The announcement by the court in France of criminal convictions for the United States’ Continental Air Lines and one of its mechanics in the aftermath of the Concorde crash on July 25, 2000 sent shivers down the spines of all who care about aviation safety. As we discuss in this post, criminalizing non-intentional careless conduct—ordinary negligence or even gross negligence—does not improve aviation safety nor does it help to compensate the victims for their losses. It does not belong in aviation safety prevention or aviation safety investigations.
Historically in this country the criminalization of transportation companies’ acts can be traced to 1909. After that, criminal prosecutions lay relatively dormant until the 1990’s with indictment of Eastern Airlines personnel for falsifying maintenance records. Then, with the ValueJet MD-80 crash in the Everglades, employees of Sabretech, a company that had loaded the gas cannisters onto the aircraft, were indicted for falsifying records and violations of federal hazardous materials statutes (Sabretech was acquitted of willful conduct but was convicted for reckless mishandling of the canisters). In Florida state court, however, Sabrtech was charged with 110 counts of third degree murder and manslaughter, all of which were eventually dropped when Sabretech’s parent, Sabreliner, made a $500,000 contribution to safety causes.
The result—other than the bankruptcy of Sabretech? Ken Quinn, capable aviation lawyer and safety advocate, says that criminalization of an aviation accident impedes cooperation by flight crews, mechanics, and manufacturers in the NTSB’s investigation. Jim Hall, former Chairman of the NTSB, agrees as he has testified before Congress on how several NTSB investigations were impeded by fear of criminal prosecution. There are other examples. See the excellent article on the subject at http://www.pchamberlain.com/2010/09/criminalization-of-negligence/, whom we thank for the information in this blog).
We want to be clear–we do not think that the occurrence of a transportation accident should shield criminal conduct. Intentional falsifying of records, and violations of criminal statutes should not get a pass merely because these acts caused a transportation accident rather than some other type of accident. But the states need to work on harmonizing their criminal laws relating to transportation with their negligence and product liability law. But again we state that mistakes, or negligence—unintentional acts—that cause accidents should not be the subject of criminal prosecution. That’s the purview of our civil justice system which allows for compensation for the victims and in especially egregious cases, the imposition of punitive damages.
That is our view on criminalization of aviation accidents in the United States—but what about overseas? First, realize that the majority of the world does not have our Anglo-American legal system. A good deal of the rest of the world follows what is known as the Civil Code, or the “Napoleonic Code.” There is the problem. These civil laws allow for the prosecution criminally of civil acts. One that comes to mind was discovered in my experience in representing victims of the ATR-72 crash near Roselawn, Indiana on October 31, 1994 due to icing. Our trial team learned through the discovery process of the criminal conviction of the French chief designer of that aircraft because of another icing crash at Lake Como, Italy.
For other examples of such criminal prosecutions both overseas and in the United States, see the excellent presentation by knowledgeable aviation attorney Eileen M. Gleimer of the Washington, D.C. firm of Crowell & Moring, LLP, at www.aiaweb.org/10ConferenceCD/presentations/1-Eileen.pdf.
After a insightful discussion of the International Civil Aviation Organization’s (ICAO’s) rules and positions on this matter—which is worth a read—Ms. Gleimer goes on to make a strong case for the proposition that criminal sanctions do NOT improve aviation safety for the very reasons cited above: people are not forthcoming and “clam up.” Moreover, attorney Gleimer makes the excellent point that since human error is the cause of 85% of aviation accidents, how can criminal prosecution change (or punish) an unintentional act? Criminal prosecution in our system simply isn’t logical—it doesn’t make sense. Prevention, not conviction, is the goal in our system.
Summing up, we need to support the ICAO efforts internationally, and we urge state legislatures—and maybe even Congress—to address the issue. We agree that in some cases of clear criminal activity (sabotage, terrorism, fraud, falsification of records, drunk or drugged flight crews, e.g.), criminal charges are warranted and we support prosecution. But negligence or even gross negligence should not be criminally prosecuted, even though the results can be tragic and catastrophic. Those matters belong in our civil courts.
{ 1 trackback }