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Punitive "Justice"

Old 26th Oct 2007, 01:39
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Punitive "Justice"

This was published recently...

Originally Posted by The Australian newspaper, Friday October 12, 2007
by: Geoffrey Thomas.

A Swiss court's decision to find four air traffic controllers guilty of negligent homicide over a 2002 mid-air collision that killed 71, mainly Russian children, has bought into sharp focus the intense debate over aviation accident blame.

Three managers were sentenced to one-year suspended prison terms, while a project manager was fined. The four employees of Skyguide -the air traffic control company- were found responsible for the July 1, 2002 collision of a Bashkirian Airlines TU-154 and a DHL 757 cargo aircraft over Uerberlingen in southern Germany. The two cargo pilots and everyone on the passenger plane were killed.

The air traffic controller on duty, Peter Nielsen, was later stabbed to death in front of his family by a Russian whose wife and children had died in the crash.

Prosecutors claimed that a culture of negligence and lack of risk awareness were contributors to the accident and that it was not solely Nielsen's fault.

But more than 100 years of flight has taught the aviation industry one unshakeable truth -virtually no accidents are caused by failures of individuals, but are the result of a conflux or alignment of multiple contributory system failures.

Yet it was the Russian Captain's decision to ignore repeated warnings from his traffic collision avoidance system (TCAS) to climb to avoid the DHL plane that was the direct cause of the accident.

In aviation where most accidents are caused by "human error", it is imperative that the industry understands -as quickly as possible in a free and open exchange- what circumstances conspired to cause humans to err.

Working against that ideal is the passion in many countries to charge those responsible -typically pilots or air traffic controllers- with a criminal offence.

According to Sidney Dekker, from the Swedish Centre for Human Factors at the Linkoping Institute of Technology, "it is critical to understand why people did what they did, rather than judging them for not doing what we now know they should have done".

Alarmingly, the list of accidents where the opposite view is taken is growing and the long-term negative impact is being felt across the industry.

The increase in the criminalisation of airline accidents -most recently highlighted by the prosecution of the air traffic controllers and pilots in the 737 mid-air collision in Brazil in September last year- is "profoundly disturbing and threatens the extraordinary safety record of the airline industry", Flight Safety Foundation President Bill Voss says. The Foundation is leading the industry charge for the decriminalisation of airline accidents.

In an unprecedented move, it joined with the Royal Aeronautical Society and Acadamie Nationele de l'Air et de l'Espace on October 18 last year to issue a 5-point resolution calling for the establishment of causes and contributory factors to be the first priority following aviation accidents, rather than the criminal pursuit of aviation employees.

At the same time, the safety foundation points out that even an organisation that promotes a "no blame" culture cannot tolerate irresponsible or careless acts, such as has happened with several pilots caught -on the flight deck- under the influence of alcohol.

The airline industry, Voss says, has demonstrated that with a free flow of safety information -combined with technological advances- enormous strides have been made in airline safety.

Since 1960, the crash rate of jet aircraft has improved from 60 accidents per million departures to just 0.73 -excluding Russian-built aircraft- and virtually all of those are 1960's and 1970's era jets.

But while the accident rate has plummeted the propensity to criminalise airline accidents has soared on the back of over-zealous prosecutors and government officials who are often covering up system shortcomings.

These prosecutors, many under Napoleonic law, where the pursuit of a guilty party is essential, take their lead from what Dekker terms the "old view" of accidents.

This view espouses human error as the cause of most accidents, putting forward the idea that the systems are safe. Further the "old view" says progress on safety can only be made by protecting these systems from unreliable humans through automation, training and punitive discipline.

However, the "new view" -and that of most in the airline industry- "sees human error not as a cause but as a symptom of failure", Dekker says. The problem is simple. If pilots and others fear they will be prosecuted, they will naturally withold information that will be critical to preventing the same accident from re-occurring.

The most high-profile criminal prosecution was that of SabreTech's involvement in the ValuJet DC-9-30 crash in the Florida Everglades on May 11, 1996 which killed 110 people.

A new benchmark in the aggressive pursuit of criminalisation was set in 1999 by Katherine Fernandez-Rundle, Dade County state attorney, when announcing a 220-count indictment against SabreTech.

She claimed at the time that "hopefully the chilling reality of criminal charges -murder and manslaughter charges- will send a very clear message to the aviation industry that will save lives in the future."

The decision to bring criminal charges was made despite the fact that the National transportation Safety Board determined that the crash was caused by three major factors and four contributing factors, not all of them attributable to actions by SabreTech.

Former NTSB chairman Jim Hall stated at the time: "The ValuJet accident resulted from failures all up and down the line -from federal regulators to airline executives in the boardroom to workers on the shop-room floor."

The wash-up of the criminal investigation was that SabreTech's employees were acquitted of all criminal charges and most of the charges against the company were dismissed, or overturned on appeal.

But the charges and media exposure forced SabreTech, once the third-largest independent repair station, out of business, according to Kenneth Quinn, partner of Winthrop, Stimson, Putman & Roberts, counsel for the airline.

Giving evidence in 2000 before a US House of Representatives aviation subcommittee, Quinn also expressed deep concerns at the aggressive action of prosecutors citing raids on facilities, unlawful seizure of privileged documents, late-night doorstop interviews of employees by homicide detectives and charges of murder and manslaughter before interviews or discussion with counsel.

One final explanation for the drive for the criminalisation of aviation accidents is put by Dekker, who says: "Faced with a bad, surprising event, we seem more willing to change the players in the event (by destroying their reputations) than to amend our basic beliefs about the system that made the event possible."
Rather interesting I thought. If we compare the public blood-letting of our industry (from FAA/CAA/CASA on down through every level of industry, including PPRuNe) to the circumspection, sobriety and privacy of the medical profession for example, we are our own worst enemies. We are very quick to publicly destroy the reputations of our peers, without thought or care of the long-term consequences of those careless words on the victims of our vitriol. Often it is those who have the most to gain that are quickest to judge and point the finger of blame at those vastly more experienced -and then usually without benefit of possession of all the relevant facts, and all the while howling for the blood-letting to begin. You don't need to look far for the evidence of my claim -there is a thread running here wrt a recent Partenavia incident that illustrates that point, amongst many, many others. I'm not passing judgement on that incident in any shape or form, rather pointing out where I see deficiencies in many of the posts associated with that and similar threads, amongst many thousands of similar threads, here and in other forae.

Back to the article: The example given of the tragedies directly and indirectly associated with the Bashkirian/DHL crash might serve as a metaphor -and warning to us all- for virtually every aircraft incident/crash of recent times. I have harsh personal experience of both minor and (on the fringe of) major, multiple-fatality aircraft incidents, as I suspect do many of the posters in here. I have been personally lied to and about by CAA investigators, TAIC investigators, Police, peers and others involved in investigations after the event, as much as my words have been distorted by their stifled prose to fit their off-the-wall contentions. I have read with gob-smacked amazement preliminary reports that draw conclusions so wildly off the mark as to be entirely incomprehensible, often insupportable. I have seen PROVABLE FACTS go unreported, apparently because those facts would of themselves make a nonsense of the underlying contentions. I have seen lies reported as facts, used to create a lasting impression of lack of due care, irresponsibility, criminality and in some cases outright character assassination... in all aided and abetted by an irresponsible media that cares for nothing other that sensationalism. I have spent hours, days, weeks writing responses to these spurious, unsupportable contentions and "findings". Many more hours, days and weeks writing and rewriting company documentation to "fix" things that don't need fixing or merely meet some arcane political agenda. Often I find the regulator can't even tell me what they want -they just know what they don't want... and we in industry are left to muddle our way through as best we can until we meet that undefinable "requirement".

To my way of thinking, the telling passages of the article above are these:

But while the accident rate has plummeted the propensity to criminalise airline accidents has soared on the back of over-zealous prosecutors and government officials who are often covering up system shortcomings.

These prosecutors, many under Napoleonic law, where the pursuit of a guilty party is essential, take their lead from what Dekker terms the "old view" of accidents.

This view espouses human error as the cause of most accidents, putting forward the idea that the systems are safe. Further the "old view" says progress on safety can only be made by protecting these systems from unreliable humans through automation, training and punitive discipline.

However, the "new view" -and that of most in the airline industry- "sees human error not as a cause but as a symptom of failure", Dekker says. The problem is simple. If pilots and others fear they will be prosecuted, they will naturally withold information that will be critical to preventing the same accident from re-occurring.(added emphasis KB)
The criminalisation of aircraft incidents/crashes as I see it is a function of political will, driven by a perceived expression of public will, formed and distorted by a mis-informed, irresponsible, sensationalist media. Rampant political correctness. "Something's happened, someone's responsible, let's get the bastard". The pack mentality. It exists in all levels of society: government, regulator, public and sadly industry. "The pursuit of a guilty party is essential".

Systemic failures: we've all seen them, sometimes suffered the consequences whether minor or very serious indeed. The regulators however, appear to be of the belief their systems are infallible, accurate and the primary indicator of an individuals or organisations fitness to be an ongoing participant within the aviation system. As I see it, there is a reason these systems are referred to as current best-practices (CBP's). You guessed it -the key is in the Current. These practices are currently those that best fit the societal, political, and industry needs of the minute. There is however in the term CBP, an implied commitment to continually review and revise these practices, with the intent of the practices growing and improving to reflect societal, political and industries changing and growing mores and needs! How much easier and more effective would that process be if we could entirely remove the need to comply with current and changing political will. Systems that actually reflect the best interests of industry, which by implication alone will reflect the best needs of society...

Punitive discipline: while there continues to be a minority "lunatic fringe" of miscreants within industry, there will be a need for some level of punitive discipline -groundings, loss/suspension of licence, loss/suspension of operating certificates... to apply that brush too broadly (as is currently the case) damages industry irrevocably. Good, experienced people are being hounded out of industry, with their professional reputations in tatters and in some cases personal character destroyed. Here we need to take a leaf from the book of the Medical profession. They do not allow their participants to be judged by those ignorant of what they do or how they do it (Police, Train drivers, political appointees, the media or public.) -no, in cases of misconduct, impropriety or misadventure, they are judged by a professional body of their peers who may if necessary, refer the process to the civil authorities. Why are we as a professional body allowing ourselves to be treated any differently??? How can we as practising professionals expect to be treated justly by a system that has no knowledge or understanding of how we do what we do, or why??? Those charged with investigating our activities with a view towards criminal proceeding first have to be educated to a minimal level of understanding of what we do!!! How bizarre is that?

The new view: "sees human error not as a cause but as a symptom of failure"... "If pilots and others fear they will be prosecuted, they will naturally withold information that will be critical to preventing the same accident from re-occurring."

'nuff said.
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Old 26th Oct 2007, 08:29
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Very thought provoking stuff kiwiblue.

I have seen an accident report (written by CAA) that was written in such a way as to support an issue that was close to the heart of CAA. Some of the conclusions drawn were certainly stretching reason. Since then I have looked at some accident reports with a healthy dose of scepticism, especially when they have been done by CAA.

You mention the recent Partenavia report. I saw a comment in there which I'm sure was put there to support a current CAA initiative, even though that document was produced by TAIC.
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Old 26th Oct 2007, 10:07
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Timely post given the very public calls to prosecute the Garuda pilots. Things look bad for them but not sure if prosecuting would lead to a safer air transport system in Indonesia.
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Old 26th Oct 2007, 10:35
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Are they talking about prosecuting both GARUDA pilots? Cause from what I've heard in the news (after the accident) the FO did everything he could to make the captain go around...
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Old 26th Oct 2007, 14:34
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Cap'n Arrr,
The Foreign Minister, Alexander Downer, said yesterday that on the basis of the "very credible report" on the crash, it seemed the pilots were responsible for the accident.
Downer says to string them up
The investigation also found the co-pilot did not follow company procedures and take control of the plane when he saw the pilot repeatedly ignore the alerts and warnings.
Yep, good enough for me.
"[pilot in command's] attention was fixated or channelised on landing the aircraft on the runway and he either did not hear, or disregarded the GPWS alerts, and warnings, and calls from the co-pilot to go around."
Well, string them up anyway. Make an example of them. That'll stop any chance of an accident in the future.
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Old 27th Oct 2007, 06:06
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WRT the Garuda accident, it seems to me that when a pilot allegedly ignores multiple hard GPWS call outs and F/O's urging a go around, all the while being nowhere near stable on the approach nor correctly configured, his behaviour is negligent and hence blameworthy and culpable. All humans make mistakes - that is a given - but negligence cannot be tolerated in any public transport system.

If this pilot can be proven to have behaved as alleged, IMHO he is ripe for criminal prosecution.
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Old 27th Oct 2007, 07:25
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mustafagander,
I see your point, however my concern is that if you string up one guy others will in the future shut up rather than fess up. I also have concerns that the Indonesians haven't released all the data that they have for fear of it being used in courts. This also shouldn't happen in an open reporting culture.
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Old 28th Oct 2007, 01:31
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Originally Posted by mustafagander
when a pilot allegedly ignores multiple hard GPWS call outs and F/O's urging a go around, all the while being nowhere near stable on the approach nor correctly configured, his behaviour is negligent and hence blameworthy and culpable
Were those charges proven when judged by a jury of his professional peers in light of the relevant systems/SOP's and conditions, then yes I would agree the alleged (keyword) actions should be considered blameworthy and culpable with appropriate charges pursued via the public system. It still begs the question though, are the prosecutors/investigators involved in this appropriately qualified and experienced to be conducting that investigation??? If not, why not?
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Old 28th Oct 2007, 02:09
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Quote
"Were those charges proven"

I would have said the end result is certainly proof of gross negligence. The exercise was to land the aircraft and unload the Pax, simple as that.
 
Old 28th Oct 2007, 02:33
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Originally Posted by prospector
I would have said the end result is certainly proof of gross negligence.
Excessively simplistic prospector. Re-read the 1st post, with particular emphasis on the passages dealing with punitive justice. The end result is the consequence of the holes-in-the-cheese aligning, proof of nothing more than that.

Without access to CVR/FDR and all the other relevant data-streams in relation to that particular flight, we are doing nothing more than pontificating from our ivory towers. In here, we are basing our judgements on supposition, rumour, hearsay and in some cases outright lies. Thoroughly re-read the opening post.

Given your opening statement, I hope for your sake you never have reason to regret those words, or indeed be judged yourself in those same very dim lights.
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Old 28th Oct 2007, 02:45
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???????

Do you really think the crew would have done that if they had known what the outcome would be???
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Old 28th Oct 2007, 04:12
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Bushy,
What other outcome would you be expecting if you came over the fence 100kts to fast, in the configuration they were in, do you think perhaps they thought they had arrestor wires, or perhaps a drag chute to wipe out all that energy???

Kiwiblue,
Simplistic?? you may think so, I dont. In fact the more one reads these threads the closer the Aviation scene seems to be getting where nobody is responsible for their actions. There are very few pure accidents, majority are the result of errors of ommission or commission.
 
Old 28th Oct 2007, 04:40
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Originally Posted by prospector
majority are the result of errors of ommission or commission.
I'm not arguing that. But where were the errors of commission or omission? You quote airspeed and configuration in you post, yet provide no links to factual, provable data in support of your contention, which IMO makes it no more than supposition, hearsay and rumour. Now when I say that I'm not talking specifically to the Garuda crash, but more generally to damn near every crash/incident "reported" here and the inevitable speculation, supposition and hearsay that surrounds each and every one of those incidents. Again, go back to the original post, read and understand it and you may come to some understanding of what I'm saying.

IF YOU ARE NOT IN POSSESSION OF EVERY RELEVANT FACT THEN ANY SPECULATION SERVES MORE TO MUDDY THE WATERS THAN PROVIDE ANY USEFUL DATA.

Small wonder that so many crash/incident causes go undiscovered or unreported when so many of us are so willing to pass such harsh public judgement on our peers with so little information available to us.
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Old 28th Oct 2007, 05:02
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At any rate, the accident investigation is not a forensic investigation. The evidence obtained has not been gathered in the same way as that gathered for a prosecutor, and consequently a lot of it would be inadmissible. I'm not a lawyer, and I stand ready to be corrected on that point by someone with more knowledge about the topic than I.

Also, none of us, including that noted aviation expert Foreign Minister Downer, are privy to all the facts about the incident, so it's all conjecture about whether it was a case of gross negligence or not. I think it is shortsighted to look at the end result and conclude gross negligence is the only explanation. Was the crew fit to fly? Were they appropriately trained and experienced? Were they distracted or overloaded by other tasks? Was there sufficient overrun at the airport? Were there adequate emergency services available? Did they have the access they needed at the crash site?

But let's look at this from a purely safety based outcome - will stringing up the two blokes at the pointy end make an incident more or less likely to occur in the future?
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Old 28th Oct 2007, 05:10
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Kiwiblue,
Aeroplanes have been flying for a very long time now, I believe it would be fair to say that just about every stuff up that it is possible to make has been made. What is different now is that many people spend all their time trying to line up holes in Swiss Cheese. (Why Swiss Cheese?). What appears to be different now is that people will not accept they stuffed up. They go looking for a lump of cheese to find holes to line up. If a bus driver crossed the centre line on a highway and killed many people, do people say the silly buggar stuffed up? and should they be prosecuted, or do they go looking for a piece of cheese to line holes up in?? Why should anyone who drives aeroplanes be exempt from prosecution after carrying out a negligent action just because they drive aeroplanes? Is parking a serviceable aeroplane in a broken state, on fire, many people killed or injured not a grossly negligent action??
Quote
"At the same time, the safety foundation points out that even an organisation that promotes a "no blame" culture cannot tolerate irresponsible or careless acts, such as has happened with several pilots caught -on the flight deck- under the influence of alcohol."
Who is it in the safety foundation that decides what is the cut off point between a "no blame" act and what is a careless act?? does an act that results in the loss of lives and many injuries, and the aircraft, fall into a careless act, or as many would have us believe a no blame event.
"Small wonder that so many crash/incident causes go undiscovered or unreported when so many of us are so willing to pass such harsh public judgement on our peers with so little information available to us."
Specifically on the Garuda crash, there is ample evidence from the people who survived the crash, and from eye witnesses that the P1 should face charges of gross negligence. One of the reasons aviation progressed so fast in the early days was because peers passed harsh judgement, made one concentrate just that bit harder to not be on of the "there but for the grace of god" events.

Last edited by prospector; 28th Oct 2007 at 05:28.
 
Old 28th Oct 2007, 05:52
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OK prospector, plainly you are not going to be shifted from your point of view -which you are entitled to. It seems however you are wilfully disregarding the major points of this discussion. In partial response:

Originally Posted by TLAW
...will stringing up the two blokes at the pointy end make an incident more or less likely to occur in the future?
Personally, I think not.

Previously in specific discussion of the Garuda case there was mention of cultural issues that may or may not have had an immediate and direct impact on the outcome... just one of those 'holes' that probably would not have been a factor had the flight originated in a country of different culture. There will be others.

Originally Posted by prospector
...there is ample evidence from the people who survived the crash, and from eye witnesses that the P1 should face charges of gross negligence.
"ample evidence from people who survived the crash..." -passengers? Cabin-crew? What pray tell are their professional qualifications to pass such a judgement? The F/O? Was he in fact as decisive and insistent as the situation may have called for? Or did cultural issues mute his protest? The eye-witnesses... one would hope that at least some of them were professional flight-crew who's opinions might have some credence, because for sure I'm seeing nothing in your posts that points to direct, significant, factual evidence at all!!! Just more rumour, hyperbole, supposition and hearsay.

Originally Posted by prospector
Who is it in the safety foundation that decides what is the cut off point between a "no blame" act and what is a careless act?? does an act that results in the loss of lives and many injuries, and the aircraft, fall into a careless act, or as many would have us believe a no blame event.
answered thus in the same post:

Originally Posted by kiwiblue
Punitive discipline: while there continues to be a minority "lunatic fringe" of miscreants within industry, there will be a need for some level of punitive discipline -groundings, loss/suspension of licence, loss/suspension of operating certificates... to apply that brush too broadly (as is currently the case) damages industry irrevocably. Good, experienced people are being hounded out of industry, with their professional reputations in tatters and in some cases personal character destroyed...
How can we as practising professionals expect to be treated justly by a system that has no knowledge or understanding of how we do what we do, or why??? Those charged with investigating our activities with a view towards criminal proceeding first have to be educated to a minimal level of understanding of what we do!!! How bizarre is that?

Last edited by kiwiblue; 28th Oct 2007 at 06:48.
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Old 28th Oct 2007, 07:00
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Where I am hoping you will arrive prospector, amongst others, is an understanding that people involved in incidents/crashes that know they are facing punitive discipline of whatever form will withold vital information in the hope of protecting themselves from worse. Human nature. We all do it.

The whole idea of aircraft crash investigations is to understand all the underlying causes, with the intent of improving systems wherever necessary: cockpit, training, SOP's, ATC, ground, documentation, cultural... the list goes on- or any combination of those systems/factors, with the intent of (hopefully) preventing that same crash occurring again.

That is where the 'no blame' culture is headed. It does not advocate no punitive action in cases of gross misconduct or criminal intent. It does advocate suspending judgement until all the facts are in and assessed by an appropriately professional body.
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Old 28th Oct 2007, 07:34
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Kiwiblue, I think you may have misunderstood me. The question I posed was; will punitively punishing the Captain make an incident more likely to occur in the future, or less likely to occur in the future? In my opinion, it would make no difference, but it would make investigating the next one more difficult. From that, you could conclude punishing the Captain would make aviation less safe, not more.
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Old 28th Oct 2007, 08:53
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No TLAW, that's pretty much how I read it, and why I quoted you directly. That is my assessment also, and why I support the 'no blame' ethos. Prosecution, whilst satisfying the primal urge for a blood-letting, a scapegoat, achieves nothing more. By it's very nature a prosecution of an individual or a group of individuals denies the existence of more than one direct causal factor. It assumes one direct action by one individual lead inevitably to one outcome. Napoleonic law. Stiflingly simplistic. Anachronistic. Out-dated. Out-moded.

To prevent the inevitable rediscovery of every aviation incident/crash, we must 1st understand correctly every factor that in any way contributed to that event, prepare appropriate defences, train the major players correctly and ensure supporting systems are in place and effective. The beat of a butterfly's wing that caused the typhoon. We must understand the entire process.

If an individuals primary concern in the wake of an event is of the consequences they will suffer, they will inevitably withold information in the hope of minimising those consequences. Human nature.

If there is a better way to achieve the safety outcome we all strive for, I would like to know it.
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Old 28th Oct 2007, 09:06
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Kiwiblue,
You say,
"The whole idea of aircraft crash investigations is to understand all the underlying causes, with the intent of improving systems wherever necessary: cockpit, training, SOP's, ATC, ground, documentation, cultural... the list goes on- or any combination of those systems/factors, with the intent of (hopefully) preventing that same crash occurring again"

It would appear that the main cause of accidents in this day and age, is the human element, aircraft systems being so exceedingly reliable, especially engines, that any complete failure of any system that is for the most part triplicated, or at least duplicated, is exceedingly remote.

An occurence that springs to mind is the airbus that did the Auto Land at Perth a few months back, you may recall the incident, weather went below minimums, not enought fuel for divert, so what to do?? let the aircraft land itself. Did away with the human element. I would imagine, with the publicity that went along with this event, it would be an eye opener for many beancounters and SLF people.
You say,
What pray tell are their professional qualifications to pass such a judgement? The F/O? Was he in fact as decisive and insistent as the situation may have called for? Or did cultural issues mute his protest? The eye-witnesses... one would hope that at least some of them were professional flight-crew who's opinions might have some credence, because for sure I'm seeing nothing in your posts that points to direct, significant, factual evidence at all!!! Just more rumour, hyperbole, supposition and hearsay.

Many of those people would have many hundreds of hours under their belts as Pax, they would be quite capable of assessing whether an approach is as per normal. What makes you think the opinions of these people is of no value because they are not professional aircrew??

Driving an aeroplane in this day and age is not rocket science, many years ago when the 737 first made its appearance it was deemed that one had to have at least an ALTP with thousands of hours to even occupy the right hand seat. Nowadays it is not uncommon in parts of the world to see a brand new CPL with 3 hundred hours in the right seat. Have not noticed any increase in the number of accidents, and cannot recall one where the cause was put down as lack of aeronautical experience, although the state of play is changing so fast that I dont believe that fact will hold good for long.
 

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