View Full Version : Prosecuting professional mistakes
As professional pilots we continue to see a growing trend toward demonizing people who make mistakes. It's a topic we might want to consider as the likelihood of receiving a prison sentence for making a professional mistake increases.
The paper below by Sidney W. A. Dekker delves into this growing area of criminology.
Prosecuting professional mistake:
Secondary victimization and a research agenda for criminology
- by Sidney W. A. Dekker (http://www.sascv.org/ijcjs/dekker.html)
Looking forward to hearing the thoughts of fellow Professional Pilots on the topic.
17th May 2012, 16:56
It's a fine line.
I hate the thought of it becoming the 'popular' thing to do, but I also recall the days of senior surgeons being treated like gods. No one could make comment.
Threat of prosecution - with possible imprisonment - is something crews do not need on a dark and stormy night. They've got enough pressure as it is. And remember the difference between them and say, a surgeon, who isn't going to be maimed or killed if he gets it wrong.
People in positions of power, need to be more accountable themselves. Supposing we could pillorize a judge for getting things wrong. I have the distinct feeling the structure of the law would change overnight.
17th May 2012, 17:21
Threat of prosecution - with possible imprisonment - is something crews do not need on a dark and stormy night.
Unfortunately this threat is very real in some countries.
17th May 2012, 17:36
When I worked as a Signaller in the railway industry in the UK it was impressed upon us during training that we could be criminally liable if anything went wrong - it certainly got our attention!
That said I think it would be a retrograde step for pilots, in general, to be held criminally liable. I guess negligence has to be proved but then thats before we even mention the Board of a company being liable too.
17th May 2012, 17:50
If you really want to see how a certain profession handles it's "mistakes " take a look at A DIARY OF INJUSTICE Peter Cherbis ********.
Mac the Knife
17th May 2012, 17:50
To quote from Dekker's paper, "Another effect, with possible parallels in other industries, is the practicing of "defensive medicine", which increases the use of unnecessary tests and procedures and fuels the rise in healthcare costs (Sharpe, 2004)."
At a recent (mandated) ethics lecture I ventured to the Professor that we were now moving away from ethics-driven ethics and towards litigation-driven ethics - that we were making ethical decisions less based on their ethical rightness than on the likelihood of legal action.
He was frightfully upset...
17th May 2012, 17:50
A ‘Deep Thought’ view of this is ‘42’, “the Ultimate Question of Life, The Universe, and Everything.
But more seriously, Dekker appears to cover the issues very well while calling for more research, yet fails to provide guidance as how individual professionals or the industry might manage such situations meantime.
This ‘failure’ to provide a solution, an academic failing - not attacking academics in general or any other professional, often results in the problem being passed on. ‘Academics’ are called to provide specialist ‘evidence’ in court where a social judgement is to be made, i.e. the professional academic/witness can-sit-on-the-fence by providing a balanced view of the issues, or look one way or another without commitment. ‘Professional’ witnesses might be, or could be labelled as biased, thus we might not be our best form of defence.
Yet the professional operator still has to commit to everyday activity with all of the hazards and pitfalls of ‘error’ (I prefer performance variability). Dekker does not stray into this area which is surprising given that he is an academic-pilot and thus could have the opportunity to look both ways.
As professionals we have to work with the knowledge of these shortfalls – its life, there are risks. This is not an attitude of resignation, but a form of risk management; unfortunately the risk is very difficult to define.
IMHO the risk of criminalisation should not be feared; such thoughts can be detrimental in operations - “we have nothing to fear but fear itself”. Thus risk management in this instance, also involves overcoming (quantifying) our fear; education, knowledge, and experience (expertise) can help with this.
Early in my career I was encouraged to continuously seek improvement – professionalism.
Many years later, by means of explanation, I was advised that the best action in any situation was to ‘do what is right’ – as judged to the best of your professional ability. ‘Doing what is right’ can provide the basis for legal defense.
However, as Dekker discusses, the legal outcome may depend on who makes the judgement of ‘what is right’ (often ‘what was right’ due to hindsight), who draws the line, or even if a line is required at all.
Our industry should not be concerned with the negative. Fight a good corner, be mindful of the issues outlined in the paper, but don’t expect definitive results. This appears to be a problem without solution.
Instead put more effort into the positive aspects of social education, presenting the industry in an appropriate light, working with government, regulators, and media to sway public opinion.
This might best be satisfied by every individual and organisation striving for professional excellence, and helping others to do similar:- ‘do what is right’, as judged by the best of our professional ability.
17th May 2012, 18:13
In practical terms, I used to depend upon BALPA to defend me until a friend who had tried to go down that route, was told by the BALPA lawyers that they did not want to know.
Ever since then, I have had totally seperate Legal Insurance such that they have to represent me, even if I end up sliding off the end of a rubber-covered wet runway at Athens.
It is not that expensive.
Although, having retired, I now only fly little puddlejumpers, I still keep my insurance going. You would be surprised to find out how much damage you could cause if you clipped the Spinnaker Tower and then hit HMS "Victory".
17th May 2012, 18:24
Being a neurosurgeon, I can say, Medicine has learned a lot from aviation professionals in terms of safety during the last decade. Why not vice versa?
Would an "informed consent" for all pax and all other involved not make a difference?
Signing an "informed consent" would mean to subject oneself to the pilot´s performance and unintentional mistakes (which they would always be, because no pilot would endanger his own life) without being able to claim/prosecute him/her?
17th May 2012, 19:03
(Disclaimer: I am no professional pilot, just a boffin working on the topic of safety culture as of late who has consequently been delving into pertinent literature for several months now.)
Mostly agree with Dekker (as usually), in addition to his analysis I'd add/emphasize two points regarding the topic of criminalization of professional mistakes. If any safety is to be gained from prosecuting people for bad calls or mishandling a situation (apart from the discussion about the effectiveness of criminal prosecution for preventing misconduct of any kind), IMHO
a) the "bad apple" view (i.e., that it is single incompetent sharp end operators who cause accidents by messing up a safe system) must be abandoned, implying that the people at the blunt end who create the working environment must be held accountable for their decisions as well. In this case, this would probably not so much be the judges as management and the regulative powers-that-be. (Acknowledging that for them, too, putting protection over production is often an uphill battle with cost-cutting, productivity, and removing slack being the neoliberal idols. You don't get rewarded for creating a climate of safety and resilience, especially since this is hard to measure and catastrophic failures are rare events anyway. All incentives much more suggest to go with the flow, cut costs and get staff to do more with less resources);
b) prosecution must not be prompted by outcome (accident) but by operators' irresponsible actions regardless of the outcome. Had the pilots of Air Florida 90 survived, they would almost certainly have been prosecuted. By contrast, I doubt that criminal charges will ever be brought up against the pilot for the stunt displayed in http://www.pprune.org/rumours-news/482248-take-off-snow-wing.html , and that's not at all a matter of US vs. USSR. There is a sordid double standard concerning sanctions for violating safety standards, depending on whether this results in an accident or not, undoing any "educational" message that could be sent by prosecutions.
17th May 2012, 19:35
there are two sides to the ultimate responsibility, we as captains/pilots/aircraft commanders, are faced wtih....
we don't have the authority to tell boeing how to make planes, or our bosses on the board of directors of the airlines which planes to buy, or how to run the airline
so I know , after reading my contract and flight ops manual, that I am covered by the company...something to protect my six oclock.
of course if I was in a foreign country I might get arrested...another reason to fly in the good old USA
17th May 2012, 19:49
Would an "informed consent" for all pax and all other involved not make a difference?
I always assumed informed-consent forms were legally meaningless, whether signed at a ski slope, a sport-parachuting site, a racetrack or anywhere else. At least in the U. S.
17th May 2012, 21:18
Many things in aviation are inherited from marine. Except one thing - flight crew members are very rarely prosecuted, while it's quite a norm for ship Captains and top officers. Why the buzz? Those jobs are coming together with responsibility.
I was chatting to a super-tanker Captain the other day and he almost fall from a chair when heard that Captain who wrote-off an aircraft on a landing, possibly with injuries to pax, is standing a fair chance not to end up in jail, not to loose his license, not to put an end to his carrier and in many cases not even to be fired!
17th May 2012, 21:43
Informed consent for flights? It could be inferred that boarding the aircraft is a form of consent.
Surgery is something done to an individual who must understand the risks and the consequences even if the outcomes are highly risky. A person's obesity/diabetes/COPD and myriad other conditions may well amplify the risk, but it is a personal decision. As a group, passengers board an aircraft, its a generalisation. Even if a passenger would be at higher risk of injury during flight (I'm thinking of barotrauma to the ears in one case I can recall) does that mean that the risk for every passenger is going to be the same? Clearly not. For that matter, would it be the captain's concern that some people would be more liable to injury than others? Possibly, if it were a clearly debilitated person, but for the most part, its the passenger's responsibility to ensure that they are fit enough to undergo the flight, unless there are substantial reasons why their ability would eb compromised such as repatriation flights, for which the risk assessments are well documented.
Also, with a person with total mental capacity, consent can be revoked at any point. If I were on the flight from SVO with snow on the wing (This site passim) I would revoke my consent to be flown. Probably very loudly.
17th May 2012, 21:50
Informed consent forms are far from being meaningless. Certainly in the UK consent is a central tenet of medical law.
What you may be thinking of is release from liability forms, which generally are meaningless.
17th May 2012, 22:03
Interesting that other professions do understand that they can be prosecuted for deviating from their employer's procedures and/or breeching the various laws.
Something that was made very clear nearly 40 years ago when I was just starting out in the profession I am in.
It rarely happens but it is not unknown, so I would, perhaps, ask the question why should aviation be any different
18th May 2012, 00:39
b) prosecution must not be prompted by outcome (accident) but by operators' irresponsible actions regardless of the outcome.
So pilots who fly from A to B without incident could be prosecuted even though there was no "crime"? :eek:
Sir Niall Dementia
18th May 2012, 06:29
How about this one: I asked at a recent management meeting what would happen to one of our pilots under the law that allows USA to extradite citizens from their own country to stand trial in the US. The question was based around the idea that if we had an accident and killed or maimed a US citizen and the crew were found in no way culpable for the crash (by the local AAIB) a US prosecutor could claim that under US law the crash was the fault of the pilots (lets be brutaly frank about this, in the reality of most crashes at some point, under extreme pressure a pilot is likely to make an error, I know I did when my crash was going on, the AAIB just said they weren't surprised with so many systems failures happening) then could our pilots be extradited to the US to face criminal charges?
Its opened a smallish can of worms, an initial enquiry to a lawyer has resulted in a conditional yes, we are awaiting a more definitive response. Its a tad alarming as we fly a lot of US citizens in Europe without the flight going anywhere near the US, but the long arm of the US system (a law which was meant to be used in the War on Terror) may reach out and touch us here. I know of 2 cases where following criminal investigation in the UK, with the people concerned found innocent by local authorities they have been put on a plane and sent to face charges in the US for crimes "commited" in another sovereign state.
18th May 2012, 06:40
Informed consent has virtually no bearing on the criminal law. It is the State that prosecutes, not the individual victim. It might amount to a defence in a civil claim but would not provide a defence to a criminal prosecution for recklessness or negligence.
Consider the current debate over assisted suicide for the terminally ill. In the past "mercy killings" have resulted in criminal charges and in some cases convictions. Although there are now more liberal guidelines issued to prosecutors, theoretically assisting a suicide could still result in criminal charges including murder. The fact that the "victim" has asked, nay begged, for help is irrelevant.
Criminal prosecutions in the UK used to be fairly dispassionate. The state prosecuted and took the decision as to what was or was not in the public interest. A person was prosecuted and sentenced on the basis of their actions, not necessarily for the consequences. As a result of politicians pandering to newspapers and headline grabbing calls for vengeance we see laws and sentencing policy gradually changing.
A prime example of this is the attitude towards causing death by careless driving. Causing death by dangerous or reckless driving (ie deliberately bad driving) has been punishable by imprisonment for many years and the maximum sentence has been increased considerably in the last few years. Reckless driving involves deliberately risking the safety of others and reckless driving per se carries the threat of a prison sentence. Sentencing here is influenced by a combination of the driver's actions and the consequences.
Careless driving on the other hand involves no more than a momentary mistake or lack of judgement. This was previously reflected by the fact that it was punishable by a fine. The same mistake may result in no more than a scratch to a bumper or it might result in death. Now, however, and because of the introduction of the offence of causing death by careless driving, if the scratch ensues then a fine is still the maximum, yet if death results the driver faces up to five years in prison - for a mistake anyone of us might make and behind which there was no intent. Sentencing has been entirely influenced by the consequences and not by the driver's actions.
Deliberate flouting of rules or regulations or deliberate risk taking should be criminalised and punished. Basic human errors should not be or at least not to the same extent.
18th May 2012, 07:01
Assuming that the law of the US state involved allowed for the prosecution of a foreign individual for an offence committed against a US citizen anywhere in the world and there was an appropriate offence to charge then the answer would appear to be yes.
It would entirely depend upon the law in the US. The scenario you refer to would not apply to an offence committed against a UK citizen abroad by a foreign national. In the UK, there is a well established presumption in construing a statute creating an offence that, in the absence of clear words to the contrary, it is not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English Court. This view, expressed in the case of Air India v Wiggins, may been modified slightly as a result of the comments of Lord Diplock in a subsequent case where he made reference to the rules of international comity "which do not call for more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another state where that conduct has no harmful consequences within the territory of the state that imposes the punishment". His Lordship considered that in the absence of an express term a court might need to look at the intention of Parliament but in so doing would apply the above.
So, if there is a US law that allows prosecution in the US for US offences committed against a US citizen abroad the answer to extradition is yes. In the absence of such a provision the answer is likely to be no.
It is imperative that Accident Investigation is carried out before and autonomously from any Criminal Investigation.
Anybody giving evidence to an accident enquiry must be sure that none of their evidence will be passed on to criminal investigators.
18th May 2012, 07:52
Wa as the aviation industry have learned a lot from mistakes of the past. So much so that we do have a great safety record as a whole.
If we did not have an open reporting culture many of the situations that did not result in damage or loss of life would not have come to light. Cockpit video cameras or not.
Not to mention many of the accidents or incidents would not get the complete story if individuals involved were not completely honest for fear of lawsuits.
The occasional bad apple does not warrant clamping down through criminal charges and thereby losing the valuable information gained through an open and honest safety reporting culture.
18th May 2012, 10:22
So pilots who fly from A to B without incident could be prosecuted even though there was no "crime"? :eek:If the "without incident" is sheer luck as they have grossly violated safety regulations during their A to B flight, IMHO they should. At the same time, I think that criminal prosecution of pilots (or ATC, doctors, or any other professionals in high-hazard fields) for an inadvertent error which any competent crew could have made, even if it results in an accident, completely misses the boat (cf. the reckless driving vs. careless driving example by Legalapproach).
18th May 2012, 11:22
Well the reality is that accident investigations these days are finding all sorts of hiring short cuts, transgressions, pencil whipped hours, maintenance oversights...on and on.
Quite frankly...it just isn't going to fly any more to lie about your hours, jump into an overweight aircraft drunk, calculate Flex into the weeds, not know how to recover from a stall, on and on and on....if you want to sit there and be the big shot, and be responsible for 200 people in back, then your responsible for them...so act the part or pay the consequences.
18th May 2012, 11:37
Extract from Pakistan A320 accident investigation report.
It's the "May Allah bless their souls" bit that would worry me if that particular country legal authorities went the crew for criminal negligence
CHAPTER – 1 : SUMMARY
ABQ-202, mishap aircraft A-321, AP-BJB, on 28 July 2010, operated by Airblue
was scheduled to fly a domestic flight sector Karachi - Islamabad. The aircraft had 152
persons on board, including six crew members. The Captain of aircraft was Captain Pervez
Iqbal Chaudhary. Mishap aircraft took-off from Karachi at 0241 UTC (0741 PST) for
Islamabad. At time 0441:08, while executing a circling approach for RWY-12 at Islamabad,
it flew into Margalla Hills, and crashed at a distance of 9.6 NM, on a radial 334 from
Islamabad VOR. The aircraft was completely destroyed and all souls on board the aircraft,
sustained fatal injuries. May Allah bless their souls.
Note: All time references in the report are in UTC.
18th May 2012, 12:12
Here's a minor incident. Wing hits a light pole. Damages around $500,000
Inadvertent error by competent crew or reckless driving?
18th May 2012, 12:54
Without knowing how it came that the wing hit the pole, how could anyone judge? Besides, I fail to see even a potential threat to the life and/or well-being of anyone (unless someone was standing underneath the pole), so why should prosecution be an issue here?
18th May 2012, 13:28
I don't want to stretch the dangerous driving analogy but the danger in dangerous driving relates to danger either of injury to any person or serious damage to property.
18th May 2012, 15:05
Without knowing how it came that the wing hit the pole, how could anyone judge?
The captain was taxing. The picture was taken by a passenger just after the wing hit the pole. The conditions at the time can be seen in the picture. There's really no more to it.
You didn't have any trouble passing judgment on the crew who departed with snow blowing off the wings. They didn't do any damage, yet you would prosecute them based on the video. You didn't ask for more information there. Surely you can use the same thought process and tell us if this was an inadvertent error by competent crew or reckless driving?
Besides, I fail to see even a potential threat to the life and/or well-being of anyone (unless someone was standing underneath the pole), so why should prosecution be an issue here?
They ran into a stationary object and you really don't see a potential threat?
The fuel tank was NOT ruptured and it did NOT catch fire and burn,, but it could have. Do you see a potential threat now? How about a gross safety violation, can you see one?
This crew didn't intend to hit the pole anymore than the crew who departed with snow on the wings intended to crash. Nevertheless they did endanger all on board and do half a million dollars of damage. Would you prosecute them for it?
18th May 2012, 15:51
1) If you think I am the first let alone only one claiming that the takeoff with the snow on the wing appears unsafe, please read the thread.
2) What is your conclusion that I would (want to) prosecute anyone based on? My point for citing the successful contaminated-wing T/O was the distinction between judgment by outcome and judgment by actions, not singling out anyone.
Apart from that and more back to the topic, IMHO really inadvertently taking off with that kind of wing contamination is about as inadvertent as "inadvertently" driving while drunk, as opposed to inadvertently hitting an object, hence my different "judgment".
And to give a personal answer to the personal question: irrelevant as it is (because I am not a prosecutor but just an armchairflyer), I would neither prosecute the Southwest crew nor the Aeroflot crew (in the latter case: at least not outright).
Surprised that I can't see a comment that holding incompetent crews responsible is rarely possible.
They and their trusting SLF's are in a smoking hole.
Hate to be so brutal, but it's the way I see it. out.
18th May 2012, 17:55
I remember an incident like that happened in DNAA sometime last year, foreign airline and crew weren't familiar with the airport. The pole wasn't that high though. Airport authorities fixed d aircraft cos it was taxiing on a yellow line when it hit the pole.
18th May 2012, 18:55
b) prosecution must not be prompted by outcome (accident) but by operators' irresponsible actions regardless of the outcome. Had the pilots of Air Florida 90 survived, they would almost certainly have been prosecuted.
OK ... I had thought that we had “put to bed,” or at least “thoroughly thrashed” this particular set of misinterpreted, incomplete, and/or misleading circumstances, but there appears to be those who continue to believe they have the definitive and final understanding of what happened in this particular accident. Periodically, I see this kind of statement, where the commenter is fully of the opinion that they are in command of all the facts worth knowing but, are, in reality, reaching a conclusion from a “but-that-is-what-the-report-says” point of view without having read the report in its entirety, or if read, not completely understanding what was contained in the entirety of that report ... and may well not be aware of other information that was strangely omitted from that report.
There is a thread on this forum, titled “Take off with snow on wing,” that is still being posted to periodically. Before I jump back into the same kind of “information supply” I attempted during that several weeks-long exchange, I’ll refer any reader of this particular post to that thread, starting with my initial post (#262) in reference to this accident. Here is the way I first introduced the fact that there are other issues with respect to this accident that were either not addressed at all – even though information was gathered – or that issues were addressed and later contradicted within the same report ... as follows ...
”...because this is a 30-year old accident, there may be little interest in learning more about it - so I'll refrain until I know that there might be some interest. If you are interested in knowing what this additional information would be, I’d be glad to provide you with some facts that, while they were available at the time, were not given the attention they deserved. As a result, there was a large amount of misinformation being disseminated and the folks who took the vast majority of the “blame” were no longer around to offer their defense.”
I’ll make the same offer here ... I’ll refrain from inundating this thread with the information that was rather heavily debated in that other thread until or unless there is some indication that the posters/readers here are interested in those same facts and opinions. Suffice it to say, with all due respect to Mr. Armchairflyer, I think that the conclusion that the Palm 90 flight crew “...would almost certainly have been prosecuted...” is a conclusion that very likely is not as accurate as may be believed. In fact, a thorough reading of that thread - including all of the objections, criticisms, insults, and comments made as well as the information I provided, may allow any interested reader sufficient information to know why I have said what I've said here ... and that alone may obviate the need to go down those same paths yet again.
18th May 2012, 19:15
Just to confirm, I never intended to say that the Palm 90 crew should have been prosecuted. The point I wanted to make was merely that prosecution should not be exclusively or even primarily based on outcome. Ill-chosen example and/or badly expressed, apparently. My apologies.
BTW, @<hidden>, I am interested in the information you mentioned, either via PM or in the thread.
18th May 2012, 19:32
Prosecution of the "guilty" parties means Joe Public ends up with the justice they deserve. If you ask the average Sun or Daily Mail reader they would probably have no qualms whatsoever about giving a life sentence to a nurse, doctor or pilot who made a mistake. So if it means they have to pay a fortune for expensive, arse covering, over-insured products that are not worth a light, then so be it. Stuff the lot of them!
(Yep, I wouldn't pee on them if they were on fire. I'd probably be infringing the poor darlings "human rights".)
18th May 2012, 22:37
2) What is your conclusion that I would (want to) prosecute anyone based on?
...... undoing any "educational" message that could be sent by prosecutions.
and now this
The point I wanted to make was merely that prosecution should not be exclusively or even primarily based on outcome.
19th May 2012, 08:43
OK, I'll rephrase: What is your conclusion that I would (want to) prosecute any of the mentioned crews based on?
What if a commercial pilot carrying passengers busted minimums in IFR conditions resulting in a situation as shown here Mountain Scrapes Beechcraft Bonanza CFIT Controlled Flight Into Terrain - YouTube (from 1:20 on). No bodily harm done to anyone. Just laugh it off, too?
21st May 2012, 06:34
Europes lawmakers have latched onto the phrase of "just culture", which Dekker deals with in his book.
EU aviation accident investigation rules changed last year. They try to split the air safety side of investigation from the Continental habits of kicking criminal prosecutions off at the same time that the AAIB/BEA were starting their job.
The sensible rule of thumb in aviation seems to be that a blame culture is more dangerous than a safety culture. Convicting pilots does not generally deter other pilots.
As for the US, it is simple: If it suits their political purposes, they will try to impose their rules on the rest of us, except when it does not suit them. I don't recall the Embraer Legacy crew (GOL 737 NG mid air collision) being forced by Uncle Sam to go down to Rio for some Court time.
22nd May 2012, 20:06
Dekker continues with another aspect of this problem, see pages 16/17 in Hindsight 15 (www.skybrary.aero/bookshelf/books/1785.pdf) “This is a dangerous issue.”
23rd May 2012, 01:43
Convicting pilots does not generally deter other pilots.Folks,
For the simplest of reasons. Except on the rarest of occasions in the airline arena, the alleged offence of the pilot is a mistake, not a deliberate act, with intent.
Sadly, all too often the most basic precepts of criminal responsibility, that both mens rea and actus rea must be proven for a criminal conviction, are ignored.
Without mens rea, the guilty mind, the proven (to a criminal standard of proof -- beyond a reasonable doubt) intent to commit the act that resulted in the accident or incident, the individual can not, in theory, be held criminally liable. That's in theory.
Anything to do with "aviation safety" is such an emotional issue, fanned by sensationalist media and populist politicians, that the basics get lost in the headlines. Indeed, in many countries the aviation law encourages "prosecution for non-compliance" with extraordinarily detailed and prescriptive rules, despite local NAAs** proclaiming their dedication to "just culture".
It seems to me that this is a greater problem in Roman law countries, compared to common law countries, but the problem is getting worse, not better, with some serious differences in the US, with the Department of Justice taking a line diametrically opposed to the NTSB/FAA approach.
Likewise, the EASA policy approach won't cut much ice with national legal systems.
One step forward, two steps back seems to be the way we are going.
The problem is not confined to aviation, the problem applies generally in trying to get modern approaches to industrial safety management by risk assessment and threat mitigation adopted.
In the application of the theory to practice, the aviation sector is doing well, but that progress is seriously hampered by media encouraged "popular outrage" and demands that "offenders must be punished".
Preventing future accidents is of no interest to the "man in the street" demanding "justice", when what they are really demanding is retribution against somebody whose biggest crime was to be human, equipped with a complete set of human frailties.
** If you read the new draft Australian Part 91, you will see page after page of sections, most of which start of with the words "It is an offense to------" and most concluding with "Strict liability offense" followed by the maximum penalty. Strict liability means that mens rea, intent, does not have to be proven. Incidentally, in the same document there are many cases where the burden of proof is reversed, it is up to the accused to prove their innocence.
1st Jun 2012, 18:56
Pilots who think that a bit of gold braid will exempt them from the legal system of their country are naive idiots who don't deserve a position of responsibility.
If you expect a cabin full of SLF to put their trust in you, you should expect to be held accountable for unprofessional behaiour.
1st Jun 2012, 20:17
for unprofessional behaiour. Mmm! Guess it is that definition that this is about. Punitive measures are no help to flight safety. Thought that was learnt an age ago. Funny how things keep going full circle in the aviation business.
1st Jun 2012, 22:47
Does anybody remember Glen Stewart? Hardly unprofessional behavior, just trying to do his job under a ton of awful circumstances that eventually all lined up to first cost him his captain's seat, then his reputation and ultimately his life. I'd love to see Mr. Shell Management solo a steam-gauge 747 on a Cat II approach, but I then I doubt he could solo a 150 on a clear summer day.
That is a good read. The criminal prosecution in France, re: AF 447 has to do with manslaughter, assuredly similar to gross negligence, or being so careless (duty of care) as to dip into criminal area. We will see who has the guilty mind, and it definitely was not the pilots. Most a/c mishaps in the US end in civil lit. The manufacturer/operator have the deep pockets, and generally, it is difficult/ disappointing to charge the crew.....the DA/Grand Jury roll eyes...
I am sceptical of any criminal action re: aviation. Interested in the process in France....
5th Jun 2012, 15:47
Stepwilk as you probably know the company issued dispensitions which they had no legal right to do for the cat 2 approach and there were typical rumours of illegal despatch from LHR - the old ground tested and found satisfactory scribbled in the tech log re the autopilot.
Rumour also had it that Glen refused to except internal disciplinary action and unfortunately I knew the "character" who authorised the prosecution..
Whilst we are on the subject how is it that Manx make three approaches below minimum into Cork before crashing and they are still flying yet yesterdays Lagos crash has resulted in the AOC being suspended.. Different rules for the Anglo Saxons?
5th Jun 2012, 18:05
I wish Shell Management was my boss.
5th Jun 2012, 18:34
Of course there is something called "implied consent". For an example, if you put out your arm for a blood test, it implies that you know what is going to happen next. Similarly, when you get into an aircraft, the general public understand that there is some risk. So the act of getting inside the aircraft is a type of consent .....
5th Jun 2012, 18:47
Implied consent - freshgasflow
Yes but you expect that the regulatory authorities do not condone dangerous procedures, flagrant flouting of the law, substandard training, does not authorise poorly designed or built equipment and insane FDRs.
When most SLF buy a ticket they expect that the risks will be minimalised to the best the operator can manage.
5th Jun 2012, 23:50
If you exceed your maximum allowed yearly / monthly / weekly flight or duty hours without a lawful reason or ever accept less than the minimum rest required this could be very serious. Under ordinary circumstances you might get away with it due poor company or aviation authority oversight.
Any accident that can be tied to the breach, will be. If you are in Athens, the chance of prison time, already high, would be more likely.
I know how hard it is to be certain of actual flight time permitted on every single day of a flying career. Usually it is a joint responsibility of employer and pilot.
When called out for a flight starting at 9 pm, enough information needs to be immediately at hand to decline, based on full knowledge of your own flight times. With a little help from my computer, I was able to say I had 30 minutes available based on my last 365 days and I could operate the flight if departure was delayed 2.5 hours. At the same time I knew how many flight hours I had available after midnight.
So it is not enough to pass medicals, check & sim rides and remain sober, competent and alert. One little minute can undo all that good work. What could otherwise be an unfortunate incident or accident could wreck your life.
7th Jun 2012, 21:02
Its sad to see incompetence and operating beyond your own capbilities being labelled 'mistakes' to escape accountability.
James Reason has said that maybe the pendulum has swung too far from personal accountability.
7th Jun 2012, 21:18
Odd how pilots are always happy to be on those TV fly on the wall programmmes to further their egos but not to save lives,:eek:
7th Jun 2012, 21:23
Oh do climb off your high horse Shell! Your pathological dislike of my profession is starting to grate.
Surely your own company (if indeed you do work for Shell) now recognise a fundamental principal of threat and error management? Namely that human beings are hard wired to make errors and the recognition of such is vital in their prevention (or stopping their escalation).
7th Jun 2012, 21:31
People can be a threat too and need to be managed and held accountable.
7th Jun 2012, 21:45
Spoken like a true dictator.
8th Jun 2012, 00:15
Shell Management - you won't care - but along with Lyman/Bearfoil you have just earned your place on my blocked list. Only my second on the whole Intarweb. Well done.
If you ever want to be honest and tell us what your real job is, send me a pm.
8th Jun 2012, 13:54
There is no reason for pilots to get special treatment over lorry, bus or train drivers when they fail to be professional.
I suggest you have a read of some of the excellent work by Tony Kern PhD on how making mistakes is a sign of unprofessional behaviour.
8th Jun 2012, 14:12
James Reason has said that maybe the pendulum has swung too far from personal accountability.Have to look up the passage in Reason's works, but a similar thought by Sidney Dekker amounts to (IIRC): if people at the sharp end are to be held accountable in a justified way, they must have uncompromised authority concerning their actions, which is something that they are rarely given by those at the blunt end (i.e., management). Otherwise, blaming them is both unfair and useless. The Moshansky report on the Air Ontario crash is IMHO a good example concerning the limits of "justified individual accountability".
8th Jun 2012, 14:15
I suppose this may get deleted but couldn't resist
8th Jun 2012, 14:30
do love this statement
because no pilot would endanger his own life
but this is also interesting
James Reason has said that maybe the pendulum has swung too far from personal accountability
so who is right? maybe this will help
twin engined etops aircraft departs north america for europe. birdstrike shortly after take off with accompany engine stall. Pilot decides to continue across the atlantic.
or this, very next day rudder jam and loss of one hydraulic system, flt laws degraded aircraft continues very same sector as above.
If both Captains are still flying, I must assume professional.
Disclaimer: the pilots did not at any time endanger their own lives
:ugh::ugh::ugh: pull the other one its got bells on
I stand firmly behind shell management unless there is a professional pilot out there who can put forward a sound case to justify the above
8th Jun 2012, 14:33
... making mistakes is a sign of unprofessional behaviour.This may well be, but the unprofessional behaviour does not always lie with the person making the mistake.
8th Jun 2012, 17:02
Out of curiosity I listed the 'mistakes' made by myself and my colleague (himself a training captain) during our last sector.
I counted 7 of varying degrees, with 2 additional briefed deviations from SOP in the interests of safety (something our ops manual explicitly authorises on its first page).
Does this make us unprofessional? Does spotting the mistake make the other guy more professional than his colleague? Should we keep score?
I would describe this as a fairly standard sector, conducted safely and professionally with the standard number of errors and omissions. I question whether I'd be marking time on your office carpet were you to have watched the type of the whole flight Shell. But I also question whether you know the first thing regarding the workings of a modern commercial flight deck. Specifically the grown up approach to threat and error management, cross checking and mutual cooperation that form the basis of our job.
9th Jun 2012, 14:23
Clearly you need to work on your professionalism.
Tony Kern PHD Aren (http://iaftp.org/2012/03/arent-we-all-professionals/)
Far too many fragile egos have been constructed over the past few decades by a cultural drift that has valued self esteem above true competence. In a society where every Little Leaguer gets a trophy and grade inflation has made over half the kids in many middle schools honor roll students, true excellence has been devalued to the point where few recognize it and fewer still think it is even important.
NTSB Transportation Safety - NTSB - National Transportation Safety Board (http://www.ntsb.gov/safety/mwl-6.html)
there have been a disturbing number of individual incidents of noncompliant behavior, intentional misconduct, or lack of commitment to essential tasks. These occurrences demonstrate an erosion of pilot and air traffic controller professionalism.
You can't argue with them!
9th Jun 2012, 17:55
Clearly you need to work on your professionalism.Clearly someone has unrealistic standards there. The two quotes might be correct per se, but research has found that (nonsignificant) errors and deviations from SOPs (probably of the kind described by SmilingKnifed) occur on almost every flight, mostly owing to a discrepancy between the ideal world of management and SOP developers and the real world of front-line operations, as described for instance in "The Multitasking Myth" by Loukopoulos et al..
9th Jun 2012, 19:34
Clearly you need to work on your professionalism.
In reference to the NTSB blurb:
You can't argue with them!
Sorry, but, yes you can and with good reason!
You seem to have encircled the tree housing all the pilots, tower folks and air traffic controllers while barking up their tree as a good hound dog would do. But, I would remind you, good sir, there are indeed other trees you can bark up as well. Surprisingly, in the NTSB blurb you referenced, is the Comair 5159 T/O accident which occurred in Lexington, KY. Now the probable cause given by the NTSB was painted heavily on the pilots with some mention of other shortcomings, not pilot related and not painted as heavily. If you actually read the report (original version) two of the board members wrote letters that became part of the report in which they did agree with the pilot findings, but, also disagreed in not weighting other factors as equally. For example, here is so factual information contained in the NTSB report:
1. Inaccurate airport chart
2. NOTAM missing dispatch release
3. Incomplete ATIS broadcast
4. Ineffective FAA guidance
5. Understaffed Blue Grass airport air traffic control tower
6. Fatigued air traffic controller
7. Lights out on the main (correct) T/O runway due to construction
Additionally, when it was disclosed publicly the FAA violated their own rules regarding tower staffing and work/rest hours, they conveniently released the CVR to the public, IMHO, to draw away from their shortcomings while refocusing on the pilot's actions. This occurred at a key point in the investigation.
No public hearing was held on this accident.
So what do you think, professionalism among all these players or not? Uneasy lies the head that wears the crown.
The resulting NTSB findings and of the minor tap on the wrist of the FAA lead to the same sort of scenario a year or two later, the "Hello, anybody home?" with the sleeping ATCs... (we learn we don't learn). Only then, accompanied by public outcry, was action taken.
So when you cry out for professionalism and justice for non-professionalism you can now go and bark up some different trees. In fact, there is one in your domaine, assuming you really are in the oil business. The event is the Gulf of Mexico BP oil platform explosion, destruction, pollution, resulting deaths and loss of livelihoods of many in the region. To date, they are still arguing who was in charge of the platform. Professionalism? You might want to go work this out for awhile...
10th Jun 2012, 02:26
What seems to have accompanied the transition over the last thirty years, however, is a gradual reduction in the acceptance of risk altogether (Beck, 1992), and the expectation that some safety-critical activities are entirely accident-free, with a zero-tolerance of failure. Some safety-critical systems have their own success to thank for this: their increasingly flawless performance may have sponsored a societal belief in their infallibility and a concomitant political intolerance of failure (Amalberti, 2001). This means that almost of necessity, explanations of residual failure in these systems get deflected toward the vicissitudes of individual culprits (Perrow, 1984). The end of the twentieth century has also seen an increase in the democratization and accessibility of knowledge, as well as consumer vocalism and activism. These can put the failings of complex systems (or alleged failings of individuals in them) on fuller display (Anon., 2005; Pandit, 2009), and animate societal responses to them.
legitimately and publicly locates the source of the organization’s safety problems in that single individual
I believe there are two aspects of Shell Management's thinking reflected in the above quotes from Dekker, the first needing no further explanation.
As for the second, the middle-management ranks of my airline all work under constant threat of termination for performance-related reasons. Many of them are not given the proper tools, cost-savings apparently, with which to accomplish their assigned duties. This is due in large part to an upper level executive team, led by the CEO, that insulate themselves from responsibility for failures of any kind, thereby ensuring their very generous bonus and retirement packages, by apportioning blame and terminating at will.
S&M appears to be of this variety. Or, he is a muck-raking journo on the lookout for a quick tidbit that might eventually pay coin. We have more than a few in these parts.
As pilots, we are somewhat insulated by this type of office politic, but I am nonetheless alarmed by this paper, and personal observations of recent developments.
10th Jun 2012, 11:27
The risk of end up with your license revogued or in prision is increasing and the salaries decreasing.
We are going back to the slavery.
12th Jun 2012, 03:00
"Shell Management" is an interesting choice of name.
Indeed, the enlightened industrial safety policies of the Shell companies, and the prominent role played by Professor Patrick Hudson( University of Leiden, Holland) in the Shell efforts, across the companies, has had a major impact on safety outcomes for the whole Shell group.
This has applied not only to aviation, but shipping, exploration and refining, to name but several of the areas where improvement over the whole group. It all started with Piper Alpha.
And it hasn't been done with attitudes like that espoused by the self styled "Shell Management". We have moved light years since the days Douglas Bader ran the Shell Aviation unit in UK.
Tony Kern's points are also valid, but must be taken in context, you need to read and understand his books, or better still, attend some of his lectures, to understand that what is presented here was a vast over simplification of his approach.
Selective and unrepresentative quoting, out of context, is not a debate, it is just self delusion on the part of those doing so, to self reinforce their personal prejudices, and in some cases, their blind bleeding ignorance.
15th Jun 2012, 03:47
Some more thoughts on the subject, copied from one of the Royal Aeronautical Society's recent publications.
A concept that is often poorly understood despite its great relevance to the aviation industry
Just Culture can be described as a mantle of security that encourages those in aviation to freely offer information about incidents and near accidents that occur, usually through an Occurrence Reporting System. Without the threat of legal proceedings or other punitive action they have confidence in doing so. Where the Just Culture does not prevail there is less likely to be an Occurrence Reporting System and thus a method of assessing the standard of safety in that environment.
In those parts of the world where aviation is fortunate enough to operate under the mantle of a Just Culture, it is assumed that no one deliberately starts out to cause an accident and when one does occur criminal action should not automatically be taken against those responsible. Instead, the greatest effort should be made to determine the causal factors, then put in place new procedures, processes and equipment in order to reduce the risk in future.
It is important to recognise that an environment that supports a Just Culture does not necessarily guarantee freedom from prosecution for anyone involved in an accident. In fact, the Just Culture, while supporting the belief that accidents happen and that people and systems are fallible, also supports the insistence on accountability. Clearly, there are lines to be drawn and anyone who behaves recklessly and without due consideration for his / her responsibilities is unlikely to find support.
The problem of course is the conflict between the desire to promote aviation safety as determined by the Chicago Convention and the compelling duty of responsible officers of the law to pursue those who cause or through their recklessness, could have caused, damage and loss of life. In the quest to advance aviation safety, the investigators need access to all the facts. However, if aviation professionals are concerned at the prospect of being prosecuted in the event of their being involved in an accident or incident they are less likely to be totally forthcoming with information pertaining to that accident or incident.
Attitudes towards whether or not to prosecute those involved in aircraft accidents can be divided into two broad camps; countries that use Common Law (such as Australia, Canada, the UK and the USA), and those that use Civil Law. Generally speaking, historically fewer prosecutions have taken place in Common Law countries than those using Civil Law. In the former, the technical investigation has usually been given prominence, with the emphasis on determining cause and recommending corrective action(s). In the latter, the judicial enquiry has often taken precedent with the emphasis on apportioning blame. It is important for pilots who fly internationally to recognise that the attitudes that prevail in their home country may be significantly different to those in another country, should they be involved in an accident or incident there. Of further concern should be that 'national interests' may sometimes influence the decision to prosecute or not.
It will be obvious that the Just Culture depends extensively on the honesty, integrity and professionalism of those who operate within it. Unless those outside aviation can be sure that aviation professionals will always strive to operate to the highest personal and professional standards, there is likely to be support for criminalisation of those involved in aircraft accidents. Prosecution of pilots, air traffic controllers, engineers and managers have all taken place. In many cases, lives and careers have been wrecked as court cases have dragged on for many years. Whilst there is no suggestion that negligent culpable behaviour should be ignored, it is important to recognise that the vast majority of accidents occur due to genuine mistakes that in many cases could not have been foreseen or planned for.
Recent incidents of lack of cockpit discipline led to a survey, which showed an alarming degree of indiscipline in the cockpit, ranging from use of laptops for personal use to wearing iPods, and many other distractions. Whilst there is no suggestion that this is widespread in the industry, the fact that any pilots at all could think that this behaviour is acceptable is remarkable.
Although this is a societal issue that does not only afflict aviation but can be witnessed regularly in all parts of our society, it cannot be tolerated in aviation where small mistakes or lapses of concentration can quickly assume disastrous proportions. For a long time pilots have insisted on being treated as professionals, with the same respect afforded to others, such as lawyers, doctors, etc. As long as some of them continue to behave in a manner perceived to be lacking in professionalism, that respect will be withheld.
The current move to criminalisation of aircraft accidents could be seen as one of the many consequences of this trend. In the publics' eye, why should the aviation industry be granted exemption from prosecution when others are not? Why should the traveling public be concerned that maybe the two pilots 'up front' may lack the basic skills to handle what should be a benign failure of aircraft systems or incapable of conducting the correct decision-making or risk analysis when confronted with inclement weather?
If we are to continue to enjoy the respect of the travelling public and others outside our industry we must ensure that we constantly strive for the highest professional and ethical standards and thus continue to justify our place in the Just Culture environment.
Robert Scott, FRAeS
15th Jun 2012, 13:11
"Respect for lawyers?" If Scott cites that as a benchmark that commercial pilots do not presently achieve, I believe he is sadly mistaken.
As for Shell Management, beneath contempt.
17th Jun 2012, 20:37
Apologies for the late reply, I was working on my tan and ignoring my professionalism for a week.
Fortunately my last line check validated the latter and was conducted by one of my peers, not a sniping dilettante on an anonymous forum.
Grewings, do you by chance have a link to the survey? I'm interested as to how many flights were surveyed and what percentage contained acts of non-compliance.
18th Jun 2012, 16:47
Sorry for the delay in replying. For some reason I have two sets of posts, one of which includes this one from you and another which has a host of different ones.
I don't know which survey is referred to and don't have a link. I do know that a survey along those lines was conducted by the FAA, but only within their jurisdiction. I think that was about three years ago.
Sorry I cannot be more help.