Lava,
I'm not sure if you're asking a question or making a statement, but yes, you are mistaken.
The crew never talked to ATC. They merely took off after being unable to obtain a clearance, and flew into a mountain. The controller never lied to anybody.
I am mistaken in reading on the NTSB report that once a pilot reports to ATC that they want IFR Clearance and the controller gives them instructions to remain VFR until X that they are then under ATC control? To further this theory, the controller also gave them heading instructions that turned them to 020, or into the mountains. This was after he had them ident and knew their altitude. He also said he was aware of the terain around the departing airport. In addition to all of that, he also lied to NTSB investigators and told them he was on the phone when the altitude alarms went off, when in fact he did not initiate the phonecall until after the plane had already left his screen.
The report states that "the crew tired to contact Brown Field Municipal Clearance...but received no response. The captain suggested the copilot contact Tijuana, but the copilot refused. The copilot tried FSS via RCO, with no contact. The copilot then tried Tijuana tower, without success. The report clearly states that "after a fourth failed attempt to obtain the IFR clearance using the radio, the captain said, "All right, let's just do it VFR."
See a trend there? The crew never talked to ATC...and elected to depart VFR.
The crew had a cellphone and satphone on board, and didn't use them. When I've been into brown at night, I've picked up my clearance by cell. I've done it many times. The crew elected instead to talk to no one, depart VFR, and pick up their clearance in flight. They never talked to anyone, and ATC never talked to them.
The crew failed to fly the obstacle departure which would have put them going the opposite direction from the mountains. Had they flown the published proceedure, they would have been headed out over the ocean
You are mistaken that once a pilot talks to ATC and receives a "remain VFR" statement, that the pilot is "under ATC control." ATC provided a Class B VFR clearance, and advised the pilot to expect an IFR clearance once he reached 5,000'. The crew assumed their own terrain separation by electing to depart VFR and to not make contact until airborne.
The controllers use of the 020 heading was fullfilling his own obligations as ATC...it kept the flight out of Mexican airspace. The controller did not assume, and had no way of knowing, w(h)eather the learjet crew could see the terrain, was aware of the terrain, or what they intended to do to stay clear of terrain. ATC's function is not to separate VFR traffic from terrain. ATC exists to separate IFR traffic from IFR traffic, and in some airspace, IFR traffic from VFR traffic. An aircraft operating under VFR takes most responsibility squarely upon it's own shoulders. The crew was where they shouldn't be, when they shouldn't be, and didn't seek help until it was too late. Additionally, the captain briefed the first officer that they would level at 2,100' and accelerate to 250 knots while "doing their best" to contact ATC. Separation from terrain shrinks very quickly at 250 knots, especially when flying toward mountains that one can't see at night. This was a pilot decision, not an ATC decision.
When the radar MSAW warning appeared, the crew was already five miles east of the field, at 2,400'. The minimum vectoring altitude for that area is 5,000, which is why the controller advised he'd provide a clearance once they reached 5,000. Again, this is correct. The flight travelled one mile before disappearing. The aircraft was almost upon the terrain when the warning appeared, and quickly the altitude display disappeared (the warning disappeared even faster, lasting only four seconds). What the report doesn't tell you is that it's not uncommon for ATC to not see the altitude report correctly on a Learjet, as the climb rate can exceed the computer's ability to keep up.
Had the Lear bumped up to 5,000 when they were told at a more lively climb rate, they might well have survived. Had they followed the obstacle departure, they might well have survived. Had they obtained a clearance on the ground and operated that way, they might well have survived. Had they not been doing 250 knots when they first produced the MSAW warning, they might have had a chance if the controller would have been able to give them vectors around terrain..which he could not as they were VFR and below MVA. Additionally, their display continued for 15 (the warning lasted four seconds) seconds, whereas a standard rate turn from an east heading to 020 alone would have taken longer.
Had the crew received a safety alert, chances are they couldn't have done anything about it, but that doesn't negate or change the fact that the safety of the flight, to include terrain avoidance, was not the controller's responsibility, but the PIC's responsibility.
The crew screwed up, pure and simple. It cost them their lives. Attempting to throw it back on the controller's shoulders is an idiotic reaction. Always gotta throw the blame on someone else. Take your responsibility seriously...just like your life depends upon it. It does, you know. These folks found out, but doing so cost them their life. What can we learn from this? Take your responsibility as PIC seriously, and don't worry for a minute about who else might share in that responsibility, because it's ALL YOURS!!!!!
AIM 5-5-6 (Pilot-Controller Responsibilities):
5-5-6. Radar Vectors
a. Pilot.
1. Promptly complies with headings and altitudes assigned to you by the controller.
2. Questions any assigned heading or altitude believed to be incorrect.
3. If operating VFR and compliance with any radar vector or altitude would cause a violation of any CFR, advises ATC and obtains a revised clearance or instructions.
b. Controller.
1. Vectors aircraft in Class A, Class B, Class C, Class D, and Class E airspace:
(a) For separation.
(b) For noise abatement.
(c) To obtain an operational advantage for the pilot or controller.
2. Vectors aircraft in Class A, Class B, Class C, Class D, Class E, and Class G airspace when requested by the pilot.
3. Vectors IFR aircraft at or above minimum vectoring altitudes.
4. May vector VFR aircraft, not at an ATC assigned altitude, at any altitude. In these cases, terrain separation is the pilot's responsibility.
AIM 4-1-16 (Services available to pilots, radar assistance to VFR aircraft):
4-1-16. Radar Assistance to VFR Aircraft
b. Pilots should clearly understand that authorization to proceed in accordance with such radar navigational assistance does not constitute authorization for the pilot to violate CFRs. In effect, assistance provided is on the basis that navigational guidance information issued is advisory in nature and the job of flying the aircraft safely, remains with the pilot.
