ValuJet Postscript: give a statement . . . go to jail

ValuJet Postscript Give a statement...go to jail By Stephen P. Prentice October 1999 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...

ValuJet's responsibility?
Did ValuJet employees assist in loading and inspecting the deadly cargo? Yes, they did. The ValuJet ramp agent accepted the hazmat material even though Federal regulations did not allow it. The airline was not permitted to carry any hazmat. Were they not charged with inspecting what turned out to be hazardous materials? Yes, they were. The crew was advised of the nature of the cargo and its weight. It could have been refused. The last line of defense for the paying customers was breached by the airline. Hazmat regulations clearly provide for criminal as well as civil penalties for violations. The common carriers vicarious responsibility for error was paid lip service only! It's a mystery. We have to recall that the only sanction lodged against ValuJet as a result of the accident was certificate enforcement action and civil penalties.

ValuJet as the common carrier is responsible under the law for the safe carriage of the passengers. SabreTech is only a repair contractor who is supposed to be supervised by the carrier. SabreTech is criminally charged along with several of their employees. Go figure!

FAA responsibility?
How about the FAA? Let's remember that the DOT Inspector Generals office found fault with virtually every aspect of the FAA oversight of ValuJet and SabreTech. Nobody talks about sanctions for the FAA personnel who did not do their job as was stated quite clearly in the Inspector Generals Report to Congress.

We do know the FAA Assistant Administrator was forced to resign and later, the Administrator. These are men of high integrity and they accepted the overall responsibility for the lack of oversight. But, there were others in the chain that curiously escaped sanction of any kind.

It was not too long ago that a Supreme Court case called Varig looked at the issue of government responsibility for accidents and oversights very carefully. Although the government was let off the hook in that case for a variety of reasons, it nonetheless spawned and further developed the theory that the United States government should be held responsible for their negligence in performing required services. If Varig were decided in today's environment, many believe the government and its agents would also be held responsible.

EAL: The real beginning
Bringing this type of indictment is not particularly unusual as was suggested in the Miami local press. Recall USA vs. Eastern Air Lines et al. CR 90 629, Eastern District of New York? In this case, which was brought by the U.S. Attorney in Brooklyn, the individuals charged included among others, the Vice President of Maintenance and Engineering, and the Director of Maintenance; who was sentenced to serve 27 months in jail. This was the "big" case. There were a grand total of sixty counts in that 45 page indictment. These people went to jail for crimes that did not involve deaths.

Eastern was the watershed case that established precedent for going after airlines and airline personnel with criminal actions. Albeit, many believed for obvious political reasons at the time — it obviously is not the last.

Bad business
The trend at FAA today is to encourage the reporting of incidents and other things that are out of order, so that safety in general can be enhanced. Therefore, FAA should have an interest in these cases for a lot of reasons. For starters, they are now trying to implement self-disclosure procedures wherein persons and companies may voluntarily self confess, and avoid sanctions — all in the interest of safety.

The FAA already receives a ton of "voluntarily" submitted information. Air carriers for example, provide information via their FAR 121.373 Continuing Analysis and Surveillance programs that many times is not otherwise provided to FAA. In addition, AC 00-58 describes a voluntary disclosure program that provides for avoiding sanctions when incriminating information is voluntarily provided to FAA before they find it.

The recently implemented ATOS system for the collection of safety data from airlines depends largely on voluntarily submitted data.

Likewise, programs like the Flight Operations Quality Assurance (FOQA) and the Aviation Safety Action Program (ASAP) provide operations and maintenance data on a voluntary basis to FAA that is not otherwise available.

The big fear now by operators is that this information will be used against them in many and varied ways and may be the subject of enforcement action including fines and or arrest and jail time. Why share information with the Government that could be released to the public and used against you in government and civil litigation or as stated, result in your going to jail? Why take the risk?

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