Aviation safety jeopardised by judges?

[blackboard]

Since 1946, ICAO’s annex 13 has been the worldwide guiding reference on aircraft accident investigation.

Article 3.1 stipulates that:


The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability
The latter is of great importance as this is what allows us aviation professionals to candidly supply all our help when we are connected in any way to an accident or incident in order that the cause can clearly be found and measures taken to avoid recurrence.

It is based on this that CVR’s and FDR’s were mandated on aircraft, and not with judiciary purposes in mind.

This, together with national reporting systems, is one of the main pillars that aviation safety has been built upon since the fifties, until reaching todays’s unquestionably outstanding levels.

The nature of accidents themselves implies that in today’s world, a judiciary investigation will subsequently occur. However, such investigation is clearly one whose goal is to determine responsibilities and apportion blame, as expressly excluded from Annex 13.

It is therefore key that the judiciary investigation and that of annex 13 are carried out separately, as recommended by Annex 13 itself (art 5.4.1):


Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provision of this Annex
However, as the facts originating both investigations are the same, it is unavoidable that some connection will exist, and Annex 13 itself recognizes it as such:


The State conducting the investigation shall recognize the need for coordination between the investigator-in-charge and the judicial authorities...
This is in my opinion a VERY gray area. It is becoming apparent that the judiciary investigations that are being carried out in Spain re the Spanair accident, is having access to the data AND maybe analysis (this is where the issue is) from the Annex 13 investigation, if what is being leaked to the press is correct.

We have seen such type of interference in the past (see Concorde accident report and UK AAIB comments)


In a judiciary process, in order to preserve your rights, if you have any responsibility in connection to an accident, most western countries’ constitutions recognize the right of citizens not to testify against themselves. This is of course very different from the idea of Annex 13, where we would gladly supply all useful data knowing that it is not supposed to be used against ourselves.

For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:

a) Increasingly diminished aviation safety as aviation professionals become more and more aware of the liabiliaties incurred in candid reports, and in operating aircraft with increasingly comprehensive recorders.

b) Strengthened aviation safety through stronger ruling protecting the constitutionary rights of us who carry the responsibility of people’s lives in air transport.

In the case of a), the irony is that the rights of the same citizens that the judiciary system is trying to protect will be decreased through jeopardised aviation safety.

Can we let it happen that way?

Apologies if this subject has been dealt with in this forum before. Mods please feel free to direct this post there if so.

[condorbaaz]

A very good point.

How ever, It would be humanly impossible to let a defaulter off the hook when you knew if some wrong has been done.

The ICAO annex assumes that all procedures and no "Operational" shortcuts have been followed and hence the view to find what went wrong.

The Judiciary just needs to find out if the neglect was intentional or fuelled by greed (Company practices to minimize losses/ expenses etc).

99% of accidents can be prevented with the current system of rules and regulations being followed but this is often expensive and , for the management "Inconvenient" and so the spirit of the law is abandoned for the letter.

The ICAO wants to ppug the remaining 1% hole and the judiciary wants the law to be followed in spirit as well as letter.

As far as airline management is often concerned, it is almost always a risk vs cost analysis and mostly... cost rules.

Consider this example: You caught a thief stealing from the bank and he gave you his modus operandi, while one would take action to prevent recurrence, the thief will be punished for his offence.

Hence the Judge is often more interested in the intent of the action, which may make an outcome different i.e culpable homicide amounting to murder or not amounting to murder or simply rash and negligent act resulting in death.etc...

BTW, I do feel that there should be a total inquiry by aviation authority which cannot and must not be used for criminalising ac accidents.

[tbavprof]

A very interesting topic. Thank you. Enhanced safety must be a collaborative activity, while judicial proceedings, by their nature, are adversarial.

Programs likes CHIRPS and ASRS are a good start, but not applicable once it gets to the an accident investigation.

One missing piece of the discussion is the CAA's themselves, outside of their accident investigator roles. Some jurisdictions have independent investigative bodies, separate from the CAA's, as a check on the CAA's role in any given incident. The CAA's are subject to the same risk-costs decisions as the operators, and are subject to political influence, as well.

Industry safety audit processes, both operator and regulator side, should serve as preliminary checks on risk reduction, but often doesn't. The judicial process is a last resort, and normally only after a catastrophic failure of all of the above. It has to serve as the check and balance on the integrity of the safety and oversight systems.

Though the ultimate cause is always going to be "pilot error" or "mechanical failure", pilots, manufacturers, and maintenance already are held accountable. The judicial process allows the other contibutors to the accident chain to be held responsible as well, and often does a better job of apportioning responsibility.

Once the fairness and integrity of the judicial process is tainted, though, all bets ae off.

[condorbaaz]

I would put it like this:

You go for dinner and order fish.

The fish arrives but is stale/overcooked/etc....

It is stale bcoz the Fridge is bust , overcooked bcoz the oven is bust etc.

But the one to be rebuked first is the waiter who has just got it to the table.

The LAST one in the chain of events.

It is also like the 10 members of a football team being unable to prevent the ball from entering the D now expect the goalie to stop it.

It is a team effort and the whole team is at fault when anything goes wrong because any 1 person could have stopped the chain of events leading to he event.

Historically, where the Pilots have died, the C of I have held that the Pilot is at fault for causing the accident but cannot be held blameworthy (since he has met his maker in the accident), since he cant defend himself.

[lomapaseo]

..It is a team effort and the whole team is at fault when anything goes wrong because any 1 person could have stopped the chain of events leading to he event.


This is really an apt description of the legal claim .... but-for.... in finding responsibility to share in the judicial findings.

My liking is for the application of multiple barriers against such but-Fors

and so I use the terms ... in-spite-of.. to identify potentials for barriers to prevent a bleak day from really turning bad.

Thus when I search for corrective actions following a causal chain in an accident I am more inclined to look at whether it's easier to improve the ...in-spite-ofs... rather than thinking that I can eliminate all the ..but-fors...

[SNS3Guppy]

In a judiciary process, in order to preserve your rights, if you have any responsibility in connection to an accident, most western countries’ constitutions recognize the right of citizens not to testify against themselves. This is of course very different from the idea of Annex 13, where we would gladly supply all useful data knowing that it is not supposed to be used against ourselves.

For years we aviation professionals have been candidly reporting our own and our organisations' errors and mistakes in an effort to help aviation safety…we have every right to stop doing that if the separation of both investigations is not clearly emphasized. The way this and some other recent investigations are carried out will pave the way for either:


I think you're living in a dream world if you imagine for a moment that anything you say or offer cannot and will not be used against you should the opportunity arise. It's for this reason that any operator for whom I've ever flown has instructed me not to discuss anything regarding a mishap, following the mishap. This includes my current employer, an international operator. We're not to talk to the media, to investigators, not even to the company until we've contacted our union representatives and obtained counsel from an attorney.

In the US, you can rest assured that anything you say to the FAA will most definitely be used against you.

Bear in mind that ICAO isn't regulatory. It's a convention. EASA/JAA is regulatory. The FAA is regulatory. CAA is regulatory. ICAO is not. It's more of a standard without teeth...the teeth being provided by each signatory.

The convention suggests that investigations must be carried out separately. Clearly a safety investigation, and a criminal investigation are visiting the same facts, same case, same circumstance, same evidence...but there's nothing to suppose that one should mutually exclude the other. If negligence is involved, then the fact that a safety investigation is in progress shouldn't hinder, nor prevent justice from taking it's course. And it won't. A safety investigation exists to gather facts related to the enhancement of safety...but facts regarding criminal acts, illegalities, and negligence or breach of duty during that investigation apply elsewhere, in the courts.

It's not unreasonable that one be responsible for one's acts, whether as a pilot or a bus driver. An excellent example would be the Comair crash in the USA, in Lexington, KY, a few years ago. Law suites flew everywhere, and even the sole surviving pilot sued and slugged it out in the courts.

It's unreasonable to presume that because aviation is involved or a mishap has occured, that prosecution and justice should be exempt. This is simply not the case. The trend internationally seems to be toward more and more criminal prosecution of pilots, with aircrew being held just as liable as any other operator. A bus driver that plows into a crowd on the sidewalk and kills ten people will probably go to trail. A pilot that takes off on the wrong runway, fails to properly configure or use a checklist, or do other acts of willful or inadvertant negligence is certainly not immune from prosecution of civil tort.

[IThink]

All really good points so far.........

I think that the best I can expect is a just culture. If I make an error, that any other similarly trained professional might make, then I do not expect to go to Jail - I expect retraining or other professional sanction. But if I do something negligent, that other professionals would feel just to criticise then I am open to prosecution.

In my view, this is a just safety culture, it encourages open reporting, but is not a blame free culture. I do not expect immunity.

Unfortunately the debate on just cultures becomes very grey very quickly as we all have different interpretations of justice and quite rightly the judiciary and politicians cannot contemplate immunity.

[Lookleft]

As stated Annex 13 is not legally binding and each state has to enact its own legislation regarding accident investigation. In Australia the TSI Act gives specific protections to the information provided to the ATSB investigators to the point that any information provided cannot and will not be used against you. If the information is divulged by the investigator they are the ones put in gaol. Unfortunately the media in Australia will usually state that CASA are investigating which is not the case.

[larssnowpharter]

As part of my job - alas no longer connected with aviation - I instruct and advise senior personnel in petrochemical companies on different RCA (Root Cause Analysis) techniques that can be used to investigate incidents and eliminate repetition.

I know the world is not perfect but it is essential to get past the WHAT happened, the WHO did it or was responsible and get to the WHY it happened. At this point you may stand a chance of fixing what went wrong. That after all should be the aim of the investigation.

Some wise people at ICAO I think may have recognised this when they wrote those paragraphs.

I like the concept in Oz where the investigation by the accident investigators is separate from any legal action. No-one will be fully honest with the investigators if they believe that what they say can be passed to the local prosecution service and used against them. Hence the necessary information needed to prevent recurrence will be - at best - 'tarnished'.

I have no experience of the FAA techniques but the worst examples by far I have seen of air accident investigation are those performed by Boards of Inquiry in the RAF. By and large they arrive at - an often incomplete - WHO is responsible rather than a full WHY. In my time the Board could not even recommend corrective actions. Take a look at the Nimrod and Chinook threads in the mil forum as evidence.

Please allow me a comment on this statement:

99% of accidents can be prevented

My belief is that this statement accepts that some accidents are inevitable. If you accept this you are already on the wrong side of the drag curve.

I would prefer that the industry accept something more along these lines:

ALL accidents are preventable

Cheers

lars

[Ancient Observer]

I've always found this stuff difficult. As an earlier post says, I want a just culture, but I do not expect immunity. Well said.
May I try a hypothetical? - One that can't happen, so no-one becomes defensive. If, say, the Aussie CAA came and inspected Rolls Royce in the UK. Say they find some very lax processes, with, perhaps, things being signed off by folk who did not have the authority, and, perhaps, non-approved contractors doing work that only named, certified skilled folk should be doing.
The thrust of what the Aus CAA should do would be to make bloody sure that the processes were brought back to where they should be, and that RR management knew what had happenned, and were tasked to put it, and keep it right.
Fine. However, shouldn't those that allowed things to get out of control - at whatever level, and including the beancounters if it was their fault that unapproved contractors were in place - be prosecuted and drummed out of Aviation? Where should the line be drawn?
thanks
Ancient.

[lomapaseo]

Ancient

Where should the line be drawn?
thanks
Ancient.

Somewhere between 'simple negligence" and "compound negligence"

or;

between 'should have known better" and "made a conscious decision to ignore the risk"

or;

ignorance and cunning

In my experience the second order is rarely breached and criminal negligence "falsified" is extremely rare in the causal chain

[blackboard]

One missing piece of the discussion is the CAA's themselves, outside of their accident investigator roles. Some jurisdictions have independent investigative bodies, separate from the CAA'


Most advanced countries have their own laws regulating NTSB's/AAIB's/CIAIAC's/BFU's... as fully independent from their respective FAA's/CAA's/DGAC's/LBA's...following the spirit of Annex 13.

As far as airline management is often concerned, it is almost always a risk vs cost analysis and mostly... cost rules.


In none of the three pax airlines I have worked for that was the case (which is not to say it does not happen elsewhere). Even if you only look at costs, most airlines cannot literally afford to have an accident. That is not to say they are willing to spend on everything that improves safety: the balancing reference (how do you know how safe you are?) is the rules...most of us try to go beyond.


Consider this example: You caught a thief stealing from the bank and he gave you his modus operandi, while one would take action to prevent recurrence, the thief will be punished for his offence.


The key is HOW you obtained his modus operandi. He has a right not to tell you, though you may find out some other way. If he told the police, fair enough, but if the police obtained such knowledge from an illegal recording, then...read on


Bear in mind that ICAO isn't regulatory. It's a convention. EASA/JAA is regulatory. The FAA is regulatory. CAA is regulatory. ICAO is not. It's more of a standard without teeth...the teeth being provided by each signatory.


That is why most advanced countries have laws enforcing ICAO rulings. Spain's Air Safety Law (LSA) , Air Navigation Law, EASA's regulations and others do enforce most of ICAO's ruling. EU directive 94/56/EC (though subject to national ruling, like Spain's LSA) basically mandates Annex 13.

Spain's LSA explicitly contemplates the ICAO Annex 13 ruling, but unfortunately tints the Annex 13 gray area ...

The State conducting the investigation shall recognize the need for coordination between the investigator-in-charge and the judicial authorities...

...even grayer, by mandating that (my translation)

the Accident Investigation Board shall communicate to Judicial Authorities any signs of criminal responsibility found during the course of their investigation

I wonder what other EU countries' own ruling relative to EU directive 94/56/EC and Annex 13 say in this respect.



If negligence is involved, then the fact that a safety investigation is in progress shouldn't hinder, nor prevent justice from taking it's course


I think nobody posted to the opposite in this thread. To me the key is not that justice must not take its course, but HOW it does it.


A pilot that takes off on the wrong runway, fails to properly configure or use a checklist, or do other acts of willful or inadvertant negligence is certainly not immune from prosecution of civil tort.


I do not think anybody in this thread is asking for immunity, plse read on...


In my view, this is a just safety culture, it encourages open reporting, but is not a blame free culture. I do not expect immunity.


I do not expect it either...I just expect that I have the same rights in the judicial system as any other citizen

In Australia the TSI Act gives specific protections to the information provided to the ATSB investigators to the point that any information provided cannot and will not be used against you.

I wish Spain, France and other countries followed suit! See above comment on Spain's LSA! I think we should unite to get there.

No-one will be fully honest with the investigators if they believe that what they say can be passed to the local prosecution service and used against them. Hence the necessary information needed to prevent recurrence will be - at best - 'tarnished'.

Good point! It is not only not dishonest not to tell the judicial system all that you know that could help prosecute you, but also a fundamental right:

(Please forgive my imprecisions as I am not a legal expert)

Most of our judicial systems accept that they are subject to error. They accept that no matter who presents facts for judgement, facts will be biased one way or another by man's nature (judiciary systems are a very early case of human factors study and error prevention).

As a solution, they base themselves on a balancing act where two (or more) parties are allowed to present their cases as they deem appropriate within certain rules. The resolution of the process depends on a sometimes delicate imbalance in one or the other direction.

Because of the mentioned susceptibility to error, our legal systems prefer to err on the side of 'not condemning the guilty' rather than 'condemning the innocent', and, as a result:

-An individual is innocent until proved guilty
-Evidence that has been obtained violating fundamental rights (illegal recordings...) is not acceptable
-You have a right to not to testify against yourself

Violating any of these rights tilts the mentioned delicate balance against the prosecuted.

Not that I think this system is particularly good, but I am not an expert and cannot come to suggest a better process, which would be beyond this post anyway.

In that case, we aviation professionals deserve (at least!!) the same treatment as a murderer (or thereof accused).

In order to be able to use as valid evidence a (non public) recording of the voice of a murderer it must have been obtained with judicial permission or with prior notification that it could be used against him in a criminal case.

Police cannot interogate him wihtout letting him know his words can be used against him.

It should be the same for us:

-National laws should clearly state that FDR's and CVR's can be used in criminal cases, or otherwise they should not be used. This is more of a theoretical point.

-While physical evidences could be the same for both investigations, evidences and testimonies supplied to the Investigation Board by professionals with responsibility on the event, should not be used by the judicial investigation.

-Investigation Board analyses and conclusions should not be used by the judicial investigation.

In summary: the same wording that those down under seem to have in their laws should be adopted by our northern countries.

Thx for the great points!

[justme69]

I totally disagree with some of those points.

In order to figure out the difficult task by the judiciary system to PROVE that someone had criminal intend (or criminal neglicency), all information gathered about the case is of help.

A criminal shooting someone can be convicted with the help of a video recording coming from a traffic camera, shopping mall cctv, nearby bank security, nearby witness with a video camera (or without one), etc.

Those recordings are not "authorized by a judge" to be used against the criminal in question, but they are available nonetheless. Nobody was "purposely and without the criminal's knowledge" trying to frame him. The recordings just happened to be there.

CVR and DFR existence is known by pilots.

If they want to commit (remember, criminal activities must be "voluntary" to a high degree) criminal activities in an airplane, they should be aware that they are being recorded and should try to disconnect them, commit them outside an airplane in an area without surveillance or do it inside an airplane without such devices.

But CVR and DFR data and analysis should be used for criminal prossecution. As long as pilots (or other crew with access to the cockpit) don't do anything clearly criminal, they are safe.

Civil liabilities, on the other hand, is an entirely different matter and far less clear, I admit. Pilots have the right to refuse to fly an airplane knowing that his actions could be recorded not only in the benefit of safety but also against his interests regarding civil responsabilites.

On the other side, no airline will hire a pilot that refuses to fly that way, as civil aviation requires the recordings.

This is not substantially different from other professions, though.

Engineers are required to deposit their design's plans (a form or "recording their work") independently for just about anything they design (i.e. a bridge or a house). If the bridge falls down, the recording is available and can be used to prosecute him in both, civil and criminal trials.

As long as he didn't do anything very wrong knowingly, he is safe from the criminal charges. But the civil courts are a different matter. At least, he won't go to prison for that, but may end up broke ...

Remember, making a mistake can be your responsability to others, but it is not criminal. If you were in a car accident, it was your fault, and your speedometer (or GPS) signaled 220 km/h on a 100km/h limit ... well, there is a recording, not authorized by a judge, pointing to potential criminal neglicency (the difference in speed is too high for you just to claim that "you didn't notice, it was an accident" w/o further explanation or causes).

[blackboard]

JM69:


In order to figure out the difficult task by the judiciary system to PROVE that someone had criminal intend ...


In the case of criminal intent, all that we are saying is useless and can only help the offender get away with it (an accepted flaw in criminal systems, hopefully a rare occurrence) . the problem is HOW to judge your intent.


(or criminal neglicency),


This is one of the issues : if you are slightly familiar with criminal systems, you are then aware that 'forgetting' or 'omitting' a checklist item can be considered a criminal negligence.

Now...all those who have never omitted a checklist items raise their hands...fortunately there are redundancies in the system so that 99.99% of the time it has none or minimal consequences.

A criminal case has to decide as well on what the intentions of the person were...and if you are slightly familiar you know, it is a very difficult call to make. Unless you have all the procedural rights of our system (and even then) there is a fair random chance that your intentions may be judged incorrectly...this is not black and white.


all information gathered about the case is of help.


Of course not! (in a criminal sense, that is totally inconstitutional) It does not work that way for a murderer, why should it for aviation professionals? Why should we have fewer rights than a terrorist?

A criminal shooting someone can be convicted with the help of a video recording coming from a traffic camera, shopping mall cctv, nearby bank security, nearby witness with a video camera (or without one), etc.

Those recordings are not "authorized by a judge" to be used against the criminal in question, but they are available nonetheless.

...but they are either public or announced recordings, just go through some court cases where such recordings are used, you will find it is often indeed a gray area...

CVR and DFR existence is known by pilots.

Therefore, in order to elliminate the gray area, go ahead and legislate so. (I said this is ony theoretical anyway cos implementing that law should not be too difficult, though I dont know what pilots unions would think of it). I am in any case not saying the recordings should not be used in a criminal case, just they should be doing their own analysis independent from that of the Investigation Board.

If they want to commit (remember, criminal activities must be "voluntary" to a high degree)

Absolutely not, you could commit involuntary negligence and go to jail...

As long as pilots (or other crew with access to the cockpit) don't do anything clearly criminal, they are safe.



An ideal world could be like that, but it doesn't work that way:

JM69, accept it: the criminal system has flaws (which are exhacerbated when the media gets deeply and wrongly involved as in the JK case), and airplanes are operated and maintained by humans who are also not flawless (even if they get it right 99.9999% of the time).


This is not substantially different from other professions, though.


It is in that an arquitect has all the time in the world (or a lot more than crews, for sure) to make his decisions... flight crew do not. And trust me, an architect and specially a lawyer would work in a very different way if we put a recorder next to him all the time he is working...


Remember, making a mistake can be your responsability to others, but it is not criminal.


Again you are wrong in this. Please read Spain's Penal and Procedural Air Navigation Law.

Don't get me wrong, we want everyone with a criminal intent connected to an aircraft accident to be found guilty.

We also want to be able to do our professional jobs with diligence and in the knowledge our rights as citizens are unaffected. Most of the professional systems (and people) I know outside of aviation are more flawed than aviation, so we should at least have the same rights. Otherwise the referred diligence will be disincentivated and end up dissapearing...that is the VERY REAL risk we are running into and that we are already observing in other systems like health services. Don't ask me how I know...

[Jaun Huw Nose]

Unfortunately with any incident,football team loosing, bank failing,political c*ck up etc, "the media" want a face to blame. The politicians want to look good in the media so demand answers and "maybe" put pressure on people.
All very sad and not the way it should be.:rolleyes:

A lot of good points raised.

[condorbaaz]

By mentioning that 99% accidents are avoidable, I mean that 1% are the result of chain of events that are either unforeseen or considered to be " To remote to be considered ,financially"

That is " We can make a car that never crashes, but who will buy it?" Bcoz it will be expensive.

All our designs etc are based on some assumptions and condition and maybe once in a while, an unforeseen sequence will result in that assumption being invalid.

Take for example: An incident where in the Pax on he emerg exit wanted to check if he could open the Emerg Exit on Ground before Take off...

or An Extremist or terror activity.


In my part of the world they say... 100% can only be assured by divine power. the rest of us are humans.

[blackboard]

In my part of the world they say... 100% can only be assured by divine power. the rest of us are humans.

I could not agree more, hence my wording

accept it: the criminal system has flaws (which are exhacerbated when the media gets deeply and wrongly involved as in the JK case), and airplanes are operated and maintained by humans who are also not flawless (even if they get it right 99.9999% of the time).

JUSTME 69

Quote:
Remember, making a mistake can be your responsability to others, but it is not criminal. End of Quote

Again you are wrong in this. Please read Spain's Penal and Procedural Air Navigation Law.


I am sorry I could not quote the referred law at the time. I have now found the reference for art 65

My translation (excuse my little knowledge of law English)


The one that, in exercising the functions of air navigation, does, for lack of foresight, imprudence or serious lack of skills, an act that if willful would constitute an offence shall be punished with minor imprisonment .

If the act is a result of simple negligence, lack of foresight or lack of skills, in breach of regulations, it will be punishable by minor imprisonment to major arrest.

Nothing in the first two paragraphs of this article will take place when the penalty incurred for such crime is equal to or lower than those contained in them, in which case the courts will apply the one immediately below the one corresponding to the intentional crime, to the extent they deem fit.

When there is death or serious injury as a result of lack of skills or professional negligence, the penalties mentioned in this article will be imposed to their greatest extent. Those penalties may be additionally increased by one or two levels, depending on the case, if, in the opinion of the Court, the damage caused were extremely serious and should also apply in addition to the penalty of loss of professional or aeronautical licenses. In no event shall the Court impose punishment that proves equal to or higher than that corresponding to the same offence when wilful.


So if due to a checklist omission a lot of people die, OK, you will not get the maximum (in Spain) 30 years imprisonment, but you could very well get 10.

Hence the need to at least make sure our legal procedural rights are respected. Unfortunately, that will not happen if the judicial authorities use the Investigation Board report as valid evidence.

If after such respect we need to go to prison, we will.

The oppossite will slowly but surely eat into aviation safety through increased ineffectiveness of the reporting and investigation procedures.

[blackboard]

This is really an apt description of the legal claim .... but-for.... in finding responsibility to share in the judicial findings.



I have checked and Spain's judicial system works just like that:

Each of the failed safety layers is to blame (at different levels, but still each of them).


Thus when I search for corrective actions following a causal chain in an accident I am more inclined to look at whether it's easier to improve the ...in-spite-ofs... rather than thinking that I can eliminate all the ..but-fors...


I could not agree more! That is the purpose of the Annex 13 investigating system that is being heavily jeopardised in the current judicial investigation in Spain for Spanair's JK5022.

Too much politics in it...today, even the judge worked together watching evidences with the Board...how can they be independent?

By the way, my mistake when I said

you will not get the maximum (in Spain) 30 years imprisonment, but you could very well get 10.


it actually adds up for every fatality...

[lomapaseo]

Blackboard

You mean somebody actually understood what I wrote;)

OK you encouraged me to write again

The judges are not the problem, it's the statues that they enforce. So folks go back to the lawmakers to fix the problem that you created.

[condorbaaz]

Also maybe, is the nature of Flight and humans.

MONEY and LAWYERS etc.

the lawyers always get paid..for fighting for and against then issue.
If the issue cannot be criminalised, then they cant get their pound of flesh as the investigation would be conducted by " Specialists".

How to get the "Big" fish to pay legal costs other than file for defamation (and be known as coffin mongers in the bargain) is to "treat an aircraft accident as a road accident" and Pilots like drivers in a hit and run case.

The vested interests or reasons to criminalise Aircraft Accidents would also appear to be a mix of the following:-

1. Insurance not wanting to pay. (or Maybe delay payment and use funds elsewhere)
2. The Legal guys knowing that the victims families have a windfall, and a soft spot for the decased which brought it about,
3. The company accountable manager wanting to have a scapegoat " Who caused it all,...( After all, he was criminally indicted of the error...)",
4. The aircraft companies having a reduced liability..(Unless it was a design flaw) again by their legal departments..
5. The anti pilots lobby who think that pilots are overpaid for their jobs and must be fixed whenever opportunity knocks. While that is not possible with the Aircraft Act Or similar legislation, put it through the penal code.
6. Also helps the managers to "control pilots" maybe...

[Finn47]

Here´s a recent case where some lawyers representing victims´ families display their attitude:

We really look forward to discovering who is at fault for this crashFirefighter's family files lawsuit in helicopter crash - OregonLive.com (http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1221882914120380.xml&coll=7)

That´s lawyers for you.

[justme69]

The one that, in exercising the functions of air navigation, does, for lack of foresight, imprudence or serious lack of skills, an act that if willful would constitute an offence shall be punished with minor imprisonment


So if due to a checklist omission a lot of people die, OK, you will not get the maximum (in Spain) 30 years imprisonment, but you could very well get 10.



Failling to willfully run a checklist, or willfully omiting an item, resulting in death, could be criminally punished.

You KNOW you have to run the list and you KNOW you should not skip any items, yet you KNOWINGLY (willfully) decided to.

But if you TRIED to do the checklist and you TRIED not to miss any items and yet you still, unknowingly did, I don't think many judges would consider that a criminal behavior.

Unless it has happened to you many times before, in which case you may be considered to lack the necessary skills (in that case, you are suppossed to voluntarily resign and do a different job, as you knew, by being told that you missed items many times in the past, that you are just not capable of running checklists with the accuracy required).

I'll say it again. It's very hard for a judge to determine when an act (or omission of) is criminal or not. That's why all information is of value. If the only explanation to why i.e. the slats of an airplane weren't out during TO is: "The pilots didn't switch them out, therefore, they didn't do the checklist", then that's all the judge can work with.

On the other side, a CVR recording might show you running the checklist and calling out "slats out, flaps 15". Then the judge knows that you THOUGHT you had done your job well. Maybe you didn't, but at least you didn't willfully engage in wrongdoing.

Recordings in a/c work in favor of those that don't do criminal behaviors in airplanes, as they may help prove their innocence.

On the other side, it does work against those guilty of willful wrongdoing or neglicence, as it shows they are just incapable/unwilling to do the tasks, they know it, and yet still they (try to) do it, resulting in heavy damages to others. They are suppossed to stop and resign if they don't have the skills, not go ahead and kill people.

[larssnowpharter]

By mentioning that 99% accidents are avoidable, I mean that 1% are the result of chain of events that are either unforeseen or considered to be " To remote to be considered ,financially

Take for example: An incident where in the Pax on he emerg exit wanted to check if he could open the Emerg Exit on Ground before Take off...

or An Extremist or terror activity

I accept your point, Sir. Such things you mention are examined in a risk assessment process. For example, in a geologically stable country, the risk of earthquake may well be discounted and result in buildings that do not have earthquake protection being constructed. However, if one lived on the San Andreas fault, to leave this out would be tantamount to negligence.

However, certainly of the two examples you give one is not an accident as I would define it. Terrorist or enemy action is an 'on purpose'. Your second example (I am not familiar with modern ac systems) I would have thought could be overcome with a simple interlock system if it is a risk.

The point I was trying to make is that if you start with the premise that 'accidents are inevitable' you are starting from the wrong point.

Believe me, all accidents are avoidable.

[condorbaaz]

I do agree with you on that one.

By Accident I mean the reportable accidents and Incidents.

The Modern Systems do alert in the cockpit about doors etc but nonetheless,

In my company, a first time flyer opened the overwing slide on a 320 during taxi for take off, An Irate Pax opened becoz the flight was delayed due inclement weather,

Twice in a ATR, the Pax actually opened the window adn handed it to the FA to "close it now, I have practised". (Once on my Flight)

And yes the terror etc are on purpose and with an Intent to destroy or whatever.
And it is this "Intent" that makes an act criminal.

[blackboard]

Unfortunately, the fact that it is intentional or not does not make it criminal or not (quote from Spain's currnet Criminal and Procedural Air Navigation Law)


When there is death or serious injury as a result of lack of skills or professional negligence, the penalties mentioned in this article will be imposed to their greatest extent. Those penalties may be additionally increased by one or two levels, depending on the case, if, in the opinion of the Court, the damage caused were extremely serious and should also apply in addition to the penalty of loss of professional or aeronautical licenses. In no event shall the Court impose punishment that proves equal to or higher than that corresponding to the same offence when wilful.



The difference is only one or two levels in severity of the punishment. For example, for 100 fatalities: 100x10 yrs=1000yrs vs 100x5yrs=500yrs. In both cases, the actual time in prison will be 10 to (the maximum) 30 years depending on redemptions...result: no difference.

That's the way it is in our criminal system.

[blackboard]

....and that is why I am demanding that our criminal procedural and constitutional rights are respected...

otherwise the criminal system is at fault with us

[have another coffee]

Only two days after the accident at AMS the following appears in the Dutch newspapers;

The OvV (Dutch accident investigation board) refuses to handover the CVR/FDR to the OM (justice). This action would undermine the independent position the board has, according to the OvV. Justice is astonished by this position as it hampers their (criminal) investigation.

:{

[xetroV]

Flight Safety Foundation Criticizes Prosecutorial Interference With Aviation Accident Investigation (http://www.flightsafety.org/news/nr09-04.pdf)

This article criticizes prosecutors in Italy and France in particular, but unfortunately it seems that The Netherlands should be added to this list. Good thing the Dutch (Transport) Safety Board (Onderzoeksraad voor Veiligheid) has so far refused to hand over the flight recordings of the Turkish accident to the prosecutors. Still, the total lack of understanding of even the most basic safety concepts within the Dutch judicial system is very worrying indeed!

[VS-Toga]

The biggest issue here AFAIAC is that litigeous actions can prevent or hamper the embedding of learning.

The whole purpose of the AAIB and other such organisations is to determine, learn, improve and embed, the latter could be system improvements, SOP inprovements etc etc.

The system works because we are effectively 'policed by consent'.

When the lawyers, who probably see this as big buck win territory, start getting involved, the whole process is threatened. We could lose the ability to rationally assess and replace that with blame, then the continual improvements that increase air safety will be jepordised.

Furthermore, the MO of the investigators is to establish facts; the MO of lawyers is to INTERPRETE facts. There is, IMO, a huge difference in those agendas, and with respect, unless said Lawyer/Judge actually understand fully how to fly/control an airplane, the facts could very well be mis-interpreted (or spun) as mentioned by another poster above.

(For the record, I could never contenance WILLFULLY ignoring checklists or SOP's. )

[Basil]

The overiding consideration here is that WE professional flight crew permitted installation of safety monitoring equipment on the explicit understanding that the information contained therein would not be used directly as prosecution evidence.
Action? Pull the CVR and FDR cb on every flight until the judiciary are told of and accept the realities.
I think one accident with no recorded information may do the trick.

[autobrake3]

Unfortunately, pulling cbs on the recorders without good reason (MEL) is illegal. As alluded to above, the presence of recorders on aircraft is to assist bona fide accident investigators to determine the cause of accidents and incidents. The wider public, including the legal trade will at a later stage be able to access the completed analysis published by the appropriate investigation authority. Under no circumstances should any other interested bodies have access to data recorders. The pious presumptiousness of the legal circus that they should have first or any access in order to fuel their greed driven litigation is reprehensible.

[have another coffee]

The problem is around the fact who will get the FDR/CVR first! If, in this case the OM (Justice) would have gotten it's hand first on the recorder it could (or would) have used the information for its criminal investigation.

I can only hope this will not start a race for the CVR/FDR after any incident between justice and a safety investigation board.

The dutch prosecutor does not have a good track record unfortunately. Refer to LVNL-Delta case or others.

[Flying Bean]

Sorry Guys. Can we backtrack abit here. I need to clarify to understand a lot of the posts
Are we saying that once an accident report is complete, done and dusted AND PUBLISHED, it contents should NOT be used for a subsequent case of criminal negligence.
Take a specific example. An aircraft engine fails due the the fuel system not being re installed correctly after maintenace. Aircraft crash lands with injuries. These are the findings of the CAA accident report and their recommendation is that the AMO must be re -audited, improve its it controls etc etc. I agree that thats as far as the CAA should go.
So does that mean any subsequent legal action should be based on a SEPARATE investigation of the accident and its causes?? If so then whom. Surely the CAA and NTSB are the best source.:confused:

[have another coffee]

First we have to agree on the fact that cooperating with any formal safety investigation is voluntary. The safety improvement process is dependant on reports given by the practitioners themselves. Digging your own grave by giving voluntary information to be used against one-selves in court is highly unproductive. (After the court-case LVNL-Delta safety reports dropped over 50% by fear of prosecution)

Secondly, I observe a strange relationship. The worse an outcome of an incident results in more involvement of justice. In the real world we never now whether an improper action is taken until it reveal itself (and then we have to notice it as well...). If the outcome of an improper action will be grave or not is depending on a lot more factors then a single action alone. If I was able to predict any of these actors I would not be posting on this form (but enjoying a nice cocktail on a tropical island while counting my pennies).

If we want to find the truth behind an incident we can probably make up ten stories to describe what happened with all the facts and factors at hand. Depending on the reference one takes we choose one story. It will be clear that justice will probably choose a complete different "true" story then a safety board, or a victim, or society. It would, in my opinion, be extremely unfair if justice was able to use the safety board's story for its own purpose of conviction. The FDR/CVR was installed to improve safety investigations to find out what happened, NOT to serve justice with their relevant data to start criminal prosecution.

I am not advocating that justice should stay clear of any safety critical profession. Nor do I want to state I am entitled to a blame-free environment. I am accountable for actions I take. Unfortunately I am not working in my own space. I am part a crew/group. This group is part of a bigger organization, which is nested in society or other systems with its own norms, values and other reference borders. To choose what is right or wrong within this system is probably easy to achieve (it should be clear though WHO makes this choice). The recently increased interest of justice in safety critical industries makes me increasingly nervous. Their terms of right and wrong are decided within a completely different reference frame. Nor do I know WHO exactly makes that decision or do I know the outcome of that decision beforehand. I advocate more clearness and expertise on the side of justice to create a more open playing field.

In the end we are all part of the same system. Any movement in the wrong direction will hamper not only us, but others too (including the prosecutor who wants a safe flying trip in the future). ;)

[flipster]

Does anyone out there know what are the Terms of Reference (TORs) for Accident Investigators - AAIB/NTSB, or even military BOIs?

For example, are they encouraged, from the start of the investigation, to consider the organisational influences upon the accident, as well as the local direct-efffect causes?

An example of Organisational factors would be company ethos or commercial cost impacting on crewing levels, rostering policy, lack of fatigue monitoring, poor training system etc. Whereas, the local factors could be crew mishandling, incorrect procedures, lapses, errors, violations etc?

It would be interesting to know as it has taken years for aviation to get commerce (eg airlines) and the govt to accept that such organisational influences are important in major accidents (eg Chernobyl, Piper Alfa, Zeebrugge, Dryden etc) but has Annex 13 been changed and have individual countries' aviation authorities ammended the TORs for their investigators?

[lomapaseo]

For example, are they encouraged, from the start of the investigation, to consider the organisational influences upon the accident, as well as the local direct-efffect causes?

An example of Organisational factors would be company ethos or commercial cost impacting on crewing levels, rostering policy, lack of fatigue monitoring, poor training system etc. Whereas, the local factors could be crew mishandling, incorrect procedures, lapses, errors, violations etc?


Unlike Pprune, the investigators search for facts at the scene against a specific accident before considering so called organizational factors that might have been.

After having gathered the facts and established the direct causal factors in the chain, then you necessarily move on to developing preventive actions against a future accident. If it can effectively be done by altering organizational factors (as above) then these will be identified.

Remember, the purpose of the investigation is not to establish blame but to prevent future accidents.

[Dream Buster]

Would the testing of Blood / fat of aircrew for contamination after a serious incident / accident be the sort of factual, relevant evidence that should be routinely collected?

Discuss.

DB :confused:

[Finn47]

Another case:

A French prosecutor has opened a criminal case against seven people over the 2007 fatal crash of an Air Moorea DHC-6 Twin Otter in French Polynesia.

Six employees of Air Moorea and the former head of French Polynesia’s civil aviation administration are to be probed for alleged involuntary homicide.Aviation Safety Network > News > News item (http://aviation-safety.net/news/newsitem.php?id=2146)