Criminal Investigations into Aircraft accidents
By Jim Loos[i]
Mr. Loos is a frequent contributor[ii] to the Journal, in large part because his FAA career included significant assignments in the air traffic control service and later as an FAA representative at ICAO. This post is a first person view of the intersection between criminal investigations and accident investigation.
Some thoughts in regard to the report of a criminal investigation started by the DOJ on the 737 Max crashes.
On September 10, 1976 a British Airways Trident collided with an Inex-Adria Aviopromet DC-6 near the Zagreb VOR in what is now Croatia. The controllers involved were arrested and put on trial charged with endangering the lives of persons and property. Three controllers were charged. The controller, Gradimir Tasić, who had worked past his relief time and who was working two positions, was found guilty and sentenced to seven years imprisonment. He was released after two years and three mounts thanks to IFATCA putting a great deal of pressure on the government.
Tasic surely made a mistake caused by being overworked in a facility that lack adequate staffing and equipment. It was agreed that he was used as a scapegoat by the government.
The point here is that it was a sobering moment among controllers. There was no gross misconduct, just a mistake.
When F. Lee Bailey was encouraging membership in PATCO one of his selling points was that controllers could have a court determine that they are subject to punitive damages. “What’s that, sez us [controller speak]” “That’s when the court says you have to pay a penalty…like in money.” I’m sure many thought that if such occurred Bailey would have defended the controller. I’m smarter now. [controller speak]”
We had a crash one time, I forget the town, but it was a large airplane. The local police decided it was a crime scene and roped off both the crash scene and the tower. When our guys arrived to start the investigation the police wouldn’t let them into the tower. And, initially, they kept the NTSB away from the site. Quickly some our favorite lawyers got involved, pointing out the federal responsibility in such matters.
All this to highlight the possible complication when somebody decides that a crime is involved.
ICAO has discussed the subject in at least three Assemblies. Trying to find a way to say the courts should stay away until gross negligence is indicated. Can’t be done.
I wrote such a paper for the US to present and had a nice meeting with Chris Hart (when he worked for the FAA) and he explained why.
I think most of the aviation world believes a criminal investigation threatens the accident investigation by possibly inhibiting the statements of those involved.
I believe the governing Assembly Resolution is A38-3, which says, inter alia”
“Recognizing that the use of information, derived from accident investigations, for disciplinary, civil, administrative and criminal proceedings is generally not a means to maintain or improve aviation safety.”
“The Assembly…1. Urges Member States to continue and if necessary, adjust their laws, regulations and policies to protect certain accident and incident records in compliance with para 5.12 of Annex 13 in order to mitigate impediments to accident and incident investigations…”
Mr. Loos’ cogent, practical observations also find strong support from other commentators:
[i] James Loos, Member of the ICAO Air Navigation Commission nominated by the United States (1994-1997). Jim Loos began his FAA career as a controller in Kennedy Tower and subsequently moved to the New York Common IFR Room when that facility opened in 1968. After three years as an instructor at the FAA Academy in Oklahoma City he moved to Washington, D.C. to work in the Office of International Aviation. He attended his first ICAO meeting, the tenth meeting of the North Atlantic Systems Planning Group, in 1974. His positions since then have included Special Assistant to the Associate Administrator for Air Traffic, Manager of the Accident and Incident Division in the Air Traffic Service, and Chief of the Air Traffic Staff in the FAA’s Brussels Office. In 1994 he was nominated by the U.S. Government to be a Member of the ICAO Air Navigation Commission, assuming that position in October 1994. From October 1994 to November 1997 he was also the Deputy U.S. Representative to ICAO. Jim left Montreal in November 1997 and retired from the FAA in January 1998.
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