Ethiopia’s Black Boxes Arrive in France, Will Criminal Probe Be Next?

March 14, 2019 / Share your comments...

They might not have thought it possible for the situation to get worse, but the decision of the Ethiopians to send the black boxes from Flight 302 in Paris may give Boeing yet another thing to worry about; the possibility that the planemaker could become the subject of a criminal investigation by the French.

In a number of countries, air accident investigations pursue a dual track; both air safety and criminal liability. This is the case in France.

Following the fatal crash of Air France’s Concorde in Paris in July 2000, the government prosecuted Continental Airlines (now United) and two airline employees charging them with involuntary manslaughter. The fiery crash that killed 113 including 4 on the ground, was attributed in part to a piece of metal on the runway hitting the underside of the supersonic jet after falling off of the Continental flight that had departed earlier. In that case, however, the accident occurred in France. French authorities conducted both the criminal and air safety investigations.

In the Ethiopian Airlines accident, the Bureau of Accident Investigations (BEA) has only been tasked with processing the flight data and cockpit recorders, since Ethiopia does not have a suitable lab.  Still, it is worth noting that in 2015, a piece of wreckage from Malaysia 370 washed ashore on Reunion Island, a French island in the Indian Ocean.  The government took custody of the debris, examined it and launched its own probe into the cause of the plane’s mysterious disappearance. That investigation is reportedly still underway. The French explained its foray into the Malaysia case by telling Le Parisien newspaper, that “since four French passengers were on the flight, it had the right to conduct its own investigation.”

“French law establishes broad jurisdiction to hear cases arising out of aviation disasters” according to a report in the Journal of Air and Law Commerce. “French criminal procedure allows any individual harmed by an offense to file a complaint asking a criminal prosecutor to investigate the crash.” Nine French citizens were among the dead in Ethiopia.

In the past that allowed the prosecution of various aviation executives including – in a case somewhat parallel to the 737 Max- a case brought against the famed creator of fly-by-wire cockpit for Airbus, Bernard Ziegler. He was indicted for his role in the design of the A320 cockpit after an Inter Air accident that killed 87 people in Strasbourg in 1992. While he was ultimately cleared, Airbus was found liable.

France is not the only country that pursues criminal prosecutions in air accidents.  After an executive jet and a Brazilian passenger jet collided over Manus in Brazil, downing the jetliner and killing 154, the American pilots of the private plane were tried in absentia and convicted. Brazilian air traffic controllers were also charged. In Italy, Switzerland, Croatia, and more, the authors of the Air and Law Commerce report, Elaine Solomon and Dina Relles report that the criminalization of air accidents is on the rise.

Wreckage of Gol Airways Flight 1907 which crashed after colliding with an private jet. Photo by Brazilian Air Force

France’s propensity to look at air accidents through the lens of justice is due to a legal system based in the Napoleonic code.  As it was explained to me, any accident investigation begins with a judicial inquiry and that can be criminal.  But Kenneth Quinn, global chair of the aviation practice at Baker McKenzie who has defended aviation companies in criminal cases in the past, says just having the black boxes on French soil does not give it jurisdiction to begin a criminal investigation. Ethiopia Flight 302 crashed outside of Addis Ababa and involved an airplane manufactured in the United States.

“I’ve never seen an examination of the so-called black boxes as a basis to establish jurisdiction for either civil or criminal liability,” Quinn said.

Lawyers have been known to argue so I wouldn’t be completely surprised if a prosecutor in Paris took a contrary opinion. Nor would I be surprised if along with everything else Boeing is dealing with these days, someone hasn’t been assigned to find a good defense lawyer.

 

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