Updated

More than 400 pilots have joined a class action against American plane manufacturer Boeing, seeking damages in the millions over what they allege was the company’s “unprecedented cover-up” of the “known design flaws” of the latest edition of its top-selling jet, the 737 MAX.

Key points:

• A plaintiff lodged claims against Boeing on behalf of hundreds of colleagues
• It alleges that the company knowingly covered up the defective aspects of its 737 MAX jet
• The claim hinges on a piece of software pilots say they weren’t told about

Boeing’s 737 MAX series— first announced in 2011 and put to service in 2017 — is the fourth generation of its 737 aircraft, a widely popular narrow-body aircraft model that has been a mainstay of short-haul aircraft routes across the globe.

By March 2019, the entire global fleet was suspended by a US presidential decree, following the second fatal crash involving a 737 MAX that killed 157 people in Ethiopia.

The first crash involving the 737 MAX jet happened off the coast of Indonesia in October 2018, killing 189 people.

In the time since the two fatal crashes, some of the families of the 346 people killed have sought compensation, while aircraft carriers — such as Norwegian Air — have sought compensation from the American manufacturer for lost revenue as a result of the plane’s global ban.

This latest lawsuit filed against Boeing marks the first class action lodged by pilots qualified to fly the 737 MAX series, who have alleged that Boeing’s decisions have caused them to suffer from monetary loss and mental distress since the jet’s suspension.

The originating plaintiff, known as Pilot X —who has chosen to remain anonymous for “fear of reprisal from Boeing and discrimination from Boeing customers” — lodged the statement of claim on Friday, which seeks damages for them and more than 400 colleagues who work for the same airline.

In court documents seen by the ABC, the claim alleges that Boeing “engaged in an unprecedented cover-up of the known design flaws of the MAX, which predictably resulted in the crashes of two MAX aircraft and subsequent grounding of all MAX aircraft worldwide.”

They argue that they “suffer and continue to suffer significant lost wages, among other economic and non-economic damages” since the fleet’s global grounding.

The class action will be heard in a Chicago court, with a hearing date set for October 21, 2019.

Automated software at the centre of the MAX’s woes

The claim brought against Boeing hinges on the controversial addition of an automated piece of software known as the Maneuvering Characteristics Augmentation System (MCAS).

Pilot X claimed that this gave the aircraft “inherently dangerous aerodynamic handling defects”.

The reason for this handling quirk was by design, as Boeing made the decision to retrofit newer, large fuel-efficient engines onto an existing 737 model’s fuselage, in order to create the MAX.

The larger engines caused a change in aerodynamics which made the plane prone to pitching up during flight, so much so, that it risked a crash as a result of an aerodynamic stall.

To stop this from happening, Boeing introduced MCAS software to the MAX, which automatically tilted the plane down if the software detected that the plane’s nose was pointing at too steep of an angle, known as a high Angle of Attack (AOA).

But in light of the MAX’s two fatal crashes, questions were raised about the software’s capacity to determine the AOA correctly, as the MCAS system only relies on two AOA sensors.

Critics of this design choice said this made the plane vulnerable to faulty or mismatched readings, and Boeing made a cockpit display alerting mismatched AOA readings to MAX pilots an optional extra.

The MAX’s competitor, the Airbus A320neo, relies on three sensors as a fail-safe.

These concerns were also noted in Pilot X’s claim:

“Boeing’s defective design causes the MCAS to activate based on the single input of a failed AOA sensor without cross-checking its data with another properly functioning AOA sensor.”

Pilots allege that Boeing kept them in the dark about MCAS

The MCAS function was not made explicit to pilots.

In a rush to bring the plane to customers, Boeing did not alert pilots to the software in a bid to prevent “any new training that required a simulator” — a decision that was also designed to save MAX customers money.

Pilot X, alleges that Boeing “decided not to tell MAX pilots about the MCAS or to require MAX pilots to undergo any MCAS training” so that its customers could deploy pilots on “revenue-generating routes as quickly as possible”.

In March, a report from the Canadian Broadcasting Corporation (CBC) found that the system was only mentioned once in the aircraft manual, which was in the glossary, explaining the MCAS acronym — an omission Boeing did not deny in response to the CBC.

When contacted by the ABC in April, a Boeing spokesperson said that MCAS’s function was referenced in the MAX’s flight crew operations manual, where it outlined what the plane would do “in the rare event that the airplane reaches a high angle of attack”.

But this is disputed by Pilot X:

“Boeing decided not to provide MAX pilots with information or knowledge that the MCAS was incorporated into the airplane.”

Pilot X hopes profits won’t trump safety ever again

By seeking damages for monetary and mental distress, the pilots lodging the class action said they hoped to “deter Boeing and other airplane manufacturers from placing corporate profits ahead of the lives of the pilots, crews, and general public they service”.

Spokespeople for the pilots’ legal team — Queensland’s International Aerospace Law and Policy Group (IALPG) and Chicago’s PMJ PLLC — told the ABC that they would never like to see a case like theirs come before a court again.

“Success would have meant that no similar action is required in the future, as Boeing would never have permitted profits to displace proper safe design,” a spokesperson said.

They also told the ABC that Pilot X would serve an administrative claim — an out-of-court claim seeking compensatory damages — against the FAA.

Presently, the Boeing 737 MAX fleet remains grounded around the world as the company proceeds with a software update.

The last Boeing press statement on certification progress in May said that the MAX has flown “with updated MCAS software for more than 360 hours on 207 flights”.

So far the FAA has not committed to a timetable for the jet’s return.

Boeing declined to comment on the class action.