Pillsbury Winthrop Shaw Pittman LLP

Safety Information: Cooperation between Aviation and Judicial Authorities

Kenneth P. Quinn

General Counsel & Secretary PartnerFlight Safety Foundation PillsburyAlexandria, VA Washington, DCwww.flightsafety.org 202.663.8988 (office)

202.468.1056 (cell)kquinn@pillsburylaw.com

ICAO/COPAC

Madrid

March 24-25, 2011

Safety Information: Cooperation between Aviation and Judicial Authorities

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

Safety Information: Cooperation between Aviation and Judicial Authorities

Action Forcing Events

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.

Safety Information: Cooperation between Aviation and Judicial Authorities

Accident Rates Are Leveling Off

Safety Information: Cooperation between Aviation and Judicial Authorities

More Data is Being Collected Than Ever Before

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.

Safety Information: Cooperation between Aviation and Judicial Authorities

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.”

Safety Information: Cooperation between Aviation and Judicial Authorities

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.

Safety Information: Cooperation between Aviation and Judicial Authorities

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.”

Safety Information: Cooperation between Aviation and Judicial Authorities

Involuntary Manslaughter? Spanair Flight 5022

Aug. 2008: Boeing MD-82 crashed during take-off from Madrid Barajas airport. 154 fatalities; 18 survivors.

Preliminary Report: pilots inadvertently failed to set take-off flaps/slats, and TOW did not occur.

Two Spanair maintenance technicians have been charged with involuntary manslaughter in a case currently under investigation by a Madrid magistrate.

Reports indicate the Spanish judiciary is stopping investigators examining the systems to establish the connection between the relay failure and the absence of the take-off configuration warning.

CVR made available to the media.

Safety Information: Cooperation between Aviation and Judicial Authorities

Controller and Pilot Involuntary Manslaughter? Brazilian Mid-Air Collision

Sept. 2006: All 154 persons aboard Gol B737 perished.

“We will start investigating if the two pilots caused the accident and if they are considered guilty, they could be charged with involuntary manslaughter.”--Brazilian Police

US pilots of ExelAire Legacy jet subjected to criminal investigation. Passports confiscated Pilots confined to Brazil for two months with any

formal charges

Controllers indicted for varying criminal offenses, with maximum penalty of 34 years.

Dec. 2008: Negligence charges against pilots dismissed, but criminal equivalent of involuntary manslaughter charges pending.

NTSB determined that all pilots acted properly and were placed on a collision course by a variety of “individual and institutional” ATC errors.

Safety Information: Cooperation between Aviation and Judicial Authorities

Überlingen Mid-Air Collision

71 killed in collision in 2002.

Air traffic controller later stabbed to death in act of vigilante justice.

Swiss prosecutors charged several controllers of Skyguide following collision between DHL B757 and Bashkirin Tu154.

In September 2007, Swiss court found four ATC managers guilty of manslaughter. Prosecutor requested suspended jail sentence

ranging from 6-15 months; three of the four convicted received 12 month sentence.

Safety Information: Cooperation between Aviation and Judicial Authorities

1992 Air Inter Colmar Crash

87 fatalities; 9 survivors.

Several officials indicted, including: DGAC executive Technical Director of Airbus Air Inter officers

Trial held 14 years after accident, and lasted 6 months, with extensive expert witness testimony.

November 2006: French Court decision acquitted all defendants of manslaughter charges.

Safety Information: Cooperation between Aviation and Judicial Authorities

Dueling Criminal Charges: Helios Airways Flight 522

August 2005: All 121 persons aboard perished.

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.”

Safety Information: Cooperation between Aviation and Judicial Authorities

Establishing and Preserving Blame Free Reporting

October 2006 Joint Resolution Regarding Criminalization of Aviation Accidents

Royal Aeronautical SocietyFlight Safety FoundationAcadémie Nationale de l’Air et de l’EspaceCivil 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).”

Safety Information: Cooperation between Aviation and Judicial Authorities

Thoughts on Final Approach

Acts and omissions, along with statements made to accident investigators, being used to establish criminal culpability, are on the rise.

No real protection exists to prevent prosecutors from using information voluntarily provided for use in criminal prosecution.

Individuals may “hold back” information during accident investigations: reasonable fear that statements will later be used by prosecutors to prove criminal

manslaughter companies may be reluctant to initiate internal investigations or take part in VDRPs

for fear of implicating their employees or the company itself

“Chilling effect” sets in as investigators face increased difficulty gathering facts necessary to prevent future accidents.

Deflects resources from determining root cause, with aviation safety suffering.

Safety Information: Cooperation between Aviation and Judicial Authorities

Stronger Protection of Volunteered Aviation Safety Information

On Oct. 30, 2008, FSF endorsed the creation of a “qualified exception” from discovery of VDRPs. Allow only limited discovery if party has demonstrated a particular need for the

information, and that the party would not receive a fair trial if the information is not provided.

If discovery permitted, only pursuant to a protective order. Similar to protection provided against use of cockpit voice recorder (CVR) and

surface vehicle recordings and transcripts. 49 USC §1154.

Congress now considering change in FAA Reauthorization.

Nearly 98% of data would not be obtained without the current disclosure programs.

Safety should trump the quest for further damages.

Safety Information: Cooperation between Aviation and Judicial Authorities

Discussion

Kenneth P. Quinn kquinn@pillsburylaw.com

(202) 663-8898 office

(202) 468-1056 cell