Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
Part VIII: Accident Investigation
Download 0.73 Mb.
|
- Navigate this page:
- Q Who is responsible for instituting the inquiry when a plane crashes in the high seas
- Q Is there an int’l accident investigation organization
- Q What was the end game of KE 007
- ICAO: Annex 13
- Q What are the problems of Annex 13
Part VIII: Accident InvestigationQ? Why are investigations emphasized in int’l law as governed by art. 26 Chicago? The first to investigate is the police – so there may be domestic charges as well as an int’l inquiry. The duty to investigate is in 3.1 of annex 13 is that the sole purpose of the investigation is to learn how to prevent (via cause or causes) it is not to blame or find liability. It is with a view to presser life and avoid accidents in the future. Was there pilot fatigue, mechanical error, alcohol involved, human error etc.?
That territorial state has the duty to implement an inquiry into the accident & can appoint observers. The state that has the duty to institute the inquiry does not have to pay for the inquiry. It only has to institute the inquiry & can accept aid from other countries. Q? Who is responsible for instituting the inquiry when a plane crashes in the high seas?The State where the plane is registered. Q? Who else may participate in an accident investigation?The state of registry has the right to appoint observers. However, Annex 13 (discussed below) enlarges the spectrum of states that is entitled to participate by way of appointing observers: The state of the operator has the right to appoint to observers, the state of the manufacturer of the aircraft, any state which provides information or facilities may appoint observers, the state of the nationality of the passengers on the aircraft. Q? Is there an int’l accident investigation organization?55(e) Chicago “The council (ICAO) may (not mandatory) investigate at the request of any contracting State any situation which may appear to present avoidable obstacles to the development of int’l air navigation.” Permissive function of ICAO Council to investigate. This was the legal basis for the ICAO investigation of flight KE 007, as USSR violated its obs under Chicago – did not investigate or invite others to do so and would not help ICAO do so either. USSR was CONDMEND for using force agst the civil flight and for not aiding ICAO. An idea floating in the ICAO is that there should be an int’l fund, which would finance accident investigation. Moreover, there is a proposal to have the investigation int’lized. The precursor to such a proposal was the joining together of Arab Gulf states to investigate accidents occurring in their area. The ICAO proposal is to create an Int’l Bank of expertise within ICAO, which would investigate the accident & would be financed from an int’l fund where all contracting states would have contributed to it proportionately. This is a good proposal b/c the results of the investigation are of common interest & common impact. Q? What was the end game of KE 007?Damn Russians. Damn Cold War. Shooting down civil flight lead to 3 bis and a clear example where accident investigation rules were infringed seeing as USSR didn’t file a difference under s.38. Late in 1993 the Council again via 55(e) re-visted the investigation and here the council may have unwittingly obliterated the concept of causation as it was a missile that was intentionally fired agst KE 007 with aim of destroying that caused the accident – NOT the error in the programming of the autopilot. Under art. 25 KE 007 should have been treated as an aircraft in distress. The second like the first investigation did not comply with art. 26 Chicago and Annex 13. For the legal profession and the conscience of the world KE 07 is an unclosed tragedy. ICAO: Annex 13Annex 13 (p.430+ CB read it w/ a view of understanding the nature of the standards & recommended practices on aircraft accident investigation). It is one of the critical legal elements in aviation b/c the results of the investigation may have many consequences. Stnd 3.1 Annex 13 The sole objective of an investigation shall be the prevention of accident & it is not the purpose of this activity is to apportion blame or liability. Stnd 5.12 Annex 13 [Secrecy of records] (see also Attachment D to Stnd 5.12 as guidance) Certain documents in the investigation should not be made available for purposes other than for accident or incident investigation unless the appropriate authority for the administration of justice in that state determines that their disclosure outweighs the adverse domestic & int’l impact of such actions on future investigations. The immunity of the records that is not absolute despite the strong wishes of the pilots. This standard is not generally applied b/c many countries filed differences to it. Ex. The Scandinavian countries reject this stnd b/c freedom of information is a constitutional or quasi-constitutional right in many countries. Stnd 5.19 Annex 13 State of registry and the State of the operator are entitled to appoint reps to participate in the investigation. Stnd 5.22 Annex 13 State of the manufacture of the aircraft is entitled to appoint a rep to participate in the investigation where it is believed that it would be useful or result in greater safety. Stnd 5.24 Annex 13 State providing info, facilities or experts to the State conducting the investigation is entitled to appoint an accredited observer. Stnd 5.27 Annex 13 Recommended Practice that any State, which has a special interest in the investigation by virtue of fatalities to its citizens, should be permitted to appoint an expert to participate in the investigation. Q? What are the problems of Annex 13?Most remarkable in light of art. 26 is its deliberate exclusion of a requirement for an investigation into serious defects in air navigation facilities. Some nations also don’t apply Annex 13 within its express terms due to lack of resources, either human or economic or both. Other countries apply Annex 13 to the letter and thus sterilise its spirit. (1) Requirements of the local law and of the local procedures are interpreted and applies so as to preclude a more efficient investigation under Annex 13 in favour of a legalistic and sterile interpretation of its terms. May be due to mistrust political, commercial judicially or w.r.t. insurance etc. (2) There is said to be a conscious desire to conduct the investigation in some contracting states in such a way as to absolve from any possibility of blame the authorities or nationals, whether manufacturers, operators or air traffic controller, of the country in which the inquiry is held. Annex 13 is also complicated in procedural terms. Not all states have sophisticated aircraft accident investigation regs. Plus, the interplay b/t criminal and aircraft accident investigation is not always clearly defined, particularly in civil regimes. The superimposition of Annex 13 on the often inadequately defined aircraft accident procedures for domestic accidents creates stresses. Cockpit voice recorder is often misused, one should not be at a disadvantage w.r.t. civil rights by comparison w/ o/ people in the same community. Voice recordings should be privileged w.r.t. uses other than that of accident prevention. As there may be a reluctance by pilots who know their conversation is being recorded (and may be potentially used agst them personally in a criminal trial) to reveal or discuss errors they may have made, when the circs demand a full and frank disclosure in order that the proper remedies or rescue actions be instituted. In Australia the use of a cockpit voice recording is not admissible as evidence in any criminal proceedings agst crew-members. Annex 13 as well should be amended as such – at least as a Recommend Practice. Nonetheless, it may be agst public policy to exempt an entire class of offenders. However, w.r.t. safety as much should be learned as possible without fear that evidence acquired from a safety investigation will later be used in a criminal proceeding. The prevention of the repetition of such a sequence is essential and this can only be done through a knowledge and understanding of what has happened, achievable only through the accident investigation processes and usually only with the full cooperation of surviving crew members. Yet why should pilots be given greater protection than the PM would receive? Everyone has something to hide, by ensuring the cockpit voice recorded isn’t used agst the pilot doesn’t ensure that the pilot will fully inform all that is known. “everyone has something to hide” -But, when it comes to sanction of a pilots actions perhaps taking away one’s license should suffice as an objective of punishment as opposed to imprisonment in circs of criminal neg. Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. Share with your friends:
|