When a Tragedy Becomes a Crime: Prosecutors Probe Disasters

[CD]

When a Tragedy Becomes a Crime: Prosecutors Probe Air Disasters

SEPTEMBER 9, 2008
By DANIEL MICHAELS

As investigators search for clues to the crash of Spanair SA Flight 5022 in Madrid last month, families of the 153 victims demand to know who is to blame. Another critical question: whether that will be determined in civil or criminal court.

For six decades, aviation regulators have sought the causes behind and responsibility for plane accidents. Victims' families have sued for damages with civil suits.

Lately, however, public prosecutors are seeking criminal accountability for mistakes that lead to air disasters, raising a thorny legal and moral question: When does human error become a crime?

"It's a Nobel Prize question, figuring out how to coordinate civil and criminal law enforcement," says Harvard Law School professor David Rosenberg.

While it isn't yet clear whether the Spanair crash will prompt criminal charges, several air accidents in Europe this decade have. One of the latest cases stems from the Air France Concorde crash in 2000 that killed 113 people. (That was before the carrier became Air France-KLM SA.) French prosecutors have charged five people and Continental Airlines Inc. with voluntary manslaughter. Among the defendants are three engineers who designed and certified the supersonic plane more than 30 years earlier. Continental and two of its employees are included because a piece of metal that crash investigators believe dropped from one of its planes is suspected of initiating the crash. All the defendants deny the charges.

National justice systems draw the line between civil and criminal cases differently. The U.S. has a range of civil penalties -- such as fines and punitive damages against individuals and companies -- that don't exist in many European legal codes, says Anthony Sebok, a professor at New York's Benjamin N. Cardozo School of Law.

In general, countries try to set a high bar for pressing criminal charges. The U.S. usually demands evidence of reckless behavior or gross negligence. In the wake of a 2003 Staten Island ferry crash that killed 11 people, for example, federal prosecutors won prison sentences for the captain, who had passed out on painkillers, and his boss, for failing to enforce rules requiring two pilots in the wheelhouse.

"Most courts require much more than ordinary negligence or a slip-up," says Kenneth Simons, a professor at Boston University School of Law. The problem, he says, is to define a "slip-up" in medicine, aviation and other complex fields. American doctors, for various reasons, face the threat of huge financial liability in civil court but rarely face criminal prosecutions.

Few plane crashes are caused by an individual pilot, engineer or mechanic. "You're never going to get rid of human error, so the system needs to be able to deal with human fallibility," says Gerard Forlin, a British barrister who has represented both victims and accused in crash cases. "The consequences of failing to do so are sometimes the criminal responsibility of managements and boards."

Some in aviation are sounding the alarm that the pursuit of punishment could prompt people to hide problems, for fear of being held responsible for them. "There's a fundamental disconnect between how aviation investigators look at an accident and how prosecutors look at one," says David Rimmer, executive vice president at ExcelAire of Ronkonkoma, N.Y. Two ExcelAire pilots have been charged by Brazilian prosecutors following a 2006 midair collision in Brazil that killed 154 people. "Investigators look for causes and ways to avoid repeats, while the goal of law enforcement is to find somebody to blame."

Bill Voss, president of the Flight Safety Foundation, a global nonprofit group in Alexandria, Va., says gross negligence or law-breaking merits criminal investigation but that "overzealous prosecutions threaten to dry up vital sources of information and jeopardize safety."

Prosecutors say the issue is one for the courts to decide and that holding people responsible should ultimately improve safety.

Since the mid-1990s, the aviation industry in most developed countries has followed a "no blame" approach. Confidential reporting systems allow pilots, engineers, managers and others to anonymously flag potential safety concerns without fear of grounding or demotion. A pilot who makes a nonfatal mistake, for example, might get extra training, but could also provide valuable insights that instructors apply to improve their teaching.

Aviation officials say the approach has helped improve air safety. There were 0.03 fatalities per million air passengers carried in North America in 2007, almost 85% fewer than the rate of 0.17 in 1997.

Some safety specialists say the aviation industry's reporting methods could serve as a model for other businesses, ranging from crane operators to nuclear-power generators. American medicine could benefit, too, some say, from less litigation and more transparency.

But criminal conviction has an emotional component, too, offering victims' families both a sense of finality and hope that the forceful finding can help prevent similar disasters. For the past seven years, families of the victims of a 2001 crash at Milan's Linate Airport that killed 118 people had been awaiting a final verdict in a criminal case against officials of Italy's aviation authorities. The convictions came earlier this year. Paolo Pettinaroli, head of a group of victims' families, wrote on the association's Web site: "It is over."

Full article here...

[Widow]

French Concorde Crash Manslaughter Trial To Begin In Feb 2010

January 12, 2009: 10:14 AM ET


PARIS (AFP)--The trial of U.S. airline Continental Airlines Inc. (CAL) and two of its employees for manslaughter over the crash of a Concorde airliner in 2000 will start in February next year, prosecutors said Monday.

A former French civil aviation official and two senior members of the Concorde program will be tried on the same charge before a criminal court in Pontoise, outside Paris.

The New York-bound Concorde crashed in a ball of fire shortly after takeoff from Paris Charles de Gaulle airport on July 25, 2000, killing all 109 people on board and four workers on the ground.

The trial of Continental Airlines and the five defendants will open Feb. 2, 2010, the Pontoise prosecutor said.

A French accident inquiry concluded in December 2004 the disaster was partly caused by a strip of metal that fell on the runway from a Continental Airlines DC-10 plane that took off just before the supersonic airliner. The Concorde ran over the super-hard titanium strip, which shredded one of its tires, causing a blowout and sending debris flying into an engine and a fuel tank.

Continental Airlines is charged over a failure to properly maintain the aircraft along with two U.S. employees: John Taylor, a mechanic who allegedly fitted the non-standard strip, and airline chief of maintenance Stanley Ford. The former Concorde officials and French aviation boss are also accused of failing to detect and set right faults on the supersonic aircraft.

Henri Perrier was director of the first Concorde program at Aerospatiale, now part of the EADS group, from 1978 to 1994, while Jacques Herubel was Concorde's chief engineer from 1993 to 1995.

Both men are accused of ignoring warning signs from prior incidents on the Concorde, which suffered 67 tire blowouts or wheel damage during its 27 years of service, piercing the fuel tanks in seven cases.

Finally Claude Frantzen, director of technical services at the civil aviation authority DGAC from 1970 to 1994, is accused of overlooking a fault on Concorde's distinctive delta-shaped wings, which held its fuel tanks.

http://money.cnn.com/news/newsfeeds/art ... RTUNE5.htm

[CD]

Study finds criminal prosecution following accidents damages flight safety
By David Learmount

19/03/09
Flight International

A new doctoral study of the criminal prosecution of pilots or air traffic controllers following aircraft accidents and incidents has concluded that they have a definite detrimental effect on flight safety, but fail to have the intended effect of deterring individuals from making mistakes.

In fact, the study found, controllers are particularly aware that successful prosecution could follow an unintentional error, and the resulting stress may even make mistakes more likely.

The study was carried out by two Cypriots, Dr Sofia Michaelides-Mateou, a professor of law at the University of Nicosia, and a Cyprus Airways Airbus A320 captain Dr Andreas Mateou, and presented at the Flight Safety Foundation's European Aviation Safety Seminar in Nicosia on 18 March.

Meanwhile, a criminal prosecution of individuals associated with the now-defunct Cypriot carrier Helios Airways as a result of the August 2005 fatal crash of one of its Boeing 737s is about to begin in the Cyprus courts in the next two weeks.

The Cyprus court case is coincidental to the study, because the study's purpose was to determine, generically, the positive or negative effects on flight safety of proceeding with criminal prosecutions against those involved in aviation accidents.

All on board the Helios aircraft died, so the pilots cannot be prosecuted, but other Helios employees and contractors, including engineers, have been charged to appear before the Cyprus courts, and may yet be called to appear also before courts in Greece, where the crash occurred at the end of a flight from Larnaca, Cyprus.

As well as examining former aviation accident criminal prosecutions and their judicial outcomes, the doctoral study carried out a survey of pilots and controllers to find out their perception of whether the threat of prosecution in the event of an accident had a positive effect on aviation safety, and they were almost unanimous in their opinion that it was detrimental.

There was a very small minority, says Michaelides-Mateou, that believed the threat of prosecution was an incentive not to make an error. One of the effects of the threat - or the actuality - of prosecution, the study found, is that although pilots and controllers instinctively want to provide information that will reduce the risk of an error or mishap in future, they withhold it because their own testimony may incriminate them - and their lawyers certainly advise them to take up their right to silence.

Mateou points out that, increasingly in cases all over the world, data from the technical investigation, and from the flight data recorder and cockpit voice recorder, is being used in its raw form as evidence in trials without the need to test its validity in law. This contravenes Annex 13 to the Chicago Convention, but it is happening, he points out. The result of this "intermingling" of raw data with legal evidence leads to pilots and controllers being advised to maintain their right to silence even in front of the technical accident investigators, explains Michaelides-Mateou.

The FSF, Eurocontrol and the European Regions Airline Association, which are joint partners in staging the safety seminar at which the doctoral study was presented, have publicly expressed concern for many years on the detrimental effect that the threat of the criminal prosecution of unintentional human error has on the voluntary reporting of incidents.

Full article here...

[Widow]

criminal prosecution of unintentional human error

I know I'm not alone, though I suspect I may be in the minority ... but I think there is a big difference between an "unintentional human error" and a clear failure to meet the regulations and standards. IMHO, when several regulations and standards have not been met, it is usually due to poor training, lack of management support - money before safety. Things that really should fall back on the operator ...

[planett]

How did we let this kind of corruption soil our squeaky clean industry?
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I'm serious about the first part, I'm only joking about the latter.

[The Hammer]

Maybe if operators didn't spend so much time dealing with the "mickey mouse" crap they could devote resources to the important things. ie latest Adivisory circular Low vis-ops. Are runway incursions really a significant threat in Big trout lake, Nain labrador or Pond inlet???? Someone thinks they are... oops I used the word "thinking" obviously not appropriate.

[CD]

Tuninter Employees Convicted In ATR-72 Crash

Mar 24, 2009
Andy Nativi/Genoa Andy nativi@rid.it
AviationWeek

Seven Tuninter pilots, technicians and managers have been convicted by an Italian tribunal for a crash in which 23 passengers survived and 16 were killed in August 2005.

The crash involved an ATR-72 that took off from Bari, Italy, and was headed to Djerba, Tunisia, and was forced to ditch in the sea just along the Sicilian coast.

The incident was caused because the aircraft fuel gauges and indicators had been incorrectly replaced by the maintenance personnel with those of the ATR-42. The instruments indicated there was enough fuel on board when the aircraft took off, while there was not actually enough fuel to carry out the intended flight.

The two pilots have been charged with multiple counts of manslaughter and air disaster, and sentenced to a term of 10 years because, in theory, they had the opportunity to reach the Palermo Airport for an emergency landing if they had followed proper procedure. Another five technicians and managers have been found guilty, with the chief operating officer and the maintenance chief sentenced to nine years each, while three technicians have been sentenced eight years each. Two others defendants were not found guilty. None of those indicted were present at the tribunal, and Tuninter lawyers have announced they will appeal the verdict.

Full article here...

[CD]

ANSV Italy: judicial authorities share FDR, CVR data of fatal Citation crash

The Italian aircraft accident investigation board ANSV (Agenzia Nazionale per la Sicurezza del Volo) reports that they have now received the CVR and FDR transcripts of a Cessna 650 Citation III that crashed near Rome on February 7, 2009. The Cockpit Voice Recorder (CVR) and Flight Data Recorder (FDR) were seized for a juducial inquiry, severely obstructing a thorough investigation into the cause of the accident. The judicial authorities have now sent ANSV a copy of both transcripts. (ANSV)

(aviation-safety.net)

[CD]

Safety Group Attacks Prosecutorial Overreach

The Flight Safety Foundation (FSF) has sharply criticized the interference of prosecutors in ongoing accident investigations in Italy and France, warning that such interference hampers efforts to improve aviation safety and prevent similar accidents in the future.

Reports of prosecutorial interference in the investigations in Italy and France are troubling, said William Voss, president and CEO of the FSF. “We simply cannot allow these obstacles to keep us from learning and acting quickly after a crash,” he added.

The safety investigations of a Cessna Citation accident in Rome on February 7 and the crash of an Air New Zealand Airbus A320 off the coast of France on Nov. 27, 2008, were delayed because law enforcement authorities seized vital evidence before safety investigators could examine it.

Laws in both countries allow the judicial investigation to take the lead, and vital safety evidence, such as the cockpit voice and flight data recorders, historically has been withheld from safety investigators.

Voss said he understands how the public’s shock and grief leads to calls for justice and accountability in the wake of an aircraft accident, but he added, “We cannot allow the safety of the aviation system to be jeopardized by prosecutorial overreach.”

He reiterated the foundation’s support for legislation in Europe and elsewhere that would ensure the primacy of the safety investigation. “Unless there is evidence of sabotage, law enforcement and judicial authorities need to step aside, allow accident investigators immediate access to the wreckage and to surviving crew and passengers, and let safety professionals do their job,” he said. “To prevent another tragedy, it’s far more important that we learn what happened, and why, than to build a criminal case,” he explained.

The Flight Safety Foundation is one of the leading voices in opposing criminalization of aviation accident investigations.

Full article here...

[roger.roger]

anyone got the coles notes?

[Wilbur]

There needs to be a balance of some sort struck between FS interests and criminal prosecution. There is great value in exempting aviation accidents from criminal liability in the interest of ensuring open disclosure by those involved as a means of learning lessons that can help prevent future repeats. But certainly, there can't be much benefit in continually granting a prosecutorial exemption in cases so similar in nature to previous occurences that nothing significant stands to be learned anew. If an incident has occurred, been investigated, lessons learned, and regulations or procedures published, why should anyone after that point be given a free pass to do the same thing again?

For example, the consequences of flying with less than legally mandated fuel or over-gross have been well learned through many accidents and funerals. What have we learned? Most times you can get away with it, but sometimes it will bite you on the ass and you will crash. Given what we know, if you crash in these circumstances it can not be classified as an "accident." There are no new lessons to be learned. It is nothing more than illegal risk taking. Why should those involved be exempted from criminal liability?

The tricky part however, is drawing the line in the less clear and obvious cases. In this regard, there may be models to follow from the non-aviation occupational health and safety regulators who have been balancing these issues for many years.

[High Flyin]

What about actus rea the act of being guilty? Plus, how could a jury randomly selected from general population even begin to imagine how to handle situations. When shit happens, it happens fast and sometimes it comes down to split seconds or one minor detail that determines where it is an injury or fatality that is sustained. By all logic, they should throw every person in jail who's been in a car accident since they showed some degree of neglagence.

[Wilbur]

When it comes to a criminal trial in Canada, it's the accused's choice between judge and jury, or judge alone. But I don't think there are too many, if any, western democratic countries with legal systems that criminally prosecute for "accidents."

True enough that "when shit happens" you may have to make split second decisions, but how many of those situations arise because of earlier misconduct? For example, you crash following an engine failure to do fuel starvation because you took off with less than the minimum legal fuel. Yes, you are making split second decisions when the engines start to quit, but you're only in that boat because of your intentional choice regarding the fuel on board.

[CD]

Indonesia jails Garuda pilot over 2007 crash

DATE:06/04/09
SOURCE:Air Transport Intelligence news
By Siva Govindasamy

An Indonesian court has sentenced a Garuda Indonesia pilot to two years imprisonment for his role in an air crash that resulted in 21 deaths.

Marwoto Komar, who has 22 years of flying experience, was arrested in July 2008 after the Boeing 737-400 with 140 passengers that he piloted crashed on landing at Yogyakarta airport in March 2007.

Prosecutors said that he was criminally negligent for the deaths and sought a four-year jail term, but Komar denied the charges and said that he had tried to avoid the accident. The court in Sleman, near Yogyakarta, however disagreed with his defence.

"The defendant was found legitimately and convincingly guilty of negligence," said Sri Andini, the head of a panel of five judges.

Indonesia's National Transportation Safety Commission said in its final report into the accident that the aircraft was far too high and fast on its final approach. Despite ground-proximity warning alerts, a flap deployment of just 5° and calls from the co-pilot for a go-around, the captain did not abandon the approach. The aircraft overran the runway and burst into flames.

The International Federation of Air Line Pilots Associations (IFALPA) condemned Komar's arrest, asserting that the investigation failed to address fully the reasons for the crew's actions. It reiterated its stance that the criminalisation of individuals involved in accidents "does little" to improve air transport safety.

Full article here...

[CD]

Accident Investigator Group Sign Criminalization Resolution

Alexandria, VA, January 13, 2010 — The Flight Safety Foundation announced today that the International Society of Air Safety Investigators (ISASI) has signed the Joint Resolution Regarding Criminalization of Aviation Accidents, a document that was originally jointly published in the fall of 2006.

“The safety of the traveling public is endangered by overzealous prosecutors attempting to criminalize aviation accidents, which can have a chilling effect on cooperation with accident investigators,” said FSF President and CEO William R. Voss. “We welcome these latest safety professionals joining in our statement of principles and urge judges, jurors, and prosecutors, like those involved in the unfortunate Concorde criminal case soon going to trial in France, to pay close attention. We cannot afford to let the desire by some for vengeance or publicity to come at the expense of safety for all. We need to learn from accidents to prevent them, not criminally punish well-meaning professionals and thereby risk a repeat of tragedy.”

The Criminalization Resolution was originally developed through the efforts of the Foundation, the Civil Air Navigation Services Organisation (CANSO), the Royal Aeronautical Society (RAeS) and the Academie Nationale de L’Air et de L’Espace (ANAE) in France. Signatories have expanded over the years to include the European Regions Airline Association, the Professional Aviation Maintenance Association, and the International Federation of Air Traffic Controllers Associations.

“The Executive, International Council and membership of ISASI believe that the current trend of criminalizing aviation accidents has a deleterious effect on the appropriate investigation of said occurrences, the finding of contributing factors and probable causation and the formulation of recommendations to prevent recurrence,” noted ISASI President Frank Del Gandio. “The Society fully endorses the Joint Resolution regarding criminalization of aviation accidents.”

ISASI is a professional association formed to promote aviation safety by the exchange of ideas, experiences, and information about aircraft accident investigations and to promote technical advancement in aircraft accident investigation by providing professional investigator education for the mutual benefit of improved investigation and the advancement of flight safety.

The Criminalization Resolution can be read here.

###

Flight Safety Foundationis an independent, non-profit, international organization engaged in research, auditing, education, advocacy and publishing to improve aviation safety. The Foundation’s mission is to pursue the continuous improvement of global aviation safety and the prevention of accidents. http://www.flightsafety.org

[ei ei owe]

So is this a suggestion that one day may become law?

[crazy_aviator]

PILOTS, Managers, owners ETC must be accountable ,,,,,the slap on the hand and small fines are NOT doing the trick,,,NOW, unfortunately, Pilots and AME s and owners and managers etc will be held criminally accountable BECAUSE of their FAILURE to be integral and honourable and upright in the first place DUH !

[Driving Rain]

What's next, personnel liability insurance for pilots and engineers?

[Dust Devil]

criminal prosecution of unintentional human error

I know I'm not alone, though I suspect I may be in the minority ... but I think there is a big difference between an "unintentional human error" and a clear failure to meet the regulations and standards. IMHO, when several regulations and standards have not been met, it is usually due to poor training, lack of management support - money before safety. Things that really should fall back on the operator ...

It's unfortunate you also don't include pilots not paying attention to the task at hand. I would also argue that poor training likely occurred possibly years before the pilot showed up at the door of the operator. The operator should not be responsible to teach pilots that the landing gear needs to be in the down and locked position in order to land. Or that an approach should be aborted.

Unintentional Human Error sounds like a politically correct term for not paying attention. I don't see a difference between that and failure to meet regulations and standards. Should the regulations and standards not require the pilot to pay attention?

[snoopy]

Did anyone actually READ the document? (Well, I know at least CD did!) It's only 5 pages, and 2 of those are signatures - there are some points worth noting in there.

Cheers,
Kirsten B.