Book: Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster

S >> Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan >> Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster





Factual Background

In a written synopsis of argument presented before this Court by counsel
for Air New Zealand it was said that background matters had to be
understood as they were entirely relevant to the complaints made by the
applicants in the present proceedings. But that "the Applicants do not
propose to canvass any factual matters which fall outside the range of
their specified allegations". In regard to that last matter we emphasize
again that this case (as counsel well realized) cannot be used to attack
the Royal Commission findings as to the cause of the crash. On behalf of
the applicants it was made clear nonetheless that their acceptance of
the jurisdictional bar to such a challenge in the Courts did not mean
and should not be used to draw any inference that they accepted the
causation findings themselves (at least in the unqualified form in which
they are set down in the Report). It is simply that they do all readily
accept as they must that in no sense can these proceedings become an
appeal against those findings. It is right to add that throughout the
hearing in this Court that attitude has very properly been reflected in
the submissions we heard. Thus the conclusions as to the cause of the
crash must and do stand.

Late in 1976 Air New Zealand decided to commence a series of
non-scheduled sightseeing journeys from New Zealand to the Ross
Dependency region and return to this country without a touch-down at any
intermediate point. They began with two flights in February 1977. There
were four further journeys in October and November 1977, four in
November 1978, and three more in November 1979--on 7th, 14th and 21st.
The accident flight was to be the fourteenth of the series. In 1977 the
designated route was one which used Cape Hallett on the north-eastern
point of Victoria Land as the first southern waypoint on the continent
itself en route further south either to a point adjacent to the Williams
ice landing field (near Scott and McMurdo bases) or alternatively the
south magnetic pole. One or other became the southernmost waypoint, the
magnetic pole destination being used at the discretion of the pilot if
weather conditions made the McMurdo area unsuitable for sightseeing.

Scott and McMurdo bases are located close together at the south-western
tip of Ross Island which forms the eastern coast of McMurdo Sound. On
the island there are four volcanic mountains including Mt. Erebus, the
highest, at 12,450 feet. The Sound itself, which is about 40 miles long
by 32 miles wide at the narrowest point, lies between mainland
Antarctica and Ross Island and for most of the year it is covered with
flat sea ice.

The first two flights in February 1977 took place with the necessary
approval of the Civil Aviation Division of the Ministry of Transport and
after clearance with the United States naval authorities who control the
air space in the vicinity of McMurdo Station. Those flights followed a
computer-controlled flight track to Cape Hallett thence directly over
Ross Island and Mt. Erebus at the stipulated minimum height of 16,000
feet to the McMurdo waypoint. The co-ordinates of that waypoint had been
written correctly into the flight plan as 77 deg. 53' south latitude and
166 deg. 48' east longitude. Three of the pilots who flew to the Antarctic
in November 1977 were available to give evidence and, like the two
earlier pilots, they agreed that at that time the flight plan followed a
track from Cape Hallett to the McMurdo area which passed virtually
overhead Mt. Erebus. However then and on subsequent occasions the
sightseeing aircraft to the McMurdo area arrived in the general vicinity
of Cape Hallett to find clear air further on and took the opportunity of
visual meteorological conditions to veer laterally from the direct
computer flight track from Cape Hallett by tracking to the west along
the coast of Victoria Land and eventually down McMurdo Sound over the
flat sea ice. Ross Island was thus left to the east while near the head
of the Sound the aircraft would turn left in order to fly over Scott
and McMurdo bases and in the vicinity of Ross Island so that a view
would be obtained of Mt. Erebus and the other three mountains there.

When the decision was made to operate the series of flights to take
place at the end of 1977 a change was made with the approval of the
Civil Aviation Division to permit flights below 16,000 feet down to
6,000 feet in a specified sector south of Ross Island and subject to
such criteria as a cloud base no lower than 7,000 feet, clear visibility
for at least 20 miles and descent under ground radar guidance. It has
been mentioned that similar criteria applied, officially at least, until
the time of the fatal crash. But the written directions were interpreted
by some pilots as leaving them with a degree of discretion to go lower
in ideal weather conditions.

Then in September 1978 steps were taken to print a flight plan for each
Antarctic journey from a record stored in the Air New Zealand ground
based planning computer. And it is at this stage that the longitude
co-ordinate for the southernmost waypoint was fed into the ground
computer as 164 deg. 48' E.


The Flight Track

The navigation system used by DC10 aircraft is a computerised device
known as the area inertial navigation system (AINS). It enables the
aircraft to be flown from one position to another with great accuracy.
Prior to departure of a flight the AINS aboard the aircraft is
programmed by inserting into its computers the co-ordinates of the
departure and destination points (in degrees of latitude and longitude)
together with those of specified waypoints en route. In the case of the
Antarctic flights (which were engaged on what may be described as a
return trip without touch-down) the southernmost waypoint, like each of
the intermediate positions, was really a reference point to which the
pilot knew the aircraft would be committed if it were left to follow the
computer-directed flight track. And as mentioned the southern point for
the preferred route to the McMurdo area was a ground installation at
Williams Field.

During 1977 the co-ordinates for each waypoint which comprised the
Antarctic routes had not been stored on magnetic tape for automatic
retrieval and insertion into the navigation computer units of the
aircraft. Instead the flight plan was dealt with manually and upon issue
to the aircrew at the time of departure was manually typed by the pilot
concerned into the aircraft computer units. When the Air New Zealand
ground based computer was used in 1978 to produce computerised Antarctic
flight plans they followed the same format as those that had been
produced earlier. But before the ground computer could be programmed it
had been necessary for an officer of the navigation section to prepare a
written worksheet containing all the waypoints and their respective
latitude and longitude co-ordinates which then were transcribed from the
worksheet. And by reference to the original flight plan used in February
1977 this was done by Mr Hewitt, one of the four members of the
navigation section at airline headquarters. He said in evidence before
the Royal Commission that when he went on to take from his written
worksheet the longitude co-ordinates of the McMurdo waypoint he
mistakenly transcribed the correct figures of 166 deg. 48' as 164 deg.
48' by inadvertently typing the figure "4" twice. This had the effect of
moving the McMurdo waypoint 25 nautical miles to the west and once in the
aircraft's system the navigation track which then it would follow from
Cape Hallett when under automatic control would be over the[1] Sound
rather than directly to Williams Field.

At this point it should be mentioned that the print-out of a flight plan
shows not merely the co-ordinate waypoints but also a finely calculated
statement of the direction and distance between them. This last
information is obtained independently from what is called the NV90
programme of the computer which is able automatically to calculate the
rhumb line track and distance between each of the respective waypoints
once the co-ordinates have been fed into it. This information forms the
basis for the data required to produce the computerised flight plan. So
that finally when a print-out of the plan is obtained it will disclose
not merely the geographical co-ordinates for each waypoint but the true
track direction and the distance in nautical miles from one to the next.
That last information is needed prior to a flight departure in order to
calculate tonnages of fuel during the prospective journey and
accordingly as a flight proceeds it enables the quantity of fuel already
consumed to be checked against the anticipated consumption in the flight
plan print-out. Thus the precise track and distance is used for purposes
of fuel calculations and has importance as a check in navigation.

All this information is disclosed on page 96 of the Royal Commission
Report where the print-out is shown for the flight plan with the
co-ordinates for McMurdo showing the longitude as 164 deg. 48' east. In the
next column the track direction is given as 188.9 deg. (grid) and the
distance between Cape Hallett and McMurdo as 337 miles. On the facing
page 97 there is a print-out of the flight plan actually used on the
fatal flight which shows the correction made to the longitude, 166 deg. 58'
east. It will shortly be mentioned that when that correction was made
the navigation section say it was thought to involve a minor movement of
only 2.1 miles or 10 minutes of longitude. Despite the very small change
that this could make to the track and distance between the two points a
re-calculation was made and entered into the computer programme as
188.5 deg. (grid) and the distance 336 miles. Compared with the other
figures the difference seems minimal but it was still thought necessary
to assess it and it was done.


The Western Waypoint

The circumstances surrounding the use of the 164 deg. 48' E figures were in
issue before the Royal Commission. It was suggested against the airline
they had not been introduced accidentally: that the movement of the
position 25 miles to the west had been deliberate. If that were so it
would seem that a re-calculation of track and distance would have been
needed and made both for the fuel plan and also as a check for purposes
of navigation. However, no re-calculation of track and distance was made
and entered with the 164 deg. 48' co-ordinate. The figures which actually
appear for track and distance to that point remain precisely the track
and distance figures which were shown in the flight plan to the 166 deg.
48' point for the first flight in February 1977. For purposes of comparison
a calculation to the "false" waypoint was prepared and put before the
Royal Commission. It showed that a direct track from Cape Hallett to
that point is actually 191 deg. and the distance 343 miles. The point is
referred to in paragraph 230 of the Report within a section headed "The
creation of the false McMurdo waypoint and how it came to be changed
without the knowledge of Captain Collins".

In paragraph 229 it is said that submissions had been put to the
Commissioner that "the shifting of the McMurdo waypoint was done
deliberately so as to conform" with a track used by military aircraft
proceeding to Williams Field. Then in paragraph 230 there is a summary
of contrary arguments advanced by members of the navigation section to
support their claim of accident. They include--

"(c) It was pointed out that if the McMurdo waypoint had been
intentionally moved 25 miles to the west, then the flight plan
would have a corresponding change to the track and distance
information which it previously contained. Instead of a true
heading from Cape Hallett to the NDB of 188.9 deg. and a distance of
337 nautical miles, there would have been required, in respect of
the changed McMurdo waypoint, a true heading of 191 deg. and 343
nautical miles. Similar alterations would have had to be made in
respect of a return journey to the true north."

That is the matter already outlined. Concerning it the Commissioner said
in paragraph 234 that there was "considerable validity in this point"
although then he added:

"... the Navigation Section may have thought it not necessary to
alter the track and distance criteria from Cape Hallett to McMurdo
for the reason that the pilots were accustomed to flying on Heading
Select down this sector and not by reference to the fixed heading
programmed into the AINS."

There is a further argument of the navigation section which is
summarized in paragraph 230 (e)--

"It was submitted that an alteration to the McMurdo waypoint to
facilitate better sightseeing was not valid because flight captains
had a discretion to deviate horizontally from the flight plan
track."

The Commissioner accepted that point as "a valid objection" in answer to
the suggestion that the move had been deliberate (paragraph 236).

However when he came in paragraph 255 (a) to express his final
conclusion upon this general question he initially said this--

"The first question is whether the programming of the McMurdo
waypoint into the 'false' position before the commencement of the
1978 flights was the result of accident or design. On balance, it
seems likely that this transposition of the McMurdo waypoint was
deliberate."

There is reference at that point to a track and distance diagram
indicating a track down McMurdo Sound, and the sub-paragraph then
continues--

"So as I say, I think it likely that the change of the McMurdo
destination point was intended and was designed by the Navigation
Section to give aircraft a nav track for the final leg of the
journey which would keep the aircraft well clear of high ground."

Then the final portion of paragraph 255 (a) leaves the matter in the
following half-way situation--

"However, I propose to make no positive finding on this point. I
must pay regard to the circumstance strongly urged upon me by
counsel for the airline in their closing submissions, namely, that
if the alteration was intentional then it was not accompanied by
the normal realignment of the aircraft's heading so as to join up
with the new waypoint. As I say, I think this latter omission is
capable of explanation but it is a material fact in favour of the
Navigation Section which I cannot disregard, and it is the single
reason why I refrain from making a positive finding that the
alteration of the waypoint was intentional."

It may be that in speaking of a single reason in the last sentence of
the extract the Commissioner put aside his earlier unqualified
conclusion that the matter set out in paragraph 230 (e) was also "a
valid objection" to the suggestion that the waypoint had been moved
deliberately. In any event the eventual and significant finding
concerning the matter is contained in the following sub-paragraph 255
(b):

"I believe, however, that the error made by Mr Hewitt was
ascertained long before Captain Simpson reported the cross-track
distance of 27 miles between the TACAN and the McMurdo waypoint,
and I am satisfied that because of the operational utility and
logic of the altered waypoint it was thereafter maintained by the
Navigation Section as an approved position."

At this point it is necessary to explain the reference in that
sub-paragraph to Captain Simpson; and then, if it be assumed that "the
altered waypoint ... was thereafter maintained ... as an approved
position", it is necessary to understand the reasons given by the
Commissioner for the change back to Williams Field. If the altered
waypoint had been adopted as a better position why was it then thought
that it had to be discarded?


Correction of co-ordinates

It was not until 14th November 1979 that any question arose about the
McMurdo waypoint. On that day Captain Simpson had taken the second
November 1979 sightseeing flight to the Antarctic and something
persuaded him to raise the matter of the southern waypoint with Captain
Johnson, the Flight Manager Line Operations. There is a difference of
opinion as to precisely what was said by Captain Simpson to Captain
Johnson but according to the evidence of those in the navigation section
they thought that when they checked up-to-date records of the
co-ordinates at McMurdo Station against the original NV90 flight plan
what had been brought forward for notice was the small difference of 10
minutes of longitude to which reference has been made. They said this
represented the recent relocation of the tactical air navigation system
(the TACAN) at Williams Field. Accordingly Mr Brown of the navigation
section wrote into his worksheet a corrected position of 77 deg. 52.7' S
and 166 deg. 58' E and entered those figures into the system on 16th
November. But the amendment was not made in the live flight planning
system until the early hours of 28th November. According to the members
of the navigation section all this was done without knowledge that the
effect of introducing the amended figures would be to override "164 deg.
48'" and so alter the co-ordinate by 2 deg. 10' rather than 10'.

The Commissioner rejected the explanations he had heard to the effect
that Captain Simpson's information seemed to point to quite a minor
movement to the up-dated position of the TACAN. He stated that there
appeared to have been clear advice by Captain Simpson that the "false"
waypoint was 27 miles west of it. In addition he rejected the possible
explanation that the advice had been misinterpreted by Captain Johnson
to whom it had been given, and he adopted instead what in paragraph 245
he described as "the second explanation":

"(b) The second explanation is that both Captain Johnston and the
Navigation Section knew quite well that the McMurdo waypoint lay 27
miles to the west of the TACAN and that since his track had not
officially been approved by the Civil Aviation Division it should
therefore be realigned with the TACAN and then someone forgot to
ensure that Captain Collins was told of the change. Such an
interpretation means that the evidence as to the alleged belief of
a displacement of only 2.1 miles is untrue."

Then in paragraph 255 (d) he said this:

"If, as I have held, the Navigation Section knew the actual
position of the McMurdo waypoint as being 27 miles to the west of
the TACAN, then why did they not submit to Captain Johnson, or to
flight Operations Division, that the waypoint should remain where
it was? One view is that the Flight Operations Division expected,
in terms of Captain Johnson's letter to the Director of Civil
Aviation dated 17 October 1979, that the next edition of the Ross
Sea chart NZ-RNC4 would contain the official Air New Zealand flight
path to McMurdo, and that the safest course would be to put the
destination point back to the approximate location at which Civil
Aviation Division had thought it had always been."

That last suggestion was not put to any of the navigation witnesses at
the Inquiry. It implies that although those in the navigation section
believed the airline had been using a computer track to the west of Ross
Island for the past year because it was the better route they
nevertheless suddenly became uneasy lest knowledge of the matter would
now reach the Civil Aviation Division which had not given its official
blessing to the change. The idea apparently is that because the airline
might receive an official rebuke the officers in the section made their
own independent decision that the route must once again be directed back
over Mt. Erebus.

There was no evidence at all before the Royal Commission that the
approval of the Civil Aviation Division was needed for a change from the
direct Cape Hallett/McMurdo route. An affidavit in support of the
present application for review indicates that if the matter had been
raised at the Inquiry members of the navigation section would have
wished to present evidence from the Civil Aviation Division that "a
change of route from the direct route to the McMurdo Sound route would
not have required CAD approval and therefore could have been lawfully
accomplished by the airline without reference to CAD". That situation
may have been anticipated by the Commissioner himself for by reference
to the false waypoint and the earlier consequential movement of the
computer flight track down McMurdo Sound to the west he said that
although approval of the route by the Civil Aviation Division should
have been obtained it "would have been automatic" (paragraph 150).

In paragraph 255 (f) of the Report the explanation from all four members
of the navigation section is described in the following way:

"In my opinion this explanation that the change in the waypoint was
thought to be minimal in terms of distance is a concocted story
designed to explain away the fundamental mistake, made by someone,
in failing to ensure that Captain Collins was notified that his
aircraft was now programmed to fly on a collision course with Mt.
Erebus."

That finding is one of those directly challenged in the present
proceedings.


Advice of the Change

A different matter was considered by the Commissioner in relation to the
change made in November 1979 to move the waypoint back to the TACAN at
Williams Field. As usual a signal was sent to the United States base at
McMurdo with advice that the aircraft was to fly to the Antarctic on
28th November and the flight plan for the journey. And in the list of
waypoints appears the word "McMurdo" in lieu of the geographical
co-ordinates which had appeared in the equivalent signal for the flight
three weeks earlier. The message had been prepared by Mr Brown, one of
the four officers in the navigation section.

The use of the word "McMurdo" was the subject of an idea put by the
Commissioner to Mr Hewitt, who was the second of the witnesses from the
navigation section. The Commissioner asked:

"I know you have explained to me how that happened but someone may
suggest to me before the enquiry is over that the object was to
thats (sic) not to reveal there had been this long standing error
in the co-ordinates and that is why the word McMurdo was relayed to
them. I take you would not agree with that"

Mr Hewitt said:

"Certainly not sir."

The suggestion had not been raised earlier at the Inquiry and it was not
mentioned by anybody subsequently. In particular it was not put to Mr
Brown himself when the latter was called to give evidence three months
later. However the Commissioner expressed his view upon the matter in
the following way. In paragraph 255 (e) he said this--

"In my opinion, the introduction of the word 'McMurdo' into the Air
Traffic Control flight plan for the fatal flight was deliberately
designed to conceal from the United States authorities that the
flight path had been changed, and probably because it was known
that the United States Air Traffic Control would lodge an objection
to the new flight path."

It will be observed that the last few words are qualified by "probably".
It appears that the Commissioner was told during a visit to Antarctica
that the United States authorities would not have approved a flight path
over Ross Island. But there was no evidence that Air New Zealand had
ever received an intimation from the United States authorities to that
effect or that the navigation section had reason to think they would so
object. The qualification seems to reflect that position. In the result,
when the findings in the two sub-paragraphs 255 (e) and (f) are put
together they reveal the theory that at one at the same time the
navigation section felt obliged to conceal from officials in Wellington
the use of a flight track down McMurdo Sound that was regarded
favourably by officials at McMurdo Station and from officials at McMurdo
Station a flight track over Ross Island that was regarded favourably by
officials in Wellington.


Whiteout

In relation to the cover-up allegations that have been made against the
executive officers some reference should be made to their knowledge or
otherwise of the freak meteorological condition known as "the whiteout
phenomenon". Did they know or suspect that such a condition must have
been an explanation for what happened and yet still be determined as the
Commissioner found, to promote pilot error as the cause of the crash?

It is something that can be mentioned quite briefly. The Royal
Commission Report has made it clear the phenomenon can result in a loss
of horizon definition and depth perception and is a great hazard for
those who fly in arctic or antarctic conditions. The Commissioner found
that at the critical time "air crew had been deceived into believing
that the rising white terrain ahead was in fact quite flat and that it
extended on for many miles under the solid overcast". This danger is
something well known to those who fly regularly in those areas.
Unfortunately it is not so well known by others, and as the Commissioner
stated in paragraph 165 it was not understood by any of those involved
in this case. He said:

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