Procedure of Investigation of an aircraft accident.

Procedure of Investigation of an aircraft accident.

A brief historical background as to the subject of investigation is that, the concept of accident investigation was at first recognized at the Standards and Recommendation Practices for Aircraft Accident Inquiry which was  adopted by the Council on 11th April 1951 pursuant to Article 37 of the Convention of the International Civil Aviation (Chicago 1944) and was designed as Annex 13 to the Convention. 

Following after, was the  Fourteen session which considered aircraft accident investigation and  further adopted a resolution to study whether it was possible  to establish procedures by which the State of Manufacture, the State that first certified the aircraft type would make available competence experts for advice and consultation in the investigation of accident. As time went by, new rules for accident investigation have enhanced and shaped what is called today Annex 13.

Definition of terms

• Investigation from the Latin word investigatio, means to query or to search. In air law it is a process conducted for the purpose of accident prevention which includes the following; the gathering and constituent of information, drawing of conclusions, the determination of causes the making of safety recommendations and making a final report.

• A safety recommendation is a proposal of that accident investigation authority of the subject state conducting the investigation based on gathering, cause, information and findings derived from the investigation. It is then made with the intention of preventing future accidents or incidents from happening.

• An Investigator-in-charge. A person appointed on the basis of his or her qualifications, with the responsibility for the organization, conduct and control of an investigation. On communication, Annex 13 provides that the responsibility for the investigation and communication belongs to the state where the accident has occurred.

• Objective of an investigation the general objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. As well as to ensure the air reputation is maintained. The caution clause is that it is not for shifting blame or dispensing liability to the airline in question.

• State as recorded in the Montevideo Convention of States, Article 1 has the following features a territory and a State sovereignty which is  connected with state obligations.   

• State of Occurrence: The state in the territory of which an accident or incident has transpired to happen. The state of occurrence shall forward a notification of an accident or serious incident with a minimum of delay and by the quickest means to the following;the State of Registry, the State of the Operator, the State of Design and the State of Manufacture, and finally the International Civil Aviation Organization, when the air craft involved is of a maximum mass of over 2250 kg.State of the Operator shall appoint one or more advisers, proposed by the operator, to assist the accredited investigation representative in the investigation procedures.

• State of registry: The state on whose register the name of the aircraft is entered,The registration of aircraft of an international operating agency on other than a national basis, the states constituting the agency are jointly and severally bound to assume the obligations which, under the Chicago Convention, attach to a State of Registry. The State of Registry shall appoint one or more advisers, proposed by the operator, to assist its accredited representative in investigation.

• State of the operator. The state in which the operator’s principal place of business is located or, if there is no such place of business, the operator’s permanent residence.

• State of manufacture; the state that has the jurisdiction over the organization responsible for the assembly of the aircraft  this extends to the owner of the power-plant to the owners or distributers of the major components of the aircraft. Asides, the state of manufacture shall each be entitled to appoint an accredited representative to participate in the investigation plan.

• State of design: This is the state which has jurisdiction for the organization of state design. design and the State of manufacture shall each be entitled to appoint an accredited representative to participate in the investigation. These personnel are proposed by the organizations responsible for the type design and the final assembly of the aircraft, to assist their accredited representatives to aid in investigation.

Participation to investigation 

• Generally, all states have a special status to participate and to send their representatives when investigating air accidents and incidents. The state of registry or the state of the operator shall appoint one or more advisers, who are proposed by the operator, to assist its accreditedrepresentatives.

• Simultaneously the state of design and the state of manufacture shall each be entitled to appoint an accredited representative to participate in the investigation.
• In the event that there is a non-compliance when the state of registry, nor the state of the operator cooperates in appointing an accredited representative, then the state conducting the investigation will invite the operator to participate, subject to the procedures of the State conducting the investigation. Hence participation in the investigation is a basic right granted to all the states to exercise in all aspects of the investigation, under the control of the investigator-in-change, in particular to the various persons selected from the states above are supposed to: 

• Visit the scene of the accident
• Examine the wreckage. -It entails as well-to examine the damage caused and the impact assessment.
• Obtain witness statements and information -This call for the identification of the victims, the questioning of the surviving passages who are citizens of their state.
• Acquire full access to all relevant evidence as soon as possible- It means obtaining and receiving copies of all pertinent documents and finally participate in the read-outs of recorded media

When the Accident has occurred in State Party to the 44 CG

In accordance with Article 3(d) of the Chicago Convention the Contracting States of ICAO, contracting states; "undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft”. 

Before we build up on the question, its preeminent to seek what are some of the objectives of the convention. In Article 44 (f) on the objectives of the organization, it gives a general aim of the civil organization to develop principles and techniques to confer the development of the air transport industry and it confers its mandate to realize the  rights of the contracting states are fully respect that every contracting  state has a fair opportunity to operate international airlines. Equally to avoid discrimination between contracting states. This is achieved solely by promote safety in flight under the international air navigation.

On to accidents based on Article 26 of the same asserts that, in the event of an accident to an aircraft of a contracting state occurring in another contracting state, and involving either death, serious injury, or serious technical defect in the aircraft or air navigation facilities, the state in which the accident occurs will institute an inquiry into the circumstances of the accident.

Subject states

Under Annex 13 (Aircraft Accident and Incident Investigation) to the Convention provides further international requirements for the investigation of aircraft accidents and incidents in relations to Article 26. It relates to which States may participate in an investigation, such as the States of Occurrence, Registry, Operator, Design and Manufacture. It also defines the rights and responsibilities of such States as I have briefly defined above.

Delegation of rights

The State of occurrence may delegate all or part of the investigation to another State or a regional accident and incident investigation organization, and may call on the best technical expertise available from any source to assist with the investigation. States of Registry, Operator, Design and Manufacture who participate in an investigation are entitled to appoint an accredited representative this is with or without associated advisers to take part in the investigation.

State with special interest

A State which has a special interest in an accident, by virtue of fatalities or serious injuries to its citizens for instance, is entitled to appoint an expert entitled to: visit the scene of the accident; have access to the relevant factual information which is approved for public release by the State conducting the investigation, and information on the progress of the investigation; receive a copy of the accident investigation Final Report. 

International Civil Aviation Organization’s officials will only participate in accident investigations upon special request from the State responsible for conducting the investigation.

Communication and notification

In respect of accident investigation, that it is of great importance for the general improvement of the safety of air navigation that, to the greatest practicable extent, a Contracting State in which an accident has occurred involving aircraft other than of its manufacture MUST communicate to the State of Manufacture as soon as possible any pertinent information which results from the inquiry and which may reflect on the airworthiness of the aircraft type or its equipment, or which might be used to effect improvement in safety.” 

The notification shall be prepared in one of the working languages of International Civil Aviation Organization , taking into account the language of the recipient(s) whenever it is possible to do so without causing undue delay. The States of Registry, Operator, Design and Manufacture have a duty to acknowledge receipt as a duo process.

Appointment of the state's representatives

Upon receipt of the notification, the States of Registry, Operator, Design and Manufacture shall, as soon as possible, provide the State of Occurrence with any relevant information available to them regarding the aircraft and flight crew involved in the accident or serious incident. Each State shall also inform the State of Occurrence whether it intends to appoint an accredited representative and if such an accredited representative is appointed, the name and contact details; as well as the expected date of arrival if the accredited representative will travel to the State of Occurrence.Accreditation herein means a person who has obtain Air stays through a credited aviation institution and fully licensed.

Upon receipt of the notification, the State of the Operator shall, with a minimum of delay and by the most suitable and quickest means available, provide the State of Occurrence with details of value of goods on board.

Procedure

• Notification Accidents & Serious Incidents

Annex 13 requires a preliminary notification from the state of occurrence, to the state of registry, state of the operator, state of design, state of manufacture icao (when aircraft over 2 250 kg). Secondly to the, state of registry, domestic and other occurrences: aircraft over 2250 kg to be sent to the state of the operator state of design, of manufacture and the ICAO (when aircraft over 2 250 kg)

•  Final Report (Accidents And Serious Incidents Wherever They Occurred.)

This type  of report  is issued from , state conducting the investigation to the state instituting the investigation, state of registry, state of the operator ,state of design ,state of manufacture, state having interest because of fatalities State providing information, significant facilities or expert.

• ADREP Report (Accidents And Serious Incidents Wherever They Occurred)

This report is send from the state conducting the investigation attached with: 

• Preliminary Report  when there is an accident to an aircraft over 2 250 kg, this report is sent to the state providing information on  significant facilities or experts of ICAO. Accidents to aircraft of 2 250 kg or less if airworthiness or matters of interest are involved .

• Accident Data Report Incident Data Report 

This type of the report any safety recommendations Accidents to aircraft over ICAO 2 250 kg and Incidents to aircraft over ICAO 5 700 kg.

•  Accident Prevention Measures (Safety matters of interest to other States)

From the state analyzing safety data to the states making safety recommendations concerning matters considered to be of interest to other states recommendations made to another state, state having an interest, finally the states having an accident investigation authority.

Case study; 5th May 2017 Kenya Airways (KQ Flight 507) crashed immediately after take-off from Abidjan to Douala then to Nairobi. The Cameroon Civil Authority released its final report of the crash on 28 April 2010. The investigation found that the aircraft departed without clearance from air traffic control and that loss of control of the aircraft was the result of spatial disorientation and lack of crew coordination. In an out-of-court settlement, KQ compensated the 114 families of the victims with an estimated 1.9 million Kenyan shillings each.

The significance is that in both the state of registry, occurrence, design, and manufacturer are contracting states party to the 1944 Chicago convention and thus the accident investigation becomes an efficient and expedient process.

When the accident has occurred in non-state party therefore NOT bound by the 44 CG Annex 13

Accidents or serious incidents may often times occur in the territory of the state of registry, of a non-contracting state or outside the territory of any state. Seemingly when such occurrences happen, and there is no intention to conduct investigation there is a legal duty to cooperate on the part of the state of the operator, design and manufacture.

This state should at least aspire to undertake, institute and conduct an investigation in cooperation with the state of occurrence, but failing such cooperation should itself conduct investigation when such information is available. and notify the state concerned.

Responsibility of the state of registry

When the state of registry institutes the investigation of an accident or serious incident, that state shall forward a notification, in with a minimum of delay and by the most suitable and quickest means available, to: State of the operator, design, manufacture and the International Civil Aviation Organization, when the aircraft involved is of a maximum mass of over 2 250 kg as stated in the Annex.

Procedure   

Notification.

The State of the operator, the state of design and the state of manufacture should acknowledge receipt of the notification of an accident or serious incident, the state of the operator, the state of design and the state of manufacture shall, upon request, provide the state of registry with any relevant information available to them regarding the flight crew and the aircraft involved in the accident or serious incident. This notification should be done in the most suitable and quickest means available, provide the state of registry with details.

 Appointment of representatives.

Another obligations is that each state shall also inform the state of registry whether it intends to appoint an accredited representative, and if such an accredited representative is appointed, The state of the operator, design , manufacture is drawn to their obligation to appoint an accredited representative when specifically requested to do so by the state conducting the investigation of an accident to an aircraft over 2 250 kg. The appointment will be an indicator of   participation presence during the investigation.

Case Study; 14th August Helios Airways Flight 522 was scheduled to fly from Larnaca, Cyprus to Prague, Czech Republic with a stop over to Greece, crashed o 14th August Killing 121 passengers and the crew on board due to cabin pressurization and crashed near Grammatiko Greece. After the flight data and cockpit recorder were found an analyzed in Paris. Investigation had it that it had some fuel starvation and pressurization was set to manual. Many of the bodies recover were from Cypress and Greece.

The significance of this case is that non contracting states must be able to comply with the state of registry in matters relating to investigations, the most sensitized function is the sending of their representatives for the sake of investigation of the identity of victims.

When the accident has occurred on the high seas beyond 200 Nautical Miles (Outside the contracting and non-contracting territory )

In circumstances where the navigation of the accident is at question or the serious incident cannot definitely be established as being in the territory of any state, the state of registry shall institute and conduct any necessary investigation of the accident or serious incident. However, it may delegate the whole or any part of the investigation to another State by mutual arrangement and consent.

Under the Public International law rules of the ‘Closest and Most real Connection Rule’ or close analogy often comes up in an event of contractual and non-contractual obligation in cases where there is a foreign element, the predominant aim is to avoid a conflict of law situation. In relation to the subject matter here, the states with the closest or nearest the place of an accident in international waters shall provide such assistance as they are able and shall, likewise, respond to requests by the state of registry.

Consequently, if the state of registry is a non-contracting state which does not intend to conduct an investigation in accordance with Annex 13, the state of the operator or, failing that, the State of design or the state of manufacture should endeavor to institute and conduct an investigation. However, such a State may delegate the whole or any part of the investigation to another State by mutual arrangement and consent.

Case Study; June 2009 Yemeni Flight 626, an airbus A310-324 whose state of registration was Yemeni capital Sanaa, and was flying to Moroni (Comoros) .However many passengers on the plane began their journey in France .While approaching to Prince Said Ibrahim International Airport, it crashed at the Indian Ocean near Comoros killing 153,  one child as a survivor. On its Investigation, the Agence Nationale delAviation Civile et de la Meteoroid  which is the state of closest connection to the sea at time of accident thus the Comoros state sent an investigative team, France the state of the aircraft manufacture send a team, Yemen which is the state of registration sent a technical investigative team.

Based from the investigation report, inappropriate inactions from the crew that led to a stall that was not recovered from the incident, and the windy weather condition which lead to the stabilization of the plane.

The significance of this case is to recognize that should there be an accident outside the contracting state, the nearest state possible will aid the investigation and cooperate with the other states in subject of accident investigation.

Sources of Law

1. Annex 13 To the Convention on international Civil Aviation; Aircraft Accident and Accident Investigation, Eleven Edition, July 2016
2. International Standards and recommendation Practices ;Annex 13 To the Convention on International Civil Aviation(ICAO)
3. J.G Collier, Conflict of Laws 3rd Edition Cambridge University Press, 2001
4. Convention on International Civil Aviation (Chicago Convention) 1944.