The liability of Air Navigation Service Provider: some lessons from the Ueberlingen by F. Schubert

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The liability of Air Navigation Service Provider: some lessons from the Ueberlingen by F. Schubert

  1. 1. The Ueberlingen Midair Collision - Some Lessons Learned Presentation to the Alias Conference June 15, 2012 Francis SCHUBERT Chief Corporate Officer, skyguide
  2. 2. Outline• Facts: a reminder• Communication aspects & Crisis Management• Legal aspects: – Civil liability – Criminal responsibility• Conclusions: – Consequences on the system – Some Lessons learnedC/SF/15.09.2011 page 2
  3. 3. C/SF/15.09.2011 page 3
  4. 4. Overview 1.7.2002 Immediate ResponseUeberlingen Communication Collision Crisis Management Jul 2003 Feb 2004 May 2004 Oct 2005 May 2007 Sep 2007 Nov 2010 Safety investigation Compensation: Out of court settlement Civil Proceedings Skyguide Communication ATCO Crisis Management murdered ATCO murderers trial Skyguide employees Criminal Trial C/SF/15.09.2011 page 4
  5. 5. Causes (BFU Safety Investigation Report)• Immediate causes: – Imminent separation infringement not noticed by ATC in time. Instruction for TU154M to descend given at a time when prescribed separation to the B757-200 could not be ensured anymore. – TU154M crew followed ATC instruction to descend and continued to do so even after TCAS advised to climb. Manoeuvre performed contrary to the generated TCAS RA.C/SF/15.09.2011 page 5
  6. 6. Causes (BFU Safety Investigation Report)• Systemic causes: – Integration of ACAS/TCAS II into aviation system was insufficient and did not correspond with systems philosophy. – Regulations concerning ACAS/TCAS published by ICAO and as a result, regulations of national aviation authorities, operational and procedural instructions of TCAS manufacturer and the operators not standardised, incomplete and partially contradictory. – Management and quality assurance of ANS company did not ensure that during the night all open workstations were continuously staffed by controllers. – Management and quality assurance of ANS company tolerated for years that during times of low traffic flow at night only one controller worked and the other one retired to rest.C/SF/15.09.2011 page 6
  7. 7. Managing conflicts of interest Insurance Corporate image Lawyers Gouvern- ment Board/ Employees Manage mentC/SF/15.09.2011 page 7
  8. 8. Theoretical legal channels• Germany – All claims to be addressed exclusively against the German Republic – No established recourse channel against skyguide• Switzerland – Skyguide submitted to State liability regime because it performs a sovereign function on the basis of a State mandate – All claims to be addressed exclusively against skyguide (no direct action against the State or against individual employees) – Decision in first instance – Federal Supreme Administrative Court acts on recourse and final instance – State subsidiary liabilityC/SF/15.09.2011 page 8
  9. 9. Criminal liability• 8 employees prosecuted – 3 Managers – 3 Operational professionals – 2 Engineers• Claim – Multiple negligent manslaughter – Negligent disturbance of public transportation• Requisition – 6 to 15 months imprisonment – Suspended sentences with a probation period of 2 years• 3 Managers + Project Manager condemned to suspended sentencesC/SF/15.09.2011 page 9
  10. 10. Internal measures• Establishment of a high level coordination Task Force – Board of Managers – Legal services – Communication – Safety management – External lawyers• Mandate – Prepare the trial from a corporate angle and support individual employees – Follow the trial on a daily basisC/SF/15.09.2011 page 10
  11. 11. Internal measures• Security: – Personal protection of the employees and of their families – Physical facilities security• Psychological support of the employees and of their families• Communication support – Media-Training – External and internal communication• Legal support – Each employee chose his own attorney – Legal cost borne by skyguide / corporate legal insurance – External specialist hired by skyguide for overall coordination• Professional support – Dedicated OPS/TEC experts availableC/SF/15.09.2011 page 11
  12. 12. Consequences on the system• Insurance premium?• Regulatory environment – Possible unwanted side-effects: compliance driven regulatory processes instead of safety oriented practices• Corporate image• Political instrumentalisationC/SF/15.09.2011 page 12
  13. 13. Some Lessons Learned• An organisation is never prepared to face a major catastrophe, but basic rules, principles and processes can help an organisation through a crisis• The adequacy of immediate response is a most critical element: – An early communication / crisis management failure cannot be recovered later• There is room to apologise and express sincere regrets for the occurrence of an accident, without jeopardising the legal exposure of the company• It is possible to accept corporate responsibility without exposing individual employees to personal liability• The judicialisation of aviation accidents / incidents• Criminal liability is climbing up the corporate ladderC/SF/15.09.2011 page 13
  14. 14. Some Lessons Learned• Clear rules must be defined and agreed with the staff associations, regarding management measures to be taken in case of criminal proceedings, prior to any accident• Responsibilities need to be clearly defined and allocated within the organisation: – Resources & competences need to be allocated accordingly• Legal framework needs to be certain: e.g. delegation agreementsC/SF/15.09.2011 page 14

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