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LEGAL VIEW WITH ASHLEIGH BANFIELD

Ocean Search Problems; Better Tech Than Black Boxes Not Being Used; Best Technology; Insuring the Plane; Possible Scenarios for Flight 370

Aired March 21, 2014 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: Welcome back to our continuing coverage of the search for Flight 370. I'm Ashleigh Banfield.

We have more developments for you today in this absolute mystery. The search planes once again combed the southern Indian Ocean, hoping to find and get a closer look at some of those pieces of debris that really got people excited yesterday for the possibility of finding this plane.

They were spotted on satellite images, but sadly, those planes all came back empty-handed.

And also today, authorities confirmed a report you first saw on CNN. The flight's cargo did include lithium-ion batteries. They are known to overheat, known to sometimes catch fires. They have caused problems on planes before.

In the meantime, Malaysia says it needs more specialized equipment. Doesn't have the subs, and also needs these things, like phones, things to listen to the pings that come from the airplane's flight- data recorders before the batteries actually run out and those ping signals go silent.

Nine-thousand square miles, the size of the English Channel, that's how much the area is now that the searchers are covering by air and by sea, in a region with very powerful currents, as we just went over, and almost no land anywhere close by to slow down those winds and the waves.

Debris found today could be miles away tomorrow.

(BEGIN VIDEO CLIP)

TONY ABBOTT, AUSTRALIAN PRIME MINISTER: It's about the most inaccessible spot you could imagine on the face of the Earth, but if there is anything down there, we will find it.

(END VIDEO CLIP)

BANFIELD: I want to bring in CNN's Tom Foreman, doing such a great job of virtually showing us the circumstance we are in and how it changes, day to day.

Tom, we were just talking about an underwater crime scene if we ever get to that stage and what it's going to be like for mariners to have to do this.

Where we're talking now is incredibly different than the underwater crime scene they mapped out for Swiss Air 111 off the coast of Halifax, for TWA Flight 800 off the coast of New York.

We're in a no-man's land. Take me there and help me get a handle on whether we can even do this.

TOM FOREMAN, CNN CORRESPONDENT: One of the reasons it's a no-man's land is because we still don't know where we're looking. We still don't know.

We talk about the pinger running out here on the flight-data recorder. We've talked about that a lot. But what's also running out here, day by day, all of the intelligence they have on where this might be -- where the best searching place might be is getting older.

Look at this. Yesterday or a couple days ago, this was the search area they were aiming at. Now they're aiming at this search area down here.

Is that because they have completely exhausted every possibility up here? It's partially because they've had some look but also because everything is moving by the hour. And that complicates it. And you get further and further away from the source and that complicates matters some.

Let talk a little bit about why that would be. If you think about the currents, which I know you've been talking about there, here's another way of looking at it. The water, where the Indian Ocean collides with the southern ocean around Antarctica, can produce enough current that, if it were steady -- and it's not. Sometimes it will be greater, sometimes it will be less.

If I threw a paper cup into this water right now, in 14 days, it could be a thousand miles away, just by the movement of the water. So at that rate, even if you see something on the water on satellite and you were able to say, get the planes there, in two hours -- in two hours, it will not be where you saw it.

And I don't mean by a little bit. It may be five miles, six miles, seven miles away, big change, and once you go below the surface, then it really gets complicated.

We keep talking about the underwater technology, undeniably important in terms of locating the details once you get there. For example, you could go down here with the side-scan sonar, which is a terrific device that basically goes along, sends out a pinging signal and creates by doing this an underwater topographical map.

This is what comes out of that. You get images like this which will emerge and show you basically contours under the water which you can then look at physically and say does that look like part of a plane or not.

But again, just like the hydrophones, just like everything else, you have to get in the ballpark to make this happen. You have to get fairly close, because if you don't do that, you simply cannot get a reading.

So, when you talk about a crime scene, yeah, it's a crime scene, but it's a crime scene that is so buried in this vast and complicated city, you don't even know where the crime was committed. You just know one was committed out and they're trying to find it, if, in fact, this plane went down this way.

And every single day, Ashleigh, every hour, we're moving further and further away from the part we know, which is where the plane disappeared north of Malaysia.

BANFIELD: You know what? You fascinate me with everything you say. And at the same time, it's just more depressing, every day, as we see the hurdles.

FOREMAN: It's not a good thing. This is --

BANFIELD: No.

FOREMAN: This is absolutely not a good thing. If you let these hours go by, the shelf-life of this information gets old fast. And all these variables pretty soon you're talking about it's the best science you have.

BANFIELD: It's the best -

FOREMAN: But it can only do what it can do --

BANFIELD: -- and it is remarkable.

FOREMAN: -- in these conditions.

BANFIELD: You couldn't have said it better.

Tom, it's been a great week you have provided us the insight. I appreciate it. Thank you.

FORMEAN: Thanks much, Ashleigh.

BANFIELD: Tom Foreman, live for us, on just the remarkable effort that we can do underwater if we could only find where.

You know, you can use Wi-Fi on a plane as a passenger. It's pretty amazing.

So why on Earth aren't the airlines using a similar satellite technology to track the planes themselves in real-time, and why are we in this boat right now of not knowing where this flight is?

We're going to talk about that, next.

(COMMERCIAL BREAK)

BANFIELD: If anything remotely good could come of the heart-rendering mystery of Flight 370, it may be a new resolve to improve upon the so- called black boxes that go down with the ship, ostensibly, or the radar-based tracking systems.

Better technology, believe it or not, does exist, right now, today. Boeing tracks every one of its 787s in real-time around the world every single day. Canadian company markets live-streaming flight-data recorders, used today by 40 carriers on 350 planes.

Even the lowly black box, really an orange one, very updated, is in for a modest upgrade. Boxes made after 2015 have to have batteries that last 90 days, not 30, which is what we are coping with right now as the time counts down.

Joining me to talk about the technology that we could and should be using and why we're not, our author and former air accident investigator, David Soucie, former R.F. helicopter pilot Michael Kay, also a lieutenant colonel, and Brett Larson, analyst and host of the syndicated radio program, "Techbytes."

David Soucie, we have the technology, but is t seems politics has been getting in the way.

DAVID SOUCIE, CNN SAFETY ANALYST: It's been getting in the way since 1978 before the Deregulation Act.

Before that, it could be mandated by the FAA, and if it was mandated, they would have stiff fines for not doing it.

The reason they could do that, they were actually regulating the rates that the airlines could charge, so if you had to implement an expensive technology, that cost would be passed on through a government approval process into increased rates.

BANFIELD: And what you're effectively talking about is an air traffic control system overhaul, and the battle, as I understand it, is the money.

The FAA says we need it. Congress won't give them the money, so they say manage your resources better. And who's wrong?

SOUCIE: You know, both of them. Both of them are wrong, because, first of all, why did Congress allow the FAA to have this kind of money without proper planning and measures in place to say, are you performing the way you do it?

Any investor, any investor is going to do that. They're going to ask for performance measures on especially $40 billion.

So, now they issue this $40 billion. The FAA is not doing it right and now coming back and saying we're not going to give you anymore, which is costing more money every day.

We're not going to give you anymore, because you don't manage properly. Until you tell me you can manage this money properly, I'm not giving you anything.

BANFIELD: Yeah.

And, Brett, one of the conversations we keep having, over and over, is, why are we even talking about this kind of gear, and why are these critics saying, well, we don't have enough bandwidth to be able to do real-time data downloads while planes are flying, so we don't have to search the world for these silly little tape recorders?

Is that true?

BRETT LARSON, CNN TECHNOLOGY ANALYST: It is true in some ways. But it's really kind of -- it's cutting the dog off at the legs where you're just like, yes, we don't want to spend the money on something like that, because it's going to be expensive.

BANFIELD: I don't understand. I can check my Facebook --

LARSON: Exactly.

BANFIELD: -- on the plane with Wi-Fi.

LARSON: Motorola did the Iridium network of satellite phones that went all over the globe that is still a system that's in place that no one uses.

There is bandwidth available. It's an issue of need and want.

And, I mean, you spoke very well about the FAA. Our air traffic control system in this country is from the 1960s, and it's kind of sad.

And a lot of this stuff would be fixed with very simple technology and --

BANFIELD: Speaking of simple technology, I had a viewer write to me yesterday an eloquent proposal for something that her father worked on years and years ago, and it's effectively a deployable CVR, the cockpit voice-data recorder, that so often are catapulted miles away from accident scenes, destroyed on impact or lost forever because the pings only last 30 days.

And she effectively said that there has been a great push that the Navy has actually been employing for these -- listen, I'm going to give you the real simpleton version of it, but -- ejector devices that don't -- that aren't destroyed on impact, that float on water and emits signals to satellites.

And it sounded so simple and inexpensive. Am I crazy? Is she crazy? Are we all crazy for not using these deployables?

MICHAEL KAY, LIEUTENANT COLONEL, ROYAL AIR FORCE (RETIRED): Ashleigh, I think it's admirable that people are trying to think out of the box here, but there is no one specific answer for every single scenario that you're going to see.

This is the most bamboozling aviation mystery probably in the history of civil aviation --

BANFIELD: Colonel Kay, the Navy says they've been using them successfully. Why are we not using them in commercial flights?

KAY: But - so - there's budgets involved. America spends $550 billion on defense. These P-8 Poseidon aircraft, $4 billion it cost the Australians to buy eight of them. There are still limits to technology. This aircraft has a magnetic anomaly detector capability. What that means is it can see metal, i.e. submarines, under the water. But if what you're looking for is a nefarious material, then it doesn't work. If you've got a thermal imaging display, which is the best thermal imaging display in the world, if there are no bodies on the ocean with heat temperature, there's nothing to contrast against, you're not going to pick anything up.

BANFIELD: I still honestly - I see this golf ball flying off a plane and floating like an EPIRB which would take us immediately to the scene of the disaster.

Last comment, quickly.

SOUCIE: Well, you just - I see this as an atrophy of vigilance. No one has taken responsibility.

BANFIELD: And -

SOUCIE: Yes, there are budgets involved -

KAY: Yes.

SOUCIE: But let's step -- would you rather spend money on recovery or would you rather spend money preventing it in the first place?

BANFIELD: Brett Larson, David Soucie, Michael Kay, always just fascinating and frustrating and maddening all at the same time.

David and Michael, stick around, if you would. The agonizing uncertainty for the families. Don't forget about these people. We're at week two. The families. It brings up some pretty tricky legal questions. The risk of sounding crass here, but there is a financial issue for many of them. How insurance money can be used to help these families if the passengers are never found. And how tough is it for them to get the money? Is it up to them or is there someone helping them? That's next.

(COMMERCIAL BREAK)

BANFIELD: While families desperately wait for answers, they face another long wait for compensation. A 777, like the Malaysia Airlines jet that disappeared, likely carries about a $2 billion insurance policy. That insures the plane itself. It also includes the liability for the passengers who ride aboard, just in case something happens. Typically nothing happens. But something's happened here. And as Alison Kosik explains, determining who is liable could be difficult, especially if they never find the plane.

(BEGIN VIDEO CLIP)

ALISON KOSIK, CNN CORRESPONDENT (voice-over): Two hundred and thirty- nine people aboard a giant aircraft that disappears into the night. Government officials still piecing together information. Family members are understandably outraged. But even if the victims are never found, liability insurance can help their families, though that process likely won't be easy.

BRIAN HAVEL, LAW PROFESSOR, DEPAUL UNIVERSITY: One of the procedures is to ensure that in the event of a disappearance like this, there is a presumption of death, which is ruled by a court.

KOSIK: In some countries, that ruling could be difficult to get. But it's essential for the next step of filing a claim. Victims' families have protection under what's known in the aviation industry as the 1999 Montreal Convention. Malaysia signed on to that treaty. It outlines where liability claims can be brought, including the airline country of operation, the location of its corporate headquarters, where the ticket was bought, a passenger's final destination, a passenger's permanent residence. Whether the victims are found or not, a basic cause of the disappearance will still be determined.

DANIEL ROSE, AVIATION ATTORNEY, KREINDLER & KREINDLER: From a legal point of view, this is - it's not an unprecedented situation where an aircraft has not been recovered. And indeed legal cases have been made out many times where the aircraft is not recovered and it's done through, you know, what's called really circumstantial evidence.

KOSIK: That evidence will point to one of two scenarios. That the disappearance was caused by an intentional act, like terrorism, suicide or sabotage. Experts say, in that case, Malaysia Airlines would likely be liable, or that a mechanical or systems issue was to blame. If that happens, airplane maker Boeing and other manufacturers could be brought into the insurance claims, leading to an even bigger legal process.

Lawyers say the claims must be filed on a passenger-by-passenger basis through a complex web of payouts, policies, possible lawsuits and legal obligations. Unfortunately, with the victims' families having already gone through so much at the center of it.

Alison Kosik, CNN, New York.

(END VIDEOTAPE)

BANFIELD: So it might be heartening to hear that some insurance claims are already being paid out. International insurer Alliance says that, quote, "other co-area (ph) insurers of the Malaysian Airlines aviation hull and liability policy have made initial payments as defined in the policy and is in line with normal market practice and our contractual obligations where an aircraft is reported as missing," end quote. No word on if any of that money has reached the victims' families, but it was likely for the plane itself.

Among the theories about what happened to Flight 370, the possibility of some kind of mechanical disaster, total failure. We look at some possible scenarios after the break.

(COMMERCIAL BREAK)

BANFIELD: As we continue to try to figure out what exactly happened to this mysterious missing airplane, Colonel Michael Kay has been helping to sort of sort through the various theories, most of them pretty complicated, terrorism and hijacking and all sorts of coordinated purposeful takeover of the aircraft. And sometimes lost in all of that discussion is the simplicity that it just could have been a catastrophic mechanical failure. Do we have any insights from the past that might help us look more towards solving this?

KAY: We do, Ashleigh. And you're absolutely right, we've got to leave everything on the table. We've got to consider the more sinister side, but we've also got to look at mechanical failure. And I think history gives us a little clue into just how unpredictable the outcomes can be.

We've just got to look at Air France 447. That all came about -- firstly we didn't know how it came about until two years after the accident. And then what we - what transpired was is that the pidto (ph) tubes, which are two little (INAUDIBLE) tubes on the cockpit of the cockpit, they feed dynamic pressure into the air speed indicators. Now they get iced up. Well, they got iced up.

So what happened was is the air speed indicator now acted like an altimeter. So when the aircraft climbed, it showed it was increasing in speed. That obviously wasn't happening. The pilots reacted to pulling the power back, because that's the way you control the speed. What happened is, is that they didn't realize they were climbing, pulling the power back, to enter the catastrophic stall, huge loss of lift on the wing and then it descended from 35,000 feet into the ocean. The pilots had no idea that the flight envelope was exactly that. And so there was no distress call put out. There was no 7700 put out on the transponder.

BANFIELD: You know, it -

KAY: And that only came out after we found the black boxes.

BANFIELD: And yet, when you look at the pilot conversation -- by the way, Randi Kaye did a remarkable report earlier this week about the pilot conversation in Swiss Air 111. They knew bloody well that they were in a disaster situation. They were radioing not only to panpan (ph) but then the absolute emergency. And strangely, even though they knew what was going on, and they were getting back, closer to Halifax, they just went right into the water. And there was very little as they were going into the water -- very little information as to what was happening, those moments.

But in this circumstance, there's nothing but, "all right, goodnight." There's just no communication to the ground at all that we know of. And we don't know anything yet. We haven't been privy to any of what, you know, the -- the ground control had heard for the last hour or so. (INAUDIBLE). KAY: It's very - it's very - it's very unusual for me (ph) -- "all right, good night" is standard sort of jargon, terminology, which is an informal, sort of, cheerio, I'm off to my next frequency. There's nothing unusual about that at all.

The thing for me about a mechanical failure, and I - and why I accompany it with, it has to be without the pilots knowing what was going on, is because we all - we've all heard of this mantra that's been trotted about you fly the aircraft in emergency, you navigate the aircraft in an emergency and then you communicate. That's not a sequential mantra. What I mean by that is, it doesn't happen one after the other. It's on the simulator. You practice it. So the pilot will be effectively taking all the emergency actions, flying the airplane and then turning to the nearest diversion. At the same time, the co- pilot will be putting out a distress call. That distress call will go out on a huge arc of notice. So it will go out 1215, which is the distress frequency. Every aircraft in the air on 1215, which has got to listen to, will hear something go out. So it's just unusual.

BANFIELD: It's all fascinating. It's all fascinating, but it still leads to even more questions. And hopefully you'll be around to continue to help us understand more.

KAY: Sure.

BANFIELD: Colonel Kay, it's been great to have you. Thank you.

KAY: Thanks.

BANFIELD: Appreciate all your insight today.

Thank you all. Have a great week. I'm turning the baton over now to my colleague Wolf Blitzer.