Jim Burin Director of Technical Programs Flight Safety Foundation

1. The Challenge of Balancing Safety, the Law, and the Public Interest Jim Burin Director of Technical ProgramsFlight Safety Foundation ASPA/ICAO 2007 Mexico City

2. What is the Flight Safety Foundation ? • Independent • Non-Profit • International Founded in 1947 by Aviation Industry

3. FSF Goal: Make Aviation Safer by Reducing the Risk of an Accident

4. Two Important Aspects of Safety and the Law • Criminalization of Safety - Protection of the sources of Safety Information

6. The Fleet - 2006 TypeWestern BuiltEastern BuiltTotal Turbojets 17,609 1,839 19,548 Turboprops 4,774 1,710 6,484 Business Jets 12,724

7. Major Accidents Business Jets 1 January to 31 December 2006 Source: Ascend

8. CFIT - Touring Part 135 Hawaii - 27 Sept 1999 - Navajo - 10 Fatalities

9. Major Accidents Commercial Turboprops (> 14 seats) 1 January to 31 December 2006 Source: Ascend

10. Major Accidents Commercial Turboprops (> 14 seats) 1 January to 31 December 2006 Con’t Source: Ascend

11. Major Accidents Commercial Jets 1 January to 31 December 2006 Source: Ascend

12. Major Accident Rate Western-Built Commercial Jets 1993 – 2006 Accident rate per million departures** Source: Ascend

13. Major Accident Rate Western-Built Commercial Jets 1993 – 2006 Accident rate per million departures** Accidents Prevented Source: Ascend

15. 35 3000 70 Total fatalities = 7,484 CFIT = Controlled Flight into Terrain RTO = Rejected takeoff 30 60 2500 2,396 2,228 25 50 2000 Departures (Millions)/Rate Per Million Accidents1 20 40 Accidents 1500 15 30 Traffic Growth2 1000 760 10 20 607 506 500 306 Accident Rate3 10 5 162 128 119 113 111 45 3 0 0 0 CFIT Loss of control in flight In-flight fire Sabo- tage Midair collision Hijack Ice/ snow Landing Wind shear Fuel exhaus- tion Other Runway incursion RTO 1Based on current accident rate 2Based on industry estimate 3Based on current accident rate Safety Efforts are Data Driven

16. Africa 2003 81

17. Information Driven • Accident Data • Incident Data • Flight Data Monitoring • Non-Punitive Reporting • Line Observed Safety Audit • Cooperative Data Sharing

20. The Aviation Safety Approach 1. Who made errors ? 2. Why were the errors made ? 3. How do we prevent the errors from happening again ?

21. Accident Investigation Safety: Annex 13 - “The sole objective of the investigation of an accident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.” Legal: The sole objective of legal proceedings is to apportion blame or liability.

22. Safety Challenges The greatest enemy of safety is blame. - Dan Maurino

23. The Basics of Safety an the Law • SafetyInvestigations must be independent • - Unhindered by judiciary authorities - Safety Information must be freely available to safety investigators • Significant challenges exist in some countries • - Legal systems • - Cultures • First Step - Protection of the Sources of Safety Information is required

24. 2004 Situation • Accident/incident investigation records - Protected somewhat by ICAO provisions - Protected by few domestic legislations • Voluntary reporting systems & FDA programs - Not explicitly protected by ICAO provisions - Protected by few domestic legislations • Inconsistent International Picture

25. Basic Principles • Existing international and national laws were inadequate to protect many sources of safety information • No Group or Workforce above the Law • Goal: To protect safety information, but not deny the right to prosecute • Evidence other than from sources of safety information can be used in prosecuting • The public interest requires a balance between the protection of safety information and the availability of evidence in judicial actions

26. Assembly Resolution A35-17 Protecting information from safety data collection systems in order to improve aviation safety The Assembly: 1. Instructs the Council to develop appropriate legal guidance that will assist States to enact national laws and regulations to effectively protect information from safety data collection systems, both mandatory and voluntary, while allowing for the proper administration of justice in the State; 2. Urges all Contracting States to examine their existing legislation and adjust as necessary, or enact laws and regulations to effectively protect information from safety data collection systems based, to the extent possible, on the legal guidance developed by ICAO; and 3. Instructs the Council to provide a progress report to the next ordinary Session of the Assembly on this matter

27. Examples of Success * New Zealand CVR Case/Law * Canada Protection Actions * EU Council Directive * US FAR Part 193 * Denmark National Law

29. New Annex 13 – Appendix E Info …a review by an appropriate authority determines that the release of the safety information is necessary for the proper administration of justice, and that its release outweighs the adverse domestic and international impact such release may have on the future availability of safety information.

31. Joint Resolution Regarding Criminalization of Aviation Accidents Recognizing the importance in civil aviation accident investigations in securing the free flow of information to determine the cause of accidents and incidents and to prevent future accidents and incidents; Recognizing the actions taken recently by the International Civil Aviation Organization in promoting amendments to Annex 13 – Aircraft Accident and Incident Investigations to the Convention on International Civil Aviation, encouraging Contracting States to adopt by November 2006 certain actions to protect the sources of safety information; Recognizing the importance of preventing the inappropriate use of safety information, including the increasing use of such information in criminal proceedings against operational personnel, managerial officers, and safety regulatory officials;

32. Joint Resolution Regarding Criminalization of Aviation Accidents Recognizing that information given voluntarily by persons interviewed during the course of safety investigations is valuable, and that such information, if used by criminal investigators or prosecutors for the purpose of assessing guilt and punishment, could discourage persons from providing accident information, thereby adversely affecting flight safety; Recognizing that under certain circumstances, including acts of sabotage and willful or particularly egregious reckless conduct, criminal investigations and prosecutions may be appropriate; Concerned with the growing trend to criminalize acts and omissions of parties involved in aviation accidents and incidents;

33. Joint Resolution Regarding Criminalization of Aviation Accidents Noting that: a. law enforcement authorities in the September 29, 2006 mid-air collision between an Embraer Legacy 600 executive jet and a Gol Linhas Aéreas Intelligentes B-737-800 have opened a criminal investigation….. b the French Supreme Court on September 20, 2006 rejected a request to dismiss charges in the July 2000 Air France Concorde crash……….. c. a French court is expected to issue its verdict soon in the 1992 Air-Inter crash………….. d. Swiss prosecutors in August 2006 charged eight Swiss Skyguide air traffic controllers with negligent homicide…….

34. e. the Swiss Federal Prosecutor’s Office has an ongoing criminal investigation for negligent manslaughter of the former chief executive of Swiss International Airlines… f. an Italian court on July 7, 2006 affirmed the convictions for manslaughter of five aviation officials……… g. an ongoing Greek quasi-judicial investigation exists of the 2005 Helios B-737-300 crash near Athens…….. h. U.S. federal and Florida state prosecutors brought criminal charges, including 220 counts of murder and manslaughter, against a maintenance company, several mechanics, and a maintenance manager arising out of the 1996 ValuJet flight 592 crash………… f. Greek prosecutors brought negligent manslaughter, negligent bodily injury, and disrupting the safety of air services charges against the captain and first officer………

35. Joint Resolution Regarding Criminalization of Aviation Accidents Recognizingthat the sole purpose of protecting safety information from inappropriate use is to ensure its continued availability to take proper and timely preventative actions and to improve aviation safety; Consideringthat numerous incentives, including disciplinary, civil, and administrative penalties, already exist to prevent and deter accidents without the threat of criminal sanctions;Being mindfulthat a predominant risk of criminalization of aviation accidents is the refusal of witnesses to cooperate with investigations, as individuals invoke rights to protect themselves from criminal prosecution, and choose not to freely admit mistakes in the spirit of ICAO Annex 13 for the purpose of preventing recurrence;

36. Joint Resolution Regarding Criminalization of Aviation Accidents Consideringthat the vast majority of aviation accidents result from inadvertent, and often multiple, human errors; Being convincedthat criminal investigations and prosecutions in the wake of aviation accidents can interfere with the efficient and effective investigation of accidents and prevent the timely and accurate determination of probable cause and issuance of recommendations to prevent recurrence;

37. Joint Resolution Regarding Criminalization of Aviation Accidents BE IT THEREFORE RESOLVED, that the below organizations:1. Declare that the paramount consideration in an aviation accident investigation should be to determine the probable cause of and contributing factors in the accident, not to punish criminally flight crews, maintenance employees, airline or manufacturer management executives, regulatory officials, or air traffic controllers….. 2. Declare that, absent acts of sabotage and willful or particularly egregious reckless misconduct (including misuse of alcohol or substance abuse), criminalization of aviation accidents is not an effective deterrent or in the public interest……………..

38. Joint Resolution Regarding Criminalization of Aviation Accidents 3. Urge States to exercise far greater restraint and adopt stricter guidelines before officials initiate criminal investigations or bring criminal prosecutions in the wake of aviation disasters………. 4. Urge States to safeguard the safety investigation report and probable cause/contributing factor conclusions from premature disclosure………… 5. Urge National aviation and accident investigating authorities to: (i) assert strong control over accident investigations, free from undue interference from law enforcement authorities………….. DATED: October 17, 2006

39. William Voss, President and CEO Flight Safety Foundation ___________________________________ Alexander ter Kuile, Secretary General Civil Air Navigation Services Organisation Jean-Claude Bück, President Académie Nationale de l’ Air et de l’ Espace Keith Mans, Chief ExecutiveRoyal Aeronautical Society

41. Hull Loss Accidents Western Built Commercial Jets (>60,000 lbs) 1960 thru 2005 Hull Loss Rate in losses per million departures Source: Boeing, AvSoft

42. Hull Loss Accidents Western Built Commercial Jets (>60,000 lbs) 1960 thru 2005 Lives Saved !! Hull Loss Rate in losses per million departures Source: Boeing, AvSoft

43. Safety Information Less More Criminalization

45. The Public Interest Safety The Law

46. FSF Goal: Make Aviation Safer by Reducing the Risk of an Accident