The Growing Threat of Criminalization in Commercial Aviation Disasters

 Should criminalization be opposed by safety advocates and organizations? What has the ICAO Annex 13 given commercial aviation safety through the ICAO CAA  investigative process?

What is the tradition of law in Western civilization? Is it seeking recompense and legal remedies for injury, death, property damage, property destruction, the expenses of treating mass casualties and the expenses of responding to an aviation disaster is part of Western culture, Western law and tradition?  Is this what keeps us from “taking matters into our own hands.” Instead, in Western culture do we not we take the case to court?
Is this not the legal Western practice that is thousands of years old?

Should not Aviation Mishap (Accident) Investigations on the other hand be purely intended to QUICKLY determine the CAUSE of the Mishap (Accident) injuries, deaths, damage, destruction, mass casualties and disasters, and then determine the steps to take to IMMEDIATELY RESPOND, to come up with an INTERIM REMEDIATION and a LONG TERM RESOLUTION?

Has there been many cases where the procedures of ICAO and the actual case history of ICAO style ACCIDENT INVESTIGATIONS  proceeded quickly to meet the three goals of Immediate Response, Interim Remediation and Long Term Resolution? Instead have not the legal style ICAO Accident Investigations become extensive in time and steered to determine fault and assign blame in lieu of finding cause and finding resolution?

In fact, haven’t national governmental civil aviation agencies tasked with Mishap Investigations taken years, in some cases 2-3 or more years to publish their findings, thereby failing the “Test of Quickness to Prevent a Follow-on Mishap?” Afterall, is not the main purpose stated in ICAO Aviation Mishap Investigation process quickness so as to serve the traveling public, when in fact the process seems to be serving everyone except the traveling public?
Secondly, are many of the investigation findings not actually enacted by the same governmental civil aviation agencies and as a result, are not many more mishaps of nearly identical cause left to occur, thereby costing many more unnecessary lives  lost and much more destruction suffered?
Thirdly, why are involved manufacturers, involved agencies and other involved parties  allowed to be members of the investigation boards instead of called as witnesses? Does this inclusion result in findings that, in my opinion, are questionable in effectiveness and questionable in logic? In fact, do not many, if not most, findings merely assign blame to the flight crew members and fail to recommend actions that would or could prevent another mishap?
Fourth, have  ICAO style CAA agency investigations used a legal model of investigation and in fact are largely conducted investigations by lawyers and used the safety model and not used trained safety investigators to lead these investigations? Has the result been that many, if not most of these investigations seek and thereby assign blame and fault finding and do not accomplish the Safety task of finding cause and resolution?

In my opinion, the upshot of this incorrect Mishap Investigation and Safety Management has been that many governments have become frustrated with the unnecessary and illogical control of data and evidence exercised by CAA investigation agencies and have now begun to take over the Mishap Investigation process from ICAO style CAA agencies with stated intentions of finding recompense and remedy.They realize now that even though the stated purpose of the ICAO Annex 13 has been for safety purposes, in fact the actual purposes have been to prevent legal investigations from moving forward in court to rightfully assign blame and determine damage payments to damaged parties.

Ironically in all of these cases there is nothing actually that prevents CAA’s from conducting a Safety Investigation concurrently with a legal investigation, which in my opinion should have been the case from the beginning.

Western law permits suits to recover damage and there should be no impediment by safety in the name of safety that takes more than a few weeks. To impede damage suits in the name of aviation mishap investigations beyond that is illogical. Safety investigations should seek to find cause of loss and find resolution and do so quickly to determine if any other flight operations are in peril.

Legal investigations should seek to find who was at fault and who should pay? There is always plenty of time to sort that out later after the safety questions are determined. But for that Safety process to take 2-3 years is illogical and places so many more people potentially in jeopardy.

These two processes, Safety and legal, are neither mutually exclusive nor are they competitive. In my opinion they should be facilitated as concurrent investigations. The issue of criminalization of aviation disasters in my opinion has been brought about by unreasonable delays in the investigation process, by safety investigations being turned into pseudo-legal investigations and in allowing involved parties to be part of the board.

By these faults, people around the world have begun to see the fault of ICAO Annex 13 and have chosen other legal remedies for their losses.

Published by Capt. Paul Miller

Aviation safety expert with 43 years in the sky

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