Please, folks, let's not get testy with each other. These issues are subtle, and we don't always have in mind all sides of them when we are thinking and writing. That is, after all, the point of discussing them.
Except for
Originally Posted by noske
I think you misunderstood the BEA report regarding the significance of titanium vs. stainless steel.
whom I want to assure that I did know what I was saying here (not just from the report, but from colleagues), I won't respond by name, in order to highlight the issues.
American law is relevant to this case in that we are discussing comparative law - obviously! Comparative legal studies are important in order to gain an firmer understanding of legal concepts in individual jurisdictions and to related them to more-universal concepts, such as that of responsibility and just compensation, which concern us all, all over the world.
The Concorde matter is not baked and over and done with, so one cannot just assign it to the dustbin of French jurisprudence. It has opened the Pandora's box - thank heavens - in a way in which previous purely-French incidents such as Air Inter at Mt. St.-Odile did not.
American law places heavy duty of care on companies to ensure the appropriate behavior of employees, and correspondingly lower duty of care on employees. I raised the example of playing with gun during one's employment to ask what duties of care do exist on the individual level. The answer is that such an act is clearly criminal. But this is a chicken-egg problem. The act is clearly criminal because there is a clear duty of care and violating it has such severe consequences. That is the difference between, say, negligence and gross negligence in English law. If the question is, as it was, whether an individual employee incurs a duty of care when employed, the answer is a clear yes.
It also transpires that certain licensed or certified professionals incur a duty of care under US laws when performing professional tasks as professionals. Such as medical doctors and, I believe, P.E.s. Being a licensed mechanic seems here to be a boundary case, from what I read of the discussion so far.
The concepts are very similar, although the words may not be: crime ou delit; crime or misdemeanor; summary offence, indictable offence or "in between". Duty of care, standard of care, negligence, gross negligence (so - a bit missing here - what are the standards for and relevance of judgements of negligence in French law?). Compensation follows responsibility in US law, in British law, in French law. There is a lot of commonality of concepts.
But the application appears to be divergent. It is judged that US laws would likely not have considered the individual-employee's duty of care (but a boundary case as he was a licensed professional) in the way in which the French court did. Well, maybe, but I think we all know that it is hard to tell unless a case is brought, tried and judged. It does seem to be the case that a tribunal correctionel considers criminal sanctions (suspended jail terms, fines) as well as assigning responsibility (and therefore responsibility for compensation), functions which are usually separated in common-law jurisdictions into trials for offences and civil suits.
What is the point of all this? The point is that, if there is a common basis in concepts and function of all this law, then this basis can be codified into international agreement, through ICAO and this will bring clarity and uniformity world-wide into handling issues such as duties of care, just compensation, and accident investigation in a way which minimises conflict between these procedures. And the conflict at the moment is huge, as I and other commentators have been pointing out in public for at least half a decade. And it is not just in aviation. It seems to be enshrined in civil-law jurisdictions.
For example, consider the MagLev demo-track accident in Lathen in 2007. I won't reiterate it here, instead referring people to
http://www.rvs.uni-bielefeld.de/Biel...inB9Slides.pdf . The horrendous accident was investigated by - the State Prosecution Service, for that is who investigates rail accidents. They do so primarily to see whether an indictable offence has been committed by someone. At the end of the day on which the accident occurred, the State Prosecutor was confident enough to say that all indications were that the accident was due to human error, by which he meant a procedural error by some driver or controller, singular or plural. Even the newspapers had figured out by Day 2 that there were obviously some system issues. Not only were there some system issues, but some of them were the very same as involved elsewhere, such as the Glenbrook accident in New South Wales, Australia, which had been serious enough to involve a Royal Commission.
I'll stop here with the account of the accident. Interested readers can follow the link. The point is that in some areas the conflict between learning and implementing safety lessons, and legal retribution, is far higher than it appears to be in aviation.
Aviation does have some successes in reducing this conflict. One late non-lamented correspondent was going on here about why wasn't Air France being held to account for this accident? The answer, obvious to anyone who knows anything about these matters, is that the responsibility did and does indeed lie with the airline, under international agreement (ICAO again), and Air France (or, rather, their insurers) has already paid out compensation commensurate with that responsibility, 10 years ago. That works quite well. I see no reason to imagine we cannot have the same success with an attempt to make international law concerning duties of care and offences versus liabilities, in such a way as to minimise adverse influence on the causal investigation of accidents.
PBL