350/355 models to pull cable rigging checks and inflation checks and conduct handle force checks. Dart noted that its emergency floats “utilize a system of pull cables to activate and release compressed gas from the float cylinders into the floats. Proper installation of the pull cables allows the two float cylinders installed on the aircraft to activate simultaneously, allowing for proper distribution of gas to all floats in the system. Improperly installed pull cables may lead to asymmetric inflation of the float system and/or difficulty deploying the float system from the float activation handle installed on the pilot cyclic.”
In 2020, EASA via the European Commission’s Horizon 2020 funds awarded Dart $1.62 million to research emergency floats mounted higher on helicopters than the current skid and lower fuselage designs currently in use. In announcing the award, Dart said, “The primary objective of the project is to increase offshore helicopter safety by identifying if technical and economically feasible solutions are possible to reduce instances of aircraft capsizing, which can flood the cabin and lead to fatalities. EASA will use the results of the research to inform potential future regulation.”
Capsizing aside, the FlyNYON crash was likely survivable to all aboard had they been able to release from their supplemental harnesses. On August 22, the FAA issued rule 89 FR 678 34 that prohibits the use of aircraft supplemental restraint systems unless it can be demonstrated that the wearer can rapidly extricate from them. The rule does not apply to parachutes, rotorcraft external loads, or public safety operations.
The rule followed a July 8, 2019, FAA emergency order (8900.4) of prohibition pertaining to doors-off flight operations for compensation or hire and an emergency order issued shortly after the accident. It prohibited the use of supplemental passenger restraint systems (SPRS) that cannot be released quickly in an emergency. The emergency order required the “correct use of FAA-approved SPRS.”
There were many actors in the FlyNYON tragedy, but the NTSB’s most scathing criticism was reserved for Liberty Helicopters and FlyNYON, which were broadly faulted for their respective safety cultures characterized as “deficient.” Safety shortcomings mentioned by the Safety Board included: a lack of a safety management system (SMS) at both organizations; a "misleading" NYON passenger safety video that characterized the supplemental harnesses as quick-release and equipped with an easily used cutting tool; purging pilots from safety meetings; and disregarding pilot safety concerns.
Today, FlyNYON continues to market doors-off and doors-on flights, which it calls “photo flights,” and traditional doors-on flights, which it calls “helicopter tours.” FlyNYON’s passenger terminal in Kearny, New Jersey (65NJ), features a full-sized helicopter mock-up, café, lounge, and passenger lockers for any loose or unapproved items.
Customers can rent cameras and other accessories, must sit through a safety video, sign a liability waiver, and be fitted with a quick-release SPRS harness before boarding the helicopter. Its harness system now consists of the 338-ARS Heli-Ops harness and ARS personal retention lanyard. The system features a quick-release tether. Once aboard, staff rechecks the harness. Arms, feet, and legs must remain in the helicopter during takeoff and landing. Doors-off tours are currently discounted at $165 per seat for a 16- to 19-minute flight, according to the company’s website.
The families of several other victims of the 2018 accident have settled privately with the defendants. The popularity of doors-off helitours has soared since the accident in several markets, particularly in Hawaii.
In 2019, the NTSB urged the FAA to close the “loophole” that allows doors-off helitours to operate under the “aerial photography” exception as opposed to the more stringent standards for commercial air tours. Specifically, the NTSB called for a national standard for air tours to equally apply to fixed- and rotor-wing aircraft and the elimination of the aerial photography exemption contained in 14 CFR 135.1 (A-19-31).
Trevor Cadigan’s blood alcohol level at time of death was more than twice the legal limit for operating an automobile. The NTSB noted, “Although the passenger in the front seat on the accident flight was intoxicated, it was not possible to determine whether alcohol played a role in his inadvertent activation of the FSOL. Despite the existence of an FAA regulation prohibiting the carriage of any passenger who appears to be intoxicated or impaired, neither Liberty nor NYONair [parent company of FlyNYON] had any documented policy or guidance materials, including training, for their employees to identify impaired passengers or for denying boarding of such individuals.”
Attempts to reach FlyNYON for comment were unsuccessful.