Legal Issues in Aviation

Professionalism, Responsibility and Decision Making:

A Framework for Discussion

Gregory L. Riggs, J.D.AABI Industry/Educator ForumJuly 14, 2011

Concepts for DiscussionProfessionalismDecision-MakingResponsibilityRisk ManagementAccountability

The Arbiters of AccountabilitySystem Boards of AdjustmentRegulatory agenciesAdministrative tribunalsCongressCourts CivilCourts - Criminal

The Parameters of AccountabilityGround level The case of the L-1011 cross-bleed valveThe summer of 87LAX 767BNA 737LEX 737BOS TakeoffBOS LandingLGW-ATL

The Summer of 87FAA Report:

The presence of these behaviors is primarily due to a lack of clear cut, definitive guidance from those responsible for developing and standardizing cockpit procedures.Making a Case of Negligence To establish a prima facie case, an injured plaintiff must prove:1. Duty of care -- Obligation to take reasonable care2. Breach of the duty -- Failure to take reasonable care3. Causation -- The breach causes the injury

Schwamb v. DeltaThe Airline Standard of CareWith proof of injury to a fare-paying passenger on common carrier and failure to reach his destination safely, the plaintiff establishes a prima facie case of negligence . . .Standard of Care Cont. and the burden shifts to the defendant to overcome the prima facie case.

Judge Watkins, Schwamb v. Delta (Louisiana Ct. of Appeals 1987)

Standard of Care Cont.At this point the carrier must show:that the incident did not occur, orthat it was without the slightest degree of negligence.

Why the High Standard?A public carrier of passengers is required to exercise

the highest degree of vigilance, care and precaution

for the safety of those it undertakes to transport.DL 1141Probable Cause:

The Captain and F/Os inadequate cockpit discipline

Failure of the takeoff warning system

Contributing Cause:

Managements slow implementation of necessary modifications to its operating procedures, manuals, checklists, training and crew checking programs

NTSB Draft ReportThe Safety Board finds that the management policies of Delta Air Lines with respect to crew guidance and training were deficient and directly causal to the accident.

The performance of the Flight 1141 crew was mainfested by the failure of Deltas management to demand and maintain stricter adherence to the standards expected of professional flight crews.

Eagle Jetstream Crash at RDU 12/13/94Probable Cause:The pilots incorrect assumption that an engine had failedThe pilots failure to follow approved procedures for engine failure

Contributing Cause:The failure of management to identify, document, monitor, and remedy deficiencies in pilot performance and training

Express Airlines Jetstream Crash 12/31/94Probable Cause:

The Captains actions, which led to a breakdown in crew coordination and the loss of altitude awareness by the flight crew during an unstabilized approach

Contributing Cause:

The failure of company management to adequately address previously identified deficiencies in airmanship and crew resource management of the captain

16Exxon Valdez Oil Spill

16The Jurys DecisionExxon Valdez Jury Verdict: Gross negligence on the part of Exxon management

Punitive Damages Award$5 Billion!DL 1141 NTSB Draft ReportThe Safety Board finds that the management policies of Delta Air Lines with respect to crew guidance and training were deficient and directly causal to the accident.

Gross Negligence FindingsKAL 007

Pan Am 103

AMR Cali21In 1991, Federal Sentencing Commission issues Federal Sentencing Guidelines for Organizational Defendants Introduced severe, mandatory penalties to companies that violate the lawCompany is accountable for criminal activity committed by employeesCorporate Criminal Accountability2122The company has high ethical principlesNo officer has done anything wrongManagement and the Board of Directors thought everything was going fine

A company can and will be held responsible for the acts of its employees.Strong, well-managed companies can face huge penalties even where:The Dangers for Companies2223Compliance AccountabilityTop ManagementMiddleManagementFront-LineEmployeesInc.No knowledge of wrongdoinghereWrong committedhereAccountability here

2324The Federal Sentencing Guidelines provide that companies may substantially reduced penalties for most federal crimes if they have an effective program to prevent and detect violations of law.Managing the Risks2425Justice Department Guidance:In deciding whether to bring charges against a corporation, prosecutors should consider . . . the existence and adequacy of the corporations compliance program.The fundamental questions any prosecutor should ask are:Is the corporations compliance program well designed?Does the corporations compliance program work?

Larry D. ThompsonDeputy Attorney GeneralJanuary 20, 2003Guidance to Prosecutors25261. Established compliance standards and procedures2. Oversight by specific high-level officers3. No delegated responsibility to untrustworthy employees4. Training and communications5. Monitoring and auditing6. Consistent enforcement7. Steps to prevent future offensesTo be eligible for credit, a Corporate Compliance Program must have:

Seven Elements of a Corporate Compliance Program26While COPPA and Safe Harbor both represent regulatory requirements, what bandwidth is available to work on. These requirements are new and not yet on the books to be worked.

Realistically, we should expect other regulatory requirements coming out of Homeland Security initiatives we should be cognizant of those and earmark some funding for new initiatives.Criminal AccountabilityAMR Hazmat Case

Argenbright

Valujet/SabretechTying Back to the ConceptsAccountabilityProfessionalismDecision-MakingResponsibilityRisk Management

Bridging the GapWho has responsibility for instilling the values of high professionalism, robust compliance, sound decision-making and effective risk management???

What responsibility should educators accept for imbedding these principles into the curriculum?

What opportunities and advantages might AABI member institutions gain from a renewed focus on these principles?