HL Deb 27 June 1979 vol 400 cc1590-600

7.38 p.m.

The Earl of KINNOULL

rose to ask Her Majesty's Government, in the light of the Bermuda 11 Agreement, what rights British carriers currently have in operating DC-10s across the Atlantic. The noble Earl said: My Lords, I rise briefly at this late hour, and, as this is my first opportunity, I should first like to congratulate my noble friend Lord Trefgarne, who will be replying, on his recent appointment to the Government. They are, I know, rather late congratulations, but he now replies on so many subjects with such mastery and fluency that I suspect tonight he might be almost relieved that he is now on a subject of which he has had in the past a great, long and distinguished professional knowledge; and I am sure he has seen that he has got a good brief for the reply.

The original Question I tabled somehow went a little astray. It was in two parts—and I have advised my noble friend of this—and I hope he will be able to cover both of them. The first point is the current right that British carriers have to operate their DC-10s across the Atlantic —and, of course, when I say British carriers I am talking of British Caledonian and Laker Airways—now that they have been recertified by the Civil Aviation Authority, and what right they have under the Bermuda II Agreement, Article 6.

The second part of my Question is: What grounds have the Civil Aviation Authority to recertify the airworthiness of the DC-10? I appreciate that in putting the question in that simple form my noble friend can easily say: "Ask the CAA", but I shall be touching on that point later. I do not think anything in civil aviation history has caused more confusion and a problem on confidence to the air travelling public since the tragic accident of the DC-10 of American Airlines in Chicago last month. It was of course a horrific accident, particularly in its size, and I know was very worrying. For those who were in the United States at the time, as I was, it was quite revealing how the television and Press gave an almost instant investigation, and it seemed that those who were responsible were quite happy to give interviews on the spot and almost without consideration.

That is of course a very different procedure to the one we adopt in this country. Nevertheless, what followed from that was, as we all know, a swift and condemning action of the manufacturers in the first place of the DC-10, McDonnell-Douglas, then the grounding of the DC-10, first in America and then throughout the world. Then the American passenger users' association went to court and obtained an injunction so that the aircraft could not fly in America. On top of that of course the FAA, the body which is responsible for certifying the American aircraft in America, was confronted with a congressional hearing and was quizzed publicly on how they had originally certified the aircraft and indeed how this sad and tragic accident came about as they saw it.

In Britain and Europe—and I hope my noble friend will be able to give us the figures—the actual number of DC-10s operating through the various European airlines is something like 90 as against 250-odd in America. I think that is roughly the proportion. The air travelling public in Britain were confused when some 10 days or a week ago the CAA, in conjunction with their European counterparts, announced, I think in Zurich—and then of course there was a statement put out in London—that they were recertifying the British DC-10 licensed aircraft even though the FAA in America had not recertified the American licensed aircraft.

From the travelling public's point of view, the confusion was compounded because the CAA, being such a technical body, felt unable, for reasons I am not sure of, to say precisely why they had taken this action. We know from public statements and television interviews that they made the most exhaustive tests before they recertified. We know that they have been granted full access by the FAA on all the information that the FAA had on the accident and on the procedures on maintenance. What the public have not been told is precisely why the CAA recertified the DC-10. For instance, do they in fact now know the reason for the crash? Do they now have this information which they are able to take into account in reaching their conclusion?

I do not criticise the CAA at all for the action that they take; I think that they are the most widely respected body throughout the world for their experience and their tests. In the past we know that when the Boeing 707 was first introduced into Britain they insisted on a modification on the Boeing which was subsequently adopted by the FAA. There is no question that one does not have confidence in their technical ability. However, from a public accountability point of view, for the confidence of the British air traveller and in fairness to the British carriers, more information should be given to the public. I hope that my noble friend can give an indication, an answer, or at least say that he will see that this matter is looked into.

What of course came out of this unhappy situation is something which the noble Baroness, Lady Stedman, pressed my noble friend on, and that was that there should now be an international standard of certification. I do not know whether the noble Lord can say any more than he said at the time of the statement. I hope that my noble friend can also say what is currently happening in America and how soon the British Government anticipate the FAA now recertifying the DC-10s. This will be a great step and help to the British carriers over here.

I should like to ask whether the FAA have indicated that they accept the CAA recertificate, and now whether it is really a matter of technical procedural time before they can recertificate the airworthiness of the DC-10. I do not think that anyone who has flown in the DC-10 and anyone who has gone round the factory, in California, of McDonnell-Douglas would doubt that the DC-10 is a fine aircraft, and it is of course operated by very fine British carriers. Also, since the reintroduction of the DC-10 into service in BCAL, Laker and British Airways, how has the service been accepted by the travelling public? I hope very much that support and confidence has been restored by the recertifying by the CAA.

The second part of my question concerning the North Atlantic routes and Bermuda II comes down to one simple fact: the two carriers that have been particularly affected have been Laker with Skytrain and British Caledonian operating into Houston. Both these services have done remarkably well in the past two years. It must have been the most crushing disappointment to both carriers to find suddenly that they could not operate the DC-10 and would have to find alternative aircraft. As I under stand it, under the Bermuda II Treaty, Article 6, technically both these carriers now could reintroduce their DC-10 service on these routes. They could fly across the Atlantic; the Treaty permits this. But of course there are obvious problems, problems I imagine of insurance and on how enthusiastic the American travelling public will be. Also I am told that there is some doubt as to whether the aircraft might be impounded in America if they did operate such a service. I hope that my noble friend can touch on this delicate point—and I know that it is delicate.

I should particularly like to ask him what progress is being made in the United States in acknowledging the CAA's decision on the DC-10. If the delay continues for further weeks or months —which is damaging for British interests—will the Government then be pressing the United States Government with regard to what agreement can be reached on these airlines being allowed to operate under the Bermuda II Treaty? The Bermuda II Treaty is a web of complications concerning air fares, dual-destinations, gateways into the United States and London, covering two Departments, the Foreign Office and the Department of Trade. I know it is an area of immense complexity. I do not belittle that fact, but what I hope my noble friend can say tonight is that this treaty is a treaty which must be accepted in the spirit in which it was freely negotiated. If Article 6 does allow British carriers to operate British-certified aircraft across the North Atlantic, they should be allowed to do so. I hope that my noble friend can reply in that spirit.

7.51 p.m.


My Lords, it may be helpful if I start by giving a brief resumé of the history of this matter as we know it and then deal with the facts pertinent to the current operation of DC-10's across the North Atlantic. I do not wish to discuss in any detail the tragic accident of 25th May, which occurred to a domestic service operated out of Chicago's O'Hare Airport by a United States scheduled airline. The loss of life meant that this was the worst ever aircraft accident on United States soil, and it led to an immediate grounding of DC-10's by the United States Federal Aviation authority. Following technical inspections, the FAA again allowed the aircraft to fly but after fuller results of inspection were known they suspended the United States certificate of airworthiness for the DC-10 aircraft. In view of the urgency, other authorities, including our own Civil Aviation Authority, followed suit and suspended certificates. The FAA then issued a special Federal Aviation regulation known as SFAR.40, which prohibited operation of DC-10's in United States air-space. This was consistent with a subsequent order made by the Washington District Court at the request of the United States Airline Passengers' Association, requiring the FAA Administrator not to permit them to fly.

My noble friend first asked what new evidence had persuaded the CAA to reissue certificates of airworthiness to United Kingdom DC-10's. This is not perhaps the right place for a detailed technical discussion of the issues and probably very few of us are qualified to conduct such a discussion, but I understand the feelings of your Lordships and my noble friend in wanting an appreciation of the issues, and, in the hope that it will be helpful, I shall briefly put to you the main considerations at a level which I hope laymen can understand.

I believe that the FAA in the United States has in hand an intensive study of both maintenance and design considerations relating to the pylon attachment area. There are two fundamental design procedures for aircraft structures —either to make them "fail safe" or "safe life", and both are in common and frequent use either separately or in combination. The former—that is the "fail safe"—is based on multiple-load parts so that even if one part should fail another is capable of supporting the load; and the latter requires a more conservative approach to ensure that cracks cannot reach a hazardous level between inspections. That is the "safe life" procedure.

We understand that the Federal Aviation authority is at present not fully satisfied that the DC-10 pylon attachment system meets "fail safe", as one of the two possible criteria, and their investigation is aimed at establishing this point. The FAA has confirmed to the CAA that this is the only present question at issue with the DC-10, and the CAA is not in any disagreement with its American counterpart on this point.

However, the data supplied from exhaustive testing by the manufacturers indicates that with all the allowance for caution, the pylon attachment arrangements are entirely satisfactory, on the basis of a combination of "fail safe" and "safe life" philosophies. The fatigue rig tests—that is to say, the determination of the "safe life" of the aeroplane in this particular area—have proceeded to the equivalent of 120,000 flight hours. There are, of course, normal "conservatisms" which must be applied to such tests, but with these allowances they still indicate a safe life which is well in excess of the highest flight time for a DC-10 on the British register, which is approximately 20,000 hours.

Perhaps I may say that again in simple terms. The aircraft attachment points to these engines have been tested to a maximum of 120,000 flying hours and there is no aircraft flying, on the British register anyway, in excess of 20,000 flying hours. So on that basis there is a good way to go. Of course, the fact that it has been tested to 120,000 hours does not mean that we would dream of allowing it to go to that length. We might settle for half that; but even if we did we would still be way below the possible life of the component with present aircraft.

In all the detailed and intensive investigations and inspections of United Kingdom-registered DC-10's, there has been no sign at all of cracking in this pylon attachment area, and I should like to say at this point that I was myself at Gatwick this morning and had this confirmed to me by the engineers on the hangar floor at Laker Airways. I can also confirm that no United Kingdom DC-10's used the maintenance procedure for removing or re-attaching engines and pylons, which has been criticised as a potential cause of damage.

The "safe life" system which we are content to rely upon in part in this case is relied upon in many areas of structural design in all aircraft flying today. The very stringent inspection schedule established by the Civil Aviation Authority in collaboration with their European colleagues, ensures that they can say with confidence that the aircraft fully meets their normal criteria and is airworthy and fit to fly.

The FAA has not yet been able to give us a prediction of when their "fail safe" design studies will be complete, and I have no doubt they are also studying the "safe life" possibilities which have enable the Civil Aviation Authority and many other countries in Europe and around the world to restore certificates of airworthiness to the DC-10. I do not wish to criticise the FAA, who have a difficult situation and a difficult task, but I hope this explanation is of some assistance to your Lordships in understanding this very complex situation. We have total confidence in the Civil Aviation Authority and in the Airworthiness Requirements Board, as the responsible United Kingdom authorities.

The noble Earl also asked about the rights of access to the United states for United Kingdom airlines flying DC-10s. The fact is that by maintaining the special regulation SFAR. 40, to which I referred earlier, the American Government have made it impracticable for British and other airlines to resume operations by DC-10 aircraft to United States territory. The Canadian Government, whose authority bases its judgment of planes manufactured in the United States on the technical ruling of the United States authorities, have indicated that they will act similarly.

I have been asked about the position under the present United Kingdom-United States air service agreement, which is generally referred to as Bermuda II. This is a very detailed technical explanation of the legal position that I am going to give your Lordships and I hope, therefore, that you will forgive me if I stick very closely to the advice I have been given. It is a fact that under the Bermuda II agreement, as in the multilateral Chicago Convention, to which we are also parties, there is a very specific reference to this, and also to many other aspects of the conduct of air services between the United Kingdom and United States air territory. I do not wish to confuse those of your Lordships who are not experts in this particular line of country by giving too much detail from this very detailed agreement; but, briefly, Article 2 of the agreement grants rights to all designated airlines which, in our case, are British Airways, British Caledonian and Laker Airways, to fly over the United States, to make stops for non-traffic purposes, which include refuelling and so on, and to operate services on certain routes and under certain conditions for the carriage of both passengers and cargo.

Article 6 makes it clear that for the purposes of operating the air services provided for in the agreement, the United States must accept certificates of airworthiness granted to United Kingdom registered aircraft by the competent United Kingdom authority, which in this case is the CAA. In fact, although this is spelt out in detail in Bermuda II, and in many of the air service agreements that our European colleagues have with the United States, it is also a principle of the multilateral agreement on air services, the Chicago Convention, to which nearly every country in the world subscribes. Both we and Canada, for example, are parties to the Chicago Convention, and therefore there is no difference about the practical application of the principle. This I would summarise as meaning that every country is responsible for ensuring that its own airlines comply with at least the standards of safety set out in the Chicago Convention, and on the basis of these standards each country has the sovereign right to issue certificates of airworthiness. These certificates must then be accepted by other countries.

Perhaps at this moment I may just read the relevant part of Article 6 of the Bermuda agreement; that is, the Bermuda II agreement which is now in force. I read from paragraph 1 of that Article: Certificates of airworthiness, certificates of competency and licences issued or rendered valid by one contracting party and still in force shall be recognised as valid by the other contracting party for the purpose of operating the air services provided for in this agreement, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established pursuant to the convention". There is more which I need not bother your Lordships with, but I should have thought that that provision was fairly clear.

We are very much aware of the severe commercial penalties which our airlines are suffering as a result of these exclusions. The situation is unique, but, nevertheless, we believe that the provisions to which I have referred are applicable to it. In our approach to this situation, we are also concerned, while very much retaining our rights, not to cause unnecessary embarrassment to the FAA or to the US Administration, or to behave in a way which might make matters worse rather than better.

We are in very close continuous touch with the United States authorities on both the technical and legal issues. We have made our position clear and have sought a way to allow us to resume DC-10 flights to the United States as quickly as possible. Earlier this week, we also discussed the issue again with our partners in the European Civil Aviation Conference and, with them, met in Paris with State Department and FAA representatives to discuss the ECAC States' urgent wish to resume operations. The urgency of the situation was recognised by both sides, and if the situation is not resolved very quickly it is likely that ECAC representatives will go to Washington for further consultations very shortly. I would also draw your Lordships' attention to the fact that we understand that in the Washington District Court last Monday, the judge who made the original order to ground the DC-10s allowed it to lapse, leaving the FAA with freedom of action as to how and when it should act on the Special FAR.40.

I have tried to set before your Lordships as briefly as possible—but not very briefly, I fear, for this is a complex matter—the DC-10 airworthiness issue, particularly as it affects the operating rights of British airlines across the North Atlantic into the USA and also into Canada. I cannot pretend that it is a satisfactory situation that our own authorities should be convinced that the DC-10 is airworthy, and that such aircraft should still be prevented from operating on some of the most important routes in the world—those to the USA and Canada—and I hope that this situation will not last for long. It has had a particularly severe effect on both Laker and British Caledonian. The former has in the past relied very largely on DC-10 aircraft for Skytrain services to both New York and Los Angeles, and for many of its charter services to these and other points in the USA and to Canada; and British Cale- donian has operated most of its recent scheduled services to Houston by DC-I0 aircraft.

British Airways is less immediately affected. It has no DC-10 aircraft of its own, but it does have two DC-10s on a leased basis which are held on the New Zealand register, and these normally go to points in both the USA and Canada. All the British airlines have made valiant efforts to help themselves, and, indeed, I am pleased to report, to help each other to prevent even graver dislocation of services than they have already faced. But passengers have inevitably been disappointed in this, the peak season for transatlantic travel, and the airlines, after a considerable period when their DC-10 aircraft were grounded, are now unable to make the most economic use of very expensive capital equipment.

We very much hope that the American, Canadian and other authorities, who remain at present unable to accept DC-10 services into their territories, will soon be able to change their minds. We hope that they will do so in the light of all the technical evidence and information which has been, and continues to be, exchanged between the relevant authorities. If they do not do so, and it is clear that they are unable to do so, we shall have to review our own position and decide whether, and if so what, further steps are relevant and available to us under the various international agreements that I have mentioned.

As I have already indicated, we are most unwilling to contemplate this for so long as it seems likely that we can come to a timely, reasonable and amicable solution to this very difficult problem. But we obviously cannot sit passively by and see a considerable sector of our aviation industry continue to operate under great difficulty, because it cannot make the best possible use of what we believe is safe airworthy equipment for the carriage of both passengers and cargo. It is essential that there should be a solution in the near future and we hope that it will come very soon, through close and reasoned negotiations between the two Governments. I have said that we do not wish to precipitate any difficulties internally in America, but our duty is not, in the long run, to any body or company in the United States, but to British airlines and to British passengers, and we shall not neglect that duty.