Saturday, March 15, 2014

Aviation Diplomacy - Part of the Problem?

As I teach my aviation law students, where fault is established as a matter of fact and evidence, the law does the best it can to compensate the families of those who are lost in aviation accidents, but it is not a science and it is hard for survivors to believe that the concept of justice has ever "been done."

Quite simply, the emotional trauma -- present on a personal, social (e.g., community) and even global level -- is lasting.  All the more reason the recent tragedy of Malaysia Flight 370 is so disturbing and why the lack of a coherent explanation for the disaster some 8 days and counting aggravates a horrible situation.

Journalists and investigators and regular airline passengers around the world are stunned this week with news of perhaps the strangest tragedy in aviation history: A Malaysia Airlines Boeing 777 disappeared from civilian RADAR (apparently) during ordinary cruising flight.

At this early stage of the investigation (but a painfully late stage for the families and friends who hold out hope) there is no shortage of theories -- from the logical to the imaginative.  That said, Malaysian authorities have (more than a week after the incident) stated that the "Evidence is consistent with someone acting deliberately from inside the plane," officially confirming the plane's disappearance was not caused by an accident.  ["Deliberate" is not a sinister term standing alone, yet the context here suggests otherwise.]

Among other interesting things about all this is that the person making the announcement is no less than the Prime Minister of Malaysia.  That is a noticeable feature -- and not necessarily an encouraging feature -- of this aviation incident involving a national "flag carrier."

In the United States, air carriers are private and work with the National Transportation Safety Board ("NTSB") which takes the lead in investigating and determining the "probable cause" of an aviation accident.  The NTSB's report is not admissible in a court of law for liability purposes; the policy reason for this is to encourage efforts to find out what happened and why - not to adjudicate who is to blame from a damages perspective, if anybody.

Compare that against the Malaysia investigation where the government itself seems guarded in its dissemination of information that is, for starters, time critical.

From a practical perspective, this is all explicable as the New York Times reported --
By international agreement, the country in charge of investigating a plane crash or other such event is the one where it occurred. If a plane comes down in international waters, jurisdiction goes to the country whose carrier was involved. In this mystery, the presumption is that the problem is Malaysia’s. But whoever is officially responsible, there is a guiding American principle.
We try very hard not to make it look like we are running the investigation, even if we more or less are,” said Bernard Loeb, a former head of aviation safety at the National Transportation Safety Board, which leads the American delegation of experts at any crash involving an American airline or an airplane built in the United States. When crashes occur here, foreign aircraft or engine manufacturers like Airbus or Rolls-Royce get the same “observer” status and often contribute technical expertise.
From a legal perspective, however, if (and when) lawsuits arise from Malaysia 370, the jurisdiction and laws (not least of which is the so-called Montreal Convention) involved will be as varied as the hundreds of souls from around the world aboard the airplane -- making a strong and transparent and organized investigation all the more important.