Does criminalization of the operator prevent an accident from happening again?

Choose an accident where there was a prosecution that followed. It does not necessarily have to be an aviation accident. Describe the legal system that followed and discuss whether you believe the verdict was correct.
Does criminalization of one person (for instance the Captain of an aircraft) prevent the accident from happening again.

Your essay needs to be 2000 – 3000 words long and have an:

  • Abstract  (Should be approximately 150 - 200 words in length and reflect the whole of the essay including the results.)
  • Introduction (Approx 100 words. Describe what you are going to say in the essay, how you will say it and what you intend the reader to know from the essay.)
  • Body of essay (For this assignment I would recommend splitting the essay into 3 parts.)
  • Discussion/Conclusion (Sum up what you have said in the essay and give your opinion at this stage of who you think was to blame for the accident and whether or not blaming the pilot (criminalisation of the pilot) would result in safer flight. About 200 words.)

Level: University

Essay Air Law

Abstract

Contemporary international law provides for various situational contexts, in which air travel is legally regulated by means of the existing form of Aviation Law. As such, this is majorly connected with the associated business and legal concerns, as well air travel and flight issues. Inadvertently, there is some form of laps, between general Aviation Law and Admiralty Law, with almost all cases being considered an aspect of International law. This is due to the nature of current air travel.

While adequate measures, policies, rules and regulations do exist, with respect to jurisdictional authority, this endeavor has not resulted in a zero-rate accident spectre, as exemplified by the 2000 – Air France Concorde accident, amongst others. As such, a core issue of debate/ discussion is whether criminal prosecution (criminalization) should be meted on an individual operator i.e. the affected plane’s Captain, or on the responsible Airline.

The aim of this paper is to look into various pertinent aspects of contemporary Aviation Law, being founded on existing International Law, with effects and, hence, influences being based on various social contexts. As such, legal redress often results in the fault being either pilot’s error or Airline’s responsibility.

Introduction

Air law, pertains to the body of law as constituted by the – International Civil Aviation Organization (ICAO) – which focuses on the pertinent regulations, policies, rules and standards requisite in the Aviation industry. With respect to aviation incidences or accidents, varying debate focuses on whether the criminalization of an individual (plane Captain), is the best possible (viable) solution, or is there a more reasonable avenue through which to pursue justice. The – (2000) Air France Concorde accident – provides a good example, with the case resulting in the American airline being found guilty by extension, and directly, through one of its mechanics. This case, shows how justice is being achieved, by means of criminalizing both an individual (primary causal factor), as well as the airline, as the secondary causal factor.

The 2000 Air France Concorde accident

The Concorde, being touted as the flagship of civil aviation airplane manufacture, with respect to speed, body structure and actual capability, provided an avenue through which faster passenger travel, especially regarding overall distance covered, could be achieved. This is what was informed by the charter flight (4590), which was to fly from the Charles de Gaulle International Airport (Paris, France), to the John F. Kennedy International Airport in New York, the U.S. To be noted is the fact that in 27 years of operations, it is the only fatal accident to have occurred. This was to inadvertently result in the end of Concorde as an airliner, with their planes being grounded subsequently. Unfortunately, all 100 passengers and 9 crew members died, in addition to four people on the ground, with at least one serious injury. The aftermath of this incident, was to necessitate an inquiry and subsequent court case, where various resultant evidence, portrayed a greater degree of fault on the specific plane’s maintenance, as well as the American Airline operator, by way of overall responsibility.

Further investigations provided a new angle, in which the de Gaulle airport was to bear some responsibility due to the fact that an object, lying in the taxiing plane’s path, had been primarily responsible for the resultant accident. Post-accident investigations revealed that amongst the various influencing factors, was the presence of overloading, where the plane was 810 kg over the maximum structural weight accepted. This resulted in the plane’s centre of gravity being excessively imbalanced, thus the possible scenario of fuel transfer (during taxiing) may have resulted in the plane’s number five wing tank overfilling. Further cause of concern, emanated from the lack of the airline’s replacement of the plane’s 12” spacer, which crucially enables the alignment of the plane’s left main landing gear, during its recent maintenance. This was, however, to be later removed from the list of probable cause, with the aforementioned lying object – a Continental Airlines DC-10 lost titanium allow strip – and the maintenance angle being pursued further as the two most probable causes.

As such, French authorities indeed acknowledged the fact that a requisite runway inspection drill, with reference to existent Concorde-takeoff preparations protocol, was not conducted completely, therefore, providing a substantial basis for the accident. Subsequently, during takeoff, the plane ran over this debris, which was lying on the takeoff runway path, cut through one of the tires, rupturing it and propelling shredded rubber into one of the tanks. This caused the ignition of fuel through sparks emitted, resulting in flames burning out of its engine from takeoff till its disastrous end minutes later. Though the flight engineer onboard tried to shut down engine two as a response to fire warnings, the plane’s takeoff speed, as well as the remaining 2km runway, was exceedingly little and made it difficult for the Captain’s attempt, as it required at least 3km of runway, to safely abort the takeoff (Gammell, 2010).

A Justice/ Legal System Follow-up: The Aftermath

Being the only 100% fatal incident to take place, within the entity’s 27-years history of plying the international flight paths, this incident elicited a huge debate, primarily so due to its nature. The resultant grounding of these planes, showcased the seriousness of the situation, the clean (prior) record with regard to accidents/ deaths per distance travelled, notwithstanding. The case that followed was to make crucial findings, in which various conclusions were drawn upon. As such, findings led to the conclusion that the overloading of the plane, by 810kg above the structural maximum weight crucial for takeoff, had insignificant effect on the specific plane’s takeoff performance. The aircraft was not only worthy, but its crew qualified. Its landing gear, though showcasing problems with reference to smooth retraction as a result of the incident had in the previous path, not showcased any serious problems.

While the airline’s crew were both trained and certified for proper plane control and flight management, the simultaneous runway failure of the affected plane’s two engines, was unforeseen/ considered highly unlikely, hence the lack of an effective exit plan. Though the captain and crew present had attempted at aborting safely, the speed of the plane’s takeoff had resulted in a high-speed excursion, with the landing gear’s collapse being a fundamental causal factor of the crash. Additionally, the fact that while two of the plane’s engines had problems, necessitating the shutdown of one of them, the plane’s structural damage, being severely compromised, would have inevitably led to the crash, even as the specialists portend, in case of the engines’ normal operation. The presence of the metal object, emanating from the Continental Airlines DC-10 – thrust reverser cowl door (of engine no. 3) – on the runway, was the most likely cause of the accident.

The lack of initiating a complete runway pre-takeoff safety measures, as prescribed with the presence of Concord takeoffs, the strip having fallen off, was found to have been neither installed, nor manufactured in accordance with manufacturer prescribed/ defined procedural measures. This provided for a case example of negligence, as well as the utility of sub-standard parts, which inadvertently had resulted in the aforementioned fatalities, as well as potentially endangering the overall safety and wellbeing of the affected Continental Airlines DC-10. While the case did result in the aforementioned findings, it is the manner in which resultant sentencing took place that was a cause for concern among various stakeholders present. The American airline, in addition to the responsible mechanic, was found guilty of criminal negligence, by a French Court, with criticism showcasing a biased inclination towards protecting French interests (Husak, 2008).

A fine of 200,000 Euros was placed, , with John Taylor, the responsible mechanic being fined for 2,000 Euros, in addition to serving a suspended 15-month prison sentence. Three other French officials, linked to the staff working in the de Gaulle Airport, were acquitted, in addition to Taylor’s supervisor (retired). The ruling was to confirm the belief, as held by investigators, of the debris’ core effect on the plane’s fateful flight that day. There was a form of duality, with respect to the ruling, as the French Aviation College concluded the fateful crash was as such unforeseeable, while on the other hand, a judicial inquiry was to find the Concord’s fuel tanks leaking, with reference to sufficient protection from continuous forceful shock. It further portended to the fact that the airline manufacturer had known of this weakness for over 2 decades.

Though most of the victims’ families and relations were later compensated, pundits familiar with Aviation Law, allude to the trial and ruling apportioning (focusing on the aspect of) responsibility, rather than on financial compensation. It, hence, espouses the necessity of seeking and gaining justice for any wrongdoing, with reference to Aviation Law, and general international law at large.

Individual Criminalization: Level of Effect

With reference to the aforementioned 2000 Concord Crash, the trial’s resultant findings and sentencing, as such, did receive varying response, as well as eliciting great debate. Some believed that it ultimately protected French interests, while others viewed it as not being equal to the damage experienced. While in this case there was judgment and sentencing on the part of American Airline and one of its staff members, the pilot and airplane crew were as such deceased and, therefore, could not be held accountable. Furtherance was the fact that they had tried their best, under the circumstances, to avert a disaster and safely abort their intended takeoff. In this instance, there was no aspect of – pilot error – and thus, one cannot be able to conclusively say if such an aspect would result in enhanced safety (Thomas, 2002).

As Sidney Dekker (2011) alludes, there are various social causes, as well as inherent organizational and psychological consequences, with the criminalization of human error, especially with reference to the fields of healthcare and aviation. As such, there is an increase in the general prevalence of criminal prosecution, this being viewed as a threat to the aforementioned two sectors, especially with regard to the safety and health of not only pertinent employees, but also the entities’ entire safety. Though various initiatives doe exist, with the aim of mitigating or countering this trend, these are localized mechanisms, which are often prone to errors of misjudgment as a result of their haphazard nature. To be noted is that both societal intolerance and risk consciousness does fundamentally affect the overall form of judgment meted out in case scenarios such as the above (Dekker, 2011).

This is well documented, with the debate showcasing a general bias towards protecting French interests as aforementioned. Furtherance is the aspect of both incident reporting and disclosure, which inadvertently negatively affect a given entity’s name (brand), as well as social standing, with respect to both the existing customer-base, as well as potential clients. In the case of the aforementioned tragedy, the resultant effect was disastrous, due to the fact that though the existing Concorde fleet had conducted various trans-continental supersonic flights, throughout its 27-years history, this one incident – of 100% fatality, had the influence and effect of grounding all other airplanes of the same make. He additionally provides for a greater debate, as to the effects and resultant psychological consequences of the criminalization of human error, with evaluation being in terms of concerned employees’ lack of wellbeing (Dekker, 2011).

There is, thus, a growing prevalence rate, in regard to the criminalization of an affected entity’s employees, with reference to the occurrence of professional mistakes made. As such, these seem to be at a crossroads between sociology, work safety and criminology, in addition to both social and legal justice. There is a greater debate on why the criminalization of individuals, based on their professional mistakes, seems to be on the increase. In many instances, pilots are at the receiving end of these somewhat biased ideals, with Italy providing a perfect example, having special criminal category of air disaster causation. As a result, two airline pilots were sentenced recently, to a decade in prison each for a crash that caused the fatality of 19 people, as well as the injury of many more passengers.

By exploring how social contexts influence group’s or populations’ desired ends (i.e. the greater achievement of safety and optimal performance, as well as the prevention of accidents), to existing institutional and morel regulations, he provides various case scenarios, where such regulation of required and permissible behavior does influence resultant judgment, with the basis being rooted in such ideals. Hence, existing social contexts do provide a guide as to the legality or not, of various actions, with doubts being raised, regarding the fairness of criminalizing various errors made while on professional duty, even when no criminal intent is present (Thomas, 2007).

Discussion/Conclusion

In conclusion, I would personally say that though various studies showcase a growing attitude towards the criminalization of individuals, based on the occurrence of professional errors, even in instances where no intent of criminality is present, there is a greater need to understand a debate on whether such criminalization bears positive fruits. Questions need to be raised with regard to whether such criminalization results in increased flight safety, or as such, is but a means of various entities absolving themselves from such disaster-responsibility by way of having a scapegoat.

Though a firm believer in justice for all, I adhere to the view that this is best achieved by having all parties involved, even minutely associated with such a disaster, be answerable to a court of law, and justice meted out accordingly. The criminalization of one individual, according to my view, does ensure some sort of aviation safety, due to greater observance of pertinent rules and regulations, but as such, there is a need for a greater involvement of all pertinent stakeholders, with reference to an affected entity, as aforementioned.

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