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Canadian Court Requires CVR Disclosure

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Canadian Court Requires CVR Disclosure

Old 28th Oct 2010, 23:19
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Shell Management

Shell Management, your own outfit is not quite the stellar example of corporate operations;

Dutch based, Bermudan registered airplanes, FAA Licenced pilots in the middle of EASA operations.

And your credibility as a manager suffers severely when you display pig ignorance and a big chip on both shoulders with your quotes about pilots: "right stuff", "big pay", "gold braid".

Your company board, employees and guests are all in the hands of your company pilots - often times unsupported throughout the world, Africa, Eastern Europe, or even just in the challenging winter approaches into London City.

Any company needs people with these attributes - not for the day to day mundane, but to stand up and say "I am up for it" when the tough challenges appear.

The flightdeck atmosphere should be professional but relaxed, not uptight and frightened. Recruiting correctly, paying fairly, leading properly and setting the example will get your results. Not fear and intimidation, back room cowardice, after the event grand standing.

Please enlighten us - how much has Shell's corporate outfit benefitted from FOQA and CVR monitoring. How is the morale and trust amongst your team?

Shell operated into and out of London City for many years incident free before the introduction of FOQA. What caused the Falcon heavy landing there shortly after its introduction?

You quote a recent London City clearance readback error by a foreign language crew as a justification for CVR monitoring. Their incorrect readback was not corrected by ATC.

And you jumped on the Buffalo crash as reasons for CVR monitoring - these young inexperienced pilots were placed in this scenario by bad management - two inexperienced pilots, rubbish wages and poor training. These kids were commuting, sleeping in terminals, and somehow the young captains training had conditioned him to pull against the stickshaker.

Shell Management needs to learn that complexity does not make things safe - simplicity does.

Shell Management is apparently not an experienced aviator, nor leader of people.

And "Here Here" to FDR's response to you. Much more eloquent than mine.

Last edited by jungle drums; 29th Oct 2010 at 01:10.
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Old 29th Oct 2010, 00:45
  #142 (permalink)  
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High pay should not be confused with flight safety.
Just keep on telling yourself that. The free market doesn't apply to flying skills....
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Old 29th Oct 2010, 01:14
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First, a confession: I am a lawyer.

I'd like to attempt to contribute in a balanced way to the discussion, particularly given the hysterical tenor of a few of the responses. BTW, I regularly record conferences with my clients. In certain circumstances (such as a complaint against me) I would be compelled to disclose them to my regulator. I have had to give evidence on more than one occasion about discussions that I have had with a client.

Here's a view of the issue (and a discussion of the history of the debate) from an Australian & NZ legal perspective:

David Boughen Memorial Address Aviation Law Association of Australia and New Zealand Conference

Pursuant to the Australian legislation, the data recorders are not admissible in any criminal proceedings against flight crew, and only in civil proceedings if the public interest in disclosure outweighs that in favour of protecting the privacy of the crew and facilitating proper investigation.

In NZ, recorded data is not admissible against a pilot it any proceedings. Before ordering disclosure in a civil case against an airline, only where very large sums are sought by way of damages and even then, a court considering the issue must
determine that "the interests of justice in the disclosure of the record outweigh the adverse domestic and international impact the disclosure may have on the investigation to which the record relates or any future investigation into an accident or incident."

Significantly, Chief Justice de Jersey speaks of our "
parliaments taking an approach protective of flight crews, but recognizing the social utility of facilitating civil claims."

The point I make is that not all lawyers (and probably very few) would agree with the proposition that broad issues of safety and privacy should be simply trampled on in pursuit of damages claims.

As for closed courts, it has long been the principle that justice must be done and seen to be done in the crucible of the public view. Decisions (especially controversial ones) that are made in secret - or on the basis of secret evidence - are likely to be viewed with suspicion and cynicism.

My $0.02. Pls give me a sec to put my nomex robes on before commencing the flaming.

Last edited by Just a Grunt; 29th Oct 2010 at 01:46.
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Old 29th Oct 2010, 05:39
  #144 (permalink)  
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Just a Grunt;

No need for the nomex.

First, thank you for returning to the original topic at hand. I was actually aware of Australia's enlightened laws on the matter of protecting flight data from use in criminal court but had forgotten. Thanks for the reminder.

In re, "Significantly, Chief Justice de Jersey speaks of our "parliaments taking an approach protective of flight crews, but recognizing the social utility of facilitating civil claims." ",

Frankly, I think that's all that reasonable argument from the flight crews' side of matters could expect. It has been pointed out (PBL) that the legal history of "recompense", (I know I am not using the correct term here, but I'm a pilot, not a lawyer) is a very long one and that one cannot just toss out such history in order to privilege a recent process - not, at least, without signficant social benefit.

So, hastily added however is the acknowledgement that "accidents" and "human factors" are far more deeply comprehended today than such factors were fifty years ago. We also now know that the intelligent use of collected data has a strongly preventative effect when provided to the appropriate groups.

Changing SOPs, addressing ATC procedures, examining aircraft behaviours, and collating data which may exhibit behavioural patterns not seen in cockpit crews before, (the automation question may be a case in point), all point to the such appropriate use of flight data.

Yet there is a strong societal sense that, at some point, there must be an accounting. I think most flight safety people would agree. As PBL has offered, perhaps the two worlds are irreconcilable, and perhaps that is so, perhaps not. I know PBL has considered the notion of civil proceedings as well, as one way to retain the integrity of seemingly-opposed processes.

The issue is, primarily, using such data/information in criminal court as a blame-mechanism. The issue is not necessarily the total prevention of discovery as may occur in civil proceedings.

By bringing these two court cases into discussion with those in aviation and specifically the safety professions, and of those professionals in other fields, (legal, engineering, human factors), it is to this point (of possible ways forward) that I had hoped this thread would have arrived, though much earlier.

I hope others, from the aviation community and from the legal profession might pick up on these thoughts to see where this might go.

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Old 29th Oct 2010, 07:59
  #145 (permalink)  
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Now, that's a pretty interesting comment from Just a Grunt.

In France, any lawyerly communications with clients or engaged experts outside of the courtroom are strictly privileged, as far as I know. This extends to documents.

In England, client-lawyer or lawyer-expert discussions, indeed communications of any sort, are privileged, but I believe there are circumstances in which some sorts of communications must be revealed; I don't know what they are.

In the US, any sort of written communication between lawyers and experts may be subject to disclosure, as I understand it.

It makes for interesting times when one works international proceedings, because nobody quite knows what's what where!

It will be obvious that I don't share the trite, disparaging attitude towards the legal profession which others have expressed here. I have a lawyer to thank for being able to see my son regularly for much of the last twelve years (although she hasn't succeeded too well in the last two and a half). I have a lawyer to thank for a larger inheritance; she put my father's house up for auction and a couple of neighbors got competitive over it. I shall have lawyers (clients) to thank for our company airplane; it cruises at a blinding 0.128 M at FL30 and will be overtaken by a Renault Clio on the Autobahn but, hey, it's up there and not down here, and it goes over the water to the island and it'll let the two others learn how to fly. I have a lawyer to thank (as well as a bank) for arranging for me to buy my house, and the same lawyer to thank for arranging to sell half of it (it's a double). I have a lawyer to thank for helping me through recovery proceedings against business people who caused me somewhat expensive problems (all three finally went to court).

None of them have any technical gumption (even those that do pretend they don't, right, FL?) which does make things a bit hard when talking about airplanes, but, if I have to explain something three times, I just count the euros dropping into the piggy bank as I do so Wait, isn't that what they say about me, too?......

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Old 29th Oct 2010, 10:38
  #146 (permalink)  
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Lawyer-client communications are privileged. But if, for example, a client makes a complaint about how you handled their case, they are usually said to have impliedly or expressly waived privilege, and the communications may be revealed to, for example, an appellate court (where someone says they were coerced into pleading guilty), or our regulator, the Legal Services Commission (which decides cases of alleged misconduct).

Complaints after a "sub-optimal" outcome are quite common, and there has been a quantum shift in the approach that (a) facilitates the making of complaints and (b) makes the process transparent.

Recording the discussion of difficult issues or the making of hard decisions is seen by many as self-protection.

I imagine that there have been cases where flight recorder data has demonstrated that the crew were blameless.
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Old 30th Oct 2010, 00:54
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I imagine that there have been cases where flight recorder data has demonstrated that the crew were blameless.
The word "demonstrated" may be interpreted in different ways by the causal observer.

In my view this kind of data requires expert and subjective interpretation by these same experts. I'll leave it to the winning side of a court proceeding to decide what was demonstrated
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Old 30th Oct 2010, 01:53
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I imagine that there have been cases where flight recorder data has demonstrated that the crew were blameless.
A poor choice of words on my part. When I said "cases" I didn't mean court cases, but rather investigations into accidents/incidents.

No argument that the data requires expert interpretation.
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Old 30th Oct 2010, 02:32
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After a plane crash...

Burn the maintenance logs
Burn the pilot logbooks
Throw the FDR in the river
Shoot all surviving witnesses
Crush, melt, and shoot aircraft wreckage into space

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Old 30th Oct 2010, 02:43
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The original intent of this case

Please forgive me for coming into this discussion so late, I've only just become aware of it. This story is interesting and unuaual.Wikipedia tells me that there were no fatqalities in this accident, so all the relevant witnesses are available for cross-examination: what a pleasure!

Whether the CVR contents are publicly revealed or not, the flight crew will be subject to the most strenuous testing of their evidence, and the case will be primarily decided on their cross-examination.

The primary purpose for the CVR recording in this civil litigation would be in an attempt to discredit the recorded witnesses, and that never was the original intent for a cockpit voice recording. There is absolutely nothing to stop people from investigating the accident for other purposes (including civil litigation), and litigants are quite entitled to use all the normal legal powers and processes to gather the necessary information.

Using the CVR in this court case would be a fishing exercise, seeking weaknesses in testimony. Since all the normal legal processes already exist in this case, it is hard to justify using a CVR to leverage a particular interest.

Maybe I am biased??
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