What is the protocol on air accidents? How does the black box help? What happens if a country admits there has been a mistake?
On January 8, 2020, a Ukraine International Airlines Boeing 737-800, on a flight from Tehran, Iran to Kiev, Ukraine, a nearly 2,300 km route, fell to the ground after initially climbing to about 8,000 ft. There was no communication from the crew of flight PS752 about unusual conditions. There were no survivors among the 176 passengers and crew. On January 11, Iranian President Hassan Rouhani admitted that internal investigation had concluded that “regrettably missiles fired due to human error caused the horrific crash”. The air accident happened in the backdrop of geopolitical tensions between Iran and the United States.
How far has the investigation progressed?
On January 9, 2020, the Aircraft Accident Investigation Board (AAIB), Civil Aviation Organisation, Islamic Republic of Iran, put out an initial report (State File Number: A981018URPSR) on the “accident”.
It cited witnesses on the ground as well as the crew of overflights reporting an “intensifying fire” on the aircraft before it hit the ground, causing an explosion. It also pointed to crash site track analysis indicating a change in aircraft direction “following a technical problem” and of it returning to the airport.
The AAIB is now in possession of the aircraft’s black boxes, which include the Flight Data Recorder (FDR) and Cockpit Voice Recorder (CVR). While fire and the impact of the accident have damaged both devices, their “memory parts” are in good condition.
Iran has followed investigatory procedures based on Annex 13 to the International Civil Aviation Organisation (ICAO), the UN body. These include putting out relevant news and information, initiating forensic identification, protecting crash site evidence and sending an initial notifications to Ukraine, the U.S., and also to Sweden, Canada and Afghanistan (as countries of the passengers).
What are black box technologies? What is their role in the investigation?
The Ukrainian aircraft, which was delivered in 2016, is a new generation jet equipped with modern avionics.
Black box manufacturing is now a field populated by multiple manufacturers, the more prominent names being Honeywell Aerospace, L3Harris Technologies and Teledyne. Black boxes are multi-channel recording devices, nowadays solid-state, and no longer tape. Tiny chips record hundreds of streams of data on parameters that include aircraft performance (speed, height, rate of climb or descent, flight path, location, fuel levels, engine temperature and exhaust as well as flap positions), the state of other systems and other equipment. Earlier, data had to be recorded on separate devices, but technology is now advanced to have one device cover a range of data recording functions. Regulation is also moving towards an aircraft having two such devices. Together, the data and cockpit recorders (electronic flight data recorders) help understand the ‘what’, ‘how’ and ‘why’ of the event.
A black box must be able to withstand many accident scenarios. According to the German Federal Bureau of Aircraft Accident Investigation, tests include ‘crash tests against concrete at 750 km per hour, withstanding a static load of 2.25 tonnes for at least five minutes, a maximum temperature of 1,100 degrees Celsius for 60 minutes and water pressure at a depth of about 20,000 feet. Modern devices emit signals on contact with salt water (emergency over sea), with a range transmission of 2 km’.
The voice recorder logs almost every sound in the flight deck which includes air traffic control transmissions, crew conversations and even the sounds of switches and engine noise. In newer devices, recording can go up to 120 minutes at a stretch before being overwritten. In modern aircraft, this is automatic.
The data helps experts piece together the cause of an accident or serious incident. Investigators, according to the German bureau, do not have to fully reconstruct a flight. Much of the information needed can be deciphered from the parameters rather than using a flight simulator or animation.
Complete black box analysis can be done only by a few specialised agencies worldwide, especially as there are various models; the West leads in this. Specialised laboratories can pitch in too. The German bureau, for example, can examine western and Russian devices.
Black box analysis can also give rise to controversies. A ‘who best can read them’ situation has often played out in air accidents in developing countries.
In the final analysis, with the impact of some of the more recent air crashes/disappearances, such as Malaysia Airlines flight MH370, in 2014, technology could move in a new direction: of data streaming using cloud-based satellite links and a data centre, cockpit video recorders, or even deployable recorders. The new European Aviation Safety Agency cockpit voice recording mandate, with effect from 2021, requires a 25-hour voice recording capability. All this should help make flying safer and event construction better.
In an air accident investigation, what are the obligations to be followed?
In an email reply to The Hindu, David Learmount, aviation journalist and consulting Editor, FlightGlobal, says accident investigation protocol is that the state in which the accident happened is responsible for seeing that the investigation is carried out according to laid down international rules agreed at ICAO.
So, said Mr. Learmount, Iran is responsible for the investigation, and can exercise control over it. It could contract out specialist tasks, such as downloading the black boxes, to an expert third country such as France — France’s BEA is to take part in the investigation. Normally, the accident investigator of the country that originally certificated the aircraft type (the U.S.) and the manufacturer (Boeing) would be invited to take part.
Pointing out that the aircraft was most likely to have been hit by a missile, Mr. Learmount said, “Mistakes happen.” For example, in 2001, a Siberia Airlines jet, flight 1812, from Tel Aviv to Novosibirsk was shot down by the Ukrainian military carrying out firing practice against target drones.
After Iran formally invited the National Transportation Safety Board (NTSB) and Boeing to be a part of the investigation team, a senior NTSB official, in another email, said a number of challenges would need to be addressed to allow the NTSB to execute its role effectively. These include “long-standing country embargoes that preclude, among other things, exchange of data and travel, hence its close coordination with the State Department and other U.S. Government agencies”.
Nitin Sarin, Managing Partner (and with inputs from Syed Tamjeed Ahmad, Associate), Sarin & Co., a law firm specialising in aviation law in India, said the investigation is according to the standards and recommended practices as laid down in Annex 13 of the Convention on International Civil Aviation (Chicago Convention). Every contracting state is required to make domestic laws in this regard. The most important point is that the purpose of an investigation is not to proportion liability of anyone but to find out the cause that led to the crash and prevent it from happening in the future.
Mr. Sarin added: ‘ICAO puts forth Standard and Recommended Practices, which states are expected to adhere to; they have legal basis for enforcement. Article 26 of the Chicago Convention requires the state (in whose jurisdiction the crash has occurred) to institute an inquiry into the cause. Annex 13 also mandates that if a request is made by: 1) state of operator (in this case Ukraine) 2) state of registration (in cases covered by Article 83 bis agreements) 3) state of manufacturer/design (U.S. in this case) for preserving the evidences pending an inquiry instituted by such states, the state where the crash has occurred “shall” comply with such requests. The state where the accident occurs is required to convey the news of the accident at the earliest to 1) state of operator (Ukraine) 2) state of Registration (in cases covered by Article 83 bis agreements) 3) state of manufacturer/design (U.S.) 4) ICAO.’ Thus, under international law, four states participate in an investigation: state where the crash has occurred; state of the operator; the state of registration; state of the manufacturer. The investigation is led by the state where the accident has taken place. For reasons of sovereignty, the state of occurrence has a right to disallow any state from taking part in the ongoing investigation.
In India, the air accident investigation is governed by the Aircraft (Investigation of Accidents and Incidents) Rules, 2012. The Central government is under an obligation (and has the power) to investigate any accident that happens within the territory of India, and in cases of aircraft registered in India even if the accident occurs outside India. The DGCA can only investigate into incidents, and in cases of serious events, the Central government (through the Aircraft Accident Investigation Bureau) has to step in.
Does ICAO have any authority over a country’s investigation board?
ICAO, said Mr. Sarin, is not directly involved in any aircraft accident investigation. It simply lays down the recommended practices, which states are expected to adhere to. Also, ICAO conducts annual audits of states and publishes its report. Thus, if a state has not adhered to ICAO’s recommended practices it gets bad publicity.
States (where the accident has occurred) have a right to disallow any state from taking part in an ongoing investigation. Thus, the state (where the accident has occurred) can conduct the investigation (including decoding of the black box) independently and this would not render the investigation invalid, provided ICAO’s recommendations are followed. It must be noted that only a few countries, mainly the U.S., the United Kingdom and France possess the proper technology to decode black boxes.
ICAO also releases various updates concerning the safety aspect of aviation, which includes updates on black box technology. Annex 13 requires that the state, which is leading the investigation, should use the black box for the purpose of investigation, according to Mr. Sarin. If it lacks the technological infrastructure required, it should take the assistance of states that are equipped to deal with it.
How is the recreation of the sequence of the crash done? Where does the engine manufacturer fit in?
The recreation of events that led to the crash is done by the investigators and no law requires the recreation to be done at any particular phase of the investigation, said Mr. Sarin. It can be done at any time, whenever the investigators deem fit. On the involvement of the engine manufacturer/s, they have the right to be “apprised” of the outcome of the investigation. But their involvement is at the sole discretion of the state (where the accident has occurred).
On the subject of compensation to passengers and their families, what are the procedures? How do they work in the case of a) it being an accident b) an act of hostility c) an unknown situation. Is there a standard model for compensation? What about additional compensation?
Compensation is governed by various factors. For example, if the flight was on a domestic route. The local consumer laws (many countries have dedicated legislation for compensation in cases of air accidents) shall apply, said Mr. Sarin. But if the flight was operating on an international route, then the compensation shall be governed either by the Montreal Convention or the Warsaw Convention (it depends whether the state of origin and the state of destination have ratified the same conventions or not). But even these conventions just serve as guidance because in many cases (especially in the U.S.) courts often grant exemplary compensations. Further, in most cases involving fatal accidents (the cause of crash does not matter), the operators themselves award compensation based on the latest international (Montreal) convention.
To what extent does an airline’s insurance policies cover eventualities? What is the role of the government of the country the airline belongs to? Does it vary if it is a private airline and a national government flag carrier?
In essence, said Mr. Sarin, it is indeed the insurers of the airline that take care of the compensation part (substantial) and they prefer to pay the amount amicably without involving any litigation. Since in litigation, there are chances that the court may award exemplary compensation and not forget the negative public relations that follows it. It does not matter whether it is a government airline or a private airline. In case of a fatal crash, the government would always want the airline to pay the compensation.
Is there a specific time frame for accident investigation submission?
A preliminary report has to be sent within 30 days of the accident, according to Mr. Sarin. The final report should be submitted preferably within a year, although the time required to complete an investigation can vary depending upon the complexities involved (both technological and geopolitical) in the investigations.
In an accident, is there a separation in terms of the liabilities for the aircraft manufacturer and engine manufacturer?
The liability of an aircraft manufacturer or engine manufacturer can only arise if it is proved that the crash occurred due to the negligence of the manufacturer, said Mr. Sarin. For example, in the recent two crashes involving the Boeing 737MAX (Lion Air of Indonesia in October 2018, and Ethiopian Airlines in March 2019), various inquiries have established that the crashes can be attributed to the faulty design and sensor on the plane, which was installed by the manufacturer, Boeing. Thus, in such a scenario the manufacturer will be held liable. Further, it needs to be highlighted that in aviation, the manufacturers have a “continuous duty to warn” their clients i.e. till the time the aircraft is in service, the manufacturer has a duty to inform the operator about any impending/imminent operational danger and failure to do so shall be attributed as a negligent behaviour on the part of the manufacturer.
Is there any difference if an aircraft is company owned, wet leased, dry leased?
Yes, said Mr. Sarin. There exists a difference in liability if an aircraft is wet-leased. In general, the lessor “should” not be held liable for a crash but in cases of a wet lease, because the lessor maintains operational control over the aircraft, the lessor will be held liable. Moreover, even in general (dry) leases, a lessor can be held liable (for lack of oversight) if the cause of the accident was improper maintenance of aircraft by the operator. But in general terms, the lessors (dry lease) should not be held liable, although there have been cases where lessors have been held liable (example: 2011 judgment of Florida Supreme Court (U.S.) in Vreeland vs. Ferrer). In case the aircraft is owned by the operator then there is no question of ambiguity over the liability.
An act of war, said Mr. Sarin, such as a missile attack, is clearly a mistake and throws up an interesting point of law, i.e. responsibility of the state, as there is an obligation to not perform any act of aggression against a civilian aircraft.
Can a civilian aircraft be brought down by a state?
According to Mr. Sarin, it is never easy for a state to order this. The “law” over this point is not very clear. An amendment in the Chicago convention (many countries including India have not ratified this amendment), provides that states should refrain from exercising the use of weapons against civilian aircraft. But while suggesting that states should refrain from such acts, it does not make the act illegal, provided the state had reasonable reasons to believe that the aircraft was on a destructive path. Legal scholars converge on the point that a state can shoot down an airliner if: 1) it has reason to believe that the aircraft is being used for terror 2) the aircraft is not responding to any other means of interception 3) it is headed towards a strategically important or a populated place. In most cases, if it emerges that the airliner was wrongly judged, the state that took it down makes an ex-gratia compensation to families. For example in the 2001 Siberia Airlines case, after investigations showed Ukraine’s involvement, Ukraine and Israel signed an agreement where the family members of the Israeli citizens were awarded $200,000 each. In 1988, when the U.S. Navy shot down an Iran Air flight (Flight 655), the U.S. was insistent that there was no improper use of force, and thus, it did not have a duty to compensate. It did so later on humanitarian grounds. In all these cases, the states (that shot down) have always pleaded that they had exhausted all other practical means of stopping the intrusion by the aircraft.
The latest in this was the case of Malaysia Airlines flight MH17, which was shot down over Ukraine in 2014 using a complex BUK missile system, by suspected rebels supported by Russia — although Russia had denied any such involvement. Last year, four international arrest warrants were issued by a court in the Netherlands against the suspects. Thus, in cases where it is found that the airliner was shot down by a state even when it knew that there was no reasonable apprehension of any terror act, the culprit state can be taken to the International Court of Justice.
Source: The Hindu
Relevant for GS Prelims & Mains Paper II; IOBR