Staying Legal: Charged with Crimes

You might not be aware of it but there is a serious criminal trial quietly plodding along in France that involves the crash of the Concorde. It has been almost 10 years since the accident after takeoff from Charles de Gaulle airport. The trial started in February and continues as we speak. It is expected to go on until sometime in June or July but it could be over even before you read this.

The defendants
The trial involves, as defendants, Continental Airlines sued in its corporate capacity, two Continental employees, one a mechanic, and the other the chief of the maintenance team, both American citizens, who were involved with a repair to a DC-10 thrust reverser that was alleged to have lost a wear strip during takeoff.

This strip was fabricated out of titanium by the Continental mechanic to replace the original one made of aluminum. It was approved for installation by the maintenance team chief. The parts catalog lists the original part at under $500. The French court and prosecutors have stated that a new factory part should have been used rather than the locally fabricated part of titanium. They also said that the field repair should have been approved by the FAA and or European Aviation Safety Administration (EASA) personnel. This is of course nonsense because Continental is a 121 carrier and needs no authority from the FAA or EASA to make repairs at home or in the field. However, GE, the maker of the engine, it is reported, seemed to agree with this requirement.

Other defendants include the head of the Concorde Program, accused of failing to strengthen the fuel tanks skins; the chief Concorde engineer for failing to carry out the redesign and strengthening of the lower tank skins; and a senior official of the French aviation authority for failing to understand the importance of and underestimating the seriousness of past incidents involving the puncture of the lower fuel tank skins, which occurred with some regularity on takeoff when the hard rubber of a failed tire impacted the lower skin of the tanks. Concorde stopped using re-molded tires (recapped) after some 65 incidents of burst tires on takeoff. How come the tire manufacturer is not a defendant in this case? I can only wonder how the passengers would have felt about flying Concorde if they knew of the dangerous tire and tank puncture history? I certainly would have declined to fly in it.

The Concorde prosecutor theory alleges that the aircraft hit the short piece of metal with its tires after it fell off the Continental aircraft onto the runway, resulting in it being thrown up against the bottom of the wing or blowing the tire and tire parts impacted and puncturing a fuel tank, starting the fire. The piece is only 17 inches in length overall. The Concorde as we all know did not make it back to the airport and crashed killing all hands.

There are several other theories on the accident, Continental's includes a fire that started before the alleged striking of the metal strip on the runway. Another is simply that a tire failed (which was common on Concorde) and the hard rubber was flung up against the fuel tank surface during takeoff, puncturing it, and that started the fire.

We will probably never know for sure which theory is correct but the French investigators like the metal strip foreign object debris (FOD) theory simply because it throws the blame on somebody else. Interestingly, the government management of the airport was also conveniently left out as defendants. They were supposed to ensure that runways were "swept" before every launch of the Concorde. Anywhere Concorde landed in the world, before every launch, the runway had to be inspected for debris (FOD) before a takeoff could be made.

A key issue that gets little direct attention is the engineering fact that anything thrown up by a tire could puncture the underside of the wing fuel tank, even parts of the rubber tire. The underside of the fuel tank should have been designed for adequate protection to avoid any threat of puncture of the fuel cell on the bottom of the wing. This would seem to be a serious airworthiness item that should have been a concern early in the certification process of Concorde.

The French law
In France, as well as many other EU countries, everyone from ATC controllers to mechanics, aircraft engineers, pilots, and just about anybody else who is involved with an accident are commonly subject to prosecution after an aircraft or other transportation accident where there are deaths. Manslaughter charges are typically and frequently brought where only simple negligence can be inferred, even though there is no clear evidence of intent to harm or cause an accident. After all, flying has inherent risks as we all know.

In our country this never happens unless there might be a clear and unmistakable intent to do harm. And there is good reason to support this. Yes, there have been cases where mechanics have been charged with crimes but they are very few and far between and usually only where there were serious violations of the law or more likely, political motives involved with ambitious prosecutors. (Payne Stewart Learjet crash, Air Tran in Florida, Eastern Airlines, etc.)

The two Continental employees, along with the others, are facing the prospect of five years in prison and a substantial fine if found guilty by the French court.

The French court system
The court consists of a president of the court who generally conducts the evidence-gathering portion of the trial. Three other judges participate in the process and at the end render their joint opinion on guilt or innocence of the defendants. There is no jury, like in our country, and it is left to the joint decision of the judges involved who like we say are the "judge and jury."

The judges are usually political appointees who may be charged with carrying out the wishes of the government, which in this case is to place as much blame for the accident on everybody but the French government.

Settlements
The survivors of the passengers have already been "bought off" by the government by way of settlements which have been reported as $1 million each. This all in accord with the decision to avoid a more public display in regard to a public civil trial over who was to blame. Thus, numerous trial lawyers for each of the decedent's survivors are not participating as would be the case in a non-settled civil case in our country. This of course helps to insulate the French government from potential embarrassment and or liability.

Unintended consequences
At the present time there is a big push in the European aviation safety community to merge all aircraft operational safety activities into one huge organization. International Civil Aircraft Association (ICAO), our FAA, and the European Union have just signed an agreement to standardize all safety audit protocols. In addition, the EASA has joined with the ICAO in instigating a requirement among all member airlines to establish a new safety management system (SMS) by November of this year 2010. Our own FAA is busy proposing to follow this so-called mandatory mandate by the ICAO. In this way EASA stands poised to step in and supervise this worldwide collection of safety information from all airlines within the control of EASA or ICAO. SMS is also designed to capture information from repair facilities and manufacturers as well. What a plan!

Now this is no small effort at collecting information. It is planned to include regular scheduled collection systems to bring together real-time safety data (and accident data) in one place to be analyzed and watched over most likely by a group in the EASA organization. Our FAA is working on this program out of its Office of Aviation Safety. Write FAA urging the Deputy Associate Administrator for Safety to exercise caution in participating in any program that might allow foreign safety activities to access, collect, and collate our operational safety data. Our airline people will most likely veto any step in that direction. (800 Independence, Washington, D.C.). Also check the Federal Register, Vol. 74, No. 140 for the NPR on the proposed reach of SMS.

FAA has so many operational safety programs in place now it can't handle all of them effectively. They include CAS, the continuous analysis and surveillance system; ATOS, the air transportation oversight system; FOQA, flight operational quality assurance; and ASAP, the aviation safety action partnership. These efforts and others have been seen to languish for many years with little effective supervision and or useful analysis of the tons of data collected. They just don't have the necessary staff to supervise these activities, much less a new one like SMS.

The danger
Many people in our industry have already weighed in on the subject of SMS expressing grave misgivings about the spread of proprietary safety data far and wide around the world. The deputy associate administrator at FAA, to the contrary however, has recently stated that ... "we have to make sure we continue to position ourselves as the global standard bearer for SMS ..." Nobody knows what this means. But there is a real possibility that all this information could be made available to all sorts of people around the globe.

All the talk that you will hear about proposed "adequate safeguards" against the release of safety information you can assume is nothing but rhetoric to soothe the privacy advocates. You can rest assured that the information will leak out to the interested parties. Just consider your privacy already ... in this country ... you just don't get much protection at all, from our government, your company, or anybody else for that matter.

If all this proprietary safety information is allowed to be freely available then what would this do for the prosecution of people concerned who may have been involved in accidents? Like the Concorde? As has been stated most effectively, it would open the floodgates for the collection of this information by prosecutors around the world to pursue actions against everybody including mechanics, with criminal charges and by lawyers with civil actions. It would stifle any contribution of safety information.

On the other hand if made available it might effectively supply a prosecutor with criminal cases or lawyers with evidence in civil complaints, thus having the effect on everybody concerned of "claming up" and declining to provide any useful safety data at all, in the case of accidents or incidents, and for good reason. Who wants to be arrested or sued? Comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran. E-mail: aerolaw@att.net.

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