Surviving accident fallout in today’s environment

 - May 1, 2008, 12:45 PM

“Pilots in handcuffs is what we’re talking about,” said lawyer Kenneth Quinn at the Flight Safety Foundation European Aviation Safety Seminar held recently in Bucharest, Romania. Quinn moderated a two-hour discussion of criminalization and aviation safety, an apropos discussion as the industry becomes ever more vulnerable to attack in an increasingly litigious society. To illustrate how this affects real-world operators, a seven-strong panel of experts considered a hypothetical accident, with Quinn responding to a series of “breaking news” media reports (summarized in italics).

Initial “breaking news”: A French-built Flybus F-100 jetliner operated by U.S. carrier MidAir has come down in the Greek Saronic Islands. There are British, Cypriot, French, Greek and U.S. citizens aboard; the flight crew is British. The NTSB will be an interested party in ensuring the competence of the accident investigation.

Quinn identified immediate legal questions: When should the operator engage counsel? How are corporate clients to be advised? What are lawyers’ roles in contacting next of kin? How should client MidAir respond to inquiries?

With national citizens involved, Paris lawyer Daniel Soulez Larivière said French procedures regard such events as civil cases. However, all events (even “pure” accidents) will be followed by a criminal investigation. His practice represents clients such as engine manufacturer Snecma.

London-based regulatory-crime barrister Gerard Forlin pointed out that British accident-related litigation is likely to change following corporate-liability legislation introduced last month. Forlin has represented families of pilots and train drivers involved in accidents.

Personal and Corporate Liability
Historically, it had been impossible to identify individuals allegedly responsible for an accident, but new UK law permits examination of company safety philosophy and consideration of “any suggestion of responsibility below a reasonable expectation.” Lawyers might respond in a knee-jerk reaction to media publicity, but “what is the point in prosecuting someone if they acknowledge culpability?” asked Sean Gates, a senior London solicitor experienced in aviation post-accident prosecutions.

Update 1: Weather was clear at the time of the accident. Flight crew is alive but injured. Reports of in-flight fire and explosion are generating suggestions of terrorism. Greek anti-terrorist agencies have been called into the investigation.

Questions arising: Who has primacy after an accident? Should the flight crew be available for questioning? Should they be advised of their rights and offered individual counsel? How are the rights of anyone under suspicion protected?

Robert MacIntosh, NTSB chief international safety affairs advisor, said suspected terrorism could introduce the involvement of security officials without aviation expertise. If an intentional criminal act were suspected then the U.S. Department of Justice and the Federal Bureau of Investigation could take the lead, directing the NTSB to investigate under a memorandum of understanding even when the Safety Board is not the primary investigating authority. Gates said similar procedures are in place in other regions, including northern Europe, but it is not universal practice. Sometimes, civil investigators advise their criminal counterparts.

Suppose the airline has had serious safety or security lapses. Quinn raised the question of how to keep officials from talking to the media. Operators must comply with civil or criminal investigations, bringing forward relevant facts that could limit speculation, said MacIntosh. “It is not easy and not always successful. They should reveal what is available and promise more when it becomes available.”

But suppose the accident was not a safety issue and was, instead, a clear attack on the airline’s national “flag,” and the airline could not wait to talk to the media? According to Forlin, “bad advice can lead to a very defensive corporate position that can incriminate later at any criminal trial.” If a company wants to apologize, it must strike a balance between corporate defense and sympathy for other parties. “If there is corporate emergency-planning in place, then [an apology] can be seen as [admitting] a lack of responsibility in addressing client safety.”

On the question of accident reports being used by prosecutors, MacIntosh pointed out that the NTSB can release information to the criminal process. “The judge will want to see the context [of any data], especially any causal or contributory factors, and must decide how much it had been a real [accident] factor.”

In-house lawyers must consider any potential conflicts of interest if they are representing, say, a pilot or air traffic controller, warned Forlin. They must avoid possible charges of conspiracy to pervert the course of justice, which could arise if they suggest (or instruct) how clients should respond to questioning.

Further developments: The Greek chief of police says he will bring to justice “the perpetrators of this heinous act.” The MidAir CEO expresses his remorse on television, offers condolences, and says it is too early to treat the accident as a crime scene.

Implicit questions: What should company lawyers do regarding possible criminal investigation? Should flight crews leave the country? How should MidAir directors and managers be advised?

Companies must be careful about what they say, according to Eurocontrol legal-services head Roderick van Dam. “You must tread softly; there are delicate issues.” Gates echoes those sentiments. “You must cooperate as much as possible– up to a point.”

Van Dam has been involved in preparation of a Eurocontrol document addressing “Just Culture,” an effort to encourage two parties to cooperate in obtaining justice.

Forlin believes the new UK legislation will highlight corporate culture and that early cases might establish benchmarks for culpability, such as how far an airline had fallen short of an industry safety norm. “The bad news is that the UK government will authorize a judge following a jury trial to penalize [a company] by 1.5 to 10 percent of [its] worldwide revenue.” He said company executives are “regularly” going to jail for corporate manslaughter, but only small firms had been involved because lawyers “haven’t found a way to get at large ones.”

New development: Criminal investigators arrive from France, the UK and the U.S. Conflicts have arisen between police and investigators trying to preserve evidence. Law-enforcers want to attend Greek accident investigator interviews with witnesses. Survivors are kept under surveillance with restricted travel freedom. Their passports are requested.

Questions: how should company employees be advised regarding interviews?

Gates said they need advice “even to the point of having public-relations consultants to help prepare responses.” Senior employees often will have received media training, but junior officials could be vulnerable. “What should people say to journalists asking, ‘How do you feel about killing 150 people?’” Quinn said. Forlin had a simple answer, “Say ‘no way’ to interviews. The media anticipate that training has been given. [Lawyers should] read a statement that all [client] parties have signed up to.”

But if mistakes have been made, where is the line between reckless behavior and negligence, asked Quinn, since such judgments represent the difference between a regulatory probe and a murder charge? “Ten years ago, if a pilot made a gross error, he was in the ‘firing’ line,” said Forlin. “But now we say the majority of accidents are due to ‘human factors.’” Accordingly, companies must be able to show that, say, a pilot “knew he must always ‘go around,’ rather than simply say ‘the silly old fool made a mistake.’ The trend is away from individual responsibility [toward] corporate liability.”

News update: Reports say there had been smoke in the cabin and that maintenance had been performed a week earlier on the fire-suppression system. Flight manifests show the aircraft was carrying hazardous materials that did not comply with IATA dangerous-goods regulations and might have contributed to the fire. This reduces criminal prosecutors’ interest. Interviews reveal a flight-deck dispute about diversion to an alternate airport. Confidential crew reports suggest MidAir crews have “issues” with emergency management procedures. The pilot (a recovering alcoholic) reportedly was seen in a bar 12 hours before the flight.

Further news update: The aircraft was flying in an area of high traffic density with reduced separation minimums. There have been numerous “airmisses” and violations of separation norms arising from reassigned cruise altitudes and descent clearances that had led to improved procedures that were not yet implemented. The duty controller’s adherence to rules (not suggesting alternative solutions for clearances) was cited as a contributing factor.

Gates said the scenario portrayed a “pretty awful” situation. With Norwegian procedures now freeing information from flight data, cockpit voice and quick access recorders, Quinn asked if such material should be generally available. MacIntosh referred to investigations that precluded a just outcome, saying, “[The NTSB’s] business is transparency.”

Forlin sees such considerations as getting “to the crux of the matter.” Safety is paramount and should draw on all information, including confidential reports. “If you get 500 ‘near-miss’ reports, then you’re going to get a real one. If companies have not taken up actual reports, then why should victims’ families not bring a case for corporate irresponsibility or at least [request] evidence of corporate [safety] culture.”

Subsequent developments: Greek and UK prosecutors subpoena testimony from flight crew, ATC service providers and individual controllers, MidAir managers, the aviation maintenance company and the hazardous materials shipper. Civil-lawsuit plaintiffs request all MidAir voluntary reporting data and access to flight-crew training and personnel files, seeking evidence for civil damages trials.

Questions: should an independent safety audit team be hired? How do “just culture” concepts conflict with investigations? What can companies do to avoid or minimize criminal liability?

Simon Foreman, a colleague of Soulez Larivière, warns that victims’ families could use accident reports to pursue criminal proceedings and then bring a civil case. Gates points out that some national aviation authorities can be perceived as inexpert, even in so-called safe countries. “There is a case for an ICAO global accident investigation bureau to avoid any such criticism.”

MacIntosh said that the September 2006 midair in Brazil between a business jet and an airliner “brought a new high level of interest in identifying responsibility. [There are] 190 states that can [conduct] an investigation. I certainly see the Brazilian [midair investigation] as unsatisfactory because the Brazilian Air Force was investigator and service provider.” According to Gates, “many” criminal investigations are “designed to offset examination of natural liability or criticism.”

If companies have performed safety audits, they can obtain some protection if they end up in court before a judge, suggested Forlin, who underscored the need to follow regulations. “In Europe, if you have ‘an event’ or a near-miss, there is a criminal requirement to ‘re-risk assess’ that situation. So there’s no decision: you do have to have a procedure.”

He emphasized the vulnerability of internal corporate communications in the event of an investigation. “E-mails are dangerous: you don’t know where they’ll end up. You have to sort that out before there is a run on your stock.” Forlin also highlighted the need to address all issues that are raised with management. “All your disgruntled employees can call investigators and say, ‘I told them about this; I knew it was going to happen.’”

MacIntosh concluded that accident investigators have to achieve a balance between a desire for resolution and justice. “Credible and transparent” safety investigation should enable manufacturers, operators, regulators and victims’ families to be assured they received a fair deal.