Brazilian federal prosecutor Thiago Lemos de Andrade indicted Brazilian air traffic controller Jomarcelo Fernandes dos Santos for intentional criminal conduct that led to the September 29, 2006 air collision between a Legacy business jet and a GOL commercial airliner. (All 154 persons aboard the GOL flight perished, making this the worst aviation accident in Brazilian history.) The prosecutor made this request to federal judge Murilo Mendes in Sinop, Mato Grosso, the capital of the state in which the accident took place, on May 25. The recommendation came as a surprise to observers as the Federal Police report submitted to the prosecutor, after a seven-month investigation, did not recommend action against controllers, claiming that as they were in the military they were beyond civilian purview.3. (U) The prosecutor also recommended indictments of three other controllers and the two U.S. citizen Legacy pilots, Joseph Lepore and Jan Paladino, for unintentional criminal conduct. In the pilots' case, this was for involuntary manslaughter and exposing an aircraft to danger. The prosecutor claimed the pilots accidentally turned off their transponder, disabling both airplanes' collision avoidance systems and limiting air traffic controllers' ability to confirm the Legacy's altitude.
Safety Information: Cooperation between Aviation and Judicial Authorities Kenneth P. Quinn General Counsel & Secretary Partner Flight Safety Foundation Pillsbury Alexandria, VA Washington, DC www.flightsafety.org 202.663.8988 (office) 202.468.1056 (cell) [email_address] ICAO/COPAC Madrid March 24-25, 2011
Balancing Safety with the Administration of Justice
Landmark studies in medicine and nuclear industries in the 1980’s, after realizing reporting only of errors they can’t cover up: 2% - 3% of major errors reported.
“ To err is human,” to admit and report it is not. Create an active learning environment to openly discuss errors without fear of reprisals.
“ It is ‘front line’ employees such as air traffic controllers, pilots, flight crew, maintenance personnel and other who can provide key information about safety problems and potential solutions. In order for these workers to come forward and report errors or mistakes, an organizational climate conducive to such reporting must exist.” - GAIN working Group E
“ The need for a culture that encourages honest reporting is not yet reconciled with the judicial system and legislators. The situation may get worse if no immediate action is taken.” - EUROCONTROL SAFREP Task Force 2006
Demand for air travel continues unabated, with double digit growth in emerging economies, and mature markets like US growing to 1.0B passengers/year in 20 years.
Yet, global average accident rate, which improved dramatically each decade since powered flight, has actually leveled off in the last 8 years.
The 2010 global accident rate (measured in hull losses per million flights of Western-built jet aircraft) was 0.61 = one accident for every 1.6 million flights.
Accident rates vary widely by region, with North America, Europe, and the CIS performing better, with Asia-Pacific, Middle East, and North Africa higher, and Latin America and the Caribbean more than triple the average accident rate at 1.87.
Africa continues to show an alarming accident rate of 7.41 -- 12 times higher than the global average -- 2% of global traffic, but 23% of global western-built jet hull losses.
September 2010, ICAO, IATA, FAA, and EC agreement to launch the Global Safety Information Exchange -- the first global private/public partnership to exchange safety information to reduce risk .
ICAO: iSTARS -- multidimensional assessments of emerging safety issues.
VDRPs, ASAP, FOQA, ASRS, NMACs, and runway incursion data analyses -- more relevant data than “accident/incidents” -- to develop predictive information, training tools, and mitigation strategies.
Systems like ASIAS enable users to perform integrated queries across multiple databases, searching an extensive warehouse of safety data -- potential goldmines for prosecutors and plaintiff’s lawyers.
States not adequately responding to ICAO calls for legislative and regulatory changes to encourage open reporting systems and protect data collected solely for the purpose of improving aviation safety.
Manslaughter Charges Now Considered in Air France 447
June 1, 2009: A-330 plunged into Atlantic Ocean during high-altitude thunderstorm. All 228 people aboard died.
March 17-18, 2011: Airbus and Air France placed under official investigation for involuntary manslaughter -- mise en examen .
Preliminary reports indicate faulty pitot tubes for air speed indication, but only 3% of wreckage recovered, with no CVR/FDR.
Victims' relatives group, told media: “Judge's order was a clear message that the speed probes were unsafe - and presumably people should have known or institutions should have known that they were unsafe.”
Voluntarily Supplied Safety Information is Being Turned Over to Try to Establish Civil Liability
Air Canada Flight Attendant Case: Canadian Labor Code trumps Aeronautics Act and CARs.
Any information in a reporting program that relates to health and safety must be turned over to work place committee and litigants.
Comair decision: ASAP information does not enjoy statutory or common law privileges against disclosure.
Continental and Mechanic Convicted in Air France Concorde crash
July 2000: All 109 aboard and 4 on ground perish during take-off at CDG.
July 2008: French Judge ordered CO and five individuals to stand trial:
2 CO employees (sheet metal worker and a foreman)
Former director of Concorde program
Former head engineer at Aerospatiale
Head of the French Aviation Administration's Aeronautical Training and Technical Inspection Service (SFACT)
December 5, 2010: Involuntary manslaughter verdict.
CO and its mechanic convicted; all others acquitted.
Mechanic: 2,000€, 15 mo. Suspended sentence.
AF “welcomed . . . Continental's full criminal and civil liability.”
Pilots and crew likely suffered from hypoxia caused by a slow loss of cabin pressure and failure to switch pressurization to “auto” after maintenance check.
Athens prosecutor charged six people with manslaughter.
Cypriot government charged five Helios employees with manslaughter, and causing death through a “reckless, careless and dangerous act.”
Establishing and Preserving Blame Free Reporting
October 2006 Joint Resolution Regarding Criminalization of Aviation Accidents
Royal Aeronautical Society
Flight Safety Foundation
Académie Nationale de l’Air et de l’Espace
Civil Air Navigation Services Organisation
Resolution declares that “the paramount consideration in an aviation accident investigation should be to determine the probable cause of and contributing factors in the accident, not to punish criminally flight crews, maintenance employees, airline or manufacturer management executives, or air traffic controllers.”
Criminalization not effective “absent acts of sabotage and willful or particularly egregious reckless misconduct (including misuse of alcohol or substance abuse).”