The detailed court filing by Airbus can be found here:https://leehamnews.com/wp-content/uploa ... -25-22.pdf
A lot of new info appeared in Airbus's filing, which totalled 67 pages.
To summarise, I have recapped some important new points here:
- 4.3. During the aircraft manufacturing process, the ECF is embedded into a surfacing film which is then co-cured on to the CFRP. This means that the ECF layer forms an integral part of the airframe and that, following manufacture of the aircraft, it is not therefore practicable to remove and replace the ECF layer in its entirety (although, as explained below, the ECF layer can be repaired if it is damaged).
- 5.11.3. QTR has not carried out appropriate repairs and maintenance actions on the Grounded Aircraft for the Condition and/or Non MSN 36 Findings in accordance with the A350 ASR manual and/or QTR has not otherwise sought instructions from Airbus (or, so far as Airbus is aware, any other approved design organisation) in relation to the repairs and maintenance actions for the Grounded Aircraft, or other aircraft in the QTR A350 Fleet that are affected by Non MSN 36 Findings (if and insofar as repairs or maintenance actions in respect of any of Non MSN 36 Findings are not specifically covered by the A350 ASR manual).
- 9.2.3. As to this surface degradation, it is admitted that 8 specific findings were identified on MSN 36 and categorised (as set out in paragraph 8 of the Particulars of Claim), but it is averred that some of these findings were significantly caused and/or contributed to by the chemical paint stripping and/or mechanical abrasion process to which had been applied to MSN 36. In particular, it is noted that no ECF was reported as missing from MSN 36 prior to the stripping and abrasion process in Shannon.
- 9.3. It is denied (if it is alleged) that the findings identified on MSN 36, so far as they extended to the ECF layer, would affect the functional performance of the ECF in protecting the aircraft and its systems from the effects of lightning strikes and other sources of in-flight electrical charges. In this regard, even after the stripping and abrasion process applied to MSN 36, just 0.60% of the ECF layer was exposed and just 0.18% of the ECF was missing. It is averred that up to 40% of an aircraft’s ECF would need to be missing in order for this significantly to reduce the margin of conductivity.
- 11. Paragraph 9 is admitted. Airbus also proposed to QTR that the allowable damage limit in the A350 ASR manual could be increased from 200mm2 to 1000mm2 to reduce significantly the number of patch repairs on MSN 36. QTR unreasonably rejected this proposal (which will in any event be incorporated into the ASR manual in March 2022). In any event, the number and extent of the patch repairs that were required on MSN 36 was significantly increased by the chemical stripping and mechanical abrasion process which MSN 36 underwent, which was contrary to Airbus’ recommendations.
- 13.3.3. It is denied, however, that the issues reported by Finnair were instances of the Condition (which was first identified by Airbus when it inspected MSN 36 in Shannon), or Non MSN 36 Findings
- 13.4. In relation to the fifth and sixth sentences, paragraphs 2 and 5 above are repeated. Save as aforesaid, the fifth and sixth sentences are denied. Without prejudice to the generality of this denial, save for instances of rivet rash (which has been a well-known phenomenon on aircraft, not limited to the A350 or composite aircraft), Airbus had no knowledge of the novel findings comprising the Condition prior to inspecting MSN 36 in Shannon in or about November 2020. The paint issues which had previously been reported by Finnair related to rivet rash and issues arising from processes carried out in the course of in-production reworks. Further and in any event, the Condition does not affect the airworthiness or safety of the A350 and other airlines which have observed findings on A350s that are similar to the Condition have addressed those findings in accordance with the A350 ASR manual and/or as has been recommended to them by Airbus.
- 15.7. Paragraph 13.7 is admitted (although the AOG Amount as at the date hereof is now USD 206,500 (2022)). Further details of Airbus’ case as to the proper construction of the SCL are set out in paragraph 16 below.
- 15.8.3. By clause 3.3.3, it was agreed, in summary, that where Condition Inspections and Repairs resulted in extended scheduled operational availability beyond the scheduled (maintenance) event and where this was as a result of the Condition, Airbus would be liable to pay escalated Non-Excusable Delay Compensation (as defined in the A350 ASPA). However, clause 3.3.4 clarified that such compensation was not payable in respect of (1) any period of time unrelated to the Condition Inspections and Repairs, or (2) any period of time resulting from the failure by QTR to provide Airbus with the scheduled maintenance planning or to provide adequate access to the Aircraft.
- 16.2.1. On the proper construction of clause 3.2.1(i), AOG compensation is only payable in respect of an Aircraft if:
(1) The Aircraft is not airworthy (i.e. it is “unserviceable”) as a result of the Condition as found on MSN 36 in the sense that it is objectively incapable of being flown for safety reasons; and
(2) The Aircraft is grounded as a result of the lack of airworthiness that is caused by the Condition as found on MSN 36 (in the sense that this was the effective cause of the Aircraft being grounded) and/or the Aircraft is properly declared to be unserviceable as a result of a lack of airworthiness that is caused by the Condition.
- 17.3. Airbus provided the results of this work to QTR in 8 detailed memoranda dated between 29 January 2021 and 2 July 2021 for each of the findings on MSN 36 in respect of which Airbus agreed, by clause 2 of the SCL, to provide a full root cause analysis to QTR (“the RCA Memoranda”). The RCA Memoranda correctly set out the root cause(s) of the aspect(s) of the Condition they addressed.
- 18.1. In April 2021, Airbus started a fleet-wide investigation in relation to surface degradation on A350s generally. The objective of this fleet-wide investigation is to identify potential enhancements which might address or mitigate this issue. This forms part of Airbus’ continuous improvement approach and is ongoing.
- 18.3. In July 2021, Airbus representatives surveyed 12 other aircraft in the QTR A350 Fleet that were affected by Non MSN 36 Findings and produced a detailed 288-page survey report dated 10 September 2021 (“the September Report”). The September Report stated: “Airbus has completed and provided to QTR the root cause analysis in respect of the conditions.” The September Report concluded:
- 18.3.1. The findings observed on these aircraft were of the same type as those observed on MSN 36 and that no new types of findings had been discovered so that Airbus’ airworthiness assessment remained valid.
- 18.3.2. In accordance with the A350 ASR manual, all findings on these aircraft were within the allowable damage limits and/or could be resolved by QTR, if and insofar as necessary, during scheduled maintenance.
- 20.3. Airbus did not carry out “a review and critique of structural analysis” for the purposes of the RCA Memoranda, but it was not necessary for this work to be done as part of the root cause analysis. However, Airbus did analyse whether the Condition might have any impact on the structural integrity of the aircraft for its assessment of the airworthiness of MSN 36. Airbus communicated the outcome of this assessment to QTR (i.e. that there was no airworthiness issue).
- 21.1.1. As to the first sentence, it is admitted that the memorandum identified that the root cause of spider cracks was the different thermal expansion coefficients between the composite structure and paint system, which led, under thermal cycling and mechanical loads, to the creation of spider cracks in the paint system. The memorandum also set out a number of other contributing factors to this aspect of the Condition.
- 21.2. In relation to sub-paragraph 18.2, this memorandum analysed the root cause of the “Primer Cracks Condition” as defined in the SCL, namely miniscule cracks identified after paint stripping at step discontinuities of the livery. Further:
- 21.2.1. In relation to the first sentence, the memorandum sets out clearly that the root causes of these cracks (most of which were miniscule) are the stress peak at the step discontinuities between the liveried and non-liveried areas, combined with the different thermal properties of the basecoat and clearcoat such that “together with the internal stresses created by the differences in the thermal expansion co-efficient of the primer relative to the underlying composite structure, a crack appears at the paint surface”. It is specifically denied that this was a merely a hypothesis or that it was asserted without “any substantiation to prove the theory”: the memorandum refers in terms to having confirmed the stress concentrations at the step discontinuities through a paint system finite-element model simulation and to thermal shock cycling testing which substantiated the root cause finding set out in the memorandum.
- 21.3.1. This memorandum analysed the root cause of the cracking seen around the window frames on MSN 36. In this regard:
(1) The memorandum noted that cross-sections of two windows made by different manufacturers had confirmed a variability in resin layer thickness. The memorandum also recorded that cracks were observed in resin-rich and resin-poor areas, and that “these phenomena were replicated and confirmed through lab testing”.
(2) The memorandum concluded that “the root cause of the window frame deterioration seen on MSN 36 is the variability of the brittle resin thickness linked to the manufacturing process. This leads to the creation and propagation of cracks where the resin in either too thick (brittleness) or too thin (insufficient material to sustain the stresses from ECF expansion).” The cracking arises as a result of thermal loads around the window frame area.
- 21.4.1. This memorandum analysed the root cause of certain marks identified on section 15, section 19 and Door 1 of MSN 36. In this regard:
(1) The memorandum referred to the type of marks observed and also the conclusions and contents of the memoranda related to the root causes of Spider Cracks and Primer Cracks (see paragraphs 21.1 and 21.2 above).
(2) The memorandum concluded that thermal shock testing had confirmed that the initiation, length and orientation of the cracks was related to features of the ECF layer, and that lab testing of numerous samples had confirmed that three other factors played an aggravating role in this aspect of the Condition (namely clearcoat and primer thickness, resin composition and basecoat colour).
(3) The memorandum found that the initial “crazing cracks” provide an entrance for moisture, condensation and other fluids that could lead to an oxidation of the ECF and a reduction of the adhesion between the ECF layer and the surrounding resin.
- Indeed paragraph 18.4 omits to mention that a separate memorandum was prepared to address the root cause of ECF oxidation, involving exposure of samples of ECF to ambient factors, as well as energy-dispersive X-ray spectroscopy analysis of the oxidised area. That memorandum concluded that the ECF was oxidised as a result of ambient exposure, although it could be accelerated by chemical paint stripping (such as that to which MSN 36 had been exposed), and was a result of the other damage to the paint on MSN 36, and not a root cause of that damage.
- (2) Airbus proposed to carry out appropriate repairs and maintenance actions on MSN 36 in Shannon to address the Condition in December 2020 (as to which see paragraphs 5.12.1 and 11 above).
- (3) However, QTR refused to permit those repairs and maintenance actions to be carried out and QTR instead required a full damage mapping exercise and root cause analysis to be completed by Airbus before permitting them to be carried out on MSN 36.
- (4) It is admitted that Airbus agreed to carry out a full damage mapping exercise to determine the full extent and severity of the Condition, so far as it affected MSN 36, as QTR had required. This damage mapping exercise was not necessary to address the Condition and/or for the repairs and maintenance actions to be completed.
- (5) Airbus has been ready, willing and able to carry out the proposed repairs and maintenance actions to MSN 36 at all times since December 2020. However, they cannot be carried out by Airbus unless and until QTR in its capacity as CAMO holder has agreed to the proposed repairs and maintenance actions and given delegated contractual authority to Airbus to issue the Certificate of Release.
- 29.2.9. In relation to paragraph 26.9:
(1) It is admitted that Airbus proposed to carry out various repairs and maintenance actions to address the Condition on MSN 36 in or about December 2020 and thereafter that QTR has claimed that the proposed repairs and maintenance actions are not acceptable.
(2) It is also admitted that the repairs proposed by Airbus in relation to MSN 36 included approximately 900 patch repairs on different areas of the aircraft and that this is a larger number of patches than would typically have been expected on an aircraft over its life. However, the patch repairs proposed by Airbus for MSN 36 cover only a small proportion of the surface area of the aircraft.
(a) the number of patch repairs was significantly increased by the stripping and abrasion process which MSN 36 underwent, contrary to Airbus’ recommendations; and/or
(b) the number of patch repairs on MSN 36 could be reduced if QTR had not unreasonably refused to increase the allowable damage limits in the A350 ASR manual as Airbus proposed.
- 30.2.3. On or about 15 April 2021, EASA produced a report of the findings of its independent investigation of the Condition. A copy of this report was provided to QTR and the QCAA. The report stated (inter alia):
“Based on the reviewed data, the defects on MSN 36 are limited to the paint layers and ECF. There is no evidence of the degradation of the structural function of the composite skin, i.e. crack findings or delamination of the structural CFRP, and no other risks such as EMH from lightning strikes. It is not expected that similar defects on other A350 aircraft would result in a different assessment.”
- 30.4. As to the QCAA’s purported reasons set out in the 17 June Letter:
30.4.1. A level 1 finding pursuant to MA 905 of the Annex to QCAR 1003 requires a finding of serious non-compliance with the requirements of Part M which in fact lowers the safety standard and seriously endangers the flight safety. This is to be contrasted with a level 2 finding which is a finding that may lower the safety standard and may seriously endanger the flight safety. However, the 17 June Letter failed to explain or justify any conclusion that a level 1 finding was appropriate.
30.4.2. In particular, the 17 June Letter failed to identify any non-compliance with the requirements of Part M. Further or alternatively, the 17 June Letter failed to identify or explain how or why any such non-compliance was “serious” and/or how or why it lowered the safety standard or endangered the flight safety at all (still less “seriously”).
30.4.3. On the contrary, the 17 June Letter is inconsistent with a level 1 finding in that the ARC suspensions were described therein as a “precautionary measure” on the basis that the impact of the Condition and/or Non MSN 36 Findings on the airworthiness of the affected Aircraft was “unknown” and the 17 June Letter only goes so far as to speculate, without further explanation or justification, that “the safe condition of the affected aircraft may be compromised”.
30.4.4. The 17 June Letter does not refer to or address Airbus’ presentations or EASA’s findings (of which both QTR and the QCAA were aware and to which the QCAA had expressly referred in the 14 June Letter).
30.4.5. The 17 June Letter merely reproduced the purported concerns of QTR (as expressed by QTR to the QCAA in the 26 May Letter) that Airbus had not completed a root cause analysis for the Condition and that no permanent repair had been proposed, without any explanation of how this might affect airworthiness and/or justify a level 1 finding. Neither in fact affects airworthiness or justifies any level 1 finding.
30.4.6. The reference to “the non-availability of approved data” in the 17 June Letter is not understood. In this regard, as set out in paragraphs 5.10 to 5.13 above, Airbus (as manufacturer and DOA holder) has identified and proposed to QTR appropriate repair and maintenance actions for the Condition on MSN 36 and for Non MSN 36 Findings on some other aircraft in the QTR A350 Fleet. These are “repair design solutions” which have or would become “approved data” upon the issuance by Airbus of a Repair & Design Approval Form in respect thereof. Further or alternatively, the QTR A350 Fleet should be repaired and maintained in accordance with the “approved data” which are set out in the A350 ASR manual.
- 30.6.2. A letter from EASA’s Executive Director to the QCAA on 1 October 2021 stating that:
(1) EASA “could not identify a potential unsafe condition that would affect the safety of the inspected aircraft”;
(2) EASA was not “worried with respect to the structural integrity, nor concerned by the required protection against effects of direct lightning”; and
(3) EASA had “taken the action to investigate with Airbus the design definition of the painting and production process to understand what needs to be improved to prevent this accelerated degradation, but this is not related to the normal continuing airworthiness process indicated above.”