Home
By DANIEL MICHAELS
Wall Street Journal
As investigators search for clues to the crash of Spanair SA Flight 5022 in Madrid last month, families of the 153 victims demand to know who is to blame. Another critical question: whether that will be determined in civil or criminal court.
For six decades, aviation regulators have sought the causes behind and responsibility for plane accidents. Victims' families have sued for damages with civil suits.
Lately, however, public prosecutors are seeking criminal accountability for mistakes that lead to air disasters, raising a thorny legal and moral question: When does human error become a crime?
"It's a Nobel Prize question, figuring out how to coordinate civil and criminal law enforcement," says Harvard Law School professor David Rosenberg.
While it isn't yet clear whether the Spanair crash will prompt criminal charges, several air accidents in Europe this decade have. One of the latest cases stems from the Air France Concorde crash in 2000 that killed 113 people. (That was before the carrier became Air France-KLM SA.) French prosecutors have charged five people and Continental Airlines Inc. with voluntary manslaughter. Among the defendants are three engineers who designed and certified the supersonic plane more than 30 years earlier. Continental and two of its employees are included because a piece of metal that crash investigators believe dropped from one of its planes is suspected of initiating the crash. All the defendants deny the charges.
National justice systems draw the line between civil and criminal cases differently. The U.S. has a range of civil penalties -- such as fines and punitive damages against individuals and companies -- that don't exist in many European legal codes, says Anthony Sebok, a professor at New York's Benjamin N. Cardozo School of Law.
In general, countries try to set a high bar for pressing criminal charges. The U.S. usually demands evidence of reckless behavior or gross negligence. In the wake of a 2003 Staten Island ferry crash that killed 11 people, for example, federal prosecutors won prison sentences for the captain, who had passed out on painkillers, and his boss, for failing to enforce rules requiring two pilots in the wheelhouse.
"Most courts require much more than ordinary negligence or a slip-up," says Kenneth Simons, a professor at Boston University School of Law. The problem, he says, is to define a "slip-up" in medicine, aviation and other complex fields. American doctors, for various reasons, face the threat of huge financial liability in civil court but rarely face criminal prosecutions.
Few plane crashes are caused by an individual pilot, engineer or mechanic. "You're never going to get rid of human error, so the system needs to be able to deal with human fallibility," says Gerard Forlin, a British barrister who has represented both victims and accused in crash cases. "The consequences of failing to do so are sometimes the criminal responsibility of managements and boards."
Some in aviation are sounding the alarm that the pursuit of punishment could prompt people to hide problems, for fear of being held responsible for them. "There's a fundamental disconnect between how aviation investigators look at an accident and how prosecutors look at one," says David Rimmer, executive vice president at ExcelAire of Ronkonkoma, N.Y. Two ExcelAire pilots have been charged by Brazilian prosecutors following a 2006 midair collision in Brazil that killed 154 people. "Investigators look for causes and ways to avoid repeats, while the goal of law enforcement is to find somebody to blame."
Bill Voss, president of the Flight Safety Foundation, a global nonprofit group in Alexandria, Va., says gross negligence or law-breaking merits criminal investigation but that "overzealous prosecutions threaten to dry up vital sources of information and jeopardize safety."
Prosecutors say the issue is one for the courts to decide and that holding people responsible should ultimately improve safety.
Since the mid-1990s, the aviation industry in most developed countries has followed a "no blame" approach. Confidential reporting systems allow pilots, engineers, managers and others to anonymously flag potential safety concerns without fear of grounding or demotion. A pilot who makes a nonfatal mistake, for example, might get extra training, but could also provide valuable insights that instructors apply to improve their teaching.
Aviation officials say the approach has helped improve air safety. There were 0.03 fatalities per million air passengers carried in North America in 2007, almost 85% fewer than the rate of 0.17 in 1997.
Some safety specialists say the aviation industry's reporting methods could serve as a model for other businesses, ranging from crane operators to nuclear-power generators. American medicine could benefit, too, some say, from less litigation and more transparency.
But criminal conviction has an emotional component, too, offering victims' families both a sense of finality and hope that the forceful finding can help prevent similar disasters. For the past seven years, families of the victims of a 2001 crash at Milan's Linate Airport that killed 118 people had been awaiting a final verdict in a criminal case against officials of Italy's aviation authorities. The convictions came earlier this year. Paolo Pettinaroli, head of a group of victims' families, wrote on the association's Web site: "It is over."
FMI: Wall Street Journal
Comments