Criminalization of Aviation: Does It Enhance Safety?

Now comes an announcement from Greece that a licensed aircraft maintenance engineer has received a ten-year prison sentence for allegedly not re-setting a cockpit switch on a Helios Airways 737-300 which crashed in 2005 after its oxygen supply ran out and the pilots and many passengers fell unconscious. The criminal sentence is made even more troubling since apparently there was no direct evidence of the improper positioning of the switch. The conviction was based, apparently, on supposition and theory. There was even some evidence that the switch was in the correct (auto) position. It further brings into question the responsibility of the cockpit crew for failing to notice switch positions. But this criminal conviction, and too many others that proceeded it in a variety of jurisdictions, sends shivers down the spines of all who care about aviation safety.

As we discuss in this brief article, 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 loss. Historically in this country the criminalization of transportation companies’ acts can be traced to 1909. After that, criminal prosecutions lay 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. Obviously, the occurrence of a transportation accident should not 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 states need to work on harmonizing their criminal laws relating to transportation with their negligence and product liability law. Unintentional acts— mistakes and negligence—that cause accidents should not be the subject of criminal prosecution. They belong in civil courts, which allows for compensation for the victims and in especially egregious cases, the imposition of punitive damages.

What about overseas? First, 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.” That is part of the problem. These civil laws allow for the prosecution criminally of civil acts. One that comes to mind arises out of the ATR-72 crash near Roselawn, Indiana, when in discovery we learned of the criminal conviction of the French chief designer of that aircraft because of another icing crash at Lake Como, Italy. Overseas, there are often different investigations following an aviation accident, the technical investigation, designed to find the cause(s) of the accident, and the “judicial” investigation, the purpose of which is to assess blame. The problem is that often the conclusions of the accident technical investigation report are used to criminally prosecute flight crews, mechanics, and air traffic control personnel. Frequently, the judicial authorities take control of the physical evidence and the ensuing criminal investigation techniques can ruin the physical evidence for accident investigation purposes. Of course, the converse is true. The legitimate scientific examinations and destructive procedures utilized by the civil authorities make the items inadmissible as criminal evidence. Criminal prosecution of individuals for omissions and negligent actions, as opposed to actions based on intent, willfulness or recklessness, which are the usual criminal standards, is chilling and potentially dangerous. What individual faced with possible criminal prosecution, especially in countries of questionable process, would voluntarily open up and tell “the whole truth?” There are numerous examples of problems with competing jurisdictions, evidence battles, incarceration of individuals, and wrestling matches between agencies within a single nation and between nations. In short, it’s a mess.

What to do? One suggestion is that the civil authorities should be given priority over the evidence. There has been a further suggestion that Europe establish a European Accident Investigation Branch to standardize the technical investigation process. In junction, there is the suggestion of establishing a companion European Aviation Court to standardize criminal prosecutions arising out of aviation accidents. Anything would be better than the current confusion, but this is not a step in the right direction. But what to do when there are violations of criminal laws (distinct from aviation laws), such as when volatile oxygen generators were placed on the ValuJet DC-9, violating state and federal hazardous materials laws? Do the violators get a pass simply because they committed their crimes in the aviation context? The answer has to be no, but how do we handle such acts? No one wants a repeat of what occurred after the Air France Airbus A320 crash demonstration crash in 1988, where the French Minister of Transportation announced, shortly after the crash and as the technical investigation had just begun, that there was no problem with the aircraft. Later, the French BEA cleared the aircraft and found operational error, raising credibility issues since the French government was heavily involved in the design, construction, certification and accident investigation. Where an accident investigation is carried out by qualified, independent investigators, there is no reason its factual findings can’t provide the basis for post accident remedial measures as well as civil legal actions. Criminal prosecutions are another matter, however, and need to be addressed.

Summing up, we need to support the ICAO efforts internationally, and we think state legislatures—and maybe even Congress—needs 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.