Judicial Action in the Aftermath of Aviation Accidents: a global Perspective

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Judicial Action in the Aftermath of Aviation Accidents:

A Global Perspective
David Adams

Camille Khodadad

Hall, Prangle & Schoonveld, LLC
The first thing we do, let’s kill all the lawyers.”

Henry VI, Part 2 Act 4, scene 2

In the United States the acts or omissions that cause or contribute to aviation accidents are ordinarily not the subject of criminal investigation and prosecution. However, in many other countries around the world, criminal prosecution has become a nearly automatic response to aviation accidents. This “criminalization” trend in aviation affects not only pilots but maintenance personnel, owners and operators, OEMs and even air traffic controllers. Accidents by definition are just that, unforeseen and unintended events. In the case of intentional acts resulting in an accident prosecution could be warranted in any country.
Accident investigation and criminal prosecution
A fundamental tension exists between accident investigations and the potential prosecution of the actors involved in an airplane accident. “The sole purpose of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.” ICAO Annex 13. However, an accident investigation in its effort to uncover the facts, determine the probable and contributing causes and when appropriate make safety recommendations runs headlong into criminal investigations and potential prosecution utilizing some or all of an agency’s findings to apportion blame or liability.
While the frequency of aviation accidents declines, the frequency of criminal prosecution appears to be on the rise. In the 43-year period from 1956 through 1999, criminal investigations of 27 aviation accidents were conducted. In the succeeding decade there have been more than 28 criminal investigations.
Legal systems compared
Criminal justice systems differ among various countries around the world. Following are some broad comparisons among the predominant systems: common law and civil law.

Common law systems, exemplified by the United States and the United Kingdom, are adversarial-based where the accused is represented by an attorney from the beginning. This system relies on prior court decisions to establish legal precedent. In the United States there exists an entire body of law devoted to criminal procedure establishing how criminal laws are to be enforced, especially with regard to a defendant’s Constitutional rights. Defendants can demand their rights to due process, exercise their right to remain silent, require a speedy trial and be represented by legal counsel.

Conversely, under the civil law system such as those in France, Germany and Japan an accused typically receives fewer rights in comparison. The civil system adopts an inquisitorial model where the sovereign’s search for justice is guided by strict application of written law. An examining, or investigating, judge conducts an inquiry into a possible crime where the accused is charged only after the inquisition phase--questioning witnesses, interrogating suspects—is completed. The goal of the criminal investigation is to gather evidence, whether incriminating or exculpatory, and is only conducted with the authorization of the prosecutor’s office. If the examining judge finds a valid case against a person, the accused then has to stand trial.

While the accident investigation agencies take a safety-based approach, the judicial investigation takes an assign-blame approach. Nonetheless, the vagaries of the criminal (and civil) legal process will depend on the country in which it is conducted.

Selected aviation accident criminal prosecutions worldwide
The following accidents are a representative sampling of those for which flight crews, owners and operators, air traffic controllers and others have been prosecuted within the past several years.1
Olympic Airways, Romanian airspace, September 1999
On September 14, 1999, a Falcon 900B operated by Olympic Airways for the Government of Greece, experienced a series of pitch oscillations during a descent while enroute from Athens, Greece, to Bucharest, Romania. There were 13 persons aboard, of whom 7 were fatally injured and 2 seriously injured. The flight crewmembers were uninjured. The crew attempted a manual override of the autopilot while leveling the aircraft at an intermediate altitude during the descent into Bucharest. The aircraft landed at Bucharest.
The Romanian Ministry of Transport, Civil Aviation Inspectorate investigated and determined the cause to be pilot error: inadequate assessment of the PITCH FEEL malfunction, overriding of the autopilot in the pitch channel, inappropriate inputs on the control column at high speed and with Arthur unit failed in “low-speed” mode leading to Pilot Induced Oscillations and seat-belts not fastened during descent flight phase.
The Greek public prosecutor brought manslaughter charges against the two pilots for causing the passengers’ deaths and eight Olympic Airways ground engineers for failing to repair the pitch feel system. In 2002, after a lengthy criminal trial in Athens, the captain was found to be criminally liable for the deaths and injuries to the passengers. The first officer and engineers were acquitted. The captain received a five year prison sentence, reduced to three years on appeal. A further appeal to the Greek Supreme Court remains pending.
Criminal charges were later brought against the OEM, Dassault Aviation, and a verdict concerning which also remains pending.
Concorde, Paris, July, 2000
A Concorde, Air France flight 4590, enroute from Paris Charles de Gaulle to JFK caught fire on takeoff and crashed near Le Bourget at Gonesse on July 25, 2000. All 109 persons on board perished along with four on the ground. The immediate cause of the fire was a blown tire that caused a fuel tank to rupture and the ensuing fire resulted in loss of control.
The BEA investigation found that the Concorde was overloaded for takeoff, one tire was cut by a metal strip from a just-departed Continental DC-10, a high speed abort above Vr was untenable, and the subsequent fire and resulting structural damage was so severe that the ensuing crash was inevitable. Several months after the BEA report was released a criminal investigation began in March 2005.
Three years later the public prosecutor brought criminal negligence charges against the former head of Concorde division of Aerospatiale and the Concorde chief engineer. Likewise, manslaughter charges were brought against a Continental mechanic and a maintenance manager, an Aerospatiale manager and a French airline regulator. Pretrial attempts to dismiss or reduce the charges failed.
Almost 10 years after the accident, trial began in Pontoise Criminal Court located in a Paris suburb in February 2010. After a four-month trial and months of deliberation, the three-judge panel returned a judgment on December 6, 2010. They found Continental criminally liable and fined it €200,000 and ordered it to pay Air France €1 million. The Continental mechanic received a 15-month suspended sentence while the other employee was acquitted as were the other four defendants. In addition Continental was ordered to pay 70% of compensation payments made by Air France to the victims. Continental is appealing the judgment.
Crossair, Zurich, November, 2001
Crossair Flight LX 3597 was an Avro RJ100 regional airliner on a scheduled flight from Berlin, Germany to Zurich, Switzerland that crashed during its approach to land at Zurich Airport on November 24, 2001. Twenty-four of the thirty-three people on board were killed. Those who died were the cockpit crew of two, one flight attendant, and twenty-one passengers.
The investigation conducted by the Swiss Aircraft Accident Investigation Bureau concluded that the accident was controlled flight into terrain (CFIT) caused by a series of pilot errors and navigation mistakes that led the plane off-course. No fault was found with the airliner itself.
The Swiss public prosecutor brought criminal charges against six Crossair executives. The trial began on May 5, 2008, six and one-half years after the accident. Among other arguments the prosecutor blamed the Crossair management for maintaining a culture of fear, preventing pilots from reporting incidents and encouraging them to take risks rather than choosing safe–but more costly–procedures.
On May 16, 2008 the Swiss federal court acquitted the Crossair chairman, its CEO and four other former airline employees of negligent homicide. The prosecution had requested suspended sentences for the six defendants ranging from 12 months to two years.
DHL/Bashkrian mid-air, Southern Germany, July 2002
On July 1, 2002, Bashkrian Flight 2937, a Tupolev Tu-154M, carrying 57 passengers and 12 crew, collided in mid-air with DHL Flight 611, a Boeing 757-23 APF, a cargo jet with just two pilots aboard. Both aircraft were flying at approximately 36,000 feet MSL in German airspace and were under the control of Skyguide. Only one air traffic controller was handling their airspace because the other duty controller was resting. Thus one controller was controlling two sectors simultaneously and he failed to recognize the proximity of the two airplanes. When he did, he instructed the Bashkrian pilot to descend 1,000 feet. Seconds later, the Bashkrian’s TCAS commanded a climb. Those pilots complied with the controller’s instruction to descend. At this moment, the TCAS of the DHL aircraft commanded a descent and the pilots did so. The two aircraft collided at 34,890 feet MSL. Upon impact, the B757’s vertical stabilizer sliced through the Bashkrian’s fuselage, causing an explosion, breaking the Tu-154M into several pieces scattering debris over a large area. The B757 crashed shortly thereafter in an uncontrolled descent. All of the 71 persons on board both airplanes died.
The German Federal Bureau of Aircraft Accidents Investigations (BFU) determined that the causes of the accident were “managerial incompetence and systems failures” attributed to Skyguide and failure of the TCAS systems.

A criminal investigation was initiated as to Skyguide in May 2004. On August 7, 2006, a Swiss prosecutor filed manslaughter charges against eight Skyguide employees. After a lengthy trial three of the four Skyguide managers were given suspended prison terms, the fourth was ordered to pay a fine. The other four Skyguide employees were found not guilty.2

Platinum Jet, Challenger 600 accident, Teterboro, February, 2005
On February 2, 2005, a Bombardier Challenger CL-600 ran off the departure end of runway 6 at Teterboro Airport, New Jersey. The crew abandoned the takeoff when the airplane failed to rotate. The airplane sliced through a perimeter fence, crossed a six-lane highway, and rolled through a parking lot before coming to rest partially inside a building. The pilots were seriously injured, as were two occupants in the vehicle struck by the airplane on the highway. The flight attendant, eight passengers, and one person in the building received minor injuries. The airplane was destroyed.
The NTSB determined the probable cause of the accident to be the pilots’ failure to ensure that the airplane was loaded within certified weight-and-balance limits and their attempt to take off with the center of gravity beyond the forward limit, which prevented the airplane from rotating at Vr.
Criminal charges for conspiracy, fraud and endangering flight safety by falsifying flight logs and overloading airplanes with fuel were brought against the pilot and the executives and directors of flight charter and maintenance. Verdicts were returned after a one-month trial in U. S. District Court for New Jersey. The jury convicted the pilot and one of the owners and founders of the company.
Excelaire Embraer Legacy and GOL B-737 over Amazon, September 2006
September 29, 2006, a Gol Boeing 737-800 was en route from Manaus, Brazil to Rio de Janeiro, when it collided with an Embraer Legacy operated by Excelaire. All 154 passengers aboard the Boeing 737 were killed. The 7 occupants of the Legacy survived. The collision occurred approximately midway between Brasilia and Manaus at 37,000 feet. The B 737 suffered major structural damage, losing nearly half of its left wing causing it to nose-dive and enter an uncontrollable spin. The Legacy, despite serious damage to the left horizontal stabilizer and left winglet, was able to continue flying. The crew landed the aircraft at a large military complex of the Brazilian Air Force (BAF) about 100 miles from the collision point.
The crew of the Legacy were detained and questioned relentlessly by the BAF and Agencia Nacional de Aviacao Civil (ANAC). The crew maintained that at the time of the collision they had lost contact with Brasilia ATC and the Legacy’s TCAS did not alert them of any traffic.
Four days later, the Legacy’s captain and first officer were ordered to surrender their passports pending further investigation. The prosecutor had made the request because the possibility of pilot error could not be ruled out. Later on December 5, 2006 a Brazilian federal judge effectively overruled the surrender order. However, prior to pilots’ departure the Brazil Federal Police formally charged the crew with “endangering an aircraft” which carries a maximum 12-year prison term. The pilots agreed to return for trial.
Formal investigations were conducted by Brazil’s Aeronautical Accidents Investigation and Prevention Center (CENIPA) and the NTSB. These agencies agreeing on most facts arrived at different conclusions. CENIPA concluded the accident was caused by mistakes made by both air traffic controllers and by the Legacy pilots, whereas the NTSB focused on the controller and the ATC system. The NTSB found that both flight crews acted properly, but were placed on a collision course by ATC.
On June 1, 2007 the two Legacy pilots and four controllers were indicted and charged with “exposing an aircraft to danger.” The negligence charges against the pilots were dismissed and reverted to charges of “imprudence.” All charges against two controllers were dismissed and reduced charges against the other two. A fifth controller was indicted. In January, 2010 the negligence charges against the pilots were reinstated. In October of 2010, a military court convicted one controller but he appealed and then was acquitted.
Ultimately in May, 2011, the Legacy pilots were sentenced to 4 years, 4 months in prison but the sentence was commuted to community service to be served in the United States. The Judge sentenced one controller to a prison term of up to 3 years, 4 months but found he was eligible to do community service in Brazil instead.

What we learn from these investigations and prosecutions

Criminal investigation and prosecutions can be based on a wide variety of factors. Among these factors are statutory mandate as a result of a criminal inquest, magnitude of accident such as number of airplanes and fatalities, and the notoriety of persons on board. Intent is irrelevant. Criminal investigations can and do use the output of accident investigations to prepare indictments.

Prosecution targets include pilots, maintenance and other line personnel, managers, executives, retirees, air traffic control and controllers, OEM’s and owners.

The defense of criminal prosecution is time-consuming and disruptive. Not only must the individuals accused become embroiled in the legal process, often in a country with which they are unfamiliar, but corporate defendants are also exposed. It is not uncommon for legal action, both criminal and civil, to extend well beyond 10 years post accident.

An individual’s personal liberty and perhaps his pocketbook are at risk. In some cases, pilots have been detained, imprisoned without a hearing or clear explanation of the reasons. A corporation’s resources can be taxed whether it is an owner or operator of the accident airplane or the manufacturer. Maintenance and operations do come under strict scrutiny.

A response from the international aviation community

Strong, thoughtful and persuasive responses have come from the international aviation community to the increasing criminalization of aviation accidents in recent years and these have not yet had the impact over a state’s accident investigation or legal system one would have hoped. For example the Joint Resolution Regarding Criminalization of Aviation Accidents, dated October 17, 2006 declared that “Criminal investigations can and do hinder the critical information gathering portions of an accident investigation, and subsequently interfere with successful prevention of future aviation industry accidents.” Importantly the signatories declared that “criminalization of aviation accidents is not a deterrent or in the public interest.”3

What else can be done?
Certain actions and countermeasures may be used to protect pilots, owners, operators, and others related to the accident. Actions can be taken in advance and post-accident in order to minimize or eliminate the risk of criminal prosecution or to mount a sturdy defense if indicted and tried. The following are equally applicable to owners, operators, pilots/crew members and even OEM management and employees:

  • Become familiar with the law and legal precedents, if any, in the countries of operation and the accident investigation agencies.

  • Implement or revise an Emergency Response Plan to include a prompt response to accidents or incidents occurring outside the United States.

    • Identify legal counsel in potential jurisdictions.

    • Retain experienced aviation counsel in advance.

    • Identify competent aviation consultants in areas such as operations and accident reconstruction.

    • Be certain to secure all pertinent documents, electronic and otherwise.

    • Notify insurers, of course. Payment of defense may be available.

  • Cooperate with the accident investigation authority

    • Obtain pre-interview advice and counsel from competent counsel in the jurisdiction.

    • Provide all requested documentation, paper and electronic.

    • Attend and participate in any hearings with counsel.

    • Contest final accident report probable cause when appropriate.

  • Obtain experienced trial counsel if prosecuted.

Persevere. There is light at the end of the tunnel.

Criminalizing of unintentional, negligent conduct does not improve aviation safety nor does it provide relief to the accident victims. The fear of criminal prosecution – the criminalization of aviation accidents – can impede the investigation and undermine the cooperation of flight crews, mechanics, and manufacturers.

David Adams began his flying career with the United States Air Force in 1966 and flew F-4 fighters in Viet Nam and Europe on active duty and with the Michigan Air National Guard. He has an ATP, a Learjet type rating and has accumulated more than 2,500 flight hours. Graduating from the University of Michigan School of Law in 1976, he has devoted over 35 years to defending product manufacturers concentrating on aviation related claims. Dave is admitted to or has practiced in more than 30 courts and jurisdictions worldwide. He is an NBAA member and active in the Chicago Area Business Aviation Association. He is an active pilot.

Camille Khodadad is a partner and member of the Hall, Prangle & Schoonveld, LLC aviation practice group and a pilot. She also practices in the area of employment law. Camille graduated from Loyola University of Chicago with a J.D. and has a B. A. from Northwestern University. She also is a member of the Chicago Area Business Aviation Association and NBAA.

Ana Cazacu, an associate with the firm, made significant contributions to this paper and her work is gratefully acknowledged.

1 More than one of these accidents spawned civil litigation involving claims for compensation against a variety of parties including the operator or manufacturers.

2 On February 24, 2004, the Skyguide air traffic controller on duty who was controlling both airplanes was stabbed to death by a husband who lost his wife and two children in the Tupolev.

3 Flight Safety Foundation, the Royal Aeronautical Society and others signed the resolution in 2006 and the International Society of Aviation Safety Investigators in January 2010.

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