Criminalisation of Air Accidents

[Chronus]

In February 2016 the Swiss Supreme Court, upholding the earlier judgement of a lower Court, confirmed the conviction of a pilot on charges of criminal neglect and fraud.
The case concerned two Swiss national pilots, X and Y who hed met in Switzerland. Y was an experienced pilot with more than 13,500hrs and wanted to obtain a sea plane rating. X purported to be able to provide sea plane flight training to obtain a Canadian sea plane endorsement on Y`s licence. So they met up in Canada and on 23 September 2007 started flight training in a Rans S -7S Courier ultra-light. On 25 September 2007 they crashed shortly after take off. Y was killed and X survived.

Following the accident, the prosecutor of the canton of Bern brought criminal charges against X. The prosecutor claimed that X committed the crimes of death by criminal negligence and fraud under Articles 117 and 146 of the Criminal Code of Switzerland. The Canadian authorities did not bring any criminal charges.

Bern Oberland District Court and Bern Appellate Court found X guilty as charged. He was sentenced to a custodial sentence of two years and a monetary penalty. Y's widow was awarded compensatory damages and damages for pain and suffering.
The Bern Appellate Court also found that X had pretended to be a properly trained flight instructor, while in fact he was not.
In addition The Supreme Court found that X was guilty of fraud according to Article 146, because he falsely pretended to be a flight instructor and induced Y to travel to Canada, thereby causing financial damage.
There is much industry controversy over air accidents increasingly falling foul of the criminal codes and laws in many jurisdictions around the Globe. This I believe serves as yet another salutary reminder of the tight rope act required from all those engaged in the industry.

[cats_five]

"Y was an experienced pilot with more than 13,500hrs and wanted to obtain a sea plane rating. X purported to be able to provide sea plane flight training to obtain a Canadian sea plane endorsement on Y`s licence."

"Y was killed and X survived."

Was X qualified to provide the rating? If not that is indeed fraud in my book.

[PT6Driver]

Based on what the op has stated I would suggest that this is not a case of "criminalisation of air accident" rather it is a clear case of proecuting X because he deliberately falsified his ratings and committed an act of fraud.

There is no such thing as no jeopardy anywhere in the world. If you behave in a negligent manner your actions will have consequences.
Posecuting in the case of a genuine accident has no place in aviation however in this case X was not prosecuted for the accident but for his acts of fraud and misrepresentation.

[peekay4]

Additional details:

X and Y agreed on C$100 per flight hour, including fuel and instructor. Both X and Y were Swiss nationals. ...

The Bern Appellate Court also found that X had pretended to be a properly trained flight instructor, while in fact he was not.

X denied that he acted as Y's flight instructor (who was an experienced pilot), but in the Supreme Court proceedings he failed to show that the Bern Appellate Court's finding was manifestly wrong.

Full background: Seaplane pilot found guilty of manslaughter - Newsletters - International Law Office

One complication here, is that (as far as I know) in Canada one does not have to be a CFI to provide seaplane instruction. Anyone with a Commercial license and seaplane rating may provide instruction and sign the basic endorsement. Additionally, ultralight pilots may fly on pontoons without needing formal lessons.

We don't know what certificates & ratings X held. If he had a Commercial license (but isn't a CFI) then whether or not he's a "qualified instructor" might be open for interpretation.

[9 lives]

This situation interests me, thank you Chronus for posting this.

A few clarifications: In Canada, the only person who can "provide" a seaplane rating is a Transport Canada "Authorized Person", a privilege held by a few instructors. My CPL was signed into my license [booklet] by an authorized person, who was the Chief Flying instructor at the time. However, a CPL, who meets the minimum experience requirements, can "recommend" a trainee for a seaplane rating, having followed the required course of training. The recommendation is to an "Authorized person", and the rating will be issued (everything in order assumed). I have provided such training. In this sense, yes, the pilot goes from zero skill to rating, without having flown with an instructor. Both my multi engine, and seaplane ratings were achieved this way. This probably harkens back to the day when there were lots of "bush pilots" out there who had the skills, but too few instructors to formally train new pilots in those skills. TC found a way to harness the pilot skill of non instructors.

In the case of the event described, assuming Canadian pilot licenses were held as required, the situation probably met the licensing and training requirements, if not those for safe piloting skill.

The more comprehensive text is found here:

Seaplane pilot found guilty of manslaughter - Newsletters - International Law Office

There are details which make it worth the read, some very subjective things in there. I presume that the court found its way to the fact that in Canada, one does not have to be an "instructor" to provide flight training for a sea rating. I can imagine this one going either way based upon the understanding that the "student" had as to the role played by the training pilot. Was the training pilot that, or a misrepresented "instructor".

But, in any case, this does raise very valid issues about applying training pilot skill during instruction. As a training pilot, I have found myself having to stay several steps ahead of the mistakes being made by my charge while flying. In the very most serious, amphibian training, and allowing [either pilot] to land on the water with the wheels extended. In any case, an engine failure/power loss is much more risky in floatplanes, they glide to a landing okay, but more aggressive nose down entry to the glide is required, and effective resistance to the "water rush" which temps one to pull up much too early to flare.

In my opinion, the Swiss court found the hard line on this, but I can't say they were wrong, we have a duty of care....

[Chronus]

What intrigues me here is that the accident and resulting death occurred in Canada and the authorities there did not bring any criminal charges. It was the Swiss who brought a prosecution against the "instructor" pilot. It seems to be a case of criminality for one country and not for another. Very strange state of affairs.

[9 lives]

It seems to be a case of criminality for one country and not for another. Very strange state of affairs.

I agree. As mentioned, mentoring a licensed pilot toward their float rating does not require that the mentor be an "instructor". I have presented a PPL to an authorized person, for a float rating, which was issued based upon my recommendation that my training and his skills met the requirements.

So the events described in Canada were legal in Canada. It seems they somehow had a big miss in safety, (presumably not the result of a deliberate intent to injure) but that is not a crime. The fact that the Swiss could find a crime in there is worrisome. Perhaps that event contained all the elements for a crime in Switzerland, But it did not occur there, other than perhaps the arrangements.

I would be fascinated to learn the detailed reasoning of how an event completely legal which occurred in Canada can be prosecuted as a crime elsewhere.

[Legalapproach]

The original article contains the following comment regarding jurisdiction

Since the territoriality principle is the primary basis for jurisdiction in criminal law matters, the court first dealt with the issue of jurisdiction of the Swiss authorities. While the accident did not take place in the territory of Switzerland, Swiss law provides for criminal law jurisdiction based on the nationalities of the offender and the victim. Both X and Y were Swiss citizens.

In addition to the nationality requirement, double criminality was required to assert Swiss jurisdiction (ie, the offence must also be punishable in the state in which it was committed). Since Section 220 of the Criminal Code of Canada penalises the act of causing death by criminal negligence in a similar fashion as Article 117 Criminal Code of Switzerland, the court found that jurisdiction of the Swiss authorities was established. The court also decided that the provisions of the Criminal Code of Switzerland applied.

In so far as the fraud was concerned the representations amounting to fraud appear to have been made in Switzerland

[homonculus]

Swiss law appears rather dodgy. The link doesnt give any evidence of fraud, and the claim of negligence on the basis of the information provided is at best weak. Add to that the appeal mechanism isnt an appeal about conviction but merely process and I suspect the defendant will be feeling mighty aggrieved.

May be he will stay in Canada and invite the Swiss to try for extradition.

This IMHO appears to be a case of an unfortunate pilot who has fallen fowl of a bizarre legal process. Sadly this happens in many countries but I dont see it has implications in the many countries that have a more recognisable system. Such as Canada...

I wont be applying for Swiss citizenship this year.

[9 lives]

A few terms associated with this event catch my eye:

It seems agreed that the event was an accident, there was no intent to harm anyone, which seems entirely plausible to me. I agree that an accident can still result in criminal charges, if there was negligence involved, but in the training environment this seems potentially fuzzy.

The role of instructor seems to be pivotal to the case. If the "instructing" pilot was properly licensed in Canada as a CPL, with the required float experience, providing float flying training to a PPL+, with the goal of the candidate receiving a float endorsement from an authorized person, is within the CPL's privilege. Referring to them self as an "instructor" would be fuzzy, but giving "instruction" should not be a problem.

Was the victim also a victim of fraud? It sounds like the pilot providing instruction was flying and teaching within his privileges, so fraud is probably not an element.

The case, on the whole is alarming though, well intentioned instruction goes wrong. I think there is a big range of consideration between an accident, negligent piloting, and criminal negligence.

[PDR1]

There is no legal requirement to have a special qualification to teach rock climbing. If, while I am teaching someone to climb rocks, my pupil is killed due to my inability to properly conduct the lessons I would expect to face criminal charges over what would be an unlawful death. If I had represented myself to that pupil as a skilled teacher of rock climbing I would also expect to face fraud charges.

I fail to see (again) why someone would expect to be exempted from any consequences of their actions simply because they are are commercial pilot.

PDR

[9 lives]

I'm unaware of the implications of rock climbing training.

In Canada, the CPL, plus minimum experience, is the measure for being permitted to train and recommend for a floatplane rating. That is not a measure of the trainer's skill in that task. The very best float trainer I have ever known was only a PPL, so was never involved in the issuance of the rating to a new pilot. His training, however, was incredibly effective.

If the conversation goes something like, "Hello land pilot with Canadian license, I'm a Canadian float endorsed CPL who meets the experience requirements, and I am entitled to train and recommend you for a float rating in Canada.", that can be truthful, and not fraudulent. Skill is a separate issue, as it is with any license holder....

I think that consequences of a person's actions should be irrespective of their real or otherwise "qualification". If there has been fault exceeding "accident", rising to being criminal, the legal system should be applied.

[homonculus]

PDR1 How does an inability to conduct the lesson lead to death. I grant you, if the pupil subsequently goes off and kills himself and it can be shown you taught him the wrong technique some lawyer may take a pot shot at you, but the teacher was with the pupil at the time of the accident. Unless the teacher told the pupil to do something dangerous this line of inquiry surely fails.

It seems unclear what happened plus any faulty manipulation of the throttle should not have lead to death. Stay clear of Switzerland

[Chronus]

I would be interested to read the TSB report on this. Does anyone have a link to it.

[9 lives]

I have looked, and have not found the TSB report. However, the event is logged into the system, as indicated here:

CADORS: Report

If that link does not work, it's TSB Occurance number: A07A0114, CADORS number: 2007A1123.

Even as a class 5 investigation, I would have expected there to be a TSB report, I'll ask around...

[Big Pistons Forever]

Since the world is becoming increasingly litigious, this event does not really surprise me. However a very specific set of particulars apply to of this case, so I am not sure it can be extrapolated to flying instructing in general

That been said the prime directive for a flying instructor is to not let the student crash the airplane. However students can do some pretty crazy things. The only accident in my nearly 40 years of flying was caused by the student retracting the landing gear instead of the flaps on a touch and go. I was a half second too slow stopping them and getting the gear switch back to the gear down position. Unfortunately one of the 3 gear legs unlocked and folded and the aircraft was damaged enough to write it off. I was PIC and the instructor, so I own it and sure wish it had not happened, but it did......

[Chronus]

Thanks Step. I tried a search with the Occurance Number, didn`t come up with anything. Rather odd that there does not seem to be a report published.
However in the CADORS report there is no mention of instructor or instruction. Instead check out by one pilot to another owner/pilot is stated as the purpose of the flight. In my days that was perfectly legitimate. Makes me wonder how the ligature of "instructor" was hung around the chap`s neck to get him convicted. Perhaps it was because a float plane was involved for which the appropriate licence endorsement was required.
BIG Pistons, yes I agree, there are special circumstances, but do believe it is of concern for flying instruction as a whole. Yes you are also correct in your remark about our litigious society. I recall two incidents back in the dim distant past. One was an instructor who demonstrated a full spin from a stall to his student and crashed. Another was an instructor who sent off a student solo with insufficient fuel and the aircraft crashed shortly after becoming airborne. Luckily the student was not killed. In both of these cases the instructors were not charged with a criminal offence. Now in the scale of things the little mishap you have had is no sin at all. My only comment would be if your student was an ab initio then perhaps the wisdom of instruction on a retractable may be questionable. If he was converting to a more complex type then I don`t believe you can hold yourself entirely to blame. In the final outcome, it is really a matter of conscience, but that`s another story.

[9 lives]

However in the CADORS report there is no mention of instructor or instruction. Instead check out by one pilot to another owner/pilot is stated as the purpose of the flight. In my days that was perfectly legitimate. Makes me wonder how the ligature of "instructor" was hung around the chap`s neck to get him convicted. Perhaps it was because a float plane was involved for which the appropriate licence endorsement was required.

And this is the point: If this had been a flipped over on the water after careless landing, there could be something to that. The "student" pilot might not be expected to be familiar with the characteristics of a good/safe or otherwise water landing, hence, the request for instruction. The "instructor" (whether licensed as such or not, but knowing for this purpose, a CPL is adequate) is required to teach and monitor new skills. However, nothing in what I read here suggests that this was a water flying event, it was a flying event.

If two pilots are flying together in a basic plane, it is a safe assumption that neither can abdicate responsibility for the basics - assure flying speed is maintained, and power to do that if needed is applied. If I, as a licensed pilot seek training, and as a part of that training were to fly a jet ('cause I never have), I would have no excuse for running out of fuel during a training flight. I have been trained to assure that the adequate amount of fuel is carried for the intended flight, and flying a different type is no excuse for my not doing that.

When I train on floats/flying boat/amphibian, it will always be to a pilot (as I am not an instructor). I always start by telling that pilot ('cause we're nearly always flying their plane) that they are also responsible for the safety of the flight. I will brief any non standard, or new maneuvers, but they are not exempt from responsibility. I am training pilots to be more skilled, and take more responsibility, so why would I relieve them of responsibility?

In my opinion this prosecution has overlooked some basic tenants of training. It sets some worrisome precedents, which are mostly based upon misunderstanding, at least of Canadian licensing privileges.

[horizon flyer]

This would seam to imply that Swiss law applies to all Swiss citizens any place in the world no matter what the local law. I wonder what the Canadian legal system would think of the Swiss having overriding jurisdiction in Canada?