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Striving for flight safety

The recent crash of a Singapore Airlines jet at CKS International Airport has highlighted the tenuous position of Taiwan's Aviation Safety Council (ASC, 飛安會).

The independent air accident investigation agency was established in 1998 to investigate accidents free from interference by outside agencies. The thinking was that Taiwan should focus on investigations that aim to establish the causes of accidents for the purposes of future accident prevention.

To achieve this it was necessary to establish an agency whose work would remain free from the influence of regulatory and other authorities to avoid conflicts of interest.

Agencies established for such purposes can be found in countries regarded by experts as having excellent accident investigation and air safety systems, including, among others, the US, France, Australia, New Zealand and Canada.

After the Singapore Airlines crach at CKS, prosecutors insisted on pressing criminal charges against the pilots involved if they were deemed to have been professionally negligent, an example of the way the ASC can be undermined by the fact that other agencies are not prevented by law from pursuing investigations into air traffic accidents.

One such "agency" is the judiciary, whose desire to see the law take its course when there is a possibility that criminal conduct may have been a factor in an accident, may conflict with safety investigators' needs to ensure a free flow of information.

Taiwan's problem

Taiwan is not a signatory to Annex 13 of the Convention on International Civil Aviation which lays down international standards and recommended practice for aircraft accident investigations.

The ASC nevertheless regards Annex 13 as the guiding principle to its investigations, which it undertakes, in accordance with the Annex, "solely for the purpose of preventing accidents and incidents," rather than to apportion blame.

Annex 13 also says that witness statements, cockpit voice recordings, and opinions expressed in the analysis of information should not be available other than to the investigative agency, while investigations for other purposes should be clearly separate from safety investigations.

"Annex 13 is now further supported by the results of psychological and accident research showing that human error is inevitable but manageable," said Rob Lee, an Australian human factors and system safety specialist.

"Exploring and fixing management flaws in the complex system incorporating regulators, airlines, aircraft designers and so on, is far more constructive than punishing those whose errors, mostly unintentional, are more perceivable," Lee said.

Without specific legislation, it is also possible that prosecutors may disrupt accident investigations in future by insisting on taking custody of flight recorders, said Yong Kay (戎凱), managing director of the ASC. Moreover, pilots in Taiwan may even switch off cockpit voice recorders (CVRs) during flights.

New Zealand's Experience

John Britton, chief executive of the Transport Accident Investigation Commission (TAIC) of New Zealand, said that in 1995 the New Zealand police searched the TAIC and seized the CVR and flight data recordings recovered after an air accident causing four fatalities.

The TAIC argued that New Zealand was a signatory to Annex 13 and asked the High Court to decide which agency's investigation had precedence. The High Court ruled for the police. That decision, however, led the New Zealand Ministry of Transport to propose legislation to ensure the precedence of accident investigations in the future.

Legislation was consequently passed last year to ensure that the independence of accident investigations would take precedence over legal proceedings. Positive consequences of the legislation, Britton said, include "no more reports of crews turning CVRs off and it's easier to persuade people to reveal information to investigators, while investigators have to spend less time resisting requests for information from other parties."

Yet Britton admits that the legislation has not yet fulfilled investigators' expectations, pointing out that "... our prosecutors do not await the completion of our preliminary investigation before they start their own."

Rob Lee said that the conduct of simultaneous investigations by prosecutors, even when separate from safety investigations, can have negative consequences. He said air crews might feel less protected from criminal charges and become reluctant to cooperate with investigators.

Moreover, the combination of intensive interviews from both an aviation safety body and prosecutors and the possible threat of liability may hamper the ability of surviving crew members suffering from shock to recall details of the accident, Lee said.

Jean-Paul de Villeneuve, an investigator from the Bureau Enquetes Accidents of France, also said investigators inevitably have to spend time talking to prosecutors when parallel investigations are held. French prosecutors also carry out their investigations before initial safety investigations are complete.

Britton and Lee said it is difficult to exclude prosecutors from investigations of air accidents. "That [apportioning blame for events] is why they are there," said Lee.

The US Model

The US has enacted laws to prevent prosecutors interfering in safety investigations.

United States Code Title 49 says that the National Transportation Safety Board (NTSB), the independent investigation body for transport accidents, has the primary role in the investigation of causes of aircraft accidents.

Barry Strauch, NTSB's training manager, explained that under the act, the NTSB decides whether an event is an accident. If there is any suspicion that it is a criminal act, law enforcement authorities have to carry out a joint consultation with the US Attorney General and the Chairman of the NTSB before conducting their investigation, he explained.

What are Taiwan's options?

Prosecutors in Canada and Australia, where full emphasis is -- without strict laws enforcing it -- placed on safety investigations, have always waited for the completion of safety probes before starting their own investigations. Safety investigations in the two countries are given top priority, a state of affairs for which there is much public support according to Lee and Ken Johnson, executive director of the Transportation Safety Board of Canada.

But Taiwan's public and lawmakers are not ready for legislation like that in New Zealand and the US. This was reflected in the legislature's rejection of the ASC's budget some weeks ago, according to Yong.

The ASC, therefore, will adopt the French investigation model "with some compromises to prosecutors and reality" until the time is ripe for appropriate legislation, said Yong.

French law recognizes the higher authority of prosecutors who, for example, are entitled to take custody of CVRs. French safety investigators rely solely on negotiations with prosecutors in all cases to minimize interference in safety probes.

The ASC is to draft a memorandum of understanding with the Ministry of Justice before year's end to resolve issues relating to the custody of materials and address their possible exclusion from criminal proceedings in order to ensure the integrity of safety investigations.

"By forming a better investigation model gradually, we hope to lower Taiwan's aviation accident rate to at least the world average," Yong said. He added that Taiwan's accident rate is 4.3 per million departures, while the world average is 1.5.

The US average is 0.5 and Australia's 0.2, according to Yong.
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