The Challenge of Balancing Safety, the Law, and the Public Interest Jim Burin Director of Technical Programs Flight Safety Foundation ASPA/ICAO 2007 Mexico City.
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The Challenge of Balancing Safety, the Law, and the Public Interest Jim Burin Director of Technical Programs Flight Safety Foundation ASPA/ICAO 2007 Mexico City What is the Flight Safety Foundation ? Independent Non-Profit International Founded in 1947 by Aviation Industry FSF Goal: Make Aviation Safer by Reducing the Risk of an Accident Two Important Aspects of Safety and the Law • Criminalization of Safety - Protection of the sources of Safety Information The Fleet - 2006 Type Western Built Eastern Built Turbojets Total 17,609 1,839 19,548 4,774 1,710 6,484 Turboprops Business Jets 12,724 Major Accidents Business Jets 1 January to 31 December 2006 Date Operator Aircraft Location Phase Fatal 2 January Avcom Hawker 700 Kharkov, Ukraine Approach 3 24 January Goship Air Citation V Carlsbad, CA, USA Landing 4 15 February Jet 2000 Falcon 20 Kiel, Germany Landing 0 16 February Lech Air Citation I Busckin, Iraq Descent 6 2 June International Jet Charter Lear 35 Groton, CT, USA Approach 2 26 June Great Ideas Corp Hawker F3 Barcelona, Venezuela Landing 0 5 July Vigojet Saberliner Mexico City, Mexico Landing 0 19 July Tomco II Citation Encore Cresco, IA, USA Landing 2 28 August Netjets Hawker 800 Carson City, NV, USA Descent 0 30 December Fact Air Saberliner Culiacan, Mexico Approach 2 Source: Ascend Hawaii - 27 Sept 1999 - Navajo - 10 Fatalities CFIT - Touring Part 135 Major Accidents Commercial Turboprops (> 14 seats) 1 January to 31 December 2006 Date Operator Aircraft Location 2 January Ruenzori Airways Antonov 26 Fataki, DR Congo 24 January Aerolift Antonov 12 5 February Air Cargo Carriers 8 February Phase Fatal Climb 0 Mbuji Mayi, DR Congo Landing 0 Shorts 360 Watertown, WI, USA Enroute 3 Tri Costal Air Metro II Paris, TN, USA Enroute 1 11 March Air Deccan ATR 72 Bangalore, India Landing 0 18 March Ameriflight Beech 99 Butte, MT, USA Enroute 2 28 March Phoenix Avia Antonov 12 Payam, UAE Climb 0 31 March TEAM Let 410 Saquarema, Brazil Enroute 19 16 April TAM Fokker-27 Guayaramerin, Bolivia Landing 1 24 April Air Million Cargo Antonov 32 Lashkar, Afghanistan Landing 2 27 April LAC Skycongo Convair 580 Amisi, DR Congo Landing 8 23 May Air Sao Tome DHC-6 Twin Otter San Tome, Africa Approach 4 5 June Merpati Nusantara CASA 212 Bandanaira, Indonesia Landing 0 21 June Yeti Airlines DHC-6 Jumla, Nepal Approach 9 7 July Mango Airlines Antonov 12 Goma, DR Congo Climb 6 10 July PIA Fokker 27 Multan, Pakistan Takeoff 45 Lockheed Hercules Kigoma, Tanzania Approach 0 12 July TransAfrik Source: Ascend Major Accidents Commercial Turboprops (> 14 seats) 1 January to 31 December 2006 Date Operator 29 July Adventure Aviation DHC-6 Sullivan, MO, USA Takeoff 6 3 August Tracep AN-28 Bukavu, DR Congo Approach 17 4 August AirNow EMB-110 Bennington, VT, USA Approach 1 13 August Air Algerie Lockheed Hercules Piacenza, Italy Enroute 3 28 August Paraguay Air Service Nomad 22B Cerrillos, Argentina Enroute 0 17 November Trigana Air Service DHC-6 Puncak Jaya, Inodnesia Enroute 12 30 December Sky Relief DHC-5 Nairobi, Kenya Takeoff 0 Source: Ascend Aircraft Location Con’t Phase Fatal Major Accidents Commercial Jets 1 January to 31 December 2006 Date Operator Aircraft Location Phase Fatal Enroute 0 Approach 113 8 February UPS DC-8F Philadelphia, USA 3 May Armavia A-320 Alder-Sochi, Russia 9 July S7 Airlines A-310 Irkutsk, Russia Landing 126 22 August Pulkovo Aviation TU-154 Nr. Donetsk, Ukraine Enroute 170 27 August Comair CRJ-100 Lexington, KY, USA Takeoff 49 1 September Iran Air Tours TU-154 Mashhad, Iran Landing 28 29 September GOL B-737 Sao Felix, Brazil Enroute 154 3 October Mandala Airlines B-737 Tarakan, Indonesia Landing 0 10 October Atlantic Airways BAE-146 Stord-Sorstokken, Norway Landing 4 29 October ADC Airlines B-737 Abuja, Nigeria Takeoff 96 18 November Aerosucre Colombia B-727 Bogota, Colombia Approach 5 Source: Ascend Major Accident Rate Accident rate per million departures** Western-Built Commercial Jets 1993 – 2006 1.60 5 year running average 1.20 0.80 Major Accident Rate (per million departures) 0.40 0.00 1993 1994 Source: Ascend 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Major Accident Rate Accident rate per million departures** Western-Built Commercial Jets 1993 – 2006 1.60 5 year running average 1.20 Accidents Prevented 0.80 Major Accident Rate (per million departures) 0.40 0.00 1993 1994 Source: Ascend 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Safety Efforts are Data Driven 0 2 5 2 0 5 0 4 Departures (Millions)/Rate Per Million 7 0 6 Accidents 3 5 3 Accidents1 0 1 5 1 05 Traffic Growth2 Accident 0 0 3 0 2 Rate3 10 0 0 1Based on current accident rate on industry estimate 3Based on current accident rate 2Based 3000 2500 2,396 Total fatalities = 7,484 2,228 CFIT = Controlled Flight into Terrain RTO = Rejected takeoff 2000 1500 1000 500 760 607 506 306 162 128 119 113 111 45 3 0 CFITLoss In-flight of Sabo-MidairHijack Ice/Landing Wind Fuel Other Runway RTO control fire tage collision in flight snow shear exhaus- incursion tion Accident Class Date Location Aircraft Type Description Accident Description Portion Intervention Name of EGPWS CFIT TRN Accident Portion of World Fle Eliminated.600 .900 Intervention Effecti CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT CFIT 1/2/1988 IZMIR, TURKEY 737 2/8/1988 LUANDA, ANGOLA 707 2/27/1988 KYRENIA MTS, CYPRUS727 3/17/1988 CUCUTA, COLUMBIA 727 6/12/1988 POSADAS, ARGENTINA MD80 7/21/1988 LAGOS, NIGERIA 707 10/17/1988 ROME, ITALY 707 10/19/1988 AHMEDABAD, INDIA 737 2/8/1989 SANTA MARIA AZORES 707 2/19/1989 KUALA LUMPUR, MALAYSIA 747 6/7/1989 PARAMARIBO, SURINAMEDC8 7/27/1989 TRIPOLI, LIBYA DC10 8/25/1989 ANKARA, TURKEY 727 10/21/1989 TEGUCIGALPA, HONDURA727 10/26/1989 HUALIEN, TAIWAN 737 2/14/1990 BANGALORE, INDIA A320 6/2/1990 UNALAKLEET, ALASKA 737 11/14/1990 ZURICH, SWITZERLANDDC9 12/4/1990 NAIROBI, KENYA 707 3/5/1991 MT LA AGUADA, VENEZUELA DC9 8/16/1991 IMPHAL, INDIA 737 1/20/1992 STRASBOURG, FRANCE A320 2/15/1992 KANO, NIGERIA DC8 3/24/1992 ATHENS, GREECE 707 6/22/1992 CRUZEIRO DO SUL, BRAZIL 737 7/31/1992 KATMANDU, NEPAL A310 9/28/1992 KATMANDU, NEPAL A300 11/25/1992 KANO, NIGERIA 707 11/26/1992 MANAUS, BRAZIL 707 4/26/1993 AURANGABAD, INDIA 737 HIT MOUNTAIN ON APPROACH .657 .950 HIT ANTENNA ON APPROACH .586 .800 HIT MOUNTAIN ON APPROACH .657 .950 HIT MOUNTAIN DURING CLIMB .657 .950 CRASHED ON FINAL APPROACH .203 .000 CRASHED ON APPROACH .203 .000 LANDED SHORT .203 .000 LANDED SHORT .586 .800 TERRAIN IMPACT/DESCENT .657 .950 TERRAIN IMPACT/APPROACH .657 .950 TERRAIN IMPACT/FINAL APPROACH.203 .000 TERRAIN IMPACT/FINAL APPROACH.203 .000 HIT ILS ANT. ON TAKEOFF .000 .000 TERRAIN IMPACT/APPROACH .657 .950 TERRAIN IMPACT/DEPARTURE .657 .950 HIT SHORT (300 FT) .203 .000 HIT HILL 7 MILES OUT IN FOG .657 .950 CRASHED 5 MILES SHORT .634 .900 HIT POWER LINE ON ILS FINAL .203 .000 HIT MOUNTAIN/APPROACH .657 .950 A/C HIT HILL 20 MILES OUT/APPROACH .657 .950 IMPACTED GROUND/FINAL APPROACH .586 .800 CFIT OUT OF PROCEDURE TRN-DARK.586 .800 ABANDONED APPROACH-HIT MTN .657 .950 HIT SHORT,DRK NT,DISTRACTED .203 .000 CFIT-HIT MTN-MISSED APPROACH .657 .950 CRASHED SHORT DURING APPROACH.657 .950 LANDED SHORT MISLEADING LIGHTS.538 .700 HIT LIGHTS ON TO/RMLG COLLAPSE.000 .000 HIT TRUCK AFTER TAKEOFF .000 .000 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .000 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .226 .000 .000 Africa 2003 81 Information Driven • Accident Data • Incident Data • Flight Data Monitoring • Non-Punitive Reporting • Line Observed Safety Audit • Cooperative Data Sharing The Aviation Safety Approach 1. Who made errors ? 2. Why were the errors made ? 3. How do we prevent the errors from happening again ? Accident Investigation Safety: Annex 13 - “The sole objective of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.” Legal: The sole objective of legal proceedings is to apportion blame or liability. Safety Challenges The greatest enemy of safety is blame. - Dan Maurino The Basics of Safety an the Law • Safety Investigations must be independent - Unhindered by judiciary authorities - Safety Information must be freely available to safety investigators • Significant challenges exist in some countries - Legal systems - Cultures • First Step - Protection of the Sources of Safety Information is required 2004 Situation Accident/incident investigation records - Protected somewhat by ICAO provisions - Protected by few domestic legislations Voluntary reporting systems & FDA programs - Not explicitly protected by ICAO provisions - Protected by few domestic legislations Inconsistent International Picture Basic Principles Existing international and national laws were inadequate to protect many sources of safety information No Group or Workforce above the Law Goal: To protect safety information, but not deny the right to prosecute Evidence other than from sources of safety information can be used in prosecuting The public interest requires a balance between the protection of safety information and the availability of evidence in judicial actions Assembly Resolution A35-17 Protecting information from safety data collection systems in order to improve aviation safety The Assembly: 1. Instructs the Council to develop appropriate legal guidance that will assist States to enact national laws and regulations to effectively protect information from safety data collection systems, both mandatory and voluntary, while allowing for the proper administration of justice in the State; 2. Urges all Contracting States to examine their existing legislation and adjust as necessary, or enact laws and regulations to effectively protect information from safety data collection systems based, to the extent possible, on the legal guidance developed by ICAO; and 3. Instructs the Council to provide a progress report to the next ordinary Session of the Assembly on this matter Examples of Success * New Zealand CVR Case/Law * Canada Protection Actions * EU Council Directive * US FAR Part 193 * Denmark National Law New Annex 13 – Appendix E Info …a review by an appropriate authority determines that the release of the safety information is necessary for the proper administration of justice, and that its release outweighs the adverse domestic and international impact such release may have on the future availability of safety information. Joint Resolution Regarding Criminalization of Aviation Accidents Recognizing the importance in civil aviation accident investigations in securing the free flow of information to determine the cause of accidents and incidents and to prevent future accidents and incidents; Recognizing the actions taken recently by the International Civil Aviation Organization in promoting amendments to Annex 13 – Aircraft Accident and Incident Investigations to the Convention on International Civil Aviation, encouraging Contracting States to adopt by November 2006 certain actions to protect the sources of safety information; Recognizing the importance of preventing the inappropriate use of safety information, including the increasing use of such information in criminal proceedings against operational personnel, managerial officers, and safety regulatory officials; Joint Resolution Regarding Criminalization of Aviation Accidents Recognizing that information given voluntarily by persons interviewed during the course of safety investigations is valuable, and that such information, if used by criminal investigators or prosecutors for the purpose of assessing guilt and punishment, could discourage persons from providing accident information, thereby adversely affecting flight safety; Recognizing that under certain circumstances, including acts of sabotage and willful or particularly egregious reckless conduct, criminal investigations and prosecutions may be appropriate; Concerned with the growing trend to criminalize acts and omissions of parties involved in aviation accidents and incidents; Joint Resolution Regarding Criminalization of Aviation Accidents Noting that: a. law enforcement authorities in the September 29, 2006 mid-air collision between an Embraer Legacy 600 executive jet and a Gol Linhas Aéreas Intelligentes B-737-800 have opened a criminal investigation….. b the French Supreme Court on September 20, 2006 rejected a request to dismiss charges in the July 2000 Air France Concorde crash……….. c. a French court is expected to issue its verdict soon in the 1992 Air-Inter crash………….. e. the Swiss Federal Prosecutor’s Office has an ongoing criminal investigation for negligent manslaughter of the former chief executive of Swiss International Airlines… f. an Italian court on July 7, 2006 affirmed the convictions for manslaughter of five aviation officials……… g. an ongoing Greek quasi-judicial investigation exists of the 2005 Helios B-737-300 crash near Athens…….. h. U.S. federal and Florida state prosecutors brought criminal charges, including 220 counts of murder and manslaughter, against a maintenance company, several mechanics, and a maintenance manager arising out of the 1996 ValuJet flight 592 crash………… f. Greek prosecutors brought negligent manslaughter, negligent bodily injury, and disrupting the safety of air services charges against the captain and first officer……… Joint Resolution Regarding Criminalization of Aviation Accidents Recognizing that the sole purpose of protecting safety information from inappropriate use is to ensure its continued availability to take proper and timely preventative actions and to improve aviation safety; Considering that numerous incentives, including disciplinary, civil, and administrative penalties, already exist to prevent and deter accidents without the threat of criminal sanctions; Being mindful that a predominant risk of criminalization of aviation accidents is the refusal of witnesses to cooperate with investigations, as individuals invoke rights to protect themselves from criminal prosecution, and choose not to freely admit mistakes in the spirit of ICAO Annex 13 for the purpose of preventing recurrence; Joint Resolution Regarding Criminalization of Aviation Accidents Considering that the vast majority of aviation accidents result from inadvertent, and often multiple, human errors; Being convinced that criminal investigations and prosecutions in the wake of aviation accidents can interfere with the efficient and effective investigation of accidents and prevent the timely and accurate determination of probable cause and issuance of recommendations to prevent recurrence; Joint Resolution Regarding Criminalization of Aviation Accidents BE IT THEREFORE RESOLVED, that the below organizations: 1. Declare 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, regulatory officials, or air traffic controllers….. 2. Declare that, absent acts of sabotage and willful or particularly egregious reckless misconduct (including misuse of alcohol or substance abuse), criminalization of aviation accidents is not an effective deterrent or in the public interest…………….. Joint Resolution Regarding Criminalization of Aviation Accidents 3. Urge States to exercise far greater restraint and adopt stricter guidelines before officials initiate criminal investigations or bring criminal prosecutions in the wake of aviation disasters………. 4. Urge States to safeguard the safety investigation report and probable cause/contributing factor conclusions from premature disclosure………… 5. Urge National aviation and accident investigating authorities to: (i) assert strong control over accident investigations, free from undue interference from law enforcement authorities………….. DATED: October 17, 2006 William Voss, President and CEO Flight Safety Foundation ___________________________________ Alexander ter Kuile, Secretary General Civil Air Navigation Services Organisation Jean-Claude Bück, President Académie Nationale de l’ Air et de l’ Espace Keith Mans, Chief Executive Royal Aeronautical Society Hull Loss Accidents Hull Loss Rate in losses per million departures Western Built Commercial Jets (>60,000 lbs) 1960 thru 2005 10.00 8.00 6.00 5.64 4.00 2.16 2.00 1.47 1.29 0.89 80's 90's 2000's 0.00 60's Source: Boeing, AvSoft 70's Hull Loss Accidents Hull Loss Rate in losses per million departures Western Built Commercial Jets (>60,000 lbs) 1960 thru 2005 10.00 Lives Saved !! 8.00 6.00 4.00 2.00 0.00 60's Source: Boeing, AvSoft 70's 80's 90's 2000's Safety Information Less Criminalization More The Public Safety Interest The Law FSF Goal: Make Aviation Safer by Reducing the Risk of an Accident