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Canadian Court Requires CVR Disclosure

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Canadian Court Requires CVR Disclosure

Old 8th Oct 2010, 15:25
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'Tis worth trying though. The alternative, i.e. the dropping of tools until the recorders are removed, would be very bad for aviation safety in the long run.
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Old 8th Oct 2010, 16:18
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Originally Posted by PJ2
The judge in the case will rule on whether the cockpit voice recorder will be played in open court
- I could be persuaded, I think, to allow a closed 'play' in certain cases (not commenting specifically on any particular case) to those involved in the legal action ie lawyers, judge and jury, but I can see no justification for playing to an 'open court' who would have no part in the case.
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Old 8th Oct 2010, 16:36
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To add to the comment on the fairness of trial by commoners versus professional peers : the exact same issue arises for every single profession, not just pilots. Doctors, engineers, whatever the discipline, you run the risk of being judged by the common man.

And, to be honest, if it were otherwise then everyone outside the profession would have doubts that there wasn't an old boys network at play - how many times does it get bandied about that the FAA is in the pocket of this airline or that manufacturer? How happy would anyone here be if there was an absolute bar to any external oversight to the FAA, either by congress or the judicial branch, on the grounds that "the FAA are the experts"?

(Add in your own favoured or unfavoured aerospace authority to taste)

Ultimately commercial aviation exists as a service to, and by the permission of, the public. We all, eventually, have to answer to them.
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Old 8th Oct 2010, 18:32
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PBL;

Thanks for your considered and thoughtful observations and comments - always read, always appreciated.

Your recognition and discussion of the notion of "discourses" is, I think, very helpful for others in understanding that there is nothing inherently "good" or "necessary" in these (or any other) views, (that safety data is by some special means, "privileged"), but that these views are both argued and implemented within, first, a philosophical, and then a social context.

Indeed, as you state and I agree, the discourses are fundamentally different, (and not only here but in all human exchanges).

A three-thousand-year-old context is more than substantial against aviation's very recent interpretation of disclosure. Since the inception of the "data argument", (based upon technical capability established in the '50's in England), I think the problem of disclosure has always been recognized, (I see Dekker is mentioned - his "Just Culture - Balancing Safety and Acccountability" is about this very process).

The notion of "the honest mistake" is, within an established legal context, a very strange one indeed - a contradiction even for most people who are outside high-risk organizations.

For others reading this thread, an example of this understanding (of 'the discourse'), could be a comment somebody might write in arguing for the privileging of safety data:

"Do the crime, do the time" (legal discourse), is about as sophisticated as most thinking gets, (safety discourse).

"Unpacking" statements in this manner is good intellectual hygiene, but the effect is a greater understanding of the arguments and a firmer basis upon which the arguments may then be critiqued, (the goal being "progress" - another discourse!).

To continue...

But as we all know too well, the law never precedes or anticipates society and instead both defines through history, and (albeit glacially) reflects societal values. Attitudes and technological developments now occur far faster than such history can accomodate. We may debate whether such a "steady hand" is a benefit or an anachronism - that depends upon the "discourse". Recognizing three thousand years of established practise is, in this context then, descriptive, not prescriptive.

The very recent "safety initiative" of collecting information and then using it as a basis for 'enlightened change' is in response to increased comprehension of the nature of "human factors" and accidents in complex technologies.

The notion of an "organizational error" is very recent, and is contextual, (within the "discourse of safety") would never have occurred to anyone in, say, eleventh century England in which the idea of an individual's personal life and safety had no context and was probably even laughable. The notion, say, of a "mistake within the organization, 'Monarchy' " which caused enormous harm to society, would be entirely foreign and be the subject of great derision within the context of the times, ...but then, we have Magna Carta...a momentous intervention in established (by one man) law of the time.

I'm not placing the present thesis against such historical events, - far from it! This is merely to illustrate the importance of discourse (which is a philosophical, not a political term), and that contexts change and continue to be maleable, most of the time by "a thousand tiny changes", but sometimes by one revolutionary change!

With enhanced comprehension of what makes human beings and their "modern" organizations tick, changes in values which fall within the discourse that informs a liberal society, (the preservation of life and property and the recognition of and therefore the opportunity for, recompense when 'harm' is caused to individuals) will lead lawmakers to "suitable" legal understandings, (in quotes, because the notion of 'suitable' is contextual and the present context is changing).

At the nub, as you say, the issue is almost certainly irresolvable finally, though we muddle through. The "rights" dialogue is currently in fashion. It shows how and why individual rights clash but the entitlement to individual rights, a notion which is supported by a liberal society, is dashed within that same liberal society because they in most cases, rights are mutually exclusive.

To some this review and response to PBL's comments may sound a very long way from the protection of safety information but in my view the thread drawn through these seemingly disparate issues is short and quite straight and do not set aside three thousand years of history but tease out a recognition of inevitable change and posits reasons why.

J.O.;

I suspect that, with any signficant, (read widespread, unfettered) trend towards using safety data for legal processes, a down-tools would not be beyond possibility but a great deal of enlightened ground would have to be dismissed out-of-hand first.

BOAC;

In the Propair case, a Quebec judge has already played a CVR to an open court - it was supposed to have only those directly affected but my understanding of the proceeding from a very good authority who was present, is that the courtroom was filled and the session was not "in camera". Once beyond the flight safety arena and in the legal arena, these things have a life, a pace and an agenda all their own, and that is a large part of the concern.

Again, once that door is open, it is arguably open for both defence and prosecution. It depends upon what society wants but as is keenly understood by those who have been on the receiving end of "justice", and as has been pointed out succinctly by Ex Cargo Clown, these issues are not easily understood by lay people and wrong, (read harmful to individuals), decisions can be made which, more broadly increase, not reduce, risk.

Mad (Flight) Scientist;
Ultimately commercial aviation exists as a service to, and by the permission of, the public. We all, eventually, have to answer to them.
You are right, and the industry does this, perhaps with more address than most other professions, but it is the way the response is structured that is being argued. ICAO Annex 13 should provide some comfort for those who may question the robustness and veracity of the investigativeprocess. We might observe that no such formal documentation or requirements exist for any other professions.

PJ2
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Old 8th Oct 2010, 19:07
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PBL:

I'll take a pass on your suggestion that antiquity ensures validity. (For my money, over reliance on precedent can fall into that trap, and evoke some legitimate criticism of laziness on the part of jurists ... )
It is, however, traditional for at least 1500 years in English law, which relies heavily on precedent. It's hard to beat 1500 years.
Would you say the same about a 1500 year habit of legislating that the earth is flat, or at least 3000 years of the precedent of legal slavery?

Regarding the actual application of lessons learned, it didn't take 1500 years for the US Navy to figure out (as one of many large organizations in the aviation operations field who learned how this all plays out) that the safety, and thus operatiopnal, benefits of the privilege concept has a beneficial impact on reducing the mishap rate.

For Mad Flight Scientist:
Were air travel as similiar enough in simplicity as surgery, or home construction, I'd consider taking a more favorable look at your point.

If you want to endorse a course of action that will make flying more dangerous, please, continue in your argument.
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Old 8th Oct 2010, 20:55
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Lonewolf_50;

While he may choose to clarify, I took PBLs observations differently - as a description of how things are and the reasons why the views, (which I think we both hold quite strongly) are not uniformly held throughout the legal community and, as made abundantly clear here, not by all passengers or other users of the aviation system.

In short, don't mistake description for advocacy, or agreement with the legal approach, or even an excuse for the way things are.

That said, (and perhaps PBL is saying this - Sid Dekker certainly discusses this), accountability, which usually takes the form of legal process, must be dealt with but within the context of a very long legal history which "demands" recompense.

To me, the inherent mutual exclusion between the legal and safety approaches (discourses) can be separated by requiring independent disclosure proceedings which avoid all reference to or use of specified safety-related flight data and records.

Such an arrangement requires, (and in some enlightened jurisdictions, enjoys) legal protection but that legal protection is being challenged under "the greater good", (which is where my comment comes from regarding, "what is the real criminal act?")

Such an approach is currently a very tall order but as you have said yourself in reference to the US Navy experience and airline safety people know this intuitively, what seemed ridiculous and politically/corporately/economically not doable at one time becomes straightforward and unquesioned at another time. That, for me, is what this thread is all about.

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Old 8th Oct 2010, 21:08
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Hi,

ICAO Annex 13 should provide some comfort for those who may question the robustness and veracity of the investigativeprocess. We might observe that no such formal documentation or requirements exist for any other professions
It is indeed a safety net.
But how far that law is respected and what are the penalties for non compliance ... ?
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Old 9th Oct 2010, 00:20
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"We are at take off........"

"Bit thick here, eh Bert"

A big problem is the interpretation of what has been said since it is entirely dependent upon what the person listening to the CVR thinks might have been said.
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Old 9th Oct 2010, 06:54
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I believe this is NOT a good idea to play the CVR in court. Look what happened to the Dash 8 pilot in New Zealand when the police tried to use the CVR in their case against the Captain. NZ did pass a law to prevent that from happening again.

The ability to improve safety from having a CVR far out weighs the use of it in court cases of any kind.
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Old 9th Oct 2010, 09:54
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Lonewolf,

PJ is right that I was not advocating, merely observing.

Indeed, the two examples you describe, personified by Galileo and Wilberforce, show indeed that, as I said, it is hard to beat 1500 years. Neither of them had exactly an easy time of it.

PBL
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Old 9th Oct 2010, 11:01
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--although, of course, scientific opinion has been univocally in favor of the sphericity of the Earth over the last 2500 years; Galileo didn't have the proof he needed for a heliocentric model, and even if he did, the heliocentric model is only a 'less wrong' understanding.

The point of these apparently off-topic clarifications is that 3000 years of history doesn't mean that changes are necessarily in the direction of "improvement"; just that there's 3000 years of procedural dreck to reckon with. Worse, there's no guarantee that the next paradigm shift will be for the better.

So, how to solve the problem? I see two possibilities:

The Nuclear Option

In general, courts routinely disallow disclosure of evidence where the economic, political or human impact is disproportionate to the value of the evidence: if I maintain my car was wrecked due to the faulty construction of the Copenhagen-Malmo bridge, I will have difficulty convincing any court to conduct a tear-down in support of my case.

On the other hand, courts, especially lower courts, are not always likely to understand the intangible damage allowing disclosure of safety data will do to those who seek to collect and to use such information for the purpose of improving safety and saving lives. And they might even overrule legislation designed to keep evidence out of their hands.

So simply mandate that all systems related to the collection of purely safety data be switched off in areas where the courts have determined they may be used as evidence in civil and criminal proceedings. Then the decision to allow such data as evidence will cause damage and loss of life disproportionate to the benefit gained.

The problem is that the nuclear option will almost certainly be exercised.

Not Readable This Station
Encrypt all systems, keep the keys in Sèvres, and do all the safety data collection work from there. If you want to keep something free from state interference (which is what court-ordered disclosure is), there's already a model for that.


Not very enticing alternatives.
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Old 9th Oct 2010, 14:31
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The other issue with disclosure is just where the line is drawn.

If my flight is delayed by two hours and five minutes, may I have access to the CVR if I decide to ask for assistance from the airline, as prescribed under EU Regulation 261/2004 if they decide it was a "safety matter". I'm sure many people would like to know if their flight was delayed due to ATC, Ops etc?

Or maybe I got thrown to the ceiling in some CAT, may I have access, in open court to the CVR to see if it was preventable?

CVR is a tool, one to understand why and how. It shouldn't be used to establish blame.
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Old 9th Oct 2010, 15:04
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Hi,

CVR is a tool, one to understand why and how. It shouldn't be used to establish blame.
As far as I know .. justice is not only to give a blame to a pilot
In all democratic countries at least the court has worked loading and unloading .. is what determines who is guilty and is not.
A pilot can be exonerated if he does not deserve and therefore the records can be an integral part of his defense.
So it's a double edged sword!
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Old 9th Oct 2010, 15:26
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The above informed debate is very interesting, a happy diversion from the quality of some other threads.

However the course of the discussion is steering away from a fundamental issue, the particular Canadian interpretation of the need to protect CVR contents. Canadian AAIRs do not even contain a transcript of the CVR, just a summary of the CVR evidence directly pertaining to the events. We all know the difference between a full transcript and a summary. Imagine for instance if from the Buffalo CVR transcript only the parts directly related to the control actions that led to the upset were summarised, would we have a good understanding of the accident ? In my view the Canadian practice protects the contents of the CVR beyond what is reasonable, going contrary to the need to reveal the full picture for the learning and benefit of the industry.

Last edited by andrasz; 10th Oct 2010 at 10:54.
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Old 9th Oct 2010, 15:40
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I've just had a look elsewhere about this case, and I'm wondering exactly where the tort has come from, as far as the ATC are concerned.

Surely by definition the Captain is in complete legal charge of the aircraft, why are they attempting to sue the ATC. Seems very odd indeed.

I know there are instance whereby criminal charges have been put upon an ATCer, but civil claims?
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Old 11th Oct 2010, 16:39
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To be judged by our peers is fair enough, to be judged by those who have absolutely no knowledge of aviation at all? Is that fair?
I thought perhaps, this was devolving into a thread about a hearing conducted of a line pilot by a base chief pilot.

Somewhat back on topic.... Sometimes, when accident CVR tapes are reviewed and FDR's decoded it appears that the accident/incident pilot's themselves have limited or no knowledge of aviation at all.
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Old 11th Oct 2010, 19:49
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Originally Posted by someTexan
Sometimes, when accident CVR tapes are reviewed and FDR's decoded it appears that the accident/incident pilot's themselves have limited or no knowledge of aviation at all
Everything is possible.

When I read some submissions to TechLog, I find myself wondering if people have any clue about stuff they are writing. And I am well assured that others think the same about me.

That's the point here. Translate: you're trying to fly an airplane with a couple hundred people in back from A to B as best you know how, and some joker is going to play back what you said and decide you are an idiot.

Let me recount a similar experience. I gave evidence before a UK parliamentary committee in 1998 about the development of the UK's new southern ATC center. I was well prepared, gave measured answers, in a room full of interested people, and my appearance was reported on the appropriate page of the Financial Times, along with a rational reconstruction of the arguments I presented.

A short while later, I was given the transcripts to comment. Reading it, I came across to myself like an complete idiot. Whatever, I said it, for better or worse. Gotta say yes, print it. You can read it in the parliamentary transcripts if you like - they are on-line.

What is missing from the judicial process of replaying CVR's is a rational reconstruction of what exactly the crew were saying and meaning (as the Financial Times, and later the New Scientist, gave to my comments). "Rational" in the sense that it makes deliberate sense of what they were communicating and why.

Until some attempt is made to do this, all of it will sound to the untutored ear like - well, like people talking to each other, unaware of the enormity of what is about to unfold. The untutored reaction (on the part of a jury, or panel of judges) to which is: don't you people know how serious this is? To which the tautological answer is: no, we were just doing our usual job according to the usual rules until it went pear-shaped.

Context is decisive. PJ's worries are well-grounded. But judicial proceedings have a right to information. How do we solve this?

PBL
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Old 12th Oct 2010, 23:58
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It is my impression that CVR transcripts are fairly routinely available in the US - is that the case? As opposed to the live recordings, which should be withheld in all decency.

In PJ2's initial report of this dispute, the Ontario Court of Appeal has supported the request by Canada's board of ATC, "NAV Canada" to disclose the contents of the CVR to clarify events, as Air France apparently is seeking to place some blame on ATC for the over-run of the Airbus in a thunderstorm. So CVR transcripts are not routinely available in Canada, then?

Having read the report, the propensity of pilots to persist in an approach when it would be prudent to go around does seem to call for a different emphasis in company policies. European operators are unfamiliar with the dreadful power of a North American thunderstorm. The pilots of the Air France Airbus did their best with limited weather information; the ATC did its best with half their wind recording instruments zapped by the storm.

Holes in cheese lined up big time. Thanks to good work by the cabin crew, all aboard survived, despite at least half insisting on taking hand baggage down the slides!

A number of good recommendations were made in the very comprehensive report. I wonder how many company policies now promote the prudent go around? how many airfields have built an over-run area that can safely slow down and stop the imprudent? surely computers can keep the pilots informed of the required distance for a safe arrival on any runway, contaminated or not?
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Old 13th Oct 2010, 01:35
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Cool

Hi,

To be judged by our peers is fair enough, to be judged by those who have absolutely no knowledge of aviation at all? Is that fair?
If we apply your principle of justice (just be judged by his peers) they can now close all the courts of justice
It is noteworthy that the court of justice (or judges) rely on experts in the field of cases tried.
There is no argument for a pilot or other professional should only be judged by his peers.
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Old 13th Oct 2010, 02:23
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If we apply your principle of justice (just be judged by his peers) they can now close all the courts of justice
It is noteworthy that the court of justice (or judges) rely on experts in the field of cases tried.
There is no argument for a pilot or other professional should only be judged by his peers.
I was of the mind (I can be changed) that the judgement of John Q public type peers was towards the validity of the arguments presented by experts in the field. That said I didn't think that the average Joe would make judgements based solely by what they heard but more so on what the experts suggested what it could mean.
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