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The Criminalization of Aviation AccidentsAre We Heading Toward

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					                                                             7/7/2010




       The Criminalization of
         Aviation Accidents:
     Are We Heading Toward or
      Away From Safer Skies?



Eileen M. Gleimer
Crowell & Moring LLP
egleimer@crowell.com




  The Inevitability of Aircraft Accidents
 There   is only one guaranteed way to eliminate
  aircraft accidents – don’t operate aircraft
 Since aircraft accidents are going to happen,
  what should be done to reduce their likelihood
  in the future?
    Encourage  parties to provide information to identify
     areas requiring remedial action and formulate
     appropriate corrective action for the future OR
    Lock people up




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                       What Is An Accident?
 Main Entry: ac·ci·dent
 Function: noun
 Etymology: Middle English, from Middle French, from Latin accident-, accidens
 nonessential quality, chance, from present participle of accidere to happen,
 from ad- + cadere to fall — more at chance
 Date: 14th century
 1 a : an unforeseen and unplanned event or circumstance
 b : lack of intention or necessity : chance <met by accident rather than by
 design>
 2 a : an unfortunate event resulting especially from carelessness or ignorance
 b : an unexpected and medically important bodily event especially when
 injurious <a cerebrovascular accident>
                  t d happening causing l
 c : an unexpected h         i                   injury which i not d t any
                                       i loss or i j     hi h is t due to
 fault or misconduct on the part of the person injured but for which legal relief
 may be sought




           The Requirement for Accident Investigations
The   ICAO requirement for accident investigations of major air
crashes was instituted in 1951 through the adoption of Annex 13.
     The initial focus was technical reliability of the aircraft, the
                                                       regulations
     performance of the pilot and compliance with regulations.
Desiring some uniformity but recognizing that each State had its
own national laws, Annex 13 contains language that allows
flexibility while providing a uniform set of standards and
procedures to allow for the multinational nature of accidents and
serious incidents involving international civil aviation.
To the extent a State will not implement the language contained
in the Annex or its internal laws are inconsistent with such
language, it files a “Difference” in a Supplement to Annex 13.




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                ICAO Annex 13
        Objective of the Investigation
 3.1
3 1  “The l bj ti          f th i     ti ti     f
      “Th sole objective of the investigation of an
 accident or incident shall be the prevention of
 accidents and incidents. It is not the purpose of
 this activity to apportion blame or liability.”




The Primary Purposes of Modern Safety Boards
 Determining   ways to prevent or mitigate the causes
  of major accidents, disasters and catastrophes in
  transportation without regard to blame and liability.
       p                   g                         y
 Identifying precursors to potential major events and
  systemic deficiencies.
 Increasing safety by making recommendations that
  are both acceptable and can be implemented.
 Assuring public confidence in the area of safety is
  being addressed.
      g




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   The Safety (Non-Blame) Approach
 The investigators need to develop the factual
  record:
     What were the errors?
     Who made the errors?
     Why/how were the errors made?
 The key question:
     How do we prevent the errors from happening
      again?
  Those with information have no reason to hold back.
 Th      ith i f    ti h                 t h ld b k




                   Difference Between
           Technical and Criminal Investigations
 Technical/Safety        Investigations:
       gathering is a cooperative process that relies on
   Fact
   the     ti    f       l diverse organizations.
   th expertise of several di           i ti
       The  investigators have significant expertise and familiarity with the
        aircraft and operating environment.
       This process helps to ensure nothing is overlooked.
   Allfacts are collected without prejudice and the accident
    scenario and sequence is developed from the facts.
   For the conclusion to be valid, the scenario and
                              facts
    sequence must fit all the facts.
   But that is not all …




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          The Purpose of the Safety Investigation
   What happened and how do we keep it from happening
    again?
   The investigation will examine not just the instant information
    about the accident but also the organizational structure of the
    operator and those who provided relevant services, resources
    available to them, their economic condition, management
    policies and practices, and regulatory framework.
   Based on the expertise of the investigators and the scope and
    structure of the investigation, the report may identify
    mechanical defects that need to be corrected, operational
                                                    , p
    procedures that need to be changed as well as human factor
    issues that should be addressed.




                     Difference Between
             Technical and Criminal Investigations
     Criminal   Investigations:
        Frequently  focused on a “suspected” conclusion and
         evidence is sought to support the conclusion.
        Investigators often lack technical and industry
         expertise.




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                      The NTSB Model
   The media, lawyers and insurance companies cannot
    participate in any phase of the investigation or any meetings.
   Claimants/litigants, as well as victims and family members,
    cannot be parties to the investigation.
   Permitted parties cannot be represented by a person whose
    interests lie beyond the safety objective of the accident
    investigation.
   Information obtained by parties cannot be used in litigation or
    for public relations purposes.
   Parties/group members cannot conduct “independent”
    investigations.
   Noncompliance may result i di i
    N          li                            l f individuals d the
                               lt in dismissal of i di id l and th
    party(ies) they represent from the investigation team.




                      ICAO Annex 13
 Non-disclosure    of records:
    5.12 provides for confidential treatment of
     certain records for purposes other than accident
     or incident investigation, unless the appropriate
     State authority determines that their disclosure
     outweighs the adverse impact disclosure may
                                   g
     have on that or future investigations:




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                          ICAO Annex 13
 Confidential records (5.12 cont’d)
   a) all statements taken from persons by the investigation
    authorities in the course of their investigation;
   b) all communications between persons having been
    involved in the operation of the aircraft;
   c) medical or private information regarding persons involved
    in the accident or incident;
   d) cockpit voice recordings and transcripts from such
    recordings;
                                               information,
   e) opinions expressed in the analysis of information
    including flight recorder information.




        Cooperation - The Essential Element
   But for safety investigators to obtain all of necessary the
    information to determine the true cause of an accident,
    open and honest participation by the parties as well as
          p y              y
    other players who may have been “involved” is essential.
     The organizations include, for example, the operator; the air traffic
      services, airway, aerodrome and weather service agencies; and the
      regulatory authority.
   If criminal prosecution is looming, the likelihood of
    cooperation is substantially reduced because a party would
    no provide incriminating evidence against him/herself.
     Othersegments of the industry would be less likely to cooperate
      making it virtually impossible to prevent institutional issues from
      becoming problems.




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     Use of Voluntary Disclosure Programs
               to Improve Safety
 FAR §91.25: Aviation Safety Reporting Program
     FAA cannot use reports or information obtained from the reports
      in any disciplinary action
      Reporterimmunized from FAA sanctions for matters reported
        Does not cover accidents, criminal acts
      AC 00-46D; administered by NASA




          Use of Voluntary Disclosure Programs
                    to Improve Safety
 Voluntary     Disclosure Reporting Program (AC 00-58B):
          of correction issued in lieu of civil penalty action
    Letter
                                        g pp
    General circumstances surrounding apparent violation:
      FAA is   advised immediately upon detection and before FAA learns
       of it independently
      Violation was inadvertent
      Does not indicate a lack, or reasonable question, of qualifications
      Immediate action taken to terminate conduct that created violation
      Comprehensive fix developed, including self-audits
               protected from release under FOIA
    Information
    Programnot available to parties required to report non-
    compliance




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          Use of Voluntary Disclosure Programs
                    to Improve Safety
   Flight Operations Quality Assurance (FOQA)
     Allows   commercial airlines and pilots to share information with the
      FAA so t at t e FAA ca monitor national t e ds in a c a t
                that the       can o to at o a trends aircraft
      operations and address operational risk issues (flight operations,
      air traffic control, airports).
     Data submitted as part of an FAA-approved FOQA program will not
      be used in an enforcement action against the operator unless:
       It is a criminal or deliberate act or the result of willful misconduct
        or a willful violation, or
                p                    py g
       The operator is not complying with the p g program ( (i.e., not
        instituting corrective action that the FOQA data indicates is
        necessary).




                          ICAO Annex 13
    Informing aviation security authorities
      5.11     If, in the course of an investigation it
        becomes known, or it is suspected, that an act of
        unlawful interference was involved, the
        investigator-in-charge shall immediately initiate
        action to ensure that the aviation security
        authorities of the State(s) concerned are so
        informed.




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              United States Differences
   5.12 Full exchange of information is vital to effective accident
    investigation and prevention.
   The United States 5.12.1 supports, in principle, measures that
    are intended to facilitate the development and sharing of
    information.
   The laws of the United States require the determination and
    public reporting of the facts, circumstances and probable cause
    of every civil aviation accident. This requirement does not
    confine the public disclosure of such information to an accident
           g                 ,                                  p
    investigation. However, the laws of the United States do provide
    some protection against public dissemination of certain
    information of a medical or private nature.




             United States Differences
 United States law prohibits the disclosure of cockpit voice
  recordings to the public and limits the disclosure of cockpit
  voice recording transcripts to that specific information
  which is deemed pertinent and relevant by the
  investigative authority.
 However, United States Courts can order the disclosure of
  the foregoing information for other than accident
  investigation purposes. The standard for determining
  access to this information does not consider the adverse
  domestic or international effects on investigations that
  might result from such access.




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                   Examples of Annex 13 Differences
                      on Confidential Treatment:
   Finland - most records are treated as confidential during investigation but, once
    investigation is completed, confidential treatment expires with some exceptions (e.g.
    private medical information). All practical steps will be taken to minimize the
    disadvantages caused by any disclosure.
   Monaco - records held by the judicial authority, including those from the flight recorders,
    must be dealt with in accordance with the Criminal Code.
   New Zealand - no absolute guarantee of non-disclosure but all practical steps will be
    taken to minimize the extent and occurrence of such disclosures.
   Portugal - No absolute guarantee that the records will not be disclosed for other than
    accident investigation purposes, as Portuguese legislation determines its disclosure to
    the Portuguese Courts, whenever the judicial authority considers that their disclosure
    outweighs the adverse effects on the investigation process.
   Switzerland - all documents required by law to be made available to judicial and
    aviation authorities.
   Uruguay - Aeronautical Authority must give all information to legal authorities in cases
    where in its opinion an aeronautical crime may have been committed and when
    requested by legal authorities.




        Continuing Refinement of Methods for Protection
          of Information Collected to Improve Safety
       ICAO 35th Assembly 2004 recognized that the laws in
        many States may not address adequately the
        protection of safety information from inappropriate
        use.
       Adoption of Attachment E to Annex 13 intended to
        provide legal guidance for the protection of safety data
        that is collected under programs to improve safety,
        while at the same time allowing for the proper
        administration of justice.
       But Attachment E contains “guidelines” not
        “requirements.”




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                     Attachment E to Annex 13
   Exceptions to Non-Disclosure: Recommends that States
    adopt laws protecting safety information from disclosure
    except in cases where:
     There                                          g ,
               is evidence of an intent to cause damage, or conduct with
      knowledge that damage would probably result (i.e., reckless
      conduct, gross negligence or willful misconduct);
     An appropriate authority determines that there was an intent to
      cause damage or knowledge that damage would probably result
      (i.e., reckless conduct, gross negligence or willful misconduct); or
     A review by an appropriate authority determines that the release of
      the safety information is necessary for the proper administration of
      justice, and that its release outweighs the adverse domestic and
      international impact such release may have on the future
      availability of safety information.




                     Attachment E to Annex 13
   Public Disclosure
   Subject to the general principles supporting the protection of the
    information (unless within one of the exceptions), if a person seeks
    the disclosure of safety information, that person should justify its
      l
    release.
   The State should develop formal criteria for disclosure which should
    include, but not be limited to, the following:
     Disclosure of the safety information is necessary to correct conditions that
      compromise safety and/or to change policies and regulations;
     Disclosure of the safety information does not inhibit its future availability in
      order to improve safety;
     Disclosure of relevant personal information included in the safety
      information complies with applicable privacy laws;
     Disclosure of the safety information is made in a de-identified, summarized
      or aggregate form.




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                Additional Protection Required
   Annex 13 Attachment E contains general legal principles and
    guidelines but not requirements and continues to leave
    affected parties at risk of criminal prosecution for accidents,
    incidents and disclosures.
   An effort is being made to move toward a “Just Culture” where
    the protection of safety information is recognized as one of the
    critical goals and where there must be a balance that supports
    non-punitive reporting and sharing of safety information with
    the proper administration of justice.
   At the 2008 ICAO Accident Investigation and Prevention (AIG)
    Divisional Meeting, a working group was established to pursue
    this idea and hopefully implement a supporting structure.
   But, how is this really different than what exists and how can
    we force other countries to balance the factors the way we do?




                Increasing Law Enforcement
              Involvement in US Investigations
   US Air (1989) flight that aborted takeoff at LGA and went into East
    River. DA convened a grand jury to determine whether to bring charges
      g         pilots. No charges were brought but the investigation of the
    against the p               g              g                   g
    accident was hampered because access to the wreckage and pilots
    was controlled by local authorities and not NTSB.
   TWA Flight 800 (1996) - FBI took primary control delaying NTSB
    investigation and access.
   Arrow Air (1998) - 3 year criminal investigation involving maintenance
    records and serviceability of parts.
   Alaska Airlines (2000) - crash off the coast of California in 2000 -
    allegations of inappropriate maintenance activities resulted in FBI
    involvement.




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             The Shift Toward Criminal Sanctions
   Starting in 1979, criminal cases were being instituted against
    parties involved in aircraft accidents – pilots, maintenance
    providers, air traffic controllers, etc.
      1979 Swissair crash in Athens - Greek prosecutors brought
       negligent manslaughter, negligent bodily injury, and disrupting the
       safety of air services charges against the captain and first officer.
       Pilots received sentences of four years imprisonment, which was
       later converted into a fine.
      1992 Air-Inter crash in Strasbourg, France - designer of the
       Airbus 320, two retired Air-Inter executives, the former Director
       General of Civil Aviation, the retired civil servant who was
                          certification,
       national head of certification and an air traffic controller were
       prosecuted in France 14 years after the crash on negligent
       homicide charges.




                        The Continuing Shift
   1996 ValuJet - U.S. federal and Florida state prosecutors brought
    criminal charges, including 220 counts of murder and manslaughter,
    against a maintenance company, several mechanics, and a
    maintenance manager arising out of the crash with nearly all charges
    later dismissed, withdrawn, or dismissed on appeal, and all tried
    individuals acquitted.
   July 2000 Concorde in France- Manslaughter charges filed against
    Continental maintenance personnel, DGAC official who certified
    Concorde, and manufacturer’s executives for faulty design. Trial
    commenced February 2010 and is ongoing.
   October 2001 SAS runway accident with a Cessna in Milan - Italian
    court in 2006 affirmed manslaughter convictions of five aviation
    officials, including an air traffic controller, a former director of Milan
    Airport, and the chief executive and a f
    Ai     t     d th hi f         ti      d former di t                l the
                                                        director-general th
    Italian air traffic control agency because an inoperative ground radar
    system was found to have contributed to the accident.




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                                And On It Goes
   November 2001 Crossair plane crash near Zurich which the Swiss Aircraft
    Investigation Bureau concluded was the result of pilot error. The Swiss
    Federal Prosecutor’s Office has an open criminal investigation for negligent
    manslaughter of the former CEO of Swiss Int’l Airlines (Crossair’s successor)
                                                                             p
    and head of Switzerland's Federal Office of Civil Aviation, and the operations
    chief and chief trainer at Crossair.
   July 1, 2002 DHL B-757 mid-air collision with a Bashkirian TU-154 over
    Uberlingen in Southern Germany - Swiss prosecutors in August 2006
    charged eight Swiss Skyguide air traffic controllers with negligent homicide.
    2005 B-737-300 crash near Athens, Greece - an ongoing Greek quasi-
    judicial investigation of the draft accident report will be used directly in a
    quasi-judicial investigation to determine criminal liability.
   September 29, 2006 mid-air collision over Brazil between an Embraer
                                                        B 737 800
    Legacy 600 and Gol Linhas Aéreas Intelligentes B-737-800 - the pilots and
    air traffic controllers have been charged with involuntary manslaughter;
    Brazil seized the pilots' passports and detained the pilots in Brazil for several
    weeks.




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            Air France Concorde – Paris (2000)
   The Concorde ran over a titanium strip on take off at CDG which
    caused a tire on the main landing gear to blow, fragments of the
    tire to pierce the fuel tank in the wing and the fuel to ignite.
   The plane crashed into a hotel killing 109 people on board and 4
            ground.
    on the ground
   After the investigation, manslaughter charges were filed against:
      Continental Airlines (the titanium strip was believed to have
       fallen from its aircraft), the mechanic that installed the strip
       contrary to aircraft manufacturer guidelines and the
       maintenance chief who signed off on the maintenance.
      Former executives of the company that designed the
       Concorde and the DGAC official who certified it over 30 yrs
       ago allegedly w/o correcting known weaknesses.
      The individuals face up to 5 years in prison.
      Trial began February 2010.




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                                                       Creative Commons Attribution-
                                                                 Share Alike License




                                                                                            16
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              Legacy/Gol – Brazil (2006)
   2 virtually new aircraft collided operating IFR over Brazil
    in September 2006.
   The Legacy was able to land; however, the Gol 737 with
    154 people on board crashed.
   The Brazilian investigation report, as supplemented by
    the NTSB, stated that:
      the Legacy pilots had not violated any regulations;
      the Legacy pilots were not aware of the inactivation of
       the transponder/collision avoidance equipment or the
       lack of ATC communication;
      the aircraft operators were following ATC clearances
       which had them at the same altitude in the same
       airway in opposite directions.




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            Legacy/Gol – Brazil (2006)
 Following the accident, the US pilots’ passports were
  seized and the pilots detained in Brazil for several weeks.
 The pilots were charged under the Brazilian Penal Code
        endangering      aircraft"
  with "endangering an aircraft which carries a penalty of
  up to twelve years in prison.
 Under a US-Brazil treaty, the pilots would be permitted to
  give their testimony from the US so a Brazilian court
  ordered the return of their passports.
 The pilots are being tried in absentia on charges that are
  the equivalent of involuntary manslaughter.
 The controllers are also facing the same charges.
 The trial has been ongoing since 2007.




            Investigating an Accident When
              Criminal Liability Is At Issue
 The investigators need to develop the factual record:
    What were the errors ?
    Who made the errors? NOT ME
    Why/how were the errors made ? NO IDEA
 The key question:
    How do we prevent the errors from happening
      again ?
 Those with information have lots of reasons to hold
  back,                        silent
  back not remember or keep silent.
 How is safety served?




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                   Joint Resolution Regarding
               Criminalization of Aviation Accidents
Adopted and signed in the Fall of 2006 by Flight Safety Foundation, the Royal
Aeronautical Society, the Académie Nationale de l’Air et de l’Espace and the
Civil Air Navigation Services Organisation and later expanded to include the
European Regions Airlines Ass’n, the Professional Aviation Maintenance Ass’n
and the International Federation of Air Traffic Controllers Ass’n.
The overreaction of the Brazilian Government to the September 2006 Legacy/
Gol accident, including the 70 day detention of the pilots and threat of
significant jail time was, in part, the trigger for the issuance of this resolution.
The Resolution recognizes the critical role played by the free flow of
information in an investigation to the determination of the cause of the accident.
It also recognizes that the use of such information to assess guilt or
                                                                          information.
punishment could discourage people from voluntarily providing the information
Without such information, investigators may be impaired in their ability to
determine the cause and prevent it in the future.




                    Impact of the Resolution
  Shortly  after adoption of the Resolution, the
    French Court in the Air Inter crash cited the
    resolution when it rendered its verdict -
      All 6 individuals (designer of the Airbus 320, two
       retired Air-Inter executives, the former Director
       General of Civil Aviation, the retired civil servant who
       was national head of certification, and an air traffic
       controller) were acquitted of negligent homicide but
       the aircraft manufacturer and airline were required to
       pay damages




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   When Criminal Sanctions Are Warranted
 In extreme cases rising to the level of willful
  misconduct or particularly egregious reckless
  conduct or intentional acts such as terrorism or
  sabotage, criminal investigation and even
  prosecution are appropriate
 Sabotage
 Terrorism
 Extreme recklessness (drunken pilots, ATC)
 Falsifying maintenance records
 Fraud




                                                          20
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                 Platinum Jet – Teterboro (2005)
 February  2005 – Challenger failed to takeoff and
  crashed into a warehouse
 NTSB, DOT, FAA, DA investigated
J                Co-founders, M
  January 2009 - C f      d               Director f
                               Manager, Di t of
  Charters, Director of Maintenance and Pilot indicted
      Conspiracy
      Fraud
      Endangering    the safety of aircraft
      Tankering Fuel
      Falsifying flight logs
 March        2009 – 2 parties pled guilty




                                 Platinum Jet
   Five company officials (Platinum’s President/CEO/chief pilot/co-
    founder, Vice President/co-founder, managing member/co-founder,
    Director of Charters, Director of Maintenance, and a pilot) were
    named in a 23-count Indictment related to the 2005 TEB accident.
   The Indictment charged:
     endangering the safety of aircraft;
     conspiracy to commit continuous willful violations of regulatory
      requirements for the operation of commercial charter aircraft; and
     routinely undertaking and concealing dangerous fueling and weight
      distribution practices which existed on the Platinum-operated jet that failed
      to lift off at TEB - fueling practice was commonly used, according to the
      Indictment, to increase profits for Platinum Jet.
   The fuel loading was the primary contributing factor in the crash.




                                                                                           21
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                                Platinum Jet
        FAA shortcomings also identified by NTSB
          Resulted   in major change to FAA oversight of charter
           management
          Reissuance of op specs (A008)
          System-wide compliance inspections and contract
           reviews
          Enforcement action against operators
             Suspension/revocation
                    p
             Civil penalties
             Delays in adding aircraft to certificates




              State of Wisconsin vs Mark A. Strub
   US pilot jailed for a domestic aircraft accident
   Accident occurred in 2004
     Strub  had private pilot license, was giving rides at balloon rally and,
      at the passenger’s request, p
             p       g       q      , performed aerobatic maneuvers
     On the way back to airport, was flying low over river and struck
      power lines
     Aircraft crashed into the river and flipped over – he was able to free
      himself but could not free the passenger who died
   FAA cited Strub for violating minimum safe altitude requirements
    and operating in a careless and reckless manner and revoked
    his license 5 months after the accident and barred him from
                 year.
    flying for a year
   Strub reapplied and obtained another pilot license from the FAA.




                                                                                      22
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                                  Mark Strub
   DA filed a criminal complaint in 2007 charging Strub with vehicular
    homicide under which Strub could be imprisoned up to 10 yrs and/or
    fined up to $25,000.
           j y                  y
      For a jury to convict – they would need to find he acted with intent to cause
      damage or that injury or death would probably result from his actions.
     Although Strub thought he could prove it was purely an accident, he DA
      offered a deal.
   Strub pled guilty to 2 misdemeanors – negligent operation of a motor
    vehicle and disorderly conduct
       Strub was sentenced to 30 days in jail, 150 days home confinement (can
        only leave home to go to work), fines, court costs, 2 years probation during
                  couldn t
        which he couldn’t fly and not allowed to consume alcohol even though
        alcohol played no role in the accident.
   Strub is awaiting civil trial that could effectively bankrupt him.




                                                 A Recent Example of
                                                 An Aircraft Accident,
                                                Criminal Sanctions and
                                                  Insurance at Work




                                 May 21, 2010




                                                                                            23
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                 Causes of Accidents
   Typical Causes:
     Piloterror
                    g
     Manufacturing defects
     Equipment failure
     Structural or design problem
     Violation of FARs
     Negligence of Flight Service Station employees
     Negligence of Air Traffic Controllers
     Negligence of a third party’s selection of an air carrier
     Failure to maintain/repair the aircraft or its components
     Failure to properly fuel the aircraft




        Why Resort to Criminal Sanctions?
 Law requires it
 Media/sensationalism
 Need for quick action
     Accident   investigations generally take longer
 Prosecutor’s       desire to make a name for
  him/herself
 Public/survivors/families need for someone to
  pay




                                                                       24
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          What Factors Will Prosecutors Consider?
   Number of Victims
   Intent
   Existence of Cover-up
   Isolated Incident
   Mitigating Factors
   Corporate Culture
      Is there an effective compliance program
      Does the company simply view violations as a cost of doing
       business?
   Does the company engage in self-auditing, self-reporting programs?
   Is the company cooperative and does it accept responsibility?
   Involvement in or tolerance of criminal activity
   Prior history




Typical Criminal Charges in Aviation Cases
     Criminal  Negligence or Involuntary Manslaughter -
      a risk to others’ lives with foreseeable
                                 t d by the defendant h
      consequences was created b th d f d t who
      did nothing to alter the behavior that led to the risk
     Manslaughter – Defendant continued a
      dangerous behavior knowing it could result in the
      death of others
                g
     Third Degree Murder – Defendant caused a death
      while in the commission of another felony act




                                                                              25
                                                                                  7/7/2010




         What Is Gained From the Use of Criminal Penalties in the
        Absence of an Intentional Criminal Act or Reckless Conduct?
   Satisfies the desire that someone needs to pay when
    something bad happens
   Makes       d       for th
    M k good copy f the media      di
   But
   It may result in defensive posturing and less candor as parties
    censor the information they are willing to provide investigators
    out of concern about potential criminal liability.
   It may result in less effective reporting systems and act as a
    disincentive to parties who may otherwise be willing to identify
    flaws in the system before an accident occurs.




        Criminal Sanctions Don’t Improve Safety
   Human error is a major cause of 85% of aircraft accidents
       How can the threat of criminal prosecution change an unintentional act?
   The threat of criminal penalties will likely:
     Increase   the reluctance of crew/other parties to talk to investigators
     Reduce the amount of data available to determine trends
     Cause parties to spend more time focusing on protecting against
      criminal liability than reviewing processes and procedures that could
      lead to improvement of programs/procedures that deal with safety
      issues
     Result in the loss of qualified people who leave their jobs out of fear
      of prosecution in the event of an accident.
         p
   Plaintiffs’ attorneys may press for criminal sanctions as a
    strategic matter for their civil cases.




                                                                                       26
                                                                                 7/7/2010




     Non-Criminal Deterrents Are Readily Available
 Risk of life
 Go out of business
 Revocation/suspension of license
 Loss of reputation; bad press
 Civil penalties/Civil liability
 Ban from industry
 “Blackball” provision (FAR § 119.39(b)(3), (4)) – the FAA
  may refuse to issue a certificate to a carrier if there is a
  party involved who held the same or a similar position with
  or had control over or a substantial ownership interest in a
                                              revoked
  certificate holder that had its certificate re oked and
  materially contributed to such circumstances.




        What Actions Help Encourage Safety
   Not using statements given to accident investigators for
    purposes other than the investigation of the accident (i.e.,
    criminal or civil litigation).
          g                   g      p     y    p         y
    Giving accident investigator sole/primary responsibility for the
    investigation unless there is reasonable evidence of terrorism, a
    criminal act or assistance requested by the accident
    investigators.
   Continuing, encouraging and expanding non-punitive use of
    witness statements and voluntary disclosure programs.
   But this does not mean there is never going to be any blame or
    liability
    liability.
     Even  in a “just culture” there will be blame and liability in instances
      of serious and deliberate wrongdoing.




                                                                                      27
                                                                              7/7/2010




                 Preparation and Protection
Make   sure you have established processes, procedures
and documentation.
Include a contingency plan and response to judicial inquiries
in your accident/emergency contingency plans plans.
Know local laws in jurisdictions in which you operate,
particularly if you operate there regularly.
Even ICAO standards can be different.
    Review differences to determine potential ramifications.
Hire experienced counsel, preferably in advance.
      p           ,                             ,
Adopt an SMS, obtain IS-BAO certification, carry   y
appropriate copies.




                What To Do If Bad Things Happen
Contact   your employer and insurance company.
Hold   onto your documents.
     If authorities want them, keep copies of what they take.
     If you can’t keep copies, write down what they take.
 Make         t t      t    til
M k no statements until you h                     t ti there, a company
                                  have a representative th
representative or an attorney.
     If you’re in a situation where you can’t have representation, and the
     FAA or NTSB want to talk, stick to the most basic facts.
     Don’t guess, assume or speculate.
     Do not misrepresent or try to “alter” facts.
     Don’t volunteer any information for which you haven’t been asked.
            ,            p      y
If indicted, seek help from your embassy. y
Don’t talk to the media.
The company should conduct its own privileged investigation.




                                                                                   28
                                                                                   7/7/2010




                               Conclusion
   There is a time and a place for criminal prosecution – aviation
    “accidents” are neither the time nor the place.
   Fear of criminal prosecution does not serve as a deterrent – it only
    deters or delays parties from disclosing the details of what has
    happened.
   In terms of “rehabilitative” aspect of justice, criminalizing aviation
    accidents serves no purpose – how do you rehabilitate a pilot or
    mechanic that was doing his/her job and made a mistake?
   The only things accomplished by criminalizing aviation accidents are:
     public officials use the media to show action to feed their career and the
      public desire for retribution.
     taxpayer dollars are wasted prosecuting cases instead of finding the true
                d fixing it.
      cause and fi i i
   It is up to the industry and the public to make its voice heard to stop
    this trend.




                                                                                        29
                               INTERNATIONAL STANDARDS
                              AND RECOMMENDED PRACTICES


                 AIRCRAFT ACCIDENT AND INCIDENT INVESTIGATION

                                 ANNEX 13
             TO THE CONVENTION ON INTERNATIONAL CIVIL AVIATION


...


           ATTACHMENT E. LEGAL GUIDANCE FOR THE PROTECTION OF
     INFORMATION FROM SAFETY DATA COLLECTION AND PROCESSING SYSTEMS


1.      Introduction

1.1              The protection of safety information from inappropriate use is essential to ensure its
continued availability, since the use of safety information for other than safety-related purposes may
inhibit the future availability of such information, with an adverse effect on safety. This fact was
recognised by the 35th Assembly of ICAO, which noted that existing national laws and regulations in
many States may not adequately address the manner in which safety information is protected from
inappropriate use.

1.2              The guidance contained in this Attachment is therefore aimed at assisting States enact
national laws and regulations to protect information gathered from safety data collection and
processing systems (SDCPS), while allowing for the proper administration of justice. The objective is
to prevent the inappropriate use of information collected solely for the purpose of improving aviation
safety.

1.3              Because of the different legal systems in States, the legal guidance must allow States
the flexibility to draft their laws and regulations in accordance with their national policies and
practices.

1.4              The guidance contained in this Attachment, therefore, takes the form of a series of
principles that have been distilled from examples of national laws and regulations provided by States.
The concepts described in these principles could be adapted or modified to meet the particular needs
of the State enacting laws and regulations to protect safety information.

1.5             Throughout this Attachment:

                a) safety information refers to information contained in SDCPS established for the
                   sole purpose of improving aviation safety, and qualified for protection under
                   specified conditions in accordance with 3.1, below;

                b) operational personnel refers to personnel involved in aviation operations who are
                   in a position to report safety information to SDCPS. Such personnel include, but
                   are not limited to, flight crews, air traffic controllers, aeronautical station
                   operators, maintenance technicians, cabin crews, flight dispatchers and apron
                   personnel;

                c) inappropriate use refers to the use of safety information for purposes different
                   from the purposes for which it was collected, namely, use of the information for
                                               -2-
                   disciplinary, civil, administrative and criminal proceedings against operational
                   personnel, and/or disclosure of the information to the public;

               d) SDCPS refers to processing and reporting systems, databases, schemes for
                  exchange of information, and recorded information and include:

                   1) records pertaining to accident and incident investigations, as described in
                      Annex 13, Chapter 5;

                   2) mandatory incident reporting systems, as described in Annex 13, Chapter 8;

                   3) voluntary incident reporting systems, as described in Annex 13, Chapter 8;
                      and

                   4) self-disclosure reporting systems, including automatic data capture systems,
                      as described in Annex 6, Part I, Chapter 3, as well as manual data capture
                      systems.

                   Note.— Information on safety data collection and processing systems can
               be found in the ICAO Safety Management Manual (Doc 9859).

2.    General principles

2.1             The sole purpose of protecting safety information from inappropriate use is to
ensure its continued availability so that proper and timely preventive actions can be taken and
aviation safety improved.

2.2           It is not the purpose of protecting safety information to interfere with the
proper administration of justice in States.

2.3            National laws and regulations protecting safety information should ensure that
a balance is struck between the need for the protection of safety information in order to
improve aviation safety, and the need for the proper administration of justice.

2.4            National laws and regulations protecting safety information should prevent its
inappropriate use.

2.5              Providing protection to qualified safety information under specified conditions
is part of a State’s safety responsibilities.

3.     Principles of protection

3.1           Safety information should qualify for protection from inappropriate use
according to specified conditions that should include, but not necessarily be limited to: the
collection of information was for explicit safety purposes and the disclosure of the
information would inhibit its continued availability.

3.2             The protection should be specific for each SDCPS, based upon the nature of
the safety information it contains.

3.3              A formal procedure should be established to provide protection to qualified safety
information, in accordance with specified conditions.
                                                -3-
3.4     Safety information should not be used in a way different from the purposes for which it was
collected.

3.5            The use of safety information in disciplinary, civil, administrative and criminal
proceedings should be carried out only under suitable safeguards provided by national law.

4.      Principles of exception

4.1            Exceptions to the protection of safety information should only be granted by
national laws and regulations when:

                a) there is evidence that the occurrence was caused by an act considered, in
                   accordance with the law, to be conduct with intent to cause damage, or
                   conduct with knowledge that damage would probably result, equivalent to
                   reckless conduct, gross negligence or wilful misconduct;

                b) an appropriate authority considers that circumstances reasonably indicate
                   that the occurrence may have been caused by conduct with intent to cause
                   damage, or conduct with knowledge that damage would probably result,
                   equivalent to reckless conduct, gross negligence or wilful misconduct; or

                c) a review by an appropriate authority determines that the release of the
                   safety information is necessary for the proper administration of justice, and
                   that its release outweighs the adverse domestic and international impact
                   such release may have on the future availability of safety information.

5.      Public disclosure

5.1             Subject to the principles of protection and exception outlined above, any person
seeking disclosure of safety information should justify its release.

5.2              Formal criteria for disclosure of safety information should be established and should
include, but not necessarily be limited to, the following:

                a) disclosure of the safety information is necessary to correct conditions that
                   compromise safety and/or to change policies and regulations;

                b) disclosure of the safety information does not inhibit its future availability
                   in order to improve safety;

                c) disclosure of relevant personal information included in the safety
                   information complies with applicable privacy laws; and

                d) disclosure of the safety information is made in a de-identified, summarized
                   or aggregate form.
                                                -4-
6.      Responsibility of the custodian of safety information

6.1            Each SDCPS should have a designated custodian. It is the responsibility of the
custodian of safety information to apply all possible protection regarding the disclosure of the
information, unless:

                a) the custodian of the safety information has the consent of the originator of
                   the information for disclosure; or

                b) the custodian of the safety information is satisfied that the release of the
                   safety information is in accordance with the principles of exception.

7.      Protection of recorded information

7.1            Considering that ambient workplace recordings required by legislation, such as cockpit
voice recorders (CVRs), may be perceived as constituting an invasion of privacy for operational
personnel that other professions are not exposed to:

                a) subject to the principles of protection and exception above, national laws
                   and regulations should consider ambient workplace recordings required by
                   legislation as privileged protected information, i.e. information deserving
                   enhanced protection; and

                b) national laws and regulations should provide specific measures of
                   protection to such recordings as to their confidentiality and access by the
                   public. Such specific measures of protection of workplace recordings
                   required by legislation may include the issuance of orders of non-public
                   disclosure.




                                     ————————
                                                      Advisory
   ta
    c/
   U.S.Department
   of Tmnsportdon
                                                      Circular
   FedemlAviation
   Administfutlon



Subject:   AVIATION SAFETY REPORTING           Date: February 26,1997         AC No: 004D
           PROGRAM                             Initialed by: ASY-300          Change:




1. PURPOSE.

                        the
This circular describes FederalAviation Administration(FAA) Aviation SafetyReportingProgram
(ASRP) which utilizes the National Aeronauticsand SpaceAdministration(NASA) as a third party to
receiveAviation SafetyReports. This cooperative   safetyreportingprograminvitespilots, controllers,
                 maintenance
flight attendants,                      and
                              personnel, otherusersof the National AirspaceSystem(NAS), or
                                                                     and
any otherperson,to reportto NASA actualor potentialdiscrepancies deficiencies      involving the
safetyof aviationoperations.The operations                                           en
                                            coveredby theprogramincludedeparture, route,
           and                   and             air
approach, landingoperations procedures, traffic controlprocedures equipment, and            crew
andair traffic control communications,aircraft cabin operations,aircraft movementon the airport,
nearmidair collisions,aircraft maintenance recordkeeping, airport conditionsor services. The
                                          and                and
              of                                        on
effectiveness this programin improvingsafetydepends the free, unrestricted     flow of information
from the usersof the NAS.   Basedon informationobtainedfrom this program,FAA will take
                              to                             in
correctiveactionas necessary remedydefectsor deficiencies theNAS. The reportsmay also
providedatafor improving the currentsystemandplanningfor a future system.

2. CANCELLATION.

Advisory Circular 00-46C datedFebruary4, 1985,is canceled.

3. BACKGROUND.                                                                  *

    a. The primary mission of the FAA is to promoteaviation safety. To furtherthis mission,the FAA
                                                       to           the
instituteda voluntary ASRP on April 30, 1975,designed encourage identificationandreporting
               and               in
of deficiencies discrepancies the system.
                            that
   b. The FAA determined theASRP effectiveness                                   if
                                                      would be greatlyenhanced the receipt,
             and                                      by
processing, analysisof raw datawereaccomplished NASA ratherthan by the FAA. This
would ensurethe anonymityof the reporterandof all partiesinvolvedin a reported  occurrence  or
incidentand,consequently,           the                             for
                           increase flow of informationnecessary the effectiveevaluationof
                                                                    and
the safetyandefficiency of the system. Accordingly,NASA designed administers Aviationthe
                                                                         with
SafetyReportingSystem(ASRS) to performthesefbnctionsin accordance a Memorandumof
Agreement                    by
            (MOA) executed the FAA andNASA on August 15, 1975,as modified September            30,
                                                      are            in
1983, andAugust 13, 1987. CurrentASRS operations conducted accordance an MOA        with
          by
executed FAA andNASA on January14,1994.
AC 0046D


4. NASA RESPONSIBILITIES.

    a. NASA ASRS provides for the receipt, analysis, and de-identification of aviation safety reports;
in addition, periodic reports of findings obtained through the reporting program are published and
distributed to the public, the aviation community, and the FAA.
    b. A NASA ASRS Advisory Subcommittee, composed of representatives from the aviation
community, including the Department of Defense, NASA, and FAA, advises NASA on the conduct of
the ASRS. The subcommittee conducts periodic meetings to evaluate and ensure the effectiveness of
the reporting system.

5. PROHIBITION      AGAINST     THE USE OF REPORTS FOR ENFORCEMENT                  PURPOSES.

     a. Section 9 1.25 of the Federal Aviation Regulations (FAR) (14 CFR 9 1.25) prohibits the use of
any reports submitted to NASA under the ASRS (or information derived therefrom) in any disciplinary
action, except information concerning criminal offenses or accidents which are covered under
paragraphs 7a( 1) and 7a(2).
     b. When violation of the FAR comes to the attention of the FAA from a source other than a report
filed with NASA under the ASRS, appropriate action will be taken. See paragraph 9.
     c. The NASA ASRS security system is designed and operated by NASA to ensure confidentiality
and anonymity of the reporter and all other parties involved in a reported occurrence or incident. The
FAA will not seek, and NASA will not release or make available to the FAA, any report filed with
NASA under the ASRS or any other information that might reveal the identity of any party involved in
an occurrence or incident reported under the ASRS. There has been no breach of confidentiality in
more than 20 years of the ASRS under NASA management.

6. REPORTING      PROCEDURES.

Forms in the NASA ARC 277 series have been prepared specifically for intended users (including
ARC 277 A for air traffic use, 277B for general use including pilots, 277C for flight attendants and
277D for maintenance personnel) and are preaddressed and postage free. Completed forms or a
narrative report should be completed and mailed only to ASRS at NASA, Aviation Safety Reporting
System, P.O. Box 189, Moffett Field, CA 94035-9800.

7. PROCESSING      OF REPORTS.

    a. NASA procedures for processing Aviation Safety Reports ensure that the reports are initially
screened for :
        (1) Information concerning criminal offenses, which will be referred promptly to the
Departmentof Justiceandthe FAA;
        (2) informationconcerning    accidents, which will be referredpromptly to the National
TransportationSafetyBoard (NTSB) andthe FAA; and
        Note: Reports  discussing                  or          are               prior
                                  criminalactivities accidents notde-identified to their
                to
        referral theagencies   outlinedabove.
                                                                    will
        (3) time-critical information which, after de-identification, be promptly referredto the
FAA and otherinterested    parties.
   b. EachAviation SafetyReport hasa tear-off portionwhich containsthe informationthat identifies
theperson             the                                                by
           submitting report. Thistear-offportion beremoved NASA,timestamped,
                                                       will                                     and
returnedto the reporteras a receipt. This will providethe reporterwith proof that he/shefiled a report
on a specific incidentor occurrence.The identificationstrip sectionof the ASRS reportform provides
NASA programpersonnel                                                              in
                            with the meansby which the reportercanbe contacted, caseadditional
information is soughtin orderto understand   more completelythe report’scontent. Exceptin the case
AC 00-46D

of reportsdescribingaccidentsor criminal activities,no copy of an ASRS form’s identificationstrip is
       or
created retainedfor ASRS files. Prompt returnof identificationstrips is a primary elementofthe
ASRS program’sreport de-identification                      the
                                       processandensures reporter’sanonymity.

8. DE-IDENTIFICATION.

    All informationthat might assistin or establishthe identificationof personsfiling ASRS reports
andpartiesnamedin thosereportswill be deleted,     exceptfor reportscoveredunderparagraphs 1) 7a(
                                   will
and7a(2). This de-identification be accomplished        normally within 72 hoursafter NASA’s receipt
                                                    from
of the reports,if no further informationis requested the reporter.

9. ENFORCEMENT        POLICY.

    a. The Administrator of the FAA will performhis/herresponsibilityunderTitle 49, United States
Code,Subtitle VII, and enforcethe statuteandthe FAR in a mannerthat will reduceor eliminatethe
                              of,
possibility of, or recurrence aircraft accidents.The FAA enforcement                  are
                                                                           procedures set forth in
Part 13of the FAR ( 14 CFR Part 13) andFAA enforcement        handbooks.
                     g
    b. In determinin the type andextentof the enforcement    actionto be takenin a particular case,the
following factors areconsidered:
         (I) natureof the violation;
                                                    or
         (2) whetherthe violation was inadvertent deliberate;
                                                        and
         (3) the certificateholder’slevel of experience responsibility;
         (4)  attitudeof the violator;
         (5) the hazardto safetyof otherswhich shouldhavebeenforeseen;
         (6) actiontakenby employeror othergovernment       authority;
         (7) lengthof time which haselapsed    sinceviolation;
         (8) the certificateholder’suseof the certificate;
         (9) the needfor specialdeterrentactionin a particularregulatoryarea,or segment the
            .                                                                                of
         aviation community;and
                        of
         (10) presence any factorsinvolving nationalinterest,suchasthe useof aircraft for criminal
         purposes.
                                                     an
    c. The filing of a reportwith NASA concerning incidentor occurrence        involving a violation of
                                                   by
49 U.S.C. Subtitle VII, or the FAR is considered FAA to be indicativeof a constructiveattitude.
Suchan attitudewill tendto preventMure violations. Accordingly,althougha tiding of violation
                                                               will
may be made,neithera civil penaltynor certificatesuspension be imposedif
                                           and
         (1) the violation was inadvertent not deliberate;.
         (2) the violation did not involvea criminal offense,& accident,or actionunder49 U.S.C.
                                         a
         Section44709which discloses lack of qualificationor competency,       which is wholly excluded
         from this policy;
         (3) the personhasnot beenfound in any prior FAA enforcement       actionto havecommitteda
         violation of 49 U.S.C. SubtitleVII, or any regulationpromulgated   therefor a periodof 5 years
         prior to the dateof occurrence;and
         (4) the personprovesthat, within 10 daysafterthe violation, he or shecompletedand
                                                                          to
         deliveredor mailed a written reportof the incidentor occurrence NASA underASRS. See
                      SC
         paragraphs and7b.
       N&e: Paragraph 9 does not apply to air traffk controllers. Provisions concerning air traffic
       controllers involved in incidents reported under ASRS are addressed in FAA Order 7210.3.G, Facility
                 and
        Operations Administration.

10. OTHER REPORTS.

This programdoesnot eliminateresponsibilityfor              narratives,or forms presentlyrequiredbY
existingdirectives.
ACOO46D


11. EFFECTIVE DATE.

                                                      by
This modified Aviation SafetyReportingProgramdescribed this Advisory Circular was effective
October1,1996.

12. AVAILABILITY    OF FORMS.

    a. Copiesof reportingforms (NASA ARC Form 277, Aviation SafetyReport,series)may be
obtainedfix of chargefrom FAA Flight Standards District Offices or Flight ServiceStations,or
directly fkom NASA, ASRS, P.O. Box 189,Moffktt Field, CA 94035-9800.
    b. The NASA ARC 277 forms will be stocked at the FAA Depot (AML-640) and will be available
                     and
to FAA organizations offices throughnormalsupply channels.The form numbersanddescriptions
are: NSN 0052-00-9 16-7000 (NASAARC277A,   ATC), NSN 0052-00-9 16-8000 (NASAARC277B,
GeneralUse/Pilots),NSA 00-52-00-916-9000 (NASAARC277C, Cabin Crew) andNSN 0052-OO-
       (NASAARC277D, Maintenance).
92002000




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