AIN Blog: Torqued: The Case for Criminalizing Aircraft Accidents

 - August 9, 2011, 10:09 AM

I get so sick of hearing pundits talk about how bad it is to criminalize aircraft accidents, how we need to be able to determine the cause of accidents without the threat of criminal sanctions such as fines and jail time impeding the free exchange of information. Some claim that the chilling effect of looming criminal inquiries would thwart the NTSB’s ability to determine probable cause and so on. Ever notice how often those pundits have clients with a big interest in making sure that no prosecutor looks too closely at the bottom-line pressures surrounding an accident? What if there was criminal negligence involved; or what if there were outright intentional crimes, like pencil-whipping required maintenance to meet a schedule or save money?

Let me finish before you dash off those tweets and emails. I am not talking about getting the FBI involved in aircraft accident investigations, unless, of course, it is pretty clear that terrorism was involved. I lived through the TWA 800 debacle where the NTSB investigation was put on hold while the FBI combed through debris for months, searching for what was probably obvious by the first week they would not find–evidence of a bomb or a missile or any explosive device. 

In the case of TWA 800, looking for a terrorist cause for the accident just wasted time–and money–and frustrated the NTSB’s attempts to get working on determining the real cause of the accident. In the end, the Board determined the accident was caused by a spark from a frayed wire igniting oxygen in the fuel tank, resulting in an explosion as the aircraft took off from JFK one hot July night in 1996. But, of course, there could be situations where that time could make the difference in preventing another aircraft from encountering the same or similar problem.

Criminal Acts Deserve Punishment
When I talk about criminalizing accidents, I’m talking about determining whether criminal conduct was in any way involved or responsible for the circumstances leading up to the accident. And, if so, punishing that conduct with appropriate criminal penalties. Sometimes, the costs of accidents in lives lost, aircraft destruction and bad publicity are just not enough to deter the conduct that arguably led to the accident. FAA penalties–even fines and revocations–are often seen as just a cost of doing business. Criminal penalties still send a shiver through some of even the most jaded in aviation and may be needed to scare some people into doing the right thing for safety, as opposed to their bottom lines.

The Platinum Jet accident that began the FAA’s look at operational control a couple of years ago is a perfect example of what I am talking about in terms of prosecuting criminal conduct that results in an aircraft accident. Platinum Jet was a Part 91 operator that rented an Alabama company’s Part 135 certificate and operated Challengers across the country. One fateful day in February 2005, its improperly loaded, overweight and out of cg aircraft, flown by its improperly trained and qualified crew aborted takeoff from Teterboro Airport in New Jersey and smashed through a fence, dashed across a highway and into a storage facility.  Miraculously, no one was killed, although the occupant of a car on the highway that morning was critically injured. 

The NTSB conducted its accident investigation unimpeded by criminal investigators. But at some point, information obtained by investigators indicated potential criminal conduct, and the U.S. Attorney’s office in New Jersey began a criminal investigation, aided by agents of the DOT’s Office of Inspector General. After all, it is a crime to operate air carrier flights without an air carrier certificate, falsify weight-and-balance data and intentionally operate contrary to scores of other regulations on dozens of flights. Particularly egregious was the practice of tankering fuel and lying about the weight of the aircraft, which caused the aircraft to be overloaded and out of cg on the day of the crash.

Unfortunately, the lessons of Platinum Jet have not been heard in many corners of the aviation industry. Many aviation insiders I talk with seem to think that Platinum was a “rogue” operator and criminal penalties were properly applied to them–but would be inappropriate to other non-rogue operators.  What’s a rogue operator anyway? And when is their rogue-ness determined–before or after an accident? After all, Platinum Jet was pretty in demand when celebrities like Beyonce, Jay Z or Jon Bon Jovi saw fit to fly on its jets. 

And other criminal prosecutions of the past have been forgotten. Who remembers now the impact of the criminal case against Eastern Airlines, its maintenance foremen and its v-p of maintenance (although that case was later dismissed on a technicality) for falsifying maintenance records?  For a long time, those criminal prosecutions gave mechanics and their supervisors the backbone to push back against corporate pressures to move aircraft even if required maintenance or inspections were not done. How many mechanics were able to say, “Look what happened at Eastern in refusing to pencil whip a maintenance entry?” I know quite a few who told me a lot of pressure was lifted in the aftermath of that criminal case.

But, alas, memories fade and the fear of criminal penalties lessens. And so those pressures to move aircraft, while oftentimes within the rules are sometimes clearly not. For those times when the pressure to move aircraft crosses the regulatory line and results in an accident, criminal penalties should be explored. As the U.S. Attorney stated in regard to the guilty verdict in the Platinum case, “Today’s verdict confirms that there are consequences when you break the law to boost your bottom line.”

Maybe some recent accidents–or near accidents–should be looked at to see whether regulations were intentionally flouted. Holding the right people accountable–criminally–might make others less likely to give in to the pressure of the expedient in favor of doing it right–and legally.