Dec. 4, 2002

REPORT WARNS OF CRIMINALIZING AVIATION ACCIDENTS

DALLAS (SMU) - Civil authorities investigate aviation accidents, but more and more accidents are now the focus of criminal investigations, according to a new report by the Select Committee on Aviation Public Policy for the National Transportation Safety Bar Association. The report warns that parallel investigations could hamper safety and cites a "climate of fear" enveloping NTSB and Federal Aviation Administration investigations.

"Aviation Professionals and the Threat of Criminal Liability - How Do We Maximize Safety?" is slated to appear in the next issue of the Journal of Air Law and Commerce, published by Southern Methodist University's Dedman School of Law. It says criminal investigations are being initiated against aviation professionals for acts and omissions that before were treated as civil infractions. It documents an increase in investigations by federal, state and local prosecutors and the impact these investigations are having on safety.

Seventy-five percent of all aircraft accidents in the United States involve some form of human error. The report says criminal investigations, therefore, have the potential to hinder aviation safety since pilots and other aviation-related employees will fear that routine business decisions will become the basis for criminal prosecutions. A trend toward criminalization also may affect FAA and industry efforts to advance safety by voluntary information sharing.

Among some of the reports major findings:

• Increased criminal prosecutions come not only from federal prosecutors, but also from state and local prosecutors as well. The report cites more than 10 instances where in highly publicized accidents, criminal investigations were being conducted at the same time the NTSB was trying to determine the cause of the accidents. The delays caused by these prosecution investigations have restrained the NTSB's ability to make timely determinations of probable cause and issue safety recommendations.
• In the wake of sensational air disasters, the slow, deliberate pace of NTSB investigations may not always satisfy public pressure for action. The report cites instances where intense media attention have spurred local law enforcement to investigate the potential for criminal activity, where there was none, and for overzealous local prosecutors to use the public limelight in attempt to overshadow the FAA and NTSB investigations.
• Current FAA regulations over industry document-keeping practices expose both the management and front-line workers in aviation-related businesses to criminal prosecutions and could lead to police investigations of the entire federal aviation regulatory scheme.
• Complicating the increase in criminal prosecutions of aviation accidents is the problem of concurrent jurisdiction. Congress has designated the task of investigating aircraft accidents to the NTSB, but the FAA and the FBI may also investigate an accident. In addition, 35 states have statutes that would allow them to investigate criminal violations of aircraft maintenance and use, and there is no blanket federal preemption that would prevent many states from conducting criminal investigations where applicable.

Except in cases where there are clear signs of criminal or terrorist activities, the report recommends aviation safety should be the paramount consideration after any accident, and determining the cause of the accident should be the primary focus of every investigation.

Tony B. Jobe, president of the NTSB Bar Association, said they are proud of the work of its Select Committee on Aviation Public Policy in producing the only known law review article that provides such an in-depth analysis of criminalization issues in aviation.

"There is serious concern when, throughout the aviation industry, an aircraft accident becomes a criminal proceeding," Jobe said. "We felt the entire national air transportation industry would benefit from a thorough and rigorous analysis of this topic, that to some is alarming and to others is necessary. We are proud of this white paper study which will undoubtedly be useful in making future public policy."

The report concludes with 15 recommendations for public policymakers that could reconcile the competing interests of criminal and civil administrative law. Among these are stricter guidelines for initiating criminal investigations and prosecutions, legal protections for witnesses in accident investigations, recognizing the supremacy of the federal role in accident investigations and protecting all voluntary reporting cooperative programs between the FAA and the aviation industry.

The Journal of Air Law and Commerce was first published in 1930 at Northwestern University and then moved to SMU in 1961. The journal is the oldest scholarly periodical in the English language devoted to the legal and economic problems affecting aviation and space and has a worldwide circulation of more than 2,000 readers in 60 countries. The 37th annual Air Law Symposium is scheduled for Feb. 27-28 at the Hotel Intercontinental in Addison, Texas. For more information about the symposium, call 214-768-2570 or at kdlawren@mail.smu.edu.