FlyNYON knew of safety concerns before fatal doors-off flight
By Elan Head | April 7, 2018
Estimated reading time 29 minutes, 16 seconds.
Weeks before the recent fatal helicopter crash in New York City’s East River, FlyNYON was warned of safety issues with the harnesses and emergency cutters it was providing to passengers on its “doors-off” photo flights, internal company emails show.
Five FlyNYON passengers drowned on March 11 when the single-engine Liberty Helicopters Airbus AS350 B2 they were riding in lost power, made an emergency landing to the East River, and then overturned in the water.
The pilot, who was using only the aircraft’s normal seat belt and shoulder harness system, escaped. The inexperienced passengers were wearing supplemental fall protection harnesses and tethered to the helicopter via locking carabiners at an inaccessible attachment point between their shoulders; unable to free themselves, they had to be cut out of the aircraft by police and fire divers.
Two months before the accident, Liberty pilots who were conducting charter flights for FlyNYON had voiced safety concerns about the yellow harnesses worn by passengers on the accident flight, which were designed for construction work, not aviation operations.
Both Liberty and FlyNYON’s own pilots expressed a preference for more expensive blue harnesses that had been certified for helicopter operations by the Federal Aviation Administration (FAA), were a better fit for more of FlyNYON’s passengers, and had a lower, more accessible attachment point at the small of the wearer’s back.
Yet FlyNYON’s CEO, Patrick Day, Jr., had dismissed their concerns and discouraged further questions about the yellow harnesses.
“Pilots . . . Let me be clear, this isn’t a safety issue with the harnesses, the pilot may not query about the harness,” Day wrote in an email dated Jan. 17. “If they have an issue as with all issues that aren’t safety related they can take it to their Cheif [sic] pilot who can address it with me.”
This is one of dozens of FlyNYON internal emails that were provided to Vertical in the aftermath of the March 11 accident. Information from the emails has also been shared with the FAA, National Transportation Safety Board (NTSB), New York Times, Wired, and others.
Dating from Nov. 2, 2017, to Feb. 24, just two weeks before the accident, the emails portray a company that was struggling to keep up with its own popularity, firmly under the sway of a CEO who overruled pilots’ safety judgments on multiple occasions.
In addition to highlighting safety concerns with the harnesses, the emails reveal that FlyNYON had learned that the emergency cutting tools it was providing to passengers were difficult to use on the thick nylon/Dyneema tethers that secured them to the aircraft.
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Yet the company continued to operate with cutters it knew were ineffective for their intended purpose, even as it showed passengers a safety video that suggested they would be able to readily escape from the helicopter in the event of an emergency.
Moreover, the emails confirm that the FAA was aware of the company’s operations and harness systems, raising questions about the effectiveness of FAA oversight.
‘An Industry Loaded With Dinosaurs’
FlyNYON is a spinoff of the aviation services company NY On Air, or NYONair, which specializes in coordinating aerial photography flights for professional and corporate clients. Founded by Day in 2012, NYONair quickly found an enthusiastic following among social-media-savvy photographers seeking unique aerial views of New York City.
From the outset, NYONair skillfully leveraged its own social media platforms to build demand for its services, cultivating relationships with influential Instagrammers who raised awareness of the NYONair brand. As the company’s visibility and online follower count grew, Day realized he could market the exhilarating experience of photographing Manhattan from the open door of a helicopter to a wider audience.
With FlyNYON, he used what he described as a “crowdsourcing” model to allow enthusiasts — often tourists or locals shooting with smartphones — to book single seats on doors-off helicopter photo flights, rather than devoting entire flights to professional photographers on specific assignments. Packing more people into each aircraft reduced the cost per customer, making short flights accessible to even ordinary Instagram users looking for a thrill or a way to stand out from their peers.
For these customers, FlyNYON actively promoted “shoe selfies,” shots of the photographer’s feet dangling from the open door of a helicopter, as the ultimate social media share. With shoe selfies in mind, the company encouraged at least some of its passengers to get out of their seats after takeoff and sit on the floor of the helicopter with their feet on the skids. To prevent anyone from falling out while people were moving around, it equipped all of its passengers with harnesses and tethered them to hard points inside the aircraft.
FlyNYON’s innovative business model had never before been attempted in the helicopter industry. In part, that’s because the regulatory basis for such operations is murky. Most helicopter operators who transport passengers are required to comply with Federal Aviation Regulations (FAR) part 135, which spells out strict safety requirements for “on demand” air carriers who operate with more flexibility than commercial airlines.
Aerial photography flights are exempted from compliance with part 135 as one of a handful of “aerial work operations” — including crop dusting, fire fighting, and banner towing — that do not normally involve the general public. However, it’s not clear that the exemption applies to flights that are so aggressively marketed to the public.
The emails provided to Vertical make it clear that FlyNYON was aware of the need to observe the letter of the law, if not its spirit, while exploiting this exemption. An email dated Nov. 5, 2017, contains the instruction, “Moving forward, the current pamphlets will not be used by staff for recruiting passengers. In order to be considered a photo flight, the passenger has to have a specific location or shot in mind and we can offer suggestions but not tell them ‘what they are going to see.'”
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Regulatory considerations aside, however, it’s also true that the helicopter industry is generally conservative in its approach to flight operations, and has been slow to embrace social media and other innovative forms of marketing. Day grew up in that industry as the son of Liberty Helicopters director of operations Patrick Day, Sr.; his emails reflect impatience with, if not contempt for, conventional operators and ways of doing business.
“Our industry is loaded with a lot of dinosaurs,” he wrote in a heated email on Feb. 18. “Those same dinosaurs have been telling me I can’t, it will never happen, your [sic] a lost cause, you don’t know what your [sic] doing, no doors in NYC… that’s a joke, social media that’s a joke and many more statements like those I’ve listened too [sic] over the past 5 years.”
In fact, Day was justified in believing in the potential of his business model. As the doors-off photo craze grew, FlyNYON expanded from the New York City area into new markets, including Miami, Los Angeles, Las Vegas, and San Francisco.
Initially, FlyNYON worked with established part 135 operators such as Liberty to conduct its flights. More recently, it partnered with the helicopter sales and maintenance company East West Helicopter Inc of Harrison, Ohio, to operate its own helicopters under the authority of East West’s part 135 operating certificate (which was overseen by the FAA’s Flight Standards District Office in Cincinnati, Ohio, far from FlyNYON’s primary markets).
The FAA requires part 135 certificate holders to have “sufficient qualified management and technical personnel to ensure the safety of its operations,” including in this case a director of operations. Emails provided to Vertical indicate that Day enlisted his father, Patrick Day, Sr., to hold that position on FlyNYON’s operating certificate, while Sr. continued to serve as director of operations for Liberty.
Days before the accident, FlyNYON advertised job openings for nine to 10 pilots for the upcoming summer season in New York City. The company was prospering even as some other helicopter tour operators struggled; as Day wrote in the Feb. 18 email, “those same dinosaurs said shoe selfies were moronic and yet we grew by 400% last year when operators in Vegas shrunk by 28% and operators in NY shrunk below the 50% line the government cut them” (referring to a deal effective last year that cut the total number of New York City helicopter tour flights in half to address noise concerns).
Yet as business boomed, FlyNYON was experiencing growing pains at its headquarters in Kearny Point, New Jersey, just west of Jersey City and Lower Manhattan. There, in addition to operating its own aircraft with its own pilots, FlyNYON chartered helicopters from Liberty, flown by Liberty pilots, to meet the increasing demand for its doors-off flights.
In the early days of FlyNYON’s operations, pilots were solely responsible for briefing passengers and ensuring that they were properly situated inside the helicopter. However, as the operations at Kearny Point grew busier, that became impractical.
Instead, FlyNYON developed a safety briefing video and hired customer experience agents, or “CXs,” to supervise the video briefings and install passengers in their harnesses, with the pilot performing a final, abbreviated safety briefing immediately prior to flight. While Liberty remained responsible for ensuring the adequacy of the safety briefing on those flights it operated itself, the close relationship between the companies encouraged a blurring and sharing of responsibilities.
Many of the emails provided to Vertical contain minutes from pilots meetings attended by both FlyNYON and Liberty pilots. They reflect growing friction between the pilots and CXs, many of whom lacked relevant aviation experience.
“There have been some issues with CX not understanding or adhering to the SOP [standard operating procedure]. It boils down to the high turnover rate coupled with training,” state the minutes from the Nov. 26 pilots meeting.
From the Dec. 17 meeting: “There has been some confusion with the new harnesses. [Names redacted] will be conducting CX training to make sure that all pax [passengers] who use new harnesses are arriving at the helicopter wearing them properly.”
The meeting minutes suggest that both FlyNYON and Liberty pilots were working proactively to address safety concerns, yet they faced pushback from Day on multiple occasions.
For example, in an email sent on Dec. 27, a Liberty pilot expressed concern over “what I consider a fairly serious issue and a massive oversight. Long story short, Ops had no idea that my flight of five was changed to a flight of four and then a flight of six. Neither cx or Ops new [sic] these passengers weights and a weight and balance was done on the ramp. One pax was 170 his mother in front of everyone told cx 140. I doubt that. The weight and balance below was done with there [sic] declared weights. If I added 10 lbs to declared weight we would have been out of CG and gross weight. I did the flight.”
At the next pilots meeting, according to minutes emailed on Jan. 1, pilots agreed that “all passengers must be weighed on the scales at KP [Kearny Point], regardless of whether or not the doors are on or off.” However, Day immediately rejected that idea.
“We will not be weighing passengers on a scale. We market and sell our flights at 5.0 load factors [i.e. five passengers per flight, plus the pilot]. If I change the model to 6.0 then we will consider weighing the passengers. Declared weights are fine for now,” he responded, either unaware of or unconcerned with the six-passenger flight that might have taken off in violation of the aircraft’s operating limits.
Two hours later, the company’s chief of staff chimed in, “Going forward, any changes to be made to flight ops/the flight department will need Pat’s signature. Post pilot meeting, if there are any proposed changes, please notify Pat and he will accept or decline.”
A Blurring of Operational Control
Normally, a customer such as FlyNYON would not be able to dictate the operations and safety practices of a part 135 operator such as Liberty. The principles of operational control outlined in FAA operations specifications A008 maintain that the certificate holder is ultimately responsible for the safety of each flight, and may not transfer that authority to any other entity — as Liberty apparently did in permitting Day to make decisions about flight operations.
However, with Patrick Day, Sr., serving as the director of operations for both the Liberty and FlyNYON operating certificates, it was not necessarily obvious to pilots where FlyNYON’s authority ended and Liberty’s began.
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Although Patrick Day, Sr. was copied on some of the emails provided to Vertical, in none of them does he weigh in on the topics under discussion, or his son’s decrees. The close family ties between FlyNYON and Liberty (with Patrick Day, Jr. still listed on the Liberty Helicopters Charter website as VP of charter and aircraft management) make it questionable whether any Liberty pilots felt empowered to challenge Day without fear of retribution.
In early January, a conflict arose after a Liberty pilot delayed a flight due to a passenger’s ill-fitting harness. FlyNYON had two different styles of harnesses in use at Kearny Point: the standard yellow fall-protection harnesses, which retailed for around $50 each; and a limited number of the blue harnesses that had been recognized by the FAA as being compliant with technical standard order (TSO) C167, and which retailed for $525.
The blue harnesses had been acquired only recently (in mid-November 2017, emails indicate). Not only were they FAA-approved, they were, as a FlyNYON pilot observed, “far superior to the yellow harnesses in terms of comfort and fit,” and could be adjusted to fit a wider range of body sizes. In the case of the delayed flight, a small female passenger had arrived at the aircraft in a yellow harness that was “falling off her body,” according to the pilot who had made the “judgment/safety call” to delay.
At the next pilots meeting, it was agreed that blue harnesses should take priority over the yellow harnesses. According to meeting minutes emailed on Jan. 17, “This means that if there is one flight of five passengers and the harnesses are not being used elsewhere, all five passengers should arrive at the aircraft with blue harnesses on. If they don’t, the pilot may query why the harnesses are not being utilized.”
That’s when Day responded to say that “the pilot may not query about the harness.” In a subsequent response, he elaborated, “the blue harnesses are FAA approved but that isn’t a requirement for a doors off flight. The yellow harnesses are just as legal/safe as the blue.”
FlyNYON’s terminal manager chimed in, “We’ve been using, tightening, and securing yellow harnesses on pax — big or small — for years. . . . Let’s work together to get pax up on time. Rules can’t be made on the ramp. Rules can’t even be made in the weekly pilots’ meeting. Rules can be proposed in the pilots’ meeting but must be approved by Pat, at the end of the day.”
But the pilot who delayed the flight objected, “If the concern is about getting the flight up on time then things like this shouldn’t be making it out to the ramp. We are setting ourselves up for failure. Things departing aircraft is a much worse review then [sic] a delayed flight. A good enough attitude is not something we should have about this matter.”
As the weeks went on, pilots’ frustrations continued to mount. On Feb. 18, a Liberty pilot sent a lengthy email outlining the challenges faced on that particularly busy Sunday: “Today we did not have enough tethers, harnesses, carabiners, or headsets. At one point we had 6 helicopters trying to fly at once.”
The pilot indicated a need for 60 harnesses and 60 of the holders that were used to secure passengers’ phones in flight, and suggested that FlyNYON consider hiring additional CXs, explaining, “When we don’t [have] the gear and personnel to get the job done passengers suffer.”
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The email was not particularly combative in tone, but Day responded furiously. “I’m insulted by the manner at which you address my team,” he responded to the pilot, with 15 people cc’ed on the message. “My team worked and works their ass off today and every day. It’s the month of February when all other operators in NY had most of their fleet parked today with zero flights. Instead of saying thank you you point out the bad and act as if we didn’t think of these solutions.
“NYON is Liberty’s biggest customer (and growing) and you talk to us as if we are a bunch of dumbasses,” he continued. “Like we don’t know or havnt [sic] thought out for hours what we are doing. Let me tell you [other helicopter operators; names redacted] have both called me with in the last week to ask if they can provide Helicopters for our product. Your tone and the nature at which you speak to us makes me want to move 100% of all our business tomorrow to those companies.”
Even after this angry outburst, pilots continued to make efforts to improve the safety of FlyNYON’s operations. According to emailed minutes from the Feb. 21 pilots meeting, a Liberty pilot had been “researching and procuring a new cutter for the tethers which we will be testing shortly. There is also a new style of tether we are looking into as well.”
As was made clear in subsequent emails, that’s because pilots had demonstrated that the emergency cutter that was currently being provided to passengers did not readily cut through the tethers that connected them to the helicopter. By contrast, according to Feb. 24 email correspondence, the new knife and new tether identified by the Liberty pilot cut very easily.
That same day, the pilot emailed purchase links for the new tether (approximate retail price $23) and new knife (also around $23) to a FlyNYON manager, explaining with respect to the knife, “not the cheapest but they have 50+ in stock and will offer a discount. other sites said an order this large could take up to a month.”
Although FlyNYON managers expressed a willingness to order the new cutters and tethers, social media posts made by FlyNYON passengers show old styles of cutters and tethers in use up to at least the day before the crash, suggesting that between Feb. 24 and March 11, the company sent dozens or even hundreds of passengers aloft with equipment that they knew would be needlessly difficult to use in the event of an emergency.
Moreover, the company did not hint to passengers about this difficulty. According to photographer and journalist Eric Adams, who was on another FlyNYON photo flight at the same time as the accident flight, the perfunctory safety video he watched made cutting the tether “look like a hot knife through butter.” Yet when he independently tested the old cutter and tether models that FlyNYON had been providing to passengers, he found he was unable to cut through the tether with a single stroke, even after pulling with all his strength.
On March 26, the NTSB issued its preliminary report on the East River accident, based largely on the account of the accident pilot, Richard Vance. He reported that he was flying along the eastern side of Central Park at an altitude of approximately 2,000 feet when the front seat passenger “turned sideways, slid across the double bench seat toward the pilot, leaned back, and extended his feet to take a photograph of his feet outside the helicopter” — in other words, a shoe selfie.
Vance told investigators he perceived a loss of power and initially believed he had experienced an engine failure. He entered an autorotative glide toward the East River and attempted to restart the engine, unsuccessfully. Only once he had “committed to impact” and reached down for the emergency fuel lever did he realize that the lever was already in the off position, and a portion of the front seat passenger’s tether was underneath the lever (which is mounted on the floor in the AS350 B2).
By that point, it was too late to complete a restart; shortly thereafter, the helicopter impacted the river. Although Vance had deployed the aircraft’s emergency float system, the NTSB’s preliminary report indicates that the right side pressurized gas cylinder did not discharge. With the starboard pontoons not fully inflated, the helicopter listed to the right, then capsized, moments after touching the water.
By the time the NTSB’s preliminary report came out, the FAA had already issued an emergency order prohibiting the use of supplemental passenger restraint systems that cannot be released quickly in an emergency in doors-off flight operations, specifying that “a supplemental passenger restraint system must not require the use of a knife to cut the restraint, the use of any other additional tool, or the assistance of any other person.”
Although the FAA acted quickly to ban these restraint systems in the wake of the East River accident, it cannot claim ignorance of FlyNYON’s operations. The emails provided to Vertical indicate that representatives of the FAA visited FlyNYON and observed a doors-off flight during the week of Oct. 30. Social media posts made by FlyNYON passengers around that time show that the company was using the same yellow harnesses, locking carabineers, and thick nylon/Dyneema tethers to secure its passengers, and providing them with the less effective style of cutter.
The FAA declined to confirm this visit or the dates of any subsequent visits, with an FAA spokesperson telling Vertical, “We can’t discuss details of our surveillance activities for a particular operator. We perform routine surveillance of East-West Helicopters. We completed surveillance of the operator in FY17 with no issues noted.”
According to the FAA, surveillance activities for FY18 are planned for the third quarter (encompassing April, May, and June 2018).
In the meantime, FlyNYON appears to be doing everything it can to retain its previous momentum. Up through the end of March, the company was still actively promoting shoe selfies and telling its followers on social media that it would be resuming doors-off flights “soon” and “in the coming weeks” — activities it only ceased after negative news reports called attention to the fact that it was continuing to sell tickets for doors-off flights, despite the FAA’s emergency order.
However, FlyNYON continues to aggressively market its doors-on flights, including through a new brand called Heliphoto. A Heliphoto website and Instagram account appeared just six days after the East River crash, initially with no reference to FlyNYON but featuring photos of N321JS — an Airbus AS350 B3 that had appeared in recent photos with FlyNYON decals.
When Vertical inquired about Heliphoto, an FAA spokesperson said that the company was not a “doing business as” name and/or did not have a letter of authorization through East West Helicopter, which is the authority under which FlyNYON has operated to date. Subsequently, Heliphoto appeared on the FlyNYON website as “FlyNYON’s doors-on/windows down experience.”
Vertical reached out to Day for comment on this story, explaining in an email that we had learned that several people had expressed safety concerns prior to the March 11 accident, and that he and others within FlyNYON had dismissed or failed to act on those concerns.
Day declined to speak with us on the record, instead responding, “We deny the claims made and are unable to comment further because of our involvement in the ongoing NTSB and FAA investigations. We continue to place passenger safety above all else and are confident the NTSB investigation will identify all of the factors that contributed to the accident.”