Aviation safety jeopardised by judges?
Here´s a recent case where some lawyers representing victims´ families display their attitude:
Firefighter's family files lawsuit in helicopter crash - OregonLive.com
That´s lawyers for you.
We really look forward to discovering who is at fault for this crash
That´s lawyers for you.
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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.
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.
Last edited by justme69; 21st Sep 2008 at 06:48.
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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
or An Extremist or terror activity
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.
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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.
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.
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Intent
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)
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.
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.
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Turkish airliner crash
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.
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.
Last edited by have another coffee; 27th Feb 2009 at 13:50. Reason: spelling
Flight Safety Foundation Criticizes Prosecutorial Interference With Aviation Accident Investigation
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!
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!
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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. )
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. )
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.
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.
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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.
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Turkish airliner crash
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.
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.
Last edited by have another coffee; 28th Feb 2009 at 21:50. Reason: text
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Use of accident report
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.
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.
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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).
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).
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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?
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?
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?
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?
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.
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Blood / fat test of aircrew?
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
Discuss.
DB
Another case:
Aviation Safety Network > News > News item
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.
Six employees of Air Moorea and the former head of French Polynesia’s civil aviation administration are to be probed for alleged involuntary homicide.
