Criminalizing Aviation Accidents - Case Study Example

Criminalization of Aviation Accidents Student’s Name Institutional Affiliation Course Name Date of Submission Abstract Air transport is arguably the safest mode of transport. Compared to other modes of transport such as road transport, air transport experiences very minimal incidences of accidents. Although aviation accidents occur due to many reasons, the focus of NTSB has always been on aviation professionals, such as pilots and air traffic controllers. This has resulted in the prosecution of many aviation professionals for their alleged roles in the air accidents. Criminalizing aviation accidents is mainly based on the philosophy of safe or just culture. However, opinion is divided as to the effectiveness of criminalization of aviation accidents on the aviation safety. This paper begins by exploring the behind criminalization of aviation accidents and proceeds to discuss the view that prosecution of aviation professionals instill fear on crucial witnesses from diverging information to NTSB investigators. The paper will then discuss ways in which criminalization of aviation accidents impact the safety of the industry negatively. Criminalization of Aviation Accidents Introduction Air transport is arguably the safest mode of transport. Compared to other modes of transport such as road transport, air transport experiences very minimal incidences of accidents. Despite this being the case, prosecution of parties involved in airline disasters is commonplace globally (Aviation Safety Network, 2014). Whenever an accident occurs, a criminal investigation is usually commenced immediately with purposes of prosecuting parties involved in the disaster. In the past decades alone, criminal proceedings have been commenced in countries, such as Brazil, Indonesia, Malaysia, Turkey, Spain, France, and recent Russia. Some of these criminal proceedings have resulted in the prosecution of air traffic controllers, and aviation officials among others. One such criminal proceeding was brought against pilots and air traffic controllers following the September 2006 mid-air collision of GOL Airlines B737 and a Legacy business jet in Brazil (Mateou and Michaelides-Mateou, 2012). However, questions abound as to whether criminalization of aviation serves any purpose. This paper will explore why criminalization of aviation accidents not involving willful acts is unwarranted by showing how it impacts negatively on aviation safety. Philosophy behind Criminalization of Aviation Accidents Criminalization of aviation professionals involved in accidents has been going on for many years unabated. So far, many aviation professionals have been prosecuted and charged with different counts such as murder and manslaughter for allegedly causing accidents. This is something that not only happens in the United States but globally. To date, the FAA has prosecuted many aviation professional for negligence and human errors that have resulted in accidents and even death of passengers. The basic philosophy behind the criminalization of aviation professionals is the safety culture or just culture (Dekker, 2012). There is a belief that threatening aviation professional, such as pilots and air traffic controllers with prosecution acts as a deterrence, thereby helping in promoting safety culture. This is based on the deterrence theory proposed by Thomas Hobbes (1588–1678), Cesare Beccaria, which assumes that human beings are actors that weigh the consequences of their actions before committing a criminal offense (Nemsick and Passeri, 2012). For instance, deterrence theory assumes that people will refrain from engaging in criminal activities if they know that such acts might result in harsh punishments, such as execution. Therefore, it is on the premise that criminalizing aviation accidents help deter future accidents. For instance, aviation safety regulators believe that punishing pilots and any other parties linked to an aviation disaster has the potential of making the aviation professionals avoid engaging in negligent acts that might result in accidents (Dekker, 2012). This is because they are aware that if found guilty, they risk being charged with murder or manslaughter or forced to pay damages to the victims of the disaster. The U.S. aviation is regulated by two bodies that ensure that safety is maintained at all times. First is the National Transport Safety Board (NTSB) that is charged with the responsibility of investigating all accidents involving aircrafts to establish the probable causes and come up with recommendations on how to prevent such accidents from occurring in the future. The other is Federal Aviation Administration (FAA) that is tasked responsible for regulating and enforcing laws to prevent accidents (Quinn, 2009). This implies that the FAA is the agency responsible for setting the safety standards for pilots, aircraft manufacturers, and flight operators, as well as enforcing civil or criminal penalties. Therefore, whenever an aircraft is involved in an accident, any aggrieved party of the victim can initiate a legal suit against the airline, its pilots, flight operators, manufacturers, maintenance supplier or even the federal government depending on the circumstances leading to the accident. The NTSB will then initiate a process to determine the probable cause of the accident (Mateou and Michaelides-Mateou, 2012). This includes determining whether or not human factors, such as error and negligence could have caused the accident. Although most aircraft accidents occur under different circumstance, negligence theory is the most common standard of test used in determining the cause of an accident. This standard looks at whether the accident was caused by failure to do or not do something that a reasonable person would be expected to do under the circumstances. Among those subjected to negligence test in case of an aircraft, accident includes the pilots, the company and the maintenance providers (Nemsick and Passeri, 2012). Therefore, if it is proved that an aircraft accident was caused by negligence act of any or all of these parties, this might result in the parties being sentenced to murder, manslaughter or imprisonment. In the case of the mid-air collision that occurred in Brazil between the Legacy business jet and GOL Airlines B737, the Legacy pilots and the Brazilian air traffic controllers were charged for negligence and manslaughter for the role they played that led to the accident (Fenwick and Huhn, 2003). The other legal test used is product liability doctrine, which looks at the responsibility placed on the aircraft manufacturers and sellers of substandard products. Therefore, if it is proved that the aircraft accident occurred because of defective products, the manufacturer of the aircraft or seller might be forced by courts to pay damages. Views on Criminalization of Aviation Accidents So far, since the law permitting prosecution of parties linked to aircraft accidents was introduced, different opinions and viewpoints have emerged regarding the law. One such view is that criminalization of aviation accidents impede corporation by pilots, flight and maintenance crews and manufacturers among other parties with the investigators. According to Quinn (2009) criminalization of the aviation accidents has made it extremely difficult for NTSB to be able to gather enough evidence from witnesses that might help in establishing the cause of an aircraft accident because most of the witnesses are fearful of self-incriminating. As such, this makes it difficult for the NTSB to come up with effective recommendations on how to improve aviation safety. There are many incidences where witnesses to an aircraft accident have refused to testify and provide crucial information to NTSB. In 1999, NTSB sought to interview witnesses following the rupture of a pipeline in Bellingham, Washington. However, the witnesses excused themselves and refused to provide information to the NTSB by invoking the Fifth Amendment rights (Michaelides-Mateou and Mateou, 2010). The then chairman of NTSB, Jim Hall later expressed his concern and even suspended investigations because central players were not willing to provide information to NTSB investigators for fear of self-incriminating. Similarly, in 2000 following the crash of Alaskan Airline flight off Californian coast, NTSB commenced criminal investigations to determine those involved in the accident (Aviation Safety Network, 2014). However, because of the fear created by the criminalization of the aviation professionals, the employees of the airline refused to talk to NTSB investigators. As such, industry analysts are concerned that the continued criminalization of aviation professionals in the event of an air crash is harming the industry as it prevents NTSB from obtaining crucial information that it might need in establishing the actual cause of accidents. This is because NTSB has no power to compel aviation professionals to provide information as they are protected by the Fifth Amendment (Nemsick and Passeri, 2012). According to the Fifth Amendment, no individual shall be forced in any criminal investigation or proceeding to act as a witness against himself. Therefore, by invoking this provision, it has always become extremely difficult for NTSB to obtain crucial information from aviation professionals that might help in enhancing aviation safety, an issue that is of great concern to critics of criminalization of aviation accidents. Impacts of Aviation Accident Criminalization on Aviation Industry Although air transport is the safest mode of transport so far, enhancing the safety of aircrafts is very critical to ensure the achievement of zero accidents. This is because air crash is usually deadly and results in many deaths. Based on the past accidents, it has emerged that airplane accidents occur due to a number of factors, including poor weather, human errors and negligence among others. However, the increased criminalization of aviation accidents has caught the attention of industry analysts and stakeholders (Fenwick and Huhn, 2003). The question that many are asking has to do with whether or not such criminalization help improves the safety of the aviation industry. Although opinion is divided over the issue, evidence have shown that criminalization impacts negatively on the safety of the aviation industry. Firstly, criminalization of aviation accidents is impacting negatively on the safety of the industry since it cripples the ability of the industry to learn from past disasters and incidents which is critical in putting the right preventing measures in place (Quinn, 2009). Based on the past air crashes, it has become clear that the best way to enhance the safety of the aviation industry is to ensure that a thorough and open investigation of disasters whenever they occur as this help the industry come up with better ways of preventing similar accidents from occurring in the future. However, it has been apparent that such critical investigations cannot occur if participants, such as pilots and air traffic controllers are fearful that the evidence they give may be used to self-incriminate them (Nemsick and Passeri, 2012). In fact, it has been noted that pilots and air traffic controllers who are directly involved in accidents normally fail to provide investigators with information that can be critical in preventing future accidents and disasters for fear that they would be prosecuted if the fault is found on their sides. However, such prosecutions do not add any benefit since it only makes it difficult for FAA and NTSB from learning from past incidences and accidents, thereby making it difficult for these agencies to put in place the right measures to prevent the occurrences of accidents of similar nature in the future. According to Thomas (2014), approximately 85% of aircraft crashes occur due to human errors with the majority caused by pilot errors. This implies that the possibility of finding human beings linked to accidents is obviously high. Nevertheless, the fear associated with criminal prosecution hampers, not only the investigations of the causes of the airplane disasters, but also jeopardizes the trend to assess flight data to improve safety through prevention. Supporters of criminalization of aviation accidents claim that crimination is necessary because it act as an effective deterrence. As earlier stated, criminalization of the aviation accidents was introduced to the philosophy that it acts as a deterrence to accidents. However, Thomas (2014) argues, criminalization of aviation accidents is not warranted whatsoever since it does not stop other accidents from happening. According to Thomas, in the absence of willful behavior or sabotage, prosecuting aviation professionals serve no useful purpose. Thomas supports his claim by noting that despite the criminalization of aviation accidents that has seen many aviation professionals get behind bars, this has not helped improve safety in any way since similar accidents still do occur. In 2006, for example, immediately after the mid-air collision of Legacy business jet and the Brazilian GOL Airlines B737, authorities commenced criminal investigations to establish the role of two American pilots that were flying the legacy jet in the accident (Fenwick and Huhn, 2003). Upon investigations, it was found that the two pilots did not violate any air traffic regulations. However, they were reportedly unaware that the transponder and the collision-avoidance equipment of the aircraft they were flying had inactivated though they followed the air traffic controller's clearances. Nevertheless, the two pilots were charged together with the Brazilian air traffic controllers for negligence and manslaughter (Michaelides-Mateou and Mateou, 2010). Although the pilots were initially acquitted of the charges, each of them was recently sentenced to four years and four months jail. It is believed that, if such prosecutions were working in deterring aviation professionals in engaging in the negligent act, then no such accidents could have been witnessed. However, this has proved not to be the case. In 2004, just two years before the mid-air collision between Legacy jet and GOL Airlines B737, there had been a similar collision that occurred between Scandinavian Airlines System Flight 686 with a Cessna Citation at a Milan airport (Fenwick and Huhn, 2003). The accident resulted in the prosecution of an air traffic controller and other defendants for negligence and manslaughter and sentenced to four years and four months imprisonment. These incidences of prosecution of aviation professions involved in accidents confirm that such criminalization does not prevent future similar accidents from occurring. Instead, they only serve to jeopardize aviation safety, which is dangerous. As a matter of fact, criminalization of aviation accidents has been seen to jeopardize the safety of the aviation industry since it makes FAA and NTSB focus only on prosecuting pilots and air traffic controllers in most time while ignoring casual factors that lead to accidents. This became apparent during the investigation of SQ006 where the investigators focused mainly on prosecuting the pilot without going into details to see if other factors could have contributed to the accident (Nemsick and Passeri, 2012). This is because aviation experts believe that focusing too much on the roles played by pilots and other professional divert the attention of criminal investigators from finding better ways of preventing future accidents. Thomas (2014) is worried that, even where an accident has been caused by natural disasters that are beyond the control of aviation professionals, the focus of FAA and NTSB is usually on the role of the aviation professionals in such accidents. Accordingly, this has resulted in a situation, where the aviation regulators cannot learn from the past, thereby leading to more accidents and disasters being witnessed in the aviation industry. Conclusion Aviation industry is the industry that experiences the least incidences of accidents and disasters because of the high standards of safety. Despite air being the safest mode of transport today, incidences of air crashes and accidents are still reported most of which are devastating and causing loss of lives. This means that more still needs to be done to make aviation industry free of accidents. Most of the accidents that occur in the aviation industry have been found to be caused by human errors, particularly pilots. However, other factors also play a role, including design problems, faulty equipment and negligence on the part of flight station employees and traffic controllers among others. However, the increased criminalization of aviation accidents has caught the attention of industry analysts and stakeholders in the recent years. Although a section of the society supports criminalization of aviation accidents, evidence shows that such criminalization does more harm to aviation safety than good and should be rethought about if the air safety id to be enhanced. For the safety of the aviation industry to be enhanced, the FAA and NTSB should be able to learn from its past experiences. However, this cannot be possible if aviation professionals are prosecuted even where there is no proof of willful or sabotage. FAA and NTSB should understand that, for them to enhance the safety of the industry, aviation professionals should be allowed to provide pertinent information that can be of value in preventing future accidents without fear of being prosecuted for self-incriminating as has been the case. This is because evidence has shown that prosecuting aviation professionals have not only hampered the FAA and NTSBs effort of learning from the past and preventing future accidents, but also not helped in preventing future accidents. References Aviation Safety Network. (2014). Eight convicted over plane crash in Turkey that killed 57. Retrieved from http://news.aviation-safety.net/category/accident-criminalization/ Dekker, S. (2012). Just culture: Balancing safety and accountability. New York, NY: Ashgate Publishing, Ltd. Fenwick, L., & Huhn, M. (2003). Criminal liability & aircraft accident investigation. Retrieved from http://crewroom.alpa.org/alpa/DesktopModules/ViewDocument.aspx?DocumentID=3540 Mateou, A., & Michaelides-Mateou, S. (2012). Flying in the face of criminalization: The safety implications of prosecuting aviation professionals for accidents. New York, NY: Ashgate Publishing, Ltd. Michaelides-Mateou, S., & Mateou, A. (2010). Flying in the face of criminalization. Retrieved from http://www.ashgate.com/isbn/9781409407676 Nemsick, J. R., & Passeri, S. G. (2012). Criminalizing aviation: Placing blame before safety. Retrieved from http://apps.americanbar.org/litigation/committees/masstorts/articles/winter2012-criminalizing-aviation-blame-safety.html Thomas, G. (2014). Aviation on trial. Retrieved from http://www.iasa.com.au/folders/Safety_Issues/RiskManagement/GeoffreyThomas.html Quinn, K. P. (2009). Criminalization of aviation accidents. Retrieved from http://nata.aero/data/files/summit/quinn_nata_june_9_2009.pdf Read More