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Online Extra: Aviation Criminalization Update

Turning Accidents Into Crime Scenes Hampers Aviation Safety Efforts

Last December, more than a decade after an Air France Concorde flight crashed shortly after takeoff from Charles de Gaulle Airport in Paris, French judicial authorities convicted Continental Airlines and one of its mechanics with involuntary manslaughter and levied the airline with fines and damages of about $1.6 million.

The French courts held that on takeoff, the Concorde ran over a piece of metal that had fallen off a Continental DC-10 that had departed immediately prior to the Concorde, setting in motion a chain of events that resulted in a ruptured fuel tank, fire and crash that killed all 109 persons on the Concorde and four on the ground.

Unfortunately, the Concorde crash and the resulting years of litigation – Continental will be appealing the recent French ruling, which may not even go to trial until 2012 – is just the most recent example of authorities treating aviation accidents as crimes, something that is occurring in a number of countries, often because of political pressure to react after an accident, as well as the laws of the particular nations involved.

Criminalization Goes Against Safety

"Criminalization is a concern for all of us in aviation, and it continues to proliferate in many parts of the world," said Steve Brown, NBAA senior vice president for operations & administration. Brown noted that the trend to make somebody criminally responsible for an aviation accident is counterproductive to enhancing aviation safety, as it has chilling effect on the reporting or sharing of safety-related information and interferes with safety investigations. "Anybody that flies internationally should be concerned about this anti-safety initiative," said Brown.

NBAA is a proponent of a recent proposal by the International Civil Aviation Organization (ICAO) to establish a multidisciplinary task force of technical and legal experts who will advise governments on the protection of safety data, including certain accident and incident records, with the intent of "striking a balance between the need for the protection of safety information and the need for the proper administration of justice." Following several aviation accidents in recent years – including a 2009 Cessna Citation accident in Rome and a 2008 XL Air Airbus A320 crash off the coast of France – law enforcement officials in Italy and France hampered the accident investigation by confiscating vital evidence, an example of some of the obstacles faced by many aviation safety investigators.

"The fact that ICAO is willing to convene a task force to address the protection of safety data and safety information is raising awareness that this is problem," said William Voss, president and CEO of Flight Safety Foundation, who added that some countries are being bolder than ever in interfering directly with aviation data and information – in some cases, without even having had an aircraft accident. Voss welcomed the intent of the proposed ICAO task force "so that we do not have wholesale loss of safety information that can be used to prevent the next accident."

Brazil Verdict: Cause for Dismay

Business aviation pilots and flight departments were shocked in 2006 by the reaction of Brazilian authorities to the midair collision between an Embraer Legacy 600 being ferried to the U.S. and a Gol Airlines Boeing 737 over the Amazon rainforest. The 737 crashed, killing all 154 people aboard, but the two American Legacy pilots were able to safely land their damaged aircraft at a remote Brazilian air base.

Even though findings indicated that the two airplanes had been assigned the same altitude and that ATC had not received transponder signals from the Legacy for nearly an hour before the crash and yet failed to take action, Brazilian authorities detained the two Legacy pilots and confiscated their passports. Not until 71 days after the accident were the two pilots – who were employed by ExcelAire, Inc., a charter/management company based at MacArthur Airport in Long Island, NY – able to obtain their freedom and fly back to the United States.

Subsequently, however, the two Legacy pilots were indicted for manslaughter (as were the Brazilian air traffic controllers), and in May 2011, the pilots were found guilty by a Brazilian federal judge on one criminal charge related to the accident. They were sentenced to four years and four months of community service. The pilots were acquitted on five other counts, but plan to appeal the conviction.

In response to the verdict, ExcelAire maintained that the accident was caused by "a catastrophic succession of errors by utterly incompetent air traffic controllers that put two competent flight crews on a collision course."

NBAA's Brown also expressed dismay at the verdict and the fact that the case was treated as a crime: "The investigation showed that the errors that were made occurred within the air traffic control system, and that the people involved had in no way intended to do anything wrong that would have caused the accident."

Joel Weiss, attorney for the two ExcelAire pilots, summed up the concerns of the aviation community: "The criminalization of air accidents based on human error is inappropriate and non-productive, and hinders the cause of air safety."

For More Information

Direct any questions or comments about this article to NBAA at feedback@nbaa.org.

New European Safety Initiative

Proponents of aviation safety are welcoming a proposed European Parliament regulation on investigation and prevention of civil aviation accidents that "is a step in the right direction," according to aviation safety advocate Benno Baksteen, chairman of the Dutch Expert Group Aviation Safety (DEGAS), and William Voss of Flight Safety Foundation.

Although each country would maintain its own accident investigation offices, the new regulation would establish a European network of civil aviation safety investigation authorities to promote cooperation between the various investigation offices and ensure better follow-up to safety recommendations – while maintaining the independence of each investigative bureau.

The European Aviation Safety Agency could participate as a technical advisor to the network, which also hopes to develop a common investigative methodology and share resources and lend assistance during an investigation.

According to Baksteen, the driving factor behind the regulation was not necessarily criminalization per se, but the inefficient patchwork efforts of the various European accident investigation authorities. However, the regulation should have a positive effect on how accident investigations are conducted, as it also addresses the sensitive political relationship between air safety and judicial/prosecutorial investigators.

Baksteen said that tackling criminalization in Europe will continue to be challenging, however, because of different approaches to aviation safety/accident investigation in each country and how they differentiate between criminal intent, gross negligence and human error, especially in the highly charged aftermath of an accident.

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