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Emergency Response: “We Had Employees on the Airplane!”

Checklist: Part III

Every aircraft operator, whether you’re an airline, a charter operator or a company using a bizjet to carry your employees, confronts the prospect of an incident or accident.  One of the certainties of any such event is that your employees, in some way, are going to be involved.  Whether they are the flight crew, cabin crew, deadheading employees or passengers, the considerations associated with how your deal with them and/or the families following the event have a number of unique aspects.

The most important consideration is having an emergency plan which addresses the unique aspects related to dealing with employees following an incident/accident.

As with all emergency response procedures, impementation of the checklist items should begin as quickly as possible upon learning of an event.

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Emergency Response: “We Had Employees on the Airplane!”

EMERGENCY PREPAREDNESS: “UNFORGIVABLE, MURDEROUS ACTS”

With those words, the President of South Korea announced that prosecutors would be deciding in the next several days whether to issue arrest warrants for two first mates, one second mate and a chief engineer who were aboard the ferry Sewol when it capsized and sank off South Korea’s south-west coast killing as many as 300 people, most of them teenagers on a school trip.  The ship’s captain and two other officers already have been arrested.  Meanwhile, the manslaughter trial of Francesco Schettino continues in Italy for the deaths of 32 passengers on the Costa Concordia when it ran aground.

It’s easy to look at these accidents and say, well, those are different, they involve ships and maritime law.  That, however, is a distinction without a difference, particularly when an accident occurs overseas, and the highest levels of government make themselves the public face of an accident investigation.  One need look no further than the numerous press conferences called by Malaysian Prime Minister Najib Razak in the disappearance of MH Flight 370 to see how quickly an accident can become a political crisis, with the fate of the government hanging in the balance.

While criminal investigations arising out of aviation accidents in the United States are not unheard of, those investigations are rare, typically take time to gear up, and are secondary to the ongoing accident investigation.  As the sinking of the Sewol shows, when an accident happens overseas, particularly one that takes on the aura of a national tragedy, the criminal process can begin almost immediately, with arrests of crew members occurring while rescue operations are still underway.

In many foreign countries, the government has the legal tools to pursue criminal charges under circumstances that an American operator might find surprising.  For example, the South Korean Aviation Act,  Amended Act No. 9071, Mar. 28, 2008 provides:

Article 160 (Criminal penalty – Causing danger by negligence in flight)

(1) Any person who damages or destroys by negligence an aircraft, aerodrome, airport facilities or navigation aids, or causes any danger in aviation by other ways, or crashes or overthrows an aircraft in flight, shall be punished by imprisonment with or without prison labor for not more than one year, or by a fine not exceeding twenty million won. Amended by Act No. 4647, Dec. 27, 1993; Act No. 5794, Feb. 5, 1999.

(2) If a person commits the offense as referred to paragraph (1) by any malpractice or severe negligence, he shall be punished by imprisonment with or without prison labor for not more than three years, or by a fine not exceeding fifty million won.

 The statute provides for possible prison time, even in cases of simple negligence, with gross negligence permitting sentences of three years “with prison labor.”

The time to start thinking about these issues is not in the immediate aftermath of an accident, when you are going to be pulled in a million different directions at once and just trying to keep up with unfolding events.  Plans need to be developed now so that they can be set in motion at a moment’s notice.

Every airline operating regularly overseas should have a plan for how to deal with potential criminal issues in the immediate aftermath of an accident.  These should include contacts at consulates and embassies who can assist in criminal matters, obtaining a list of local criminal lawyers who have the expertise to handle criminal accident investigations and prosecutions, as well as plans to secure the flight crew to avoid exposing them to unnecessary risks after an accident.

EMERGENCY PREPAREDNESS: “UNFORGIVABLE, MURDEROUS ACTS”

Accidents In A Foreign Country: A Checklist: Part II

As the events involving MH 370 continue to unfold, we have all heard about the investigation protocols/procedures which are involved when an accident occurs in a foreign country.  Some of the media coverage has mentioned the International Civil Aviation Organization (ICAO) and Annex 13.

When an accident occurs in a foreign country, ICAO Annex 13 becomes the controlling document which guides the entire investigation.

This checklist addresses items which are unique to accidents which occur in a foreign country.  For a complete set of checklists and other information necessary in the event of an incident/accident, download our Emergency Response Mobile App at www.mlaemergencyresponse.com

In General

  • The International Civil Aviation Organization (“ICAO”) is the United Nations civil aviation agency that sets international standards and regulations necessary for safe, regular, efficient air transport, and serves as the medium for cooperation in all fields of civil aviation among the 187 Contracting States, i.e. country.
  • Article 26 of the Convention on International Civil Aviation states that, in the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its law permits, with ICAO procedures.  (See also 49 C.F.R. 831.2(a)(3)).
  • The State of Registry, the State of the Operator, the State of the aircraft design and the State of the aircraft manufacturer are each entitled to appoint an accredited representative to participate in the accident investigation.  ICAO Annex 13, Section 5.18.  Each accredited representative is entitled to appoint one or more advisors, proposed by the Operator, to assist.  ICAO Annex 13, Section 5.19.
  • When there is an accident involving an international civil aviation flight, Annex.13 of the International Civil Aviation Convention sets forth the rules on notification, investigation, and reporting of the accident.  (See FAA Order 8020.11B, p. 8, ¶ 342 August 16, 2000; FAA Order 8020.11C, pp. 1-8, 7-1).
  • The NTSB and FAA may participate in foreign accident investigations upon request by the State in which the accident occurred.  (See FAA Order 8020.11B, ¶ 340, August 16, 2000; FAA Order 8020.11C, pp. 7-1 – 7-2.
  • The NTSB is responsible for investigating accident/incidents involving civil aircraft that occur outside the United States when the accident/incident is not in the territory of another country (i.e., international waters).  49 C.F.R. § 831.2(a)(1).

Notification

  • If the incident/accident involves a civil aircraft of the United States, notify the local field office of the NTSB “immediately and by the most expeditious means available.”  (See 49 C.F.R. §§ 830.1(a) & 830.5).
  • The notification must include, to the extent then available:  the type, nationality and operator of the aircraft; name of the owner and operator of the aircraft; name of the pilot in command; date and time of the accident; last point of departure and intended point of landing; position of aircraft with reference to some easily defined geographical point; number of persons aboard; number killed, and number seriously injured; nature of the accident, the weather, and extent of damage to the aircraft; and a description of any explosives, radioactive materials and other dangerous articles aboard.  (See 49 C.F.R. § 830.6).
  • Army:               800.626.3317
  • Navy:                800.368.3202
  • Air Force:        800.433.0048
  • Marines:          800.847.1597
  • Notify the Foreign Service Post (U.S. Embassy or Consular Office) for the consular district in which the accident occurs, and the nearest office of the civil aeronautics administration for the country in which the accident occurs.  (See 22 C.F.R. §102.8).  The U.S. State Department is required to notify next of kin of U.S. victims.  (See 22 U.S.C. § 5503).
  • Notify the Managing Director of Overseas Citizen Services, Bureau of Consular Affairs, U.S. Department of State immediately if the operator is a U.S. certificated air carrier or foreign air carrier and the accident flight was to or from the United States – 202.647.1512 (U.S. Dept. of State Operations Center).  (See 14 C.F.R. § 243.11).
  • Notify the Casualty Assistance Office of each respective service if any military or government personnel were aboard the aircraft.
  • Notify U.S. Postal Service if the aircraft was carrying U.S. mail.
  • Notify your Insurance Broker and Underwriters.  Aviation insurance policies typically require immediate notification in the event of an accident.
  • Notify Corporate Security.  Corporate security personnel should be advised of the accident so that security can be ensured at key corporate facilities because the press may seek access to corporate offices and key personnel immediately after an accident.  Security at the “situation room,” accident site, and on-site facilities is especially crucial.
  • Notify Environmental Programs Department. The airline/company environmental programs department should be notified of the accident in order to evaluate for a possible fuel spill or hazardous cargo situation.
  • Notify code share partners.
  • Notify Outside Counsel.  Outside counsel should be notified and advised to stand by as legal questions arise and employee interviews are requested.

Coordinate with Response Team

  • Ensure both investigatory and family assistance teams are in motion.
  • Ensure logistics such as accommodations and transportation for response teams are arranged.
  • Coordinate with the Public Relations Department on initial communications.
  • Coordinate with inside and outside counsel for initial team briefings.

Provide Passenger Manifest to U.S. State Department

  • If  the accident flight was operated by a U.S. or foreign air carrier to or from the United States, the airline must provide a passenger manifest to the U.S. State Department Operations Center “not later than one hour after any such carrier is notified of an aviation disaster or, if not technologically reasonable or feasible within one hour, then as expeditiously as possible but no later than three hours after such notification.  (See 7 FAM §1834.1; 14 C.F.R. § 243.11(b)).

Coordinate with Public Relations and Corporate Communications Department

  • All press releases and statements should be reviewed and approved by legal counsel.

Dispatch Legal Representative to Scene

  • An attorney should be dispatched to the accident site to provide advice on legal issues as they arise.  It is helpful to have someone permanently assigned to the accident investigation and litigation.
  • Coordinate with local legal representation to protect the company/employees in the context of accident investigation, civil litigation and criminal issues.

Provide Representation to Interviewees

  • All persons interviewed should be entitled to legal representation. An airline/company should not allow any employee to be interviewed by investigating personnel without adequate preparation and legal representation.  Outside counsel may be best suited to this task.

Protect/Preserve Aircraft Wreckage. 

  • In a  foreign accident, the State where the accident occurred is responsible for protecting the evidence and maintaining safe custody of the aircraft and its contents for such a period as may be necessary for purposes of the investigation.  (ICAO Annex 13 §  3.2).
  • Protection of evidence will include preservation of  any evidence that may be removed or destroyed.  (ICAO Annex 13 § 3.2).
Accidents In A Foreign Country: A Checklist: Part II

“We Have An Airplane Down”: Dealing With Emergencies-Part I

Note:  This is the first of a continuing series of articles/checklists which will appear in Plane-ly Speaking and address how to effectively deal, on a step by step basis, with an emergency.

It has been said that the very best emergency response plan is only good for the first few hours.  It permits you to make proper notifications, organize your investigation team and set up necessary command centers.

Since every accident is different, after these tasks and others have been accomplished, emergency response becomes, in large measure, reactive.  One area where you must be proactive is the location, gathering, preservation and management of documents, as well as the supplying of documents to accident investigation authorities and others.

The airline must retain “all records, reports, internal documents, and memoranda dealing with the accident or incident, until authorized by the NTSB to the contrary.” (See 49 CFR Section 830.10(d).)

The airline must “forthwith permit inspection, photographing, or copying” of pertinent records by the NTSB.  (See 49 CFR Section 831.9(a).)

The airline should always retain original records.  There is no requirement that original records be given to the NTSB.

Create and maintain a document transmittal log that includes at a minimum; document title or description, date of request, requested by date delivered, person delivered to, number of pages.

Documents that are made available should generally be stamped “Confidential” to ensure that proprietary information is protected.  It is best to err on the side of marking documents confidential since the designation can always be retracted at a later date.

Failure to preserve key documents is not only a violation of federal regulations, but can also be construed as spoliation of evidence in any civil litigation or criminal investigation that may ensue.

Access to the records should be limited to investigation personnel, persons authorized to participate in the investigation and legal representatives of the airline.

The following documents, at a minimum, should be immediately identified and secured:

  • Aircraft Maintenance Records.  All maintenance records for the accident aircraft, including any that are not normally retained, should be immediately impounded and placed under lock and key.  No one, including the NTSB and FAA, should be allowed to take these documents.  The NTSB takes custody of the wreckage and cargo, but the operator is responsible for retaining the records.  (See 49 CFR Section 830.10 (d).)  Do not lost control of these records!
  • Operational and Maintenance Manuals.  All manuals that are updated periodically should be “frozen” in the state of revision that existed on the day of the accident.  These manuals include, but are not limited to, the Flight Operations Manual, Pilot Operating Handbook, Quick Reference Handbook, Aircraft Maintenance Manual, General Maintenance Manual, Flight Attendant’s Manual, etc.  Copies of the frozen manuals should be retained until the investigation and all litigation has ended.
  • Flight Records.  Identify and secure all flight planning and release documents for the accident flight.  (Flight plan, weather briefing, notams, aircraft maintenance history, current deferred items, planned and final weight manifest, ACARS/ARINC communications traffic)
  • Passenger Records.  Passenger tickets and computerized records should be identified and secured.
  • Training Records.  Flight and cabin crew training records should be identified and secured.  Maintenance and dispatch documents should be  secured as well.
  • Personnel Records.  Flight and cabin crew personnel records should be identified and secured.
  • Passenger and Crew List.  A list of passengers and crew on board the accident aircraft should be created and maintained.
  • Company e-mail messages that may be pertinent to the event.
  • Code Share Agreements that apply to the accident flight.
“We Have An Airplane Down”: Dealing With Emergencies-Part I