Playing The Blame Game After An Accident In the aftermath of about 20 percent of aircraft accidents, some real odium attracts to the pilot(s), and peripheral officialdom starts ruminating publicly about charging a surviving pilot with anything from reckless endangerment to criminal negligence. Sometimes...
For immediate service; more information; and multi-user access (site license), non-profit organization, educational institute pricing, contact Karen Garner kgarner@accessintel.com at (301) 354-1612.
This story is only available to paid subscribers. Please login below with your username and password if you are a subscriber.
Subscribe Trial
Playing The Blame Game After An Accident
In the aftermath of about 20 percent of aircraft accidents, some real odium attracts to the pilot(s), and peripheral officialdom starts ruminating publicly about charging a surviving pilot with anything from reckless endangerment to criminal negligence. Sometimes these episodes end up gravitating towards a civil court action and the pilot or his estate gets sued for damages.
More often than not, it's the operator who's legally responsible for his employee's actions. However civil lawsuits seem to be little more than a lengthy pathway to closure for those undamaged victims of an air crash - the families.
The nation's prisons aren't full of post-crash pilots serving time for perceived or proven criminal misdeeds leading to an accident. In part, that's because the pilot has often perished as well. In larger part, it's because the eventual story is a lot more complex than first superficially analyzed. So why all the recent publicity given to criminalization of aircraft accidents?
How do you (or could you ever) factor in the myriad of other issues that contribute to an accident? At the other end of the spectrum, you can't cross-examine a dead pilot. Perhaps he knows something that the investigators failed to turn up. He can't defend himself from beyond the grave. What about the pilots who conveniently can't recall anything leading up to their accident -- normally after advice from their union? Is that brand of sidestepping of the issues reprehensible or defensible? Bearing in mind that through injury to person or reputation, many pilots will never fly again, leastwise not professionally, perhaps that is punishment enough. How blameworthy is the hardware, the environment, Quality Assurance, or the system?
Take the case of the captain of a DC8 (United 173) who ran his airplane out of fuel at Portland Oregon in Dec. 1978 while distracted by a gear emergency. Granted that he lost sight of the big picture, but then again so did the other two members of the flight crew. The Accident Board also heavily criticized the confusing fuel gage presentation. What is known is that the pilot himself never stopped apologizing to the families for his honest mistake.
Sometimes material things with kill potential are latent until after an accident. His was also one of the accidents that, together with the 747 collision at Tenerife, gave birth to a nascent assertiveness training for copilots and flight engineers. That grew into Crew Resource Management (CRM) as it's known and practiced today. Every accident along the way tends to be a learning experience and a building block.
Focusing away from the sharp end (the pilot's cabin) for a moment, what about when the manufacturer or operator contributes significantly to the accident? Some examples:
a. Learjet oxygen valve that can be easily left off and not detected until needed -- or not even then (Payne Stewart's depressurization).
b. Older 737 main oxygen valve (sometimes turned off overnight and forgotten) -- surfaced in, but not a cause of, the Helios 737 downing.
c. Fins that detach because of rudder limiters that don't limit (Flt AA587) and rudders that fall off through hydraulic contamination of composite skin (Air Transat A310, Varadero, Flt 961).
d. Turbine disks that depart stage right due to slag inclusions (Sioux City's flight UA232 DC-10).
e. The Flt AA191 DC-10 at O'Hare on May 25, 1979. That engine would never have disastrously detached if the airline hadn't been fork-lifting engines on and off their pylons, damaging the mounts.
f. The illegally wired Swissair 111 MD-11's Inflight Entertainment System.
The list is in fact boundless. Now and again such examples intrude into the realm of perceived criminality, but it's very rare for authorities or victims' families to explore anything other than corporate deep pockets. There have been exceptions. The FAA tried hard to nail the miscreants who loaded live oxygen generators aboard the Valujet 592 DC9 in Miami. That was an egregious case of shortcutting, as was all the other pencil-whipping of paperwork that was taking place at the time. Hazmat carriage, like skimpy maintenance, tends to stand in a category of its own.
Alaskan won itself an FBI probe (and then, in the aftermath, a Grand Jury investigation) when it was established with some certainty that its maintenance department was habitually skating on some very thin ice. The outcome had been Alaskan Flight 261, with the disruptive seizure of its un-lubricated worn-out stabilizer jackscrew. The whistle- blower appeared to be the only non-passenger casualty. There were some who saw the 1996 crash of TWA800 as being provably a terrorist incident that had been covered up by the top levels of the country's administration. They suffered jail-time because of their interference. Criminality can be both in the eye of the beholder and the holster of the law.
In the realm of terrorism and hazardous materials, of course, there's scope for criminal proceedings, but that isn't really in the province of aviation and/or aviators. Crimes can be committed on board any vehicle and unlawful interference with a flight crew undeniably qualifies for the full weight of the law. Comparing a Merchant Marine captain's treatment after a stranding with or without loss of life, we can usually see an outcome of a loss of ticket if a degree of negligence in the operation of his vessel is proved. In this regard, the FAA has a wide remit and few airline captains who break regulations escape their wrath. Pilots who have flown under the influence have been jailed. Few would argue with that being quite distinct from a pilot's error of judgment while soberly operating under pressure.
Military indiscipline in the form of unauthorized low-flying (called flat-hatting) and the ensuing cover-up (Squadron Commander telling his troops to "lose" their videotapes of similar EA-6B Prowler exploits) is in an entirely different area of criminality under the Uniform Code of Military Justice (UCMJ). The four ELINT Prowler crewmen were just having a thrilling low-fly in Italy through the Dolomites, but well below the "eye-balled" authorized minimum altitude when they hit the gondola cable. Both pilots got six month prison terms for destroying evidence, but got off on the illegal low-flying charges.
The two F16 pilots in Afghanistan who brassed up the Canadian troops on the firing-range were just new in country, poorly briefed and irresponsibly trigger-happy. They were all well qualified for career-ending courts martial proceedings. The gondola dropping pilots avoided any civil proceedings. Lucky for them, as they'd have gotten short shrift in Italy at the time.
Dissembling Dignitaries
In contrast to the courts martial scenario, in the civilian context the criminality is perceived to be in the pilot pig-headedly ignoring advice or operating negligently or carelessly. Often that's just a plain misreading of a situation taken on face value, the current Brazilian Legacy/GOL brouhaha being a prime example (see Nov. 13 ASW). The underlying story is more often attributable to fatigue, misunderstanding (poor English), poor CRM or overload. It may also be a straight misreading of what happened.
Take the recent Abuja accident to the ADC 737, for instance. Nigerian Aviation Minister Borishade came out quickly and roundly criticized the pilot for not heeding an air traffic control warning about the wind-speed and praised the Virgin Nigeria pilot who'd decided to delay his departure. Analysis of the Tower tapes have now proved quite conclusively that that Virgin Nigeria conversation didn't happen until after the ADC 737 got airborne (and went missing for a short period, although he'd crashed less than a minute after takeoff).
There was actually no discussion about wind between the ADC 737 pilot and the tower before departure. The wind when he rolled for takeoff was a quite acceptable and fairly stable 18kts (only), and the thunderstorm was a fairly typical one for that time of year. It wasn't highly localized but the Virgin pilot deemed it prudent to let its main cell march on out of his departure track.
The ADC cause is more likely to have been a mishandled engine failure, disorientation in cloud, premature flap retraction or vertigo (pitch-up illusion). It may have been a replay of the Flash airlines 737 crash in Sharm-el-Sheikh. Take your pick. They're all candidates. The fact that a pollie in a Third World scenario (Africa or South America) will prematurely shoot off his mouth after a crash is almost a "given". Investigators and plenipotentiaries elsewhere have learned to bide their time on hasty pronouncements.
The situation with the Legacy 600 and GOL737 is likely to turn up a legal inconsistency between a departure clearance, received and read back on the ground before take-off, and a post departure ATC instruction. For instance, you can read back a SID on the ground (a structured standard published clearance known as a Standard Instrument Departure) only to hear, on checking in airborne on departure frequency: "Legacy 123, identified on departure turning right. Cancel SID, roll out heading 065 and intercept Bravo One. Climb to amended level Flt Lvl 250".
The difference is that traffic avoidance or traffic separation may have invalidated your departure clearance and/or the departures man may just want to expedite you out of the way of arriving traffic. The fate of that Legacy crew is likely to revolve around what's on the ATC tapes (and read back) as a last assigned level and how long the Legacy crew was incommunicado, from a definite event or point in time. As it stands now, they were "departure clearance" cleared beyond Brasilia and all the way to Manaus at FL370. It's not unheard of for an ODL level to be assigned (see Nov. 13 ASW), so there would have been little point in them challenging that possible anomaly. Their big mistake, and a common one at that, is NOT to have squawked the 7600 COMMS Failure code ASAP. It was:
a. the correct thing to do, and puts the onus instantly upon ATC to resolve any conflicts;
b. as well as that, it may have kicked their transponder, and its mode Charlie height read-out, back into life; and
c. it would have been recorded as a sensible decision (data recorder/voice recorder).
It's apparent that Brazilian politicians and the in-control generals running ATC have very big mouths and big feet to potentially place in them. They shouldn't be able to get away with shifting blame as long as the evidence is intact. It is fairly clear, but not yet conclusively so, that Brazilian ATC is a bit of a shower, at best, and probably guilty of causing the collision, at worst.
In the recently resolved 1992 French case (Air Inter Flt 148's crash on Mont St Odile near Strasbourg), Airbus very early on conceded a design error in the A320 FCU (Flight Control Unit) and promptly changed it. The six people -- regulators, airline executives and Airbus's former chief engineer -- against whom criminal charges were brought, have been acquitted on all counts. What kind of a judicial system takes 14 years to get a case like this into the courts? If there had been a case to answer, it should have been brought far sooner; the technical investigation was complete by 1994.
The crew was almost blameless insofar as they got sucked in by two vertical descent flight modes that looked identical but were capable of generating two entirely different flight-paths. It was the difference between "-3.3" in HDG/V/S (meaning a 3300ft/min descent rate) and 3.3 degs in TRK/FPA (flight-path) angle, which would have given the desired 800ft/min. Overlaid on that invitation to dyslexia, Airbus Supremo Bernard Ziegler had unwisely decided that the A320 didn't need a GPWS (Ground Proximity Warning System). Ultimately, under the French system of Justice, Airbus was found liable to cough up some damages money, but no-one would call that a criminal penalty. It's more a case of "product liability". The most you could slug the dead Air Inter pilots with was poor situational awareness. Automation often tends to generate that blithe dependency.
When the Swissair 111 Report hit the streets, the then head of Transport Canada had to speak up against any criminal negligence charges being laid. It's one reason why ICAO Chap 13 only ever calls for investigators to arrive at a probable cause. You can't lead anybody to jail or the gallows with only that in hand. Any discussion of criminalization of the Comair CRJ crash in Kentucky could only point to poor airfield design and the FAA overloading a single controller.
The fact that he didn't see the a/c start to roll on the wrong runway is nothing more than unfortunate. The fact that the FAA was knowingly allowing single controllers to be scheduled is perhaps something else (hypocrisy maybe?). When it comes to raising that safety bar, the FAA is more often than not doing the limbo a little lower now (and again).
The only case that springs to mind that went to a criminal court was the Ansett DASH 8 in New Zealand that crashed into a rising ridge-line on June 9, 1995 while the pilots were stuffing around with an emergency gear extension (shades of the Dec. 29, 1971 Flight 401 Eastern L-1011 in the Florida Everglades). Four died. The case was a landmark one in that the seizure of the Cockpit Voice Recorder by police was contested in the Court of Appeal, sparking a law change prohibiting the use of flight recorders in criminal or civil proceedings against pilots.
New Zealand legislation allows manslaughter charges only in cases of gross negligence. The AirLine Pilots Association vigorously opposed the charges, and police complained of aviation-related agencies thwarting their inquiries. The Dash 8 descended below the minimum safe step-down altitudes for the approach and struck the top of a ridge line and crashed. The GPWS alarm sounded for 4.5 seconds before the accident instead of 18 seconds. The radio altimeter probably lost terrain tracking crossing the Manawaru Gorge, 25 seconds before impact.
As far as company liabilities go, pilot infractions should be measured against whatever regulation is proven to have been broken and the administrative sanction applied. On a personal level, pilots who try hard but fail should be honored. Pilots who just fail but die should be given credit for being upfront about it throughout. They are, after all, the first to arrive at the scene of an accident, often through no fault of their own.
Print This Page
Email This Page
Archives
Copyright Permissions
