Recent air disasters highlight the need for U.S. aviation companies to thoroughly prepare for investigations centered outside of the country, advised LeClairRyan attorneys in a 90-minute webinar focused on the investigative aftermath of Ethiopian Airlines Flight 302 and Lion Air Flight 610.
For airlines, charter air carriers, manufacturers and other U.S. aviation stakeholders doing business overseas, coping with an international accident investigation can be complicated by a range of perhaps-unfamiliar considerations, said Mark A. Dombroff, an Alexandria-based member of national law firm LeClairRyan and co-leader of its aviation practice group.
“Criminalization of aviation accidents is, unfortunately, widespread abroad, so you need a solid plan for getting your flight personnel out of that country if absolutely necessary,” he said. “Clashing geopolitical interests can affect these proceedings as well, and in developing countries investigative agencies often make due with incredibly scarce resources. For example, Ethiopia’s civil aviation authority reportedly has three investigators and an annual budget of $89,000.”
The April 23 webinar (“The Lessons of Ethiopian Airlines…So Far”) drew an audience of more than 500 professionals from across the aviation sector. In it, Dombroff and co-presenters David K. Tochen and Morgan W. Campbell offered timelines of key investigative events in the aftermath of the Boeing 737 Max disasters. They also provided a deep dive into the most important framework for conducting aviation accident investigations globally—Annex 13 of the United Nations’ International Civil Aviation Organization (ICAO). Lastly, the attorneys offered guidelines for preparing for, and participating in, such proceedings.
A transportation attorney in LeClairRyan’s Washington office, Tochen served as General Counsel of the National Transportation Safety Board (NTSB) from 2011 to 2017. Campbell, a veteran aviation and transportation attorney, is a partner in LeClairRyan’s Alexandria office.
While U.S. regulations allow airlines, manufacturers and other critical stakeholders to actively participate in NTSB accident investigations as formal parties, Tochen noted, ICAO proceedings tend to be driven to a far-greater extent by the investigative bodies of the countries in which the accident or incident has occurred. “That is why it is so important for U.S. companies to thoroughly understand how ICAO Annex 13 works and what rights they have and don’t have according to its provisions,” he said.
For one aviation client, Campbell noted, LeClairRyan put together a dossier packed with details on how investigations are typically handled in each country in which that aviation firm operated. “You want to know all of the accident investigation authorities down to specific contact information for individuals, as well as the country-specific procedures that will be in play in the event of an ICAO Annex 13 investigation,” he said. “U.S. aviation stakeholders should also understand the role criminal authorities could play, post-accident, and the nature of the relationship between that country and the United States.”
In his years as General Counsel at NTSB, Tochen saw a number of international investigations hampered by disputes rooted in geopolitical, commercial or even personal tensions, he said. When creating tabletop drills and exercises, Tochen advised, U.S. companies should incorporate such realistic scenarios into their planning process—as well as potential ways to solve these problems. “For example, in foreign-accident investigations in which conditions are quickly deteriorating, U.S. companies can ask the NTSB to contact the State Department,” Tochen said. “In some cases, diplomats can succeed in bringing things back into better alignment.”
The webinar recording and slides are available free of charge at: https://leclairryan.webex.com/leclairryan/lsr.php?RCID=0ef8f50ade3d4e51a57628d5f8dbf58a
