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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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7/7/2010
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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7/7/2010
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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7/7/2010
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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7/7/2010
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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7/7/2010
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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7/7/2010
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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7/7/2010
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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7/7/2010
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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7/7/2010
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.
Wikimedia Commons
Creative Commons Attribution-
Share Alike License
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7/7/2010
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.
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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.
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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
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7/7/2010
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
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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
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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.
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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.
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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.
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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
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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.
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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.
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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).
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