Advocating for a Just Culture, without referencing the logic of a larger safety, legal and administrative contextual framework can take on the appearance of advocating for an exemption to all the laws of all the nations that have developed over all time with respect to one party doing harm to another party.
For example, let’s consider the Air France 447 case. For which party in this mishap should a Just Culture exemption to all law on harm be advocated?
Consider the pitot equipment manufacturer, the air frame builder, the air line certificate holder and the certificate holder CAA regulator government.
Did or did not all four of these parties know, and fully know, ahead of time , ahead of the time of operation of AF447, of the pitot equipment’s failure to perform on previous occasions? Were these four parties or were these parties not completely familiar with the certain likelihood that flight operations in the inter tropical convergence zone involved instrument meteorological conditions in icing at cruising flight levels? Were not these four parties, less the pitot manufacturer, completely familiar with flight operational standard procedures and training of the flight crew?
Nevertheless, did not the certificate holder, with the approval of various CAA regulators, propose to operate and receive approval for an operation into an area of known and well known hazardous weather, all the while with known defective equipment?
See, there is one strange part of the whole Just Culture argument that needs to be looked at very much more closer than, in my opinion, it has been looked at before. Think about this:
Under all the laws of all the nations, are the flight crew considered separate parties, separate certificate holders, separate parties from the airline certificate holders all the time, or at least during the time that they are operating?
Or are they considered agents of the operating, certificate-holding airline?
If they are legally considered agents of the operating certificate-holding airline, how would any flight crew legal exemption from liability for harm done during an operation, the Just Culture argument, have a follow-on exemption from liability for the airline certificate holder?
Is this not a grey area, a not well defined legal area, an area where an argument for Just Culture for airline flight crews begins to grow dialectic from all other laws governing agents of companies, for example the captain of a ship in admiralty law, the CEO of a corporation under corporate law and similar company-agent relationship laws that exist all over the world? Is this a very large and complicated problem that Just Culture has addressed to the satisfaction of at least some of the countries of the world? In my opinion, even the countries in ICAO, have not fully considered that there really are many more layers to this issue as it relates to global commercial aviation safety mishap investigations.
In the case of AF447, the flight crew training by all appearances and by any analysis that has been published, was, in my opinion, not adequate for the known hazards to be faced and subsequently for the hazards actually faced by the flight crew of AF447, again in my opinion.
But, in IFALPA’s opinion and policy view, is or is not flight crew training the responsibility of the airline certificate holder and under direct supervision of the CAA regulator? So, where does the Just Culture argument take us in terms of crew training, as far as who is responsible for a crew that, as I stated in my opinion, was not adequately trained? Is training, such an absolute essential part and basis of safe commercial flight operations, intrinsically tied to the airline, the CAA regulator and the equipment manufacturer? If this is so, how can the crew’s position be lifted out of the events of a commercial aviation mishap?
Or maybe is that just what the Just Culture advocates are saying, that the crew was trained according to the standards of parties other than themselves? But doesn’t that appear to create a huge legal problem for any party harmed by a commercial flight operation? If the Just Culture argument contends that the crew is not an agent of the company and thus should not be held, as agents, individually culpable, then who should be? If the non-operating and potentially non-flight certified corporate officers are to be held culpable for harm caused by a commercial operation, what is the relationship accountability between the crew and the corporate officers? This can devolve into an extremely complex set of arguments, in my opinion.
May arguments of exemptions from laws addressing harm have a severe uphill challenge, when the argument is solidly based on a footing that training costs are minimized by airlines solely for economic arguments? The challenge grows even more severely uphill, when and if crew training documentation has a large gap in the area of operations in known and well known hazards of severe weather with defective equipment, weak supervision communications links and poor enroute supervisory oversight, as was the case of AF447, in my opinion. The training gap itself raises the classic liability negligence questions of who knew about the hazards, equipment limitations and weather and when did they know it?
If IFALPA’s Just Culture policy is aimed at thawing the safety channel into insight of human error (also known as human factors), now very often frozen solid by centuries old laws addressing harm, liabilities and negligence, then the Just Culture policy should very clearly state so.
If however, IFALPA’s Just Culture directly or indirectly attempts or even appears to attempt, to advocate an exemption by any party to harm, including flight crew, from all the laws of all the countries, this advocacy is more likely to look like a dodge from responsibility, than a safety policy to quickly get to the bottom of the cause of a mishap, in my opinion, and thus not likely to enjoy widespread acceptance.
In the US Supreme Court case of Weber vs US Government, the nine justices clearly differentiated the separate safety function of the mishap investigation team from the parallel legal liability functions of lawyers representing various harmed parties and the third parallel regulatory administrative function occurring simultaneously as the result of an aircraft mishap.
Since all ICAO commercial aircraft mishaps are investigated by state agencies, I find the arguments for a differentiated government safety investigation, asking solely the questions, “How did this mishap occur?” and “How can we prevent this mishap from recurring?” are clearly warranted. In their rare unanimous 9-0 Supreme Court decision, upholding the arguments for keeping thawed the channels of investigation of human factors associated with aircraft mishaps and direct testimony of persons with first hand knowledge, the court at no time granted, suggested nor established any prohibition to any party for exemption to liability for harm or any independent investigation to determine the legal purpose questions of “Who was harmed?” and “Who Pays?”
Instead the court prevented lawyers seeking legal liability claims evidence from having access to safety investigation evidence, and in particular, personal testimony given on the promise of confidentiality, and solely for the Safety Purpose, in order to quickly fix the safety hazard, thereby preventing further harm in a subsequent flight operation.
At no time, however, did the court prevent any harmed party from conducting their own separate legal liability investigation to determine who was harmed and who should pay for the damages.
There was absolutely every reason for lawyers representing Weber for conducting their own investigation. However, they saw the safety investigation as the only one possible, erroneously so in my opinion. In my opinion this was a mistake. Instead of Weber seeking an exemption to have access to the safety investigation, they should have gotten busy conducting their own investigation to ask, “Who was at fault for the damages and who should pay?” They should have interviewed their own witnesses, found their own evidence and determined their own facts through testimony they collected. Instead, they made a raid on the Safety Purpose investigation and were soundly rebuffed and rightfully so, by the unanimous decision of the US Supreme Court.
Nor, do I believe, should Just Culture arguments seek such exemptions from liability damage claims and from administrative regulatory laws related to flight crew certification.
The questions “Who was harmed?” and “Who is going to pay for the damages?” are rightful and powerful questions that will long remain part of the laws that define the operational limits of any commercial company. Additionally, the question of certification continuance, suspension, revocation or further training should be expected and rightfully so in the event of a commercial airline mishap.
I believe it is The Safety Purpose, or what Europeans label as Just Culture on the other hand, to separately advocate for mishap prevention, all the while giving the crew and any other related party, the opportunity to provide safety testimony into the human factors related to commercial flight operations. Safety and Safety alone should ask, “How did this happen and how do we keep this from happening again?” If we safety advocates stick with these questions, the Safety Purpose, then our efforts, the efforts to achieve a Just Culture for example in Europe and other parts of the world, will succeed, in my opinion.
At the same time, we must look at the laws governing agents of companies and determine whether moving forward, how do commercial flight crew members currently fit into the framework of centuries old shipping company agent laws.