It was a night training flight out of Ottawa to quiet airspace beyond North Bay on a Beechcraft King Air a couple of decades ago, and Larry Vance was in command with an equally experienced fellow Canadian air crash investigator flying the plane as co-pilot.
‘We were about 20 minutes flying time north-west of North Bay, at an altitude of 10,000 or 12,000 feet, when suddenly the airplane started to shake violently, and the right wing dropped,’ Vance told me.
‘My co-pilot kept control with left rudder and aileron. The aileron control started oscillating back and forth. We had no idea what had gone wrong, and the shaking was very bad.’
Vance had a long history flying the King Air, a twin turboprop, including as a trainer for a number of years. One thing he knew about it he found rather disturbing at that moment.
‘A sister airplane to the one we were flying had shed a wing a few years previously, and the pilots were killed,’ Vance said.
As a result, all the King Airs in the Canadian government fleet had had their wings reinforced with a support strap on the wing spars, and Vance’s brain immediately went to a suspicion that the strap on the aircraft’s right wing had given way.
‘I remember that when the wing had fallen off the other King Air we had concluded that the initial violent gyrations of the airplane would have broken the necks of the pilots. We comforted ourselves with the thought that at least they would not have had to ride the airplane down to impact alive. While our airplane was still shaking violently, I remember consciously forcing myself to untighten my neck muscles.’
As the terrifying moments ticked by, the wing was still there, and Vance and his co-pilot decided they needed a plan to keep it that way.
‘We decided that we would do everything we could to keep the same flight profile that we were at – the same airspeed and power setting – the same flaps up, gear up configuration – so as not to disrupt anything aerodynamically.’
After what was probably less than a minute, the shaking, which Vance immediately as a veteran air crash investigator identified as what in aviation is known as ‘flutter’, subsided to something less than what he thought would break the airplane apart.
The pilots got a clearance and radar vectors to North Bay, and started their descent, keeping their airspeed steady.
‘My co-pilot was flying, and I was helping her by pushing on the left rudder, to keep the airplane from yawing to the right,’ Vance said. ‘It took anywhere from three quarters to full rudder, and I remember my leg getting tired so I put both feet on the left rudder to hold it.’
Vance could have used the rudder trim – a compensation system that would have reduced the pressure he had to use on the rudder – but gut feel told him it was best to leave all the controls as they were.
During the descent, the severe flutter came back. Vance and his co-pilot were again sure the plane would come apart, but within about a minute, it again subsided somewhat.
‘I remember thinking that if that violent flutter were to happen one more time, that would be it.
‘We lined up on final and selected the gear down, but we left the flaps up, again with the idea of not changing anything. We briefed about what might happen on the landing, given that we had almost full left rudder applied. The left rudder would mean that the nose wheel would be turned to the left on touchdown.
‘In the end, that was a non-issue – as soon as the main wheels touched the runway the shaking stopped.’
Vance and his co-pilot taxied in and shut down, and went into the terminal building to call back to home base. His bosses sent another King Air over to North Bay to pick them up.
‘One thing that I recall is that when I tried to fill in the logbook, to leave it with the damaged airplane, at first I could not get my hand to work to write the information. I remember how weird that felt.
‘On the way home in the recovery airplane my co-pilot and I talked it over some. We shared how nice it felt knowing that we were both going home to our families instead of having our TSB comrades trying to figure out what had happened to cause us to crash.’
Vance’s fellow Canadian air crash investigators did determine the cause of the near-fatal flutter: a bolt holding the rudder trim had broken, allowing the rudder trim to vibrate out of control.
‘As it turned out, our decision to not use rudder trim was a good one, because what was causing the severe flutter to stop was that a piece of the broken bolt had aligned itself at an exact position where our constant foot pressure on the rudder was holding it steady,’ Vance said.
‘If we had moved the trim, and the bolt had fallen out completely, it might have been game over for us.’
Vance knows a lot about planes – a lot about flying them and a lot about finding out why they crash.
So when he saw the ATSB stick with its ‘unpiloted aircraft/high-speed dive’ theory about MH370 when the aircraft’s flaperon and flap were examined, photographed and analysed, he just couldn’t believe it. He felt compelled to write a book, MH370: Mystery Solved, which transformed the international debate about what happened to the aircraft.
Vance started flying in 1967 at the age of 18 by winning a coveted flying scholarship through the Canadian Air Cadet Program. After getting his commercial licence, instrument rating and instructor rating, he worked as a flying instructor for nine years at what was then the Moncton Flying Club in New Brunswick, spending most of that time as chief instructor.
In 1978 Vance joined Transport Canada, the federal regulator equivalent to the US Federal Aviation Administration and Australia’s Civil Aviation Safety Authority, as a civil aviation inspector.
‘TC had its own fleet of aircraft, which included various types of light twin engine aircraft, including light turboprops, and I flew all of those,’ Vance said. ‘They also had DC-3s, and I was a captain on the DC-3 – that ages me, I guess, there are not many of us left.’
In 1984 Vance, by then an accomplished pilot who had flown for 17 years, joined what was then the Canadian Aviation Safety Board, now the Transportation Safety Board of Canada.
He was an air crash investigator, but he still flew himself; to get from A to B as part of doing his job and also to maintain proficiency as a flyer.
‘With CASB and TSB it was mostly transporting people – including me – to various accidents,’ Vance said. ‘We all did that type of flying, because it was part of keeping our flying currency, which was a job requirement.’
One of the advantages of this rule was that when TSB air crash investigators, who were pilots like Vance, flew themselves and their colleagues to an accident site, it provided immediate street cred when they stepped out of the captain’s seat to meet airline or other representatives.
‘They see you at the controls, and you get out and introduce yourself, and they think, well, this guy is for real,’ Vance said.
Vance believes in accuracy – he makes clear he was never an airline pilot, though he did learn to fly an airliner.
‘The closest I got to flying a transport category was training to pilot proficiency status on the Boeing 737 – I completed a full training course on that aircraft with an airline,’ he said.
When it comes to air crash investigation in Canada, Vance literally wrote the book – several in fact. He was the principal author of several of the TSB’s original investigation manuals – everything from its ‘Site Safety and Biohazard Manual’, and its ‘Accredited Representative Manual’ for foreign investigations, to its ‘Major Investigation Manual/Checklist’.
Vance now runs a private aviation consultancy in Ottawa, HVS Aviation, where among other things he teaches air crash investigation techniques, and accepts commissions from legal firms to investigate accidents. He’s been involved in more than 200 air crash investigations over his career as field investigator in charge. In the 1985 crash of an Arrow Air DC8 with 256 fatalities in Gander, Newfoundland, he conducted studies to determine how airframe icing may have been involved. In 1991, he went to Saudi Arabia to lead the investigation of the operational and human factors involved in the crash of a Nationair DC-8 where 261 died – in that case, a tyre known to be underinflated but not dealt with caused an onboard fire. The plane came down with flaming bodies falling out along the way as the cabin floor collapsed.
The most famous air crash investigation Vance worked on was Swissair 111. It’s one of the best known in the air crash business – that the investigation team found the originating cause was extraordinary; they were working in some of the most difficult circumstances imaginable. Vance was the deputy lead investigator on Swissair 111 and wrote the TSB’s final report on the 1998 crash off the coast of Nova Scotia. He was also the one to give briefings to the families.
‘People accuse me of being insensitive to families,’ Vance told The Ottawa Citizen.
‘I don’t mind taking the question . . . How many grieving families have you talked to after an airplane accident? I’ve done it by the hundreds. Don’t tell me that I don’t have any sympathy. I’ve had people faint in my arms.’
Swissair 111 took off from New York’s John F. Kennedy Airport in the evening of 2 September 1998, bound for Geneva with 229 passengers and crew on board. The flight was known as ‘The United Nations Shuttle’ for regularly transporting UN staff from UN headquarters in New York to Geneva which has many UN agencies. About an hour into the flight, the pilots noticed an odour in the cockpit; it got worse, and it was not long before they knew they had a fire on board. Canadian air traffic control offered the pilots a vector to Halifax, Nova Scotia, and they headed for it. But they were too high and had too much fuel to land safely, so the Swissair pilots requested a dump; Halifax controllers turned them around back over open water at St Margaret’s Bay. As Vance described the procedure: ‘Every airport, or at least every “sophisticated” airport, has areas designated for potential fuel dumping. It is not that dumping fuel is particularly dangerous – it typically dissipates before reaching the ground – but it is more logical to dump fuel over unpopulated areas or over water than to do it over built-up areas.’
Minutes later, the fire started to engulf the electrical systems, and one by one they collapsed. Lights progressively went black on the cockpit dashboard as the autopilot stopped working and instruments went dead. The captain went back to fight the blaze, as the co-pilot tried desperately to fly the plane manually. Eventually, all the control systems were knocked out, and the aircraft plunged into a steep dive into St Margaret’s Bay.
The investigation determined the Swissair pilots never had a chance.
‘It turned out that the decision to dump fuel made no difference in the outcome of the accident,’ Vance said. ‘No matter what, once the fire started they had no chance of making the airport because of the speed the fire spread. Given the location including the high altitude of the aircraft that they were starting from, they could not have landed in time.’
The air crash investigation by Vance and his colleagues was long and tedious. When the McDonnell Douglas MD-11 hit the water, it did so at 560 kilometres an hour, at 350 times the force of gravity, and was pulverised into two million pieces. An exhaustive dredging operation, bringing up more and more small pieces, enabled Vance and the other investigators to painstakingly chart the course of the fire. It took five years in all, but the Canadians eventually worked it out.
The fire ignited from an arcing event – a short circuit – in a wire feeding the inflight entertainment system. It was a tiny wire running through the ceiling above the rear of the cockpit, and it chaffed against a metal bracket until its insulating material wore through to the copper conductor.
It was a small short circuit, but big enough to set fire to the nearby metallised mylar insulation blankets, which were very flammable.
The fire spread at a ferocious rate and progressively disabled the plane.
‘We recovered 98 per cent of the wreckage, including over 200 miles of wiring,’ Vance said. ‘From that mass of wiring we found the specific arc that started the fire, an arc that was too small to see with the naked eye. Quite an achievement.’
Vance’s final report made a variety of recommendations, particularly about the lack of wisdom in having insulating material which, rather than retarding fires, accelerated them. The proposals were taken up by the international aviation community – one of the key principles of air crash investigation is that, although it may be long, labour-intensive and costly, finding out the cause of an accident can ultimately make flying safer.
In 2001, Vance and his team received a Government of Canada Certification of Recognition ‘for overwhelming compassion, humanity and dedication to duty in the aftermath of the Swissair tragedy’.
The Swissair 111 investigation was a triumph of meticulous recovery and analysis of aircraft wreckage. While the technical data from the flight data recorder, and the exchanges on the cockpit voice recorder were useful, it was the wreckage which proved the key to unlocking what happened on Swissair 111.
And that’s why, when wreckage from MH370, including a right flap and right flaperon, washed up on the other side of the Indian Ocean, Vance was astounded that the ATSB kept going with its theory that the pilots were incapacitated at the end of the flight and it crashed down rapidly from a high altitude into the sea, just like Swissair 111. Vance saw instantly, comparing photos of the MH370 flap and flaperon with what happened to Swissair 111, that MH370 did not go down in a high-speed crash. The two pieces of the plane were both mostly intact – they would have been smashed into tiny bits had MH370 gone down the way Swissair 111 did.
‘There wasn’t anything remotely big enough or intact enough in Swissair 111 to be even recognisable as a flap,’ Vance said.
But both the flap and flaperon of MH370 had trailing edge damage, consistent with being dragged against the waves when lowered in a controlled ditching. Vance thought the ATSB should have right then and there abandoned its search strategy because, he believed, the premise on which it was based was clearly wrong. But it didn’t: the ATSB continued with it for another 18 months when, according to Vance, it should have known it had almost no chance of finding MH370. As he wrote in his book MH370: Mystery Solved:
‘To me, it is inconceivable that any investigator, or anyone who claims to have investigation expertise, would not automatically think their way through this, and do the calculations. They should realize that the high-speed diving crash theory supported by the official investigation simply does not make sense, based on this evidence alone.’
Vance’s book published in May 2018 had a massive impact on the MH370 debate. But what enabled Vance to get his hands on the high-resolution photographs of the wreckage to make a detailed determination involved another case of a determined journalist pushing the ATSB to reveal the evidence it initially said wasn’t there. Vance explained:
‘The original thoughts about writing the book came when I was preparing material for my investigation courses, where we were coming up with findings that were different from what was coming from the official investigation.’
Ross Coulthart, the Nine Network reporter mentioned earlier who presented the Australian edition of 60 Minutes story in 2016 looking at whether the ATSB’s ‘ghost flight’ theory was wrong, a year later decided to have another crack at it. He wondered if more high-quality images of the MH370 wreckage parts could be found. Those could be shown to Vance, who could use his professional eye to examine them in more detail. While the ATSB had released some photographs of the wreckage, Coulthart suspected there might be more, and contacted the bureau.
‘Initially they tried to tell me that all the photographs I needed were already publicly released, but I said I wanted a copy of ALL the high-res images taken of any of the recovered wreckage confirmed as MH370, assuming, correctly, that they had such images,’ Coulthart explained. ‘I did have to FOI the photographs that Larry used to do his analysis.’
‘It lasted a few months and the ATSB were initially toey on the phone about my request but – to be fair – they did eventually honour the law and they released them – onto their website!’
Coulthart had Vance delve into the photos of the wreckage, looking for what in the air crash investigator trade are known as ‘witness marks’.
‘After the ATSB put those high-resolution photos of the flap section and other wreckage pieces on their website, we were off to the races, investigation-wise,’ Vance said.
What he found further astounded him.
‘I honestly thought that the official investigation would be able to figure it out from that flaperon, and then the section of flap that became available,’ Vance said. ‘When they failed to see the evidence, my team and I put together some pretty extensive technical notes – to be used for the training courses. It was when I was working extensively with those technical notes that I decided that the only way to put the whole mass of evidence together in an understandable way was to put it in a book form – in language that could be understood by most people.’
Vance worked on the book with two of his colleagues who like him had enjoyed long careers with the TSB as air crash investigators and now work as independent consultants: scientist and engineer Terry Heaslip, and aircraft maintenance engineer Elaine Summers.
Ted Parisee, who did the graphics work for Vance’s book, specialises in the study of crash dynamics.
‘Collectively, we have well over one hundred years of continuous service in professional aviation accident investigation,’ Vance wrote.
While Vance corresponded with me over the time he was writing, he kept the totality of his findings intact to be released at a time, and in a fashion, of his choosing, in one hit. That was, Vance said, to be when the search by Ocean Infinity ended, because he did not want to have the book publicly cast doubt on the rationale of hunt while it was still going.
In early May 2018, as it looked like the search for MH370 by Ocean Infinity was approaching its end, Vance executed his media strategy for the release of his findings.
Vance gave me first go at his book, providing a worldwide scoop. On 14 May, The Australian published a news story about MH370: Mystery Solved.
‘One of the world’s leading air-crash investigators has produced compelling evidence that a pilot on Malaysia Airlines Flight MH370 hijacked his own aircraft and flew it to the end to perform a controlled ditching, contrary to the assumptions of the Australian investigators who led the first failed underwater search for the aircraft.’
The Australian ran two edited extracts from Vance’s book. The main one got to number two on the newspaper’s most read online list, and stayed in the top 10 for more than a day, indicating an extraordinary readership and interest. The main extract, of about 2000 words, meticulously mounted a case that the ATSB had made the wrong assumptions about what happened on MH370 during the latter part of the flight.
Vance wrote straight out that his and his colleagues’ analysis showed the ‘ghost flight’ and ‘death dive’ theories were wrong.
‘The evidence shows that the aeroplane was under the complete control of a pilot throughout the flight, and at the end of its flight, MH370 was intentionally ditched (landed in a controlled way) on the ocean surface,’ Vance wrote.
It was a pretty big call: if Vance was right, it meant the ATSB had blown huge amounts of Australian, Malaysian and Chinese taxpayers’ money. The implication, Vance wrote, was that they should have stopped burning public cash once the flaperon washed up on Reunion.
‘The physical evidence available from examining the flaperon should have proved to the ATSB that the aircraft’s flaps were extended (down) when it entered the water, and that the aeroplane was at a speed consistent with a pilot-controlled ditching.’
Vance knew from the start that he was going to have to prove his case beyond reasonable doubt before a sort of undeclared international tribunal of aviation experts who, as part of the MH370 club, would critically assess it and comment on it via mainstream and social media. The main extract in The Australian outlined the gist of his argument. Vance drew on his direct experience with hundreds of air crash investigations, including Swissair 111.
‘If MH370 had experienced a high-speed diving crash, it would have produced tens of thousands of pieces of floating debris,’ Vance wrote. ‘Only about 20 pieces of wreckage confirmed to be from MH370 have been recovered to date.’
Had MH370 come down the way the ATSB says it did, hundreds of additional wreckage pieces with honeycomb-type construction would have been created and washed up, along with seat cushions, luggage pieces, life jackets, neck pillows and other floating items, and this would have arrived on the coast of Africa in significant amounts.
‘The reason that more floating debris has not appeared is that it was never created in the first place. There was no high-speed diving crash.’
This part of Vance’s analysis tallied with the argument put forward by international airline pilots Bailey, Keane and Hardy: it holds that Zaharie flew the aircraft to the end to ditch it, in order to sink it in as few pieces as possible and limit the debris field.
Vance rejected suggestions by some observers that the flap and flaperon might have fallen off in a high-speed dive as a result of flutter and, drifting down on their own at a lower speed, escaped the more catastrophic damage that would have resulted had they been attached at the time of impact. There would have been signs of repeated pounding on the flap and flaperon in a high-speed diving crash, and there were no such marks found on those parts.
Vance then turned to the parts of the flap and flaperon which did exhibit damage. There was some damage to the flaperon, and the flap, on the trailing edges, that is once again, the rear of those parts when assuming the orientation of the aircraft flying forward. Noting that the flaperon is made primarily of composite material, Vance wrote, ‘we see at the trailing edge that it has been shredded away progressively, from the back towards the front . . . it looks like it has been eaten away, or eroded’.
This did not fit with the theory of a high-speed diving crash, but was fully consistent with a pilot flying the aircraft to the end, flaps extended, to ditch it.
Vance said MH370 would be in a slightly nose up attitude, flying at about 140 knots (259 kilometres per hour), and slowing down. The force of the water contact would rip the engines off very quickly, and the flaps and flaperons would be next, their trailing edges touching the tops of the swells and waves which would erode them, until the entire flap system would be dragged through the water, and ripped off.
The trailing edge damage on the flaperon and the flap, which would have been lowered in parallel, was very similar, Vance observed.
In the book itself, Vance turned to other witness marks of a more complex nature, looking at the high-resolution photographs of the flap, rather than the flaperon. As he pored over the photographs, Vance noticed what were, to a seasoned air crash investigator, interesting potential clues: some cracks, and some smudges. Vance noted that the two parts recovered on the other side of the Indian Ocean, the right flap and the right flaperon, would have been adjacent to each other on the aircraft, the flaperon more inboard, but separated by a small gap to allow free individual movement. The two aircraft parts are hollow, with a cavity known as a ‘seal pan’ contained by end plates on either side.
Vance looked at a very clear photo of the left end plate of the flap, which would have been adjacent to the right end plate of the flaperon.
Even a casual observer can detect a V-shaped smudge on the end plate near the trailing edge, a small crack near it, and a large crack in the widest part of the flap near the middle. The cracks were not evidence of puncture, Vance noted, but compression fracture.
To Vance, those witness marks were clear indicators of the direction of the forces involved in the final moments: the flap and flaperon had been pushed into each other sideways, or ‘spanwise’, when the aircraft made progressive contact with the water. While the pilot would have landed wings level, as he lost airspeed one wing – it turned out to be the right – would have dipped and touched the ocean, forcing it back and inwards and causing those cracks as the flaperon impacted the flap spanwise. It provided further evidence, Vance argued, that MH370 had been ditched; the witness marks were consistent only with that scenario, and not a high-speed unpiloted dive.
The smudge marks backed up this assessment, Vance wrote. Fixed to the edges of the flaperon are synthetic rubber ‘rub strips’ which fill some of the gap between it and the flap to improve aerodynamic flow. Vance says it is plain that the V-shape marks on the flap match the shape of the rub strips, and further show a pivoting sideways force pushed the flap into the flaperon when the right wing hit the water.
Vance also came up with an alternative explanation for the damage around the entry hole for the flap support track, which the ATSB claimed indicated the flap was retracted. He believes the damage came about when the support track and the carriage assembly were violently pulled out of the hole in the flap when the extended flap hit the water, and they were left attached to the aircraft.
This could only happen if the wing was going forward, while at the same time the flap was being held back, Vance wrote, and that again was consistent with a controlled ditching with flaps down and not a high-speed uncontrolled crash.
Vance then concluded:
‘All of the evidence I used to explain what happened to MH370 was available to the official investigation, and yet they failed to uncover it.’
In psychology there is a well-established concept known as ‘motivated cognition’. It’s a case where, subconsciously, new facts or developments are perceived and interpreted by a person in such a way as to support the most convenient conclusion. As the Iresearch.net psychology website describes it, people’s motives influence how they process new information.
‘They are relatively more likely to trust small samples of information consistent with desired expectations (even when they know that small samples can be unreliable) and are more critical of messages threatening desired beliefs . . . Judgments of frequency and probability are also influenced by motives.’
Vance suggested this sort of phenomenon may have befallen the ATSB. He claimed it had, rather than objectively assessing each clue when it came in, ignored some and focused on others, leading it – perhaps subconsciously – to stick to a conclusion that was convenient. In particular, he said, the bureau had placed too much store in complex and debatable satellite tracking data never used before for this purpose, rather than relying on comparatively old-fashioned but proven, solid and methodical wreckage analysis.
‘By the time the flaperon was found, the safety investigation had already declared that MH370 was an unpiloted airplane that ran out of fuel. It appears they examined the flaperon, and the section of the flap, with that evidence . . . in mind,’ Vance wrote.
It was, Vance said, a convenient fit with their rationale for continuing to search in the area where their original calculations told them the wreckage would be, and provided justification for all the money spent, and for the further commitment of resources.
‘It served the purposes of those who were dismissing the possibility of pilot involvement,’ Vance wrote.
Vance’s conclusion on where MH370 might be differed from those of Keane, Bailey and Hardy. The airline pilots thought Zaharie had flown an essentially straight line after fuel exhaustion and ditched the aircraft at maximum distance. Vance took the view that it was, essentially, pointless to search anywhere: if a pilot deliberately flew the aircraft to the end, he could have flown it in any direction in the final minutes, creating a massive search area.
In the conclusion to MH370: Mystery Solved, Vance said 9M-MRO ‘probably will be found someday, but most likely it will be a long time from now. It will rest where it is until eventually someone finds it by using a technology that has not yet been invented.’
As always, I gave the ATSB every opportunity to respond to Vance before putting the extracts and news story to print, and as always, by that stage of the game, the ATSB passed up the chance.
On 10 May, three days before The Australian went to press with the Vance extracts and the news story, I wrote to ATSB spokesman Paul Sadler outlining how Vance had claimed the ATSB got its assumptions wrong in coming up with, and sticking to, the ‘ghost flight/death dive’ theory. I asked for the response of the ATSB’s search leader, Peter Foley.
Neither Sadler nor Foley responded.
But the timing was such that Australian democracy was again going to force the ATSB to front up before a national audience to address these questions. Another round of Senate Estimates was coming up, and once again, I liaised with cross-bench Senator Rex Patrick to develop a series of questions to put to the ATSB. Patrick was keen.
‘In any circumstance where $200 million of taxpayer money has been spent and credible sources raise questions as to the approach or efficacy, some form of inquiry is worthy,’ Patrick told The Australian in a lead-up story about how he and other senators were going to approach Foley and Hood.
Considerable anticipation developed about the imminent Senate Estimates hearing, fuelled also by a fresh treatment of the MH370 mystery by 60 Minutes. The Nine Network’s story, which filled a whole program and ran the night before The Australian published the extracts from MH370: Mystery Solved, took the form of a panel discussion among key members of the international MH370 club, including the former ATSB boss, Martin Dolan. The program mostly re-covered material and theories and counter-theories already known, but the panel discussion style made for some engaging television.
60 Minutes reporter Tara Brown (Coulthart had by then left Nine) posed the question:
‘Was MH370 a catastrophic accident or mass murder?’
The answer the panel eventually arrived at, pretty much unanimously, was the latter. There was one particularly interesting new element to the 60 Minutes program: some deft positioning and repositioning by Dolan. The former ATSB boss in charge during most of the first subsea search for MH370 performed an exquisite segue during the course of the program from expressing full confidence that the ATSB’s ‘ghost flight/death dive’ theory was right, to acknowledging that maybe it wasn’t.
Dolan started off with the standard ATSB line that MH370 was not controlled by a pilot at the end.
‘I still think the weight of the evidence – which is why the search has been concentrated where it is – is that, for whatever reason, it’s unlikely there were control inputs at the end of the flight, and therefore the aircraft spiralled into the water and crashed,’ Dolan said.
But as the program went on Dolan became increasingly open to the other possibility; that a pilot had in fact flown the aircraft to the end, and outside the ATSB’s search area.
‘If we don’t end up finding the aircraft in the search area, then the conclusion is that we focused on the wrong set of priorities, yes,’ Dolan said. ‘There are two viable theories – that someone was at the controls of that aircraft and applying control impulse at the end of flight or they were not, and there’s evidence that supports both of those theories.’
They were important concessions, and helped set the scene for a similar acknowledgement by Foley barely a week later. Even though it did not say a lot that was new, the power of television is such that the 60 Minutes program generated worldwide publicity along the lines that an international group of experts had cracked the MH370 mystery – concluding ‘the pilot done it’.
‘MH370 experts think they’ve finally solved the mystery of the doomed Malaysia Airlines flight,’ headlined The Washington Post.
Although on the program only Hardy and Vance had specifically claimed Zaharie had flown the aircraft to the end and ditched it, Dolan’s admission that the search strategy could have been wrong because it excluded that possibility upped the pressure on the serving ATSB officers who were about to be confronted at Senate Estimates. All eyes were upon the ATSB when Hood, Foley and chief legal officer Patrick Hornby took their seats in the interrogation chamber that constituted the Senate Rural and Regional Affairs and Transport Legislation Committee at Parliament House on 22 May 2018.
One of the excellent modern democratic qualities of the Senate Estimates process is that it is streamed live. This hearing when the ATSB was in the hot seat was watched contemporaneously by many in the international MH370 club around the world. Hood read out an initial prepared statement saying ‘at the ATSB, we exercise great care not to engage in conjecture or speculation’, and handed over to Foley. After some initial questioning about the Ocean Infinity search, Labor Senator David Chisholm said:
‘In recent media reports the investigators have been heavily criticised for sticking to the “ghost flight” theory. Do you have any response to that?’ Foley could be seen to bristle. ‘Firstly, I’d like to re-characterise it as not a ghost flight and not a death dive,’ he replied evenly. ‘This is a construction – and quite an ugly one – by . . . a journalist.’
Foley had seemed to pause after the word ‘by’, as if he were going to name the journalist.
It is worth noting here that the terms ‘ghost flight’ and ‘death dive’ were taken up by media organisations around the world as graphic, but accurate and descriptive layman words for the ATSB’s ‘unresponsive crew/hypoxia’ and ‘high and increasing rate of descent’ theories.
Just as Dolan had on 60 Minutes, Foley started off with the line that the ATSB remained confident its scenario of what happened to MH370 at the end was the correct one based on the evidence. He went over the satellite data, the fuel calculations, the satellite ‘reboot’ thought to indicate fuel exhaustion followed by the automatic deployment of the auxiliary power unit. Then he came to the discovery of the flaperon, and the flap, which he again maintained analysis showed had not been deployed, so that in all, as always, ‘the most likely scenario at that point was that the aircraft was probably descending in an uncontrolled manner’.
But then, again like Dolan, under further questioning from Chisholm, Foley started to open up the possibility a pilot was in fact in control at the end.
‘We haven’t ever ruled out someone intervening at the end,’ Foley said, while adding, ‘it’s unlikely.’
Then Patrick took over the cross-examination, asking a difficult and significant question of Foley. Patrick established that while Foley claimed the satellite data showed the aircraft in rapid descent at one point late in the flight, he could not know what the aircraft did after that.
Patrick: You’ve based the modelling on what happens when no-one is in charge of the aircraft. You’ve gone to Boeing. They’ve described the rudder movements and the perturbation and you’ve modelled that.
Foley: Correct.
Patrick: But you actually have no data points to say, ‘From that point, that is correct.’ If, for example, there was someone still in control of the aircraft, that last data point could have occurred and a completely different set of events could have then followed. You have no data that would show you conclusively that that didn’t occur.
Foley: We have nothing conclusive, but I can’t imagine why any pilot would be looking at flying an aircraft with descent rates between 13,800 feet a minute and 25,000 feet a minute.
When Patrick began to focus in on the claims by Vance, the exchange took a curious direction.
Patrick: In the news media, people have referred to Swissair Flight 111 and the results of the aircraft going into an uncontrolled drive. Basically they say that the damage to the flaperon is not consistent with what happened in the Swissair 111 flight.
Foley: You’re talking about Larry Vance?
Patrick: Yes, I am talking about Larry Vance.
Foley: And you’re talking about Larry Vance’s book?
Patrick: I haven’t seen the book.
Foley: I have.
Patrick: I had only the news reports, so I’m in the same position as you.
Foley: No, I’ve actually read the book. Mr Vance provided me with a copy last week. The flaperon came ashore in July 2015. Of course, at that time, everyone looked at the trailing edge damage and they made all sorts of conclusions based on just that trailing edge damage. We also thought long and hard about that. We didn’t have access to it. The French judiciary took it to France for analysis. One of our analysts went, but he wasn’t allowed to actually do anything meaningful in the analysis of the flaperon.
There are many scenarios that will damage the flaperon. For example, it sits right over the top of engine and in most crash scenarios you’re going to liberate the engines and they’ll come adrift. If your wings are reasonably level, there is going to be consequential damage, and you can’t conclude from a missing trailing edge on a flaperon that it was deployed at that time. So we didn’t make that conclusion.
Patrick picked up the curious turn in Foley’s argument – having always insisted that MH370 was in a spiralling, high and accelerating rate of descent at the end, with no pilot to keep the wings level, Foley now seemed to be talking about the wings being ‘reasonably level’ when the aircraft hit the water.
Patrick: This wasn’t a wings-level event, in your view.
Foley: We don’t know – that’s the whole point.
Patrick: You were pretty sure before what happened.
Foley: We’ve never speculated on the speed of the impact. What we’ve said was it was between 20,000 and 30,000 feet when those two final transmissions occurred – the aircraft was in a high and increasing rate of decent, and likely to be in a phugoid.
The ‘phugoid’ was an element in the ATSB’s end-of-flight scenario which had seemed to creep in as the debate developed over the years, and enabled the bureau to express more ambiguity about what speed the aircraft might have been travelling when it hit the water and what attitude it was in at that point. A phugoid is an up-and-down repetitive pattern in which an aircraft which is not under the control of a pilot, stalls or comes close to a stall. It then descends rapidly, but then as the airflow speeds up over the wings the aircraft starts to level off or climb again, slowing down until approaching a stall the cycle is repeated.
Patrick asked how much interaction the ATSB had had with pilots Keane, Bailey and Hardy, and Foley replied that their views had been considered.
Foley said he had had ‘lots of interactions’ with Hardy, and claimed he had sent the search ships at least some way towards where the British Boeing 777 captain said he thought MH370 might be.
‘We went a long way to the east in that search area.’
Then Patrick went down a very interesting line of inquiry which, effectively, got Foley to say for the first time explicitly what he had probably always wanted to say, but had for years been reticent about due to diplomatic considerations.
Patrick: Working back to your analysis or your conclusion that the aircraft wasn’t piloted, at what point in the flight do you say it became a pilotless aircraft?
Foley: It’s absolutely evident. We’ve always been in agreement with the notion that an aircraft doesn’t turn itself. I mean, there must have been someone in control of that aircraft, probably until about 18:25 or thereabouts. [Foley was referring to Universal Coordinated Time, or UTC, equivalent to 2:25am local Malaysian time.]
Although to every man and his dog in the aviation business, what Foley had just told the Senate committee was a no-brainer, it was in fact significant. It was effectively saying the ATSB believed a pilot had hijacked the aircraft, and had flown it for about two hours – even if, as the ATSB maintains, he or she was not flying it at the end of the flight. Hood then jumped in.
Hood: Once again, we’re not saying it was the pilot either; we’re saying that control inputs were made, because we’ve got no evidence to suggest that it was the pilot.
Patrick: Respectfully, control inputs –
Hood: Yes, we’re saying control inputs.
Then Patrick went to the next point of logic in what was an exquisite cross-examination: if Foley was so sure a pilot was flying MH370 in a deliberate fashion for about the first two hours of the flight, why was he so equally sure a pilot was not flying it at the end?
Patrick prefaced the question by saying, ‘I know you’re an experienced crash investigator. I’m even more dangerous because I’ve got a private pilot’s licence.’
He then said, ‘I’m just curious. You can’t explain how a pilot might do very strange things at the end of a flight, but somehow it’s reasonable that the pilot did some very strange things at the start of the flight.’
Foley then came up with what he called a ‘plausible scenario’. He recounted a 1994 case investigated by the US National Transportation Safety Board in which a cargo aircraft took off, but due to a problem with one of the doors the crew could not pressurise the cabin. The captain, despite the objections of the rest of the flight crew, elected to fly on after donning oxygen masks.
‘Shortly after level off, the captain became incapacitated from decompression sickness. The first officer took command – and they landed the plane.’
Although the point of Foley’s line of argument was not completely clear, it seemed to be to try to counter Vance and other proponents of the ‘pilot to the end’ theory, by saying while a rogue pilot could have donned an oxygen mask to counter hypoxia, he or she would eventually succumb to decompression sickness, or what happens to mountain climbers with altitude sickness.
Senate Committee Chair O’Sullivan wrapped up the session with the ATSB soon after that. But O’Sullivan made a parting observation: ‘With your efforts over the four years, it’s got to torment your soul, as much as anything else.’
Foley: ‘It certainly does.’
The cross-examination of Foley had not lasted all that long, about half an hour, but it was the first time he’d had to address several key questions about the ATSB’s failed search for MH370 before a public audience. He had repeatedly outlined the ATSB’s fundamental argument that it had devised the search strategy based on what solid evidence it believed was available. He had again insisted the ATSB’s analysis of the flap indicated it had been retracted. He had posited an intriguing new ‘plausible’ scenario in which Zaharie might have depressurised the aircraft and stayed on oxygen, but unwittingly allowed himself to be overcome by decompression sickness.
But under questioning from Chisholm and Patrick, Foley had made a few key concessions: among them, he admitted he couldn’t really say how the flight ended because he didn’t have the data of the final minutes. And, like Dolan, Foley had delicately crab-walked to a position where he had effectively stated the plane was hijacked by a pilot, who might in fact have flown it to the end of the flight after all, even though such a scenario was, he said, unlikely.
‘We haven’t ever ruled out someone intervening at the end,’ Foley had said.
The bet-each-way messages from Foley led the media to focus on different interpretations.
‘Australian investigators have defended their search . . . saying it was unlikely the pilot performed a controlled ditching,’ the Australian Associated Press reported.
By contrast, the Chinese official news agency Xinxua’s headline was: ‘Australian search chief admits MH370 “rogue pilot” possibility.’
It wasn’t long before Foley’s testimony before Senate Estimates started to be dissected by the professional aviation community. The curious new line from Foley about a pilot suffering from high altitude ‘decompression sickness’ was branded a red herring by, among others, Mike Keane, who told me: ‘Suffice to say that “altitude sickness” is totally irrelevant to the MH370 event.’
Bailey said, ‘I have done explosive decompressions in the RAAF pressure chamber and experienced an actual event in a fighter at 40,000 feet but never had any decompression effects.’
Simon Hardy countered the claim that the ATSB had fully explored the area farther south off the Seventh Arc that he and the other pilots had recommended. ‘Mr Foley tried to accommodate my workings by going 42 nautical miles and not 100 nautical miles,’ Hardy told me. ‘When I visited the ATSB in May 2015 I was aware that the offices were five miles from Canberra airport. Had I tried to accommodate Mr Foley by going only half of that distance, I would not have found the ATSB. In the same way, Mr Foley has not found MH370.’
Vance suggested the idea that MH370, with no pilot in control, somehow managed to land on the water, wings level, at a comparatively low speed so that the flap and flaperon managed to remain largely intact, was absurd. The chances of an out-of-control spiralling aircraft being in that precise attitude just when it arrived at the surface of the ocean were infinitesimal, he said, but in any event, the logic of the phugoid would not make it possible for it to be at low speed. The high-speed dive portion of a phugoid cycle would indeed be followed by a climb and slowing of airspeed, but the aircraft had to go down fast to build up speed before it could come back up, and it could not come back up once it hit the water.
‘Foley’s scenario of the aircraft being on the slowing, climbing part of the phugoid cycle at the end would require it to go underwater first, and then fly up underwater back to the surface,’ Vance said.
Apart from the Senate Estimates appearance, the ATSB did not publicly take any steps to further counter the material exposed by Vance. What it did in the shadows to try to suppress media coverage was extraordinary.
In the days after The Australian published extracts of MH370: Mystery Solved, the newspaper ran follow-up stories with comments from, among others, Mike Keane, saying it was time for the ATSB to accept Vance’s theory was right. Otherwise, the former easyJet chief pilot alleged, Australia would be part of an overall international failure to do everything possible to get to the truth of what he claimed was on circumstantial evidence a mass murder.
Again, as usual, I gave the ATSB the chance to comment on Keane’s claims before going to press, and again, as usual, it passed up the opportunity. But behind the scenes, the reaction of the ATSB to this and other stories in the wake of Vance’s book was its most extreme to date. At considerable expense to Australian taxpayers, the agency hired a big-end-of-town legal firm to issue warnings to the editors of The Australian.
‘Our client requests that you refrain from publishing any further articles regarding this incident or our client without first considering the concerns raised in this letter, particularly with respect to naming individual employees,’ MinterEllison wrote to the editors and the newspaper’s legal counsel in a letter dated 18 May 2018. In particular, the law firm expressed concern that Sadler, who signs his emails as the ATSB’s Senior Media Advisor, and Foley, who has appeared before public Senate Estimates committee hearings as head of the search for MH370, were named in the articles as not commenting.
The reaction of the editors of The Australian was, once again, to reject the warnings from the ATSB and its lawyers, and instruct me and other reporters on the newspaper to write more, harder stories to reveal the truth about MH370 and the role of the ATSB, the JACC, and their officers.
In late October 2018, The Australian revealed these failed efforts by the ATSB to restrict the newspaper’s coverage using MinterEllison to issue warnings to the editors.
Accompanying the news story was a comment piece by Byron Bailey, who wrote that the bureau’s ‘attempts at using high-priced lawyers to suppress coverage of its failures in its search for Malaysia Airlines Flight MH370 are a disgrace, and a threat to the democratic principles of free speech and press freedom’.
Bailey called on Transport Minister Michael McCormack to ‘hold the ATSB to account.’
Businessman and aviator Dick Smith, himself a former publisher who established the highly successful magazine Australian Geographic, described the repressive behaviour of the ATSB towards the media as ‘outrageous’.
‘They are basically a secret, secret organisation. They are so insecure.’
Smith, a former chairman of the Civil Aviation Safety Authority, said he believed it was time for the minister to take charge and demand the ATSB bring itself up to the levels of efficiency, timeliness and transparency that Australians expect for their taxpayer dollars, and in a fashion consistent with a democracy that values both free speech and freedom of the press.