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When a Tragedy Becomes a Crime: Prosecutors Probe Air Disasters

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.

Aircraft Life Limits are in Our Future

The FAA plans to issue a new rule that would require airframe manufacturers to establish a life-limit for each airframe, based on the “limit of validity” of the engineering data that supports the original maintenance program. A purpose of this exercise is to prevent widespread fatigue damage in aging aircraft, and airframe manufacturers will be required to identify maintenance actions necessary to prevent widespread fatigue damage before the airplane reaches its life-limit.

This rulemaking would require operators of any affected airplane to incorporate the life-limit into the airworthiness limitations section of the aircraft’s instructions for continued airworthiness. In order to operate an affected airplane beyond the life-limit, the operator would need to develop an FAA-approved maintenance program designed to prevent widespread fatigue damage.

The official deadline for publication of this Final Rule is July.

FAA Releases New 8130-3 Tag Guidance

The FAA has released the eagerly-awaited revision to its instructions for completing the 8130-3 tag: Download order_8130_21f_053008.pdf

. The instructions deactivate block nine by requiring persons completing the form to insert “N/A” into this block in all cases. The revision also includes significant new instructions for establishing an electronic data system that will permit the exchange of electronic airworthiness authorization information. Dated May 30, the new guidance can also be found on the FAA’s Regulatory and Guidance website.

FAA to Provide Guidance on Parts Substitution for Vintage Aircraft

For many vintage aircraft, original parts are no longer available as replacements. In order to keep those aircraft flying, it is often necessary to use replacement parts that may not have been originally designed for such use. The installer remains responsible for the airworthiness of the installation under Part 43, but the FAA has historically provided little guidance on how to meet that responsibility.

Mechanics working with vintage aircraft will soon have better guidance on the parts and material substitution process, thanks to a proposed Advisory Circular on the subject. That AC is currently open for comment.

The draft AC provides guidance for substantiating parts or materials substitutions to maintain the safety of old or out of production general aviation airplanes. It also provides guidance about the data required to gain FAA approval for making these substitutions.

Because of the scope of the information contained in the draft, it is important that anyone involved in maintaining vintage aircraft review the draft in order to offer suggestions about how to improve the final product.

Comments should be emailed to Mark James by August 13, 2008.

Electronic Display Installation in Small Aircraft

The FAA has released for comment a draft revision to the Advisory Circular on the installation of electronic displays in Part 23 aircraft. The draft AC is available online for review. Any mechanic working on Part 23 aircraft installations should examine the proposal to make sure it seems reasonable.

Comments are due by August 15, 2008, and may be emailed to Ervin Dvorak .

FAA Modifies AC Governing Fabrication During Maintenance

FAA Advisory Circular 43-18A, concerning the fabrication of parts during maintenance, includes several changes worth noting.

The most important of these changes is the inclusion of a Category Parts List (CPL). The CPL provides guidance about which of three levels of criticality apply to a particular part that might be fabricated. Although the list is not complete, it provides guidance about the FAA’s perception of which parts are more critical than others. Parts that are more critical (Category One) are distinguished from those considered less critical (Category Two). No Category Three parts are described in the table (parts whose failure would have no effect on the continued safe flight and landing of the aircraft).

The new revision also better defines when a part is considered to be consumed during maintenance or alteration (remember, if it is not consumed in this fashion, then fabrication may require a PMA). Under the new guidance, a fabricated part is considered consumed in a repair when it is installed into the next higher assembly component part, or within a product by the fabricator, while undergoing maintenance or an alteration.

U.S. Labor Department's OSHA cites United Airlines at O'Hare International Airport for numerous workplace safety violations

Federal action proposes $215,500 in penalties
CHICAGO -- The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has proposed $215,500 in fines against United Airlines Inc. in Chicago for alleged multiple serious and repeat violations of federal workplace safety standards.

OSHA selected United Airlines for inspection after reviewing occupational injury and illness data, which included ramp services, customer service areas, air freight, aircraft and ground equipment maintenance, building/facility maintenance, business operations, strategic procurement, medical facilities and flight attendant operations. As a result of its inspection, OSHA issued 43 serious violations and four repeat violations.

The serious violations address hazards associated with fall protection, hazardous energy control procedures and training, storage of oxygen and fuel-gas cylinders, platform load ratings and electrical hazards. The four repeat violations, based on citations issued and affirmed in 2006 and 2007, cover machine guarding and electrical issues. Proposed penalties for the repeat violations alone total $57,500.

"Falls, electrical hazards and machine guarding issues, as well as energy lockout/tagout procedures, which are intended to prevent accidental start-up of machinery during maintenance, are problems that should not exist at any worksite," said Diane Turek, director of OSHA's Chicago North Area Office in Des Plaines, Ill. "They are problems that can be avoided if an employer is dedicated to protecting employees. Employers must remain dedicated to keeping the workplace safe and healthful, or face close scrutiny by this agency."

Since 2004, OSHA has inspected United Airlines 22 times at various locations nationwide. United Airlines operations at O'Hare International Airport have been inspected eight times since 2000 with only three of those inspections resulting in citations.

FMI: OSHA

ATSB urges review of accident procedures - Hazards of Composites cited

Emergency services need to review procedures for dealing with crashes of aircraft made from the new generation of composites, Australia's national transport safety watchdog has warned.

In a report released on Monday, the Australian Transport Safety Bureau (ATSB) said these materials could pose long-term and even fatal health hazards if not handled correctly.

It said fire, ambulance and other emergency services needed to have the correct equipment and their members had to be trained in the proper response methods and be aware of the risks unique to accidents involving aircraft with composite materials.

"It would be timely for first responders to review their aircraft emergency and hazardous material handling guidelines, and training in handling fibre composite debris for a number of reasons," it said.

"Fibre composite materials are heavily used in general aviation and amateur-built aircraft, which are the most common aircraft accidents that state emergency services respond to.

"Fibre composite usage in airliners will continue to increase in the next decade, especially with the introduction of the Boeing 787 Dreamliner."

PAMA Chapter Leader Seeks Support for Changes to FARs

While Brian Finnegan and I were working on changing the A&P Inspection Authorization from one year to two years (back in 2005), we came up with many other ideas on items we thought should also be addressed. These Items were listed in the White Paper submitted by Bill O'Brien that was passed around throughout PAMA and the aviation maintenance community.

I still feel strongly that these items should be fixed.

As I have been told in the past, and no one know better than me, “All it takes is a letter to get something done in Washington.” So I have sent another letter to the FAA outlining the changes to the Federal Aviation Regulations many of us would like to see implemented. Please read the petition letter and let me know, by commenting here, what you think about the changes I have suggested.

Michael Harkins A&P IA
Director of Maintenance
President "First State" Chapter - PAMA

Download part_43_65_white_paper_072105.doc

Download harkins_letter_to_change_fars_052008.doc