Judge Rules Qatar, Airbus Trial Will Be Split

TUESDAY, JANUARY 3, 2023

A United Kingdom High Court Judge recently ordered for the $2 billion Qatar Airways and Airbus trial scheduled for June to be split into two parts. Qatar is seeking compensation for paint deterioration on its Airbus 350 fleet after concerns were raised over the defects in 2021.

While earlier this year the court ruled in favor of an expedited trial, the two-part case could potentially run through 2024. The first part of the trial will reportedly tackle liability, while the combined claims section will be addressed later.

“Splitting the proceedings consistently with Airbus’ proposal would allow the matters that justified the order for expedition still to be tried in June 2023,” said Airbus in a statement. “It would also allow other matters… that are less pressing to be tried following the proper process of disclosure and preparation of factual and expert evidence, which is impossible to fit within the current timetable.”

“Qatar Airways’ applications in this CMC sought to address the asymmetry of information caused by the fact that Airbus, the manufacturer of the A350, has failed to provide key technical information relating to the defect which is necessary for conclusive analysis as to the root cause,” a spokesperson for Qatar told Simple Flying.

“We were pleased that the judge agreed with our applications and ordered the information be provided quickly to ensure the key issues are properly addressed by the independent experts. In a trial of this scale, bifurcation is not unusual and therefore it was not unexpected that the Judge ruled on this. The split of quantum issues was a compromise between both side’s preferences and we are pleased that this will ensure the key technical issues are the focus of the summer trial.”

Airbus, Qatar trial to be split as A350 jet row rumbles on https://t.co/iy9pLGK5JJ

— Businesshala (@businesshalausa) December 17, 2022

In November, a procedural hearing in the London High Court looked at details of “shared drives” and “search terms,” with both parties alleging that the other colluded with flight regulators. Qatar said that Airbus sought to “exert influence” over the European Union Safety Agency with a “Line to Take” document.

An Airbus spokesperson said it had followed all relevant procedures including its decision to inform EASA of its position, “which is entirely proper and normal.”

On the flipside, Airbus said Qatar Airways “may have wrongfully colluded or conspired” with the Qatar Civil Aviation Authority to ground planes and improve its commercial position, a charge the airline denies, according to reports.

For example, Airbus argued, instead of providing an analysis of alternative wide-body jets, Qatar had handed over photographs of toilets. Reuters reports that industry sources say toilets are a key part of premium product comparisons.

A judge also looked at how to handle the more than 100,000 documents that could be used at the June trial, which reports indicate that the allegations of collusion and coordination could determine how far each side has to go in providing internal documents in the case.

Coating Problem Investigation

Originally, it was speculated that the desert heat in Qatar caused the degrading paint surface. However, since then, at least five other airlines have raised concerns. Citing messages from Finnair, Cathay Pacific, Etihad, Lufthansa and Air France (on behalf of Air Caraibes) on a private maintenance message board used by Airbus and A350 operators, the earliest reports of paint problems date back to 2016.

While Airbus and the airlines describe the issue as “cosmetic” and not a matter of safety, witnesses also reported that the coating issues with the Qatar jets have led to the exposed mesh developing its own gaps, exposing the carbon-fiber fuselage to possible damage.

Airbus noted to Reuters that it was aware of the surface issues that in some cases had made visible a sub-layer of mesh designed to absorb lightning, which it was working to fix. The A350, in service since 2015, is designed with ample protection to resist storms and is deployed around the world with high reliability, Airbus said in an additional emailed statement.

Europe’s first A350 operator Finnair reported paint damage a year after receiving its first A350, while Cathay Pacific stated similar problems just two weeks after taking their delivery of jets. Lufthansa said in 2017 that paint was peeling in areas as big as a square meter. The airline’s A350s were repainted by Airbus with new livery this year, reportedly free of charge under warranty.

A350s have a carbon-fiber body instead of metal and utilize mesh for lightning conduction, which creates problems for surface preparation and painting. Another issue is paint expands with heat, while the carbon fiber does not.

In 2020, Airbus created a mulit-functional task force to study new material for lightning protection on future A350 jets.

“We have seen no effect on the structure of the aircraft and operators continue to fly with high levels of operational reliability,” A350 Chief Engineer Miguel Angel LLorca Sanz said in an interview. “This is not at all affecting the lightning strike protection due to the substantial (safety) margins ... It is not at all an airworthiness issue.”

At the time, Qatar Airways had also halted deliveries of 23 more A350s on order, potentially costing the companies hundreds of millions of dollars, until a solution has been found.

Airbus told Reuters that it has “found a root cause,” but it has not been disclosed and airlines say they have not been notified by the company. It was also reported that Qatar Airlines has previously had issues with Airbus, coming to light in May after the airline over the repainting of an A350 in livery for the FIFA World Cup in 2022.

Qatar Airways' Chief Executive Akbar Al Baker was quoted by Bloomberg at the time as saying the airline would refuse to take new aircraft from Airbus if it was not able to resolve the dispute. Al Baker also said the airline would not take deliveries of any aircraft in 2020 or 2021 due to the coronavirus crisis, but later reached an agreement with Airbus over delays. Details were reportedly not disclosed.

Legal Proceedings

At the beginning of December, Airbus announced that it was seeking independent legal assessment to resolve the dispute, citing that the two parties were unable to settle during discussions. The company also noted that the surface paint-related findings were assessed and confirmed by the European Aviation Safety Agency (EASA), with no airworthiness impacts on the A350s.

“We have worked actively with Qatar Airways in order to minimize the impact of this in-service surface degradation on their aircraft,” Philippe Mhun, Airbus Executive Vice President Programmes & Services, told reporters at the time.

Mhun added that solutions were offered to Qatar, including patches, repairs for the anti-lightning material or repainting of the aircraft, but the airline declined the offer. Reuters reports that industry sources said Qatar Airways is reluctant to implement short-term fixes without a full breakdown of the root cause.

On Dec. 20, 2021, Qatar announced that it had issued legal proceedings against Airbus in the Technology and Construction division of the High Court in London. It added that 21 of its A350 aircraft were grounded due to paint flaws.

Then, in January, a 30-page court document showed that the airline was seeking compensation from Airbus for the surface flaws on its A350 jetliners. For the partial grounding, Qatar is seeking $618 million in contractual compensation, with an additional $4 million for each day the jets remain out of service.

Of that amount, $76 million is for the 2022 FIFA World Cup-painted A350. The jet has been in France for a year, needing 980 repair patches on the exposed lightning shield, according to industry sources. To prepare for the soccer tournament, Qatar is reportedly bringing A380s out of retirement.

The airline also requested that judges order Airbus to not attempt delivering any more of the aircraft until the design issue has been resolved.

Later that month, Airbus confirmed that it had canceled the $6 billion contract with Qatar for 50 of its new A321 passenger jets. The deal was reportedly worth $6.35 billion when it was finalized in December 2017.

Qatar also announced that it had sought an expedited hearing for the legal proceedings against Airbus in the High Court of England regarding the surface degradation on the Airbus 350 fleets. The airline provided video of the reported defects, welcoming the court to order a hearing in April to come to a resolution in the dispute.

Shortly after the contract was canceled, on Jan. 31, Qatar announced that it had ordered up to 50 large cargo planes and committed to buying up to 50 Boeing 737 Max jets at a deal worth $34 billion. Qatar also asked the court to reinstate the order for the 50 Airbus passenger jets in a court filing. If not granted, the airline requested the judge to award them $600 million in damages.

Not long after, on Feb. 28, Airbus also filed court documentation requesting it be awarded $220 million in damages over the two undelivered jets. The company noted it wants to recover millions of dollars of credits awarded to the airline.

The same day, Qatar released a statement saying the High Court issued an injunction against Airbus, ordering they must no do anything between the date of the order and the hearing in April to adversely affect its ability to comply with any court order that Qatar might obtain from the cancellation of the contract. The airline added “neither Qatar Airways nor its legal team are aware of any efforts by Airbus to try to resolve the situation in an amicable way; in fact, the actual situation is to the contrary.”

In March, the owner of British Airways, International Airlines Group, reported that it was experiencing surface degradation on its Airbus A350 jets, similar to paint defects Qatar Airways found on its aircraft. IAG Chief Executive Luis Gallego said that the issues do not impact the airworthiness of the aircraft.

“We have informed in our case EASA, and EASA told us that the level of degradation that we are experiencing doesn't impact the airworthiness of the aircraft,” he said. “We have a young fleet of 350s and usually you can see the defect when you have the opportunity to stop the aircraft for a check.”

And in April, in court documents obtained by Bloomberg, Qatar stated that paint layers on large parts of affected A350s have been so badly damaged that wind and pollutants, such as salt or hydraulic fluids, can penetrate through the skin and damage the lightning protection of the aircraft. An area of concern includes the wings, where the fuel tanks are located.

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According to the court document, seen damage includes spider cracks, severe cracking on and around window frames, exposure of the lightning protection and of the underlying composite surface and damage to the lighting protection layer. Pictures were provided in the statement as proof of the damage.

In the filing, the air carrier cited a European Union Aviation Safety Agency safety assessment from April last year, which notes that the lightning threat would pose a danger if it were co-incident with fuel tanks. Since then, Qatar has reported that damage can be seen on the wings, indicating co-incident with the fuel tanks.

However, while the local aviation safety regulator backs Qatar, the EASA says the plane is airworthy. Airbus also “rejects Qatar Airways’ ongoing and public mischaracterization of the nature of these issues and of their impact on the A350 aircraft’s continuous airworthiness,” a spokesman told reporters, adding they continue to work with EASA.

In May, a British judge denied Qatar’s request to reinstate the jet contract canceled at the beginning of the year. According to reports, the judge rejected Qatar’s claim that it could not find alternatives for the jets, including leasing or deploying 737 MAX jets that it has ordered from Boeing. The ruling means that Airbus can now market its A321neos to other airlines or remove them from industrial plans to ease factory congestion.

The following month, reports indicated that Airbus was in talks with Qatar to resolve the dispute, just days after the European Union Aviation Safety Agency defended its stance that the jets pose no safety issue.

“We have inspected the airplane. We saw no damage which could imply safety issues,” the Agency's Executive Director Patrick Ky told reporters on the sidelines of an air safety conference in Washington.

However, Reuters journalists were recently granted access to two of the grounded airliners in the Qatari capital, Doha, during the International Air Transport Association’s annual meeting. Sporadic surface flaws on the A350s viewed by the team included an elongated stretch of blistered and cracked or missing paint along the roof or crown of the jets.

Reporters also noted that protective lightning mesh that sits between the hull and the paint was exposed and corroded, with other parts missing, leaving areas of the composite hull exposed. Paint on the tail was cracking and missing paint, as well as small areas of what appeared to be fraying or delaminated carbon threads on the hull and so-called “rivet rash” or lost paint from fastener heads on the main wing areas.

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While Airbus acknowledges the flaws on the A350 jets, it reports they do not pose a safety risk because of the number of backup systems and tolerance built into the design. It says the cracks are caused by the way paint, anti-lightning material called ECF and the composite structure interact. Since the tail does not all contain the ECF foil, it’s unsure if the damage there comes from the same problem.