Investigation of Aircraft Accidents and Incidents in Latin America (Parts I & II)

A través de este artículo nos proponemos comparar las normas de diferentes países latinoamericanos relativas a la investigación de los accidentes de aviación.

Published in Zeitschrift für Luft-und Weltraumrecht, N° 3/2003, ed. Carl Heymanns Verlag, ISSN 0340-8329,  Köln, (pág. 332-354), c/RI.

 

 Author: Griselda D. Capaldo

I. – Introduction

In International Air Law, the technical and legal aspects of aircraft accidents and incidents, are one of the most complex but less studied chapters. It can be stated without exaggeration, that dealing with aircraft accidents does not only imply the broadest spectrum of aeronautical responsibilities but also Air Law in its entirety. To a great extent this is due to the highly technical aspects of aviation (Ambrossini calls it the “technical fact”) especially since in case of an accident all legal concepts originating from that branch of Law return to converge in it again.

The essence of this holistic vision of Air Law has forced lawyers since the beginnings of air navigation not only to think about legal regulations, but also to investigate the causes leading to failures of such “technical fact”.

Since aviation is a hazardous activity, aircraft accidents are usually characterized by a great concentration of damage. For that reason some authors propose to include air traffic accidents as a chapter of the brand new Law of Catastrophes, where such a regulation would have two aspects: the strictly legal one developed on rigorous compensatory criteria[1], and the second based on humanitarian aspects.

In all aviation accidents, the relation between the technical fact and legal regulations as well as the discernment of liabilities, becomes dramatically evident since the objective of the investigation has a preventive purpose namely the goal of avoiding future casualties. It is without any punitive aim, and there is no necessity for apportioning blame on anyone with the objective of making such a person or group of persons civilly and/or criminally responsible for the accident. In other words, two opposite but equally significant legal interests must be satisfied and the Law has to find the balance point between them.

Having defined the problem, this article will be divided into three parts: first comes a descriptive chapter, the second will be analytical and the third will be of theoretical-prospective nature, since there has to be developed a “conceptual map” to describe how the information gathered by the organism in charge of the technical investigation of the accident has to be used by Courts and judges.

PART ONE

DESCRIPTIVE ASPECTS OF the INVESTIGATION OF AVIATION ACCIDENTS and INCIDENTS

I. – The definition of “accident” 

Since accidents are the core of this article first of all this term must be defined. This can be undertaken from at least four different aspects: from the legal point of view, from the perspective of pure sciences such as engineering, from the point of view of human factors, and from the angle of the technical investigation of the facts.

1. –  As it is well known, within the Warsaw system the liability of the air carrier towards the passengers turns around the concept of accident (article 17). Nevertheless, the Convention which was drafted in 1929 as well as its related agreements, abstain to define it. They only indicate the temporal within which the accident that generates the responsibility must take place. The same modality is followed by 1999 Montreal Convention (Doc. 9740), which at 20 November 2002 already counted on 25 ratifications, needing thirty to enter into force.

According to Abeyratne[2], the oldest court definition of accident was given in 1903 in the case Fenton v. Thorley and Co Limited (A.C. 433), where Lord Lindley maintained that, although this term is not a technical one with a clearly defined meaning, it refers  in connection with legal liabilities to any non-intentional fact that produces injuries or material losses. Almost four decades later, Lord Macnaughten’s, in Board cars of Management of Trim Joint School v. Kelly, (1941, A.C. 667), completes the notion by including all intentional act of a third party. What is more, in 1985 the Supreme Court of the U.S.A. held that, in limine, an accident must be interpreted as an all unexpected occurrence whose main feature is an external event to the passenger (Air France v. Saks, 105 S. Ct. 1338), highlighting that those damages suffered by her or him as a result of their own reactions towards the normal exigencies of a flight must be excluded from the concept of accident. In several other judgements, incidents such as hijackings, terrorist attacks and bomb threats on board also have been listed as accidents, along with the collision of aircraft or any other accident produced by mechanical fault or by human error (Husserl v. Swiss Air Transport Co Ltd, 485 F.2d 1240, 2d Cir. 1975;  Day v. Trans World Inc. Airlines, 528 F.2d 31, 2d.  Cir.  1975;  Salerno v. Pan American World Airways, 19 Avi.Cas.  18,311, EDNY 1985).

Then we should not to ignore the French jurisprudence, whose sentences had to be considered as of greater importance since it is the French version of the Warsaw Convention, which is the only one that makes faith[3] (see 1969 Vienna Convention on The Law of Treaties, article 33[4]). So French jurisprudence can be considered as an authentic interpretation of the above mentioned instrument.  Therefore, in re  Haddad c. Air France (RFDA, XXXIII Année, 1979, page  327 [Cie. Air France c. Epoux Haddad,  Cour d´Appel de Paris, 19 Juin 1979], and page  329 rev´d 1979 [Tribunal de Grande Instance de Paris, 28 avril 1978 ]  RFDA, XXXVI Année, 1982, page  342 [ Epoux Haddad c. Cie. Air France,  Cour de Cassation, 16 février 1982]), the Cour de Cassation has held that the notion must also be extended to those unexpected actions of third parties that take place during the course of a flight[5]. This interpretation allowed Haddad’s, as passengers of the flight  AF 139 covering the route Paris-Tel Aviv via Athens, to claim damages from the airline for injuries suffered during the terrorist attack which occurred in June of 1976[6].

2. –  From the point of view of pure sciences, and technically speaking, the term “accident” is defined as the last consequence of a series of failures within a system of protection[7]. More specifically, the engineering of systems stresses the importance of the conceptual trilogy “trustworthiness – maintenance – availability” in order to find those weak points of a system that can lead to an accident. Since aircraft is a technical system, such a conceptual trilogy could serve as an excellent auxiliary for the better understanding of an accident. “Trustworthiness” for instance, is usually defined as the quality of a system without failures during its foreseen period of operation. Nevertheless there are three types of failures which directly affect the trustworthiness of a system:  the initial failures, the random failures and those that take place by wearing down[8]. The first ones appear when the system begins to work and they are corrected meanwhile it is tested. Failures which appear by wearing down are caused by the use of the mechanism and its component parts.

Most of these failures can be avoided by means of a preventive maintenance. Finally, random failures are neither due to initial failures nor to problems of maintenance, because they are governed by chance. Consequently they are impossible to predict. Pure Mathematics also indicates that the elimination of these failures is not possible, because their tendency and frequency of verification during a long period of time is practically constant. Hence what is possible it is to reduce them to an acceptable level, but they can never be eliminated.

I am convinced that all these technical considerations given by the engineering of systems have to be weighed by the Court at the time of discerning the legal responsibilities derived from an aviation accident. But how many judges really know just a little about these issues?.

3. –  From the point of view of the disciplines with respect to Human Factors, the concept of accident is understood  within the notion of organizational accidents. It is inspired by the Reason’s Model, for whom different factors connected with organizational aspects of the place of work act like latent pathogens that, when they are present in the organization, debilitate the protective barriers and put the workers in contact with the risk of suffering an accident. [9]

4. –  From the point of view of the technical investigation of the aircraft accident, Chapter I of Annex 13 to the 1944 Chicago Convention, in its tenth amendment (ninth edition) adopted on 26 February 2001 and applicable from  1 November 2001, defines the accident as follow:

An occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft  with the intention of  flight until such time as all such persons have disembarked, in which: 

 

a) a person is fatally  or seriously injured as a result of: 

–  being in the aircraft, or

– direct contact with any part of the aircraft, including parts which have become detached from  the aircraft, or

– direct exposure to jet blast ,

except when the injuries are from natural causes, self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to  the passengers and crew;  or

b) the aircraft sustains damage or structural failure which:: 

– adversely affects  the structural strength, performance or flight characteristics of the aircraft, and

– would normally require major repair or replacement of the affected component,

except for engine failure or damage, when the damage is limited to the engine, its cowlings or accessories;  or for damage limited to propellers, wing tips, antennas, tires, brakes, fairings,  small dents or puncture holes in the aircraft skin;  or

c) the aircraft is missing  or is completely inaccessible. 

According to numeral 3.1 of Chapter 3 upon General, the sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents.  It is not the purpose of this activity to apportion blame or liability. Through this statement it is clear that the technical investigation does not seek to produce legal consequences[10].

As well, Directive 94/56/CE approved by the Council of the European Union on 21 November 1994[11], and by which are settle down the fundamental principles that govern the investigation of the aircraft accidents and incidents among the member States, in its French version defines the accident as:

a) un événement, lié à l’utilisation d’un aéronef, qui se produit entre le moment où une personne monte à bord avec l’intention d’effectuer un vol et le moment où toutes les personnes qui sont montées dans cette intention sont descendues, et au cours duquel:
1) une personne est mortellement ou grièvement blessée du fait qu’elle se trouve:
– dans l’aéronef, ou
– en contact direct avec une partie quelconque de l’aéronef, y compris les parties qui s’en sont détachées, ou
– directement exposée au souffle des réacteurs,
sauf s’il s’agit de lésions dues à des causes naturelles, de blessures infligées à la personne par elle-même ou par d’autres ou de blessures subies par un passager clandestin caché hors des zones auxquelles les passagers et l’équipage ont normalement accès, ou
2) l’aéronef subit des dommages ou une rupture structurelle:
– qui altèrent ses caractéristiques de résistance structurelle, de performances ou de vol, et
– qui devraient normalement nécessiter une réparation importante ou le remplacement de l’élément endommagé,
sauf s’il s’agit d’une panne de moteur ou d’avaries de moteur, lorsque les dommages sont limités au moteur, à ses capotages ou à ses accessoires, ou encore de dommages limités aux hélices, aux extrémités d’ailes, aux antennes, aux pneumatiques, aux freins, aux carénages, ou à de petites entailles ou perforations du revêtement, ou
3) l’aéronef a disparu ou est totalement inaccessible;

As could be seen, the French version of the European Directive repeats almost textually the concept given in the English version of Annex 13. Nevertheless, there is an important difference between the Spanish text of Annex 13 and its equally authoritative English and French versions. In fact, they differ as far as the definition of the closing moment of the temporal scope during which the accident must take place, which is longer in the Spanish text than in the English and French versions.

It is astonishing that the Spanish text of Directive 94/56 is quite consistent with its other English and French versions and also with the same authoritative languages of Annex 13. However, the Spanish and French versions of the Directive fall in the same legal-precision error of calling passengers those who are travelling clandestinely[12] (in both cases see the exceptions described in paragraph “a)” where it is said “pasajero clandestino” and “passager clandestin”, respectively). Because of the peculiar paradoxes that the case presents, I will return on this aspect below.

Finally, article 1, entitled Objective, also indicates that:  La présente directive a pour but d’améliorer la sécurité aérienne en facilitant la réalisation diligente d’enquêtes techniques, dont l’objectif exclusif est la prévention de futurs accidents ou incidents. The purely preventive purpose of the technical investigation is reinforced by article 4.3, when establishes that Les enquêtes visées au paragraphe 1 ne visent en aucun cas la détermination des fautes ou des responsabilités, and also by article 10, where it is laid down that Une recommandation de sécurité ne constitue en aucun cas une présomption de faute ou de responsabilité dans un accident ou un incident.

5. –  Taking into consideration the four definitions given until now in points 1 to 4, it is simple to verify how the legal aspects (point 1) differ from the technical ones (point 4) with respect to the scope of their subject matter.  While the first one, inspired in jurisprudential activity,  includes the intentional acts of third parties, the second one excludes them explicitly. In substance, when the technical definitions eliminate from the concept of accident  “… the injuries [that]… have been caused by other people”, they exclude any event resulting from hijacking or terrorist acts.

Then, it is clear why in the statistics prepared by ICAO in the matter of aircraft accidents and incidents, such facts are not accounted.

5.i. – It would be interesting to ask whether from this conceptual exclusion it is possible to infer some legal consequences. Expressed in other terms, taking into account that such occurrences are not considered as accidents by ICAO, it would be interesting to ask if these investigations –  which are carried out anyway for  Member States although not even as a duty –  are also protected by the objectives which laid down in numerals 3.1 and 5.12 of Annex 13,  or not. (The first provision proscribes using the technical report for the definition of legal responsibilities, and the second  prohibits disclosure the information gathered by the investigators).

In order to answer this question it is necessary to go first to a some basic notions of the General Theory of the Law.  In principle, the rules of Annex 13 are special norms; as such they are governed by the principle of lex specialis generalis derogat. That implies that they are of restrictive and strict application. Therefore the interpreter must be careful at the time of appreciating them from the hermeneutic point of view. That care also supposes the application of the principle establishing “ubi lex non distinguit, nec nos distinguere debemus”.  But if the law therefore makes a distinction, it is imperative to respect such distinction and its legal consequences. This hermeneutic rule, derived from the above mentioned general principle of the law, is also present in the 1969 Vienna Convention, whose article 31 – which codified the customary law upon rules of interpretation of treaties –  stipulates that: 4.-  a special meaning shall be given to a term if it is established that the parties so intended.

The technical definition of accident given by Annex 13, and reproduced by the European Directive, evidently make a distinction, therefore, it is necessary to appreciate the effects that it produces in the legal field.  The first effect will be to exclude from the application of Annex 13 the accidents produced as a result of hijacking and terrorist attacks. Upon such an exclusion their investigation does not respond to the purpose of “… not apportion blame or liability”  indicated in numeral 3.1. Hence, all the related safeguards fall automatically – specially those settled in Chapter 5 of the Annex -.  It is possible to argue that this tessitura leaves such events orphan of all norms ordering their technical investigation with a view to avoiding possible repetition. But taking into account the normative lagoon it is obvious that two simultaneous phenomena have taken place. The first is that, mutatis mutandi, and by strict analogical proximity, this technical investigation is regularly carried out. The second is, because of the absence of an express rule, that the analogical application led to the establishment of a præpter legem customary which, as source of the Law, came to complete that normative emptiness. Perhaps the most fascinating aspect of this process is not only that it has been a universal practice followed by all the States in whose territories occurred the facts excluded by Annex 13, but also that it counted as well on the tacit acquiescence of the other States of the international community.  However, and even though the technical investigation of these events is already a consuetudinary aeronautical norm, from my point of view it is not protected by the guarantees regulated in Annex 13, points 3.1 and 5.12.  This juridical infer will be reflected in the conceptual map I will present in the third part of this work.

5.ii. In paragraph 4 I already mentioned certain asymmetries between the Spanish-authoritative texts of Annex 13 and its also authoritative English and French versions, with respect to the definition of the temporal scope within which the accident is supposed to have taken place. The three texts agree in the determination of the initial or inaugural moment (the accident must happen between the time any person boards the aircraft with intention of flight…), but differ as far as the closing moment is concerned:  while for the Spanish version it is… the time all persons have disembarked,  for English and French texts it is the time as all such persons [who boarding the aircraft with the intention of flight] have disembarked. The “intention” makes the difference between them. Due to this, the temporal scope indicated in the Spanish text is longer than the two others. An example will make the difference clearer. Often, when the aircraft arrives at the airport, technicians or other employees enter the plane to carry out some works linked with both the maintenance of the flight conditions and the services on board, and normally they leave the plane much later namely when all passengers who had been on board with an intention of flight have disembarked.

Ergo, and according to the Spanish version, if an accident takes place during that period, it would also have to be investigated. This situation generates a palpable confusion in the legal scenario and affects the unification of aeronautical norms.

For such situations article 79 of the 1969 Vienna Convention on the Law of the Treaties stipulates that 1. –  Where, after the authentication of the text of a treaty, the signatory States and the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected……3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected. 4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide. 5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. Therefore, it is desirable that in an immediate future ICAO makes the necessary corrections to harmonize the contents of all official texts of Annex 13 following the simple procedure described in the previous paragraph, or the even more simple adopted by 1944 Chicago Convention. It is, of course, a pity that ICAO did not use the opportunity to do it in the last (tenth) amendment, which is effective since November 2001.

II. –  Investigation of air accidents and incidents in  Latin America

A.- Argentinean Aeronautical Code

1.- As in all other countries in the world, once an aeronautic accident has happened, from the Argentinean legal perspective two simultaneous channels of investigation are opened: 1) one that looks into the past with the purpose to identify the person or persons who brought about the accident in order to make him or her liable and to apply the respective punishments, and 2) the other that looks into the future with the aim of obtaining conclusions that allow technical investigators to make safety recommendations for the prevention of new accidents or incidents due to similar causes.

Although both channels, like Janus’s faces, pull in opposite directions, they have a common border, upon which little is spoken in specialized fora and whose analysis will be the main object of this paragraph, since – often – the difference of purposes already mentioned generates an entropy whose vortex turns around the use by Courts and judges of the information contained in the technical report of the investigation. That entropy and its related weakening effect puts in risk the effectiveness of both subsystems: the legal and the technical one.

In Argentina, the substantive norms that specifically regulate the technical investigation of the flight accidents are contained in Title IX of our Aeronautical Code (articles 185 to 190), in Decree N° 934/70, as well as in Act 13891/49, ratificatory of the Decree-law 15110/46 that approved the 1944 Chicago Convention, in which article 26 is of particular interest.  I believe it is necessary to mention that, from 1994, our Constitution has explicitly enacted the supremacy of international treaties –  some of which also have constitutional hierarchy – over the internal laws/acts, provided that the object and aim of such international treaties 1) are not opposed to the principles of public interest as laid down in our Magna Charta (in accordance with article 27), and 2) do not  derogate the rights and guarantees recognized in the first part of our Supreme Law.

Among the international regulations, Argentina also applies Annex 13 of Chicago Convention and the ICAO Manual on Investigation of Accidents (6920 Doc. An/855-4 and Doc. 9756 AN/965). As in other countries, Argentina also has a broad number of  regulations and technical documents that, with complementary character, are used in the investigation of each accident[13]. However its individualization exceeds the objectives of this work.

2. –  The fondness of definitions in legal systems based on Roman-Germanic Law is well known. If we look at the Argentinean legal system, considering its roman connection, it can be verified that –  in general – we follow that tendency so typical of Continental Law.

When the legislator decides to define a concept, he can choose between different theoretical frameworks. Among them, the nominalistic theories (which are contrary to the realist ones) have a greater number of followers. Once the legislator chose the theoretical framework, he must decide what method he will use in the definition, being able to select the denotative one, the ostentative, the Aristotelian one based on the relation gender-species, the method of the synonymy, or the contextual one. The last step will consist in deciding what type of definition he wants to give:  lexicological, estipulative, theoretical, explanatory or persuasive. Obviously it is quite interesting to transfer this knowledge as dealt with in the Theory of Definitions to Air Law.

Let me take as starting point the analysis of article 185 that heads Title IX of our Aeronautical Code (Act 17285/67).  It expresses that  Every aircraft accident will be investigated by the aeronautical authority to determine its causes and to establish the measures to avoid its repetition.

Although it cannot be held that it is defined what has to be understood as “accident”, it is possible to affirm that the clause follows a persuasive pattern because it aims at a value. In other words, when the clause determines that the objective of all investigation of aeronautical accidents is to know its causes in order to avoid its repetition, the legislator introduces a value into the norm namely the prevention. So prevention has been introduced by the Argentinean Code-makers in order to achieve the objective of protecting human life and property.

To find a definition of accident within the Argentinean aeronautical-legal- system, it is necessary to go to the regulation rules, more precisely article 4 of  Decree N° 934/70, through which Title IX of the Code is regulated. The mentioned rule defines it as “…all occurrence that takes place when the aircraft is being operated and that causes death or injuries to some person or damages to the aircraft or provokes that this one causes them”.

Evidently it is a contextual definition, because it points out a context, that is to say, the necessity that the occurrence takes place when the aircraft is being operated. It is also possible to affirm that it is an explanatory definition[14], since it tells us which kind of occurrences are to be considered to be accidents: only those events which cause death or personal injury or damage to property. Unfortunately, the law-maker abstained to give an interdisciplinary definition. He has just preferred one built on the more pure juridical bases, since it excludes all those occurrences that cause neither death nor personal injury or damage to property, even though from the technical point of view their investigation can be of interest in order to increase  air safety.

Article 4 of Directive 94/56/CE is a clear example of this tessitura, because it orders not only that serious accidents and incidents are to be investigated, but in addition it  urges States also to investigate the incidents if thereby technical investigators can draw  valuable conclusions to improve air safety.

Comparing the definition given by the Argentinean Aeronautical Code with those given by Chapter 1 of Annex 13 and by article 3.a) of Directive 94/56, the scope of the first one is wider, since in its contextual dimension also those events are included that could happen by the mere fact of operating an aircraft, and independently whether the people who board the plane have the intention of flight or not. For this reason, Argentina notified ICAO about the asymmetry between the recommended international practice and our national norms. Then, all accidents or incidents suffered in my country by Argentinean aircraft are under the application of national norms, whereas the mishaps suffered by aircraft which is registered in third countries are subject to the restricted definition given by Annex 13.

What would happen if Argentina, or any other State, would not communicate to ICAO the asymmetries between the international and the internal legal order?. The answer to this question presupposes to speak about the binding-value of the technical Annexes elaborated by ICAO. But this topic will be treated in the Second Part of this article.

Let me return, then, to article 185 of the Argentinean Aeronautical Code, where prevention is of the essence of this persuasive clause. Taking this into account, it is obvious that the law-maker has established a priority about which kind of legal interest has to be protected over any other: the air safety as immediate goal and the protection of millions of  future lives as an indirect target.

3. –  Article 186 establishes the generic obligation to denounce both the accident or the existence of any parts or remainders of aircraft.  In order to protect the proof or evidence that will later show what were the causes of the accident, the authority that receives such information will have to communicate it immediately to the aeronautical authority and to allocate a person who must custody these parts or remainders.

4. –  Once the aeronautical authority arrived at the place of the accident (in Argentina it is the Investigation Board of Civil Aviation Accidents – JIAAC in Spanish, depending on the Argentinean Air Force), article 187 establishes that the  removal or realise of the aircraft, its component elements or parts, will be only possible with its previous consent[15]. The first legal inference that can be obtained from this rule is that, in Argentina, the custody of the evidence in case of a plane crash, corresponds to the aeronautical authority. As opposite example the French legislation can be quoted (Book VII of the 1981Civil Aviation Code, modified in 1999), that places this role in head of the judicial authority.

It is advisable to recall here that in that country two parallel investigations are prepared simultaneously by two independent structures: these are the Court and the Bureau Enquêtes Accidents (BEA). Thereby frictions and misunderstandings are avoided, specially in connection with the use that Justice directly or indirectly makes of the  declarations given by witnesses or other people involved in the accident before the BEA in order to apportion blame or liability before civil or criminal courts, as it is normally done by Argentinean judges. Hence, not having in Argentina an identical legal and institutional situation as under French Law, the most frank and broad cooperation between both bodies is the only possible way we have to follow in order to avoid the entropy of the “prevention system”.

The second paragraph of article 187 indicates that in case the accident is connected with the commission of unlawful acts, the intervention of the aeronautical authority does not prevent any judicial action or police activity. In this concept the law-maker used the verb “does not prevent”, even though he could have employed other forms such as “shall not prevent” or “will not prevent”. Based on this I infer that the law-maker desired to stress the independence of the technical organism investigating the accident.

5. –  Article 188 imposes the obligation to testify before the aeronautical authority on all questions linked with the accident. This rule is completed with article 189[16]. Obviously such an obligation is a burden imposed to realize the prevention and safety targets pursued by the investigation of the accident. I infer that, being a burden imposed on persons, every time the judge asks the JIAAC for the declarations that were spontaneously offered by witnesses before the Board to collaborate in the discovery of the causes that produced the occurrence, the JIAAC will not be able to deny them and argue that such information is privileged or confidential or should not be disclosed, nor will the JIAAC be able either to argue successfully that such information was offered by people for the purpose of preventing or improving safety in civil aviation and not for blaming those persons  for the accident in a civil or penal process.  And although the National Constitution guarantees that nobody can be forced to testify against him or herself, by virtue of already quoted article 188, in case the person withdraws before the judge what he or she had already testified before the JIAAC, the first one will be able to condemn him/her by false testimony, mainly in a criminal process, to which articles 1101 and 1102 of our Civil Code give preference to any other civil or administrative process.

As a result, there is a reluctance to collaborate with the technical organs for the clarification of the causes of the accident by a simple self-defensive impulse, what is palpable after the accident suffered by a B – 737 200 of LAPA on 31 August 1999 in Buenos Aires at the Jorge Newbery airport, as a consequence of the way in which the criminal process was handle by judge Literas.

Certainly such a situation does not only involve Argentina but many other ICAO Member States. In order to assure that Courts will make a correct and discrete use of the information obtained by the technical investigators, it would be necessary to carry out a legislative reform that simultaneously reinforces the operative independence of both organisms and also assures the total attainment of its respective objectives. This was one of the conclusions drawn during the First National Conference of Federal Judges and Public Prosecutors about Technical and Legal Aspects of the Investigation of Aircraft Accidents, on September 2000 in the Faculty of Law of the University of Buenos Aires.

The last article of Title IX indicates that “In case civil aircraft registered in third countries suffer an accident in the Argentinean territory and our territorial waters, and in case Argentinean private aircraft suffer accidents in the territory of third countries, both cases will be subject to the technical investigation process foreseen in the international treaties”. The clarity of the rule exempts me to make any additional commentary.

B. – Brazilian Code of Aeronautics

1. –  Since 1986 Brazil has an Aeronautical Code approved by Act 7565. Its article 1 marks a difference with other legislative instruments, since international treaties and agreements are placed in the first order of legal sources. In the second order are quoted the Aeronautical Code and its complementary legislation. Article 14, dealing with air traffic, confirms the same order of precedence and article 94 accordingly indicates that “The facilitation system of air transport, at hands of the Ministry of Aeronautics, aims to study the norms and practices recommended by the International Civil Aviation Organization – ICAO – and to propose to the respective organisms the more suitable measures to implement them in the country, guaranteeing the results and suggesting the necessary amendments for the improvement of the air services”. The same spirit is shared by article 302.III.m), extending the concept of aeronautical infraction to all violation of rules, norms or clauses of international Conventions.

2. – “The investigation and prevention system of air accidents”  is part of Title III on “Civil Aviation Facilities” formed by articles 86 to 93. The first one stipulates that “Is part of the System….. to plan, to orient, to coordinate, to control and to execute the activities of investigation and prevention of air accidents”.

Article 87 enshrines the universal obligation to prevent plane mishaps. This obligation reaches to “all…natural and legal persons involved with the manufacturing, maintenance, operation and flight of aircraft, as well as the activities supporting civil aviation facilities in the Brazilian territory”. The obligation to denounce the existence of every aircraft accident is stipulated in article 88, but in case it “… has happened as a result of a criminal act it will be necessary to communicate it to the police authority in order to initiate the respective process” which “together with the aeronautical authority, will have also to consider the infractions to Regulations….that can have concurred along the event” (article 92).  Accordingly, the breach of the obligation established by article 88 is considered as an aeronautical infraction (article 302.III.v). Like in other States’ legislation, aircraft, its parts or remainders, could only be removed in presence or with the approval of the aeronautical authority (article 89). The Brazilian code contains, nevertheless, a special clause enshrined in article 305 that is absent in the legislation of other countries. Such norm authorizes the seizure of the aircraft during the investigation of the accident in which it was involved.

The last article (93) deals with the correct handling and fast delivery of the postal pieces transported by the crashed-plane, and the remaining clauses only pay attention to certain financial aspects.

3. –  In other Titles some norms can be detected that have a direct or indirect relation with our object of analysis. For example, articles 256.1 and 258 follow the Warsaw system indicating that the responsibility of the air carrier towards the passenger is based on the existence of an accident. The same statement is made with respect to the responsibility of the organizations in charge of the administration of airports for accident that cause damages to passengers or their property (article 280.II).

The set of administrative infractions also includes violations of “… rules, norms or international clauses or acts”  (article 302.II.m). In order to weigh them properly, article 322 authorizes the Ministry of Aeronautics to create an Aeronautical Judgment Board. The application of administrative sanctions does neither prevent nor prejudice the infliction of civil sanctions by other authorities (article 293), but if along with the administrative infliction a crime is detected, the aeronautical authority will immediately forward the file to the police or the judicial authority (article 291.§ 1°). Finally, article 248.§ 3° follows the Roman Law principle which establishes that if the dolus or culpa of a person has been determined through a criminal sentence this is sufficient evidence in civil procedures.

Considering that until now Brazil did not communicate any asymmetry between its national law and the international norms, such silence must be interpreted in the sense that Brazil fulfils them perfectly.

C. – Aeronautical Code of Chile

1. –  From 1990 the Republic of Chile has a new Aeronautical Code approved by Act 18916.  According to articles 82 Inc. 2) and 83 of its Magna Charta, Chile is a monist country where the Chilean Constitutional order has a clear supremacy over the international treaties. The first norm constitutes the competence of the Constitutional Court to “…solve the questions of constitutionality which arose during the negotiation of treaties which were submitted to the Congress for approval”,  whereas the second norm determines that “against the resolutions of the Constitutional Court will not come any appeal. The dispositions that the Court declares non-constitutional will not be able to become law”.

According to ICAO’s registries, until now Chile has not communicated any difference between the norms recommended by Annex 13 and its internal legal order. Therefore it is possible to deduce that:

a) they are considered constitutionally valid, and

b) based on the assertive meaning which is implicitly attributed to silence by the 1944 Chicago Convention (article 38), Chile applies the norms of Annex 13 (mainly those of Chapter 3 and 5) to the investigation of aircraft accidents which happened on its territory, making no distinction between national and foreign aircraft.

In this context article six of the Aeronautical Code must be interpreted which  determines that “All questions not foreseen in this code nor in the agreements or international treaties approved by Chile, will be resolved by the norms enshrined in the Chilean civil law, by the uses and customs of the aeronautical activity and by the general principles of Law”.

Following the norms of the Warsaw system, an accident is also considered as the generating event of the responsibility of the air carrier towards the passenger.  At least that could be deduced of the inter-play among articles 142, 143 and 145.

2. –  Title XI  – compounded by two articles – is devoted to the investigation of aircraft accidents and incidents. Article 181 establishes that “the aeronautical authority shall carry out the administrative investigation of those aircraft accidents and incidents that take place on national territory…., without prejudice to faculties that correspond to the competent tribunals”.

Reading this first part of the article seems to confirm the independence of the technical investigation – called here “administrative” -, irrespective of that performed by Justice. Although the second part of the norm throws some doubts on this interpretation, because here it is indicated that “The investigation will be made with the purpose of determining the cause of the accident or incident, of adopting the necessary measures to avoid its repetition and of blaming people for the infractions”.

Strictly speaking, “infractions” are only of an administrative nature, and the hermeneutic rules employed by the Code seem to confirm this interpretation[17].  Accordingly, when article 184 alludes to “…sanctioning the infractions to this Code, the laws and regulations and aeronautical instructions”, is conferring such competence to an organism of pure administrative lineage – the Civil Aviation Head Office. Nevertheless, the mere fact that the technical investigators of the accident also intend to apply administrative sanctions, implies the violation of what is stipulated in numeral 3.1 of Annex 13.

Given the asymmetry between the international norm and what is laid down in the Chilean Code, this country should communicate this information to ICAO immediately. If not, legal consequences according to certain principles of Public International Law will follow. They will be explained in the second part of this article.

Finally, article 182, stipulates that “The person who has knowledge of an aviation accident or the existence of parts of an aircraft, will have to denounce that to the most proximate police authority. Once the denunciation is received, this authority will take the measures for protecting and custody the aircraft, and will communicate this fact to the competent authority by the fastest way”. 

D. – Civil Aviation Act of Guatemala

1. – By Decree 93-2000 a new Civil Aviation Act was approved in Guatemala. It is interesting to pointed out that in its “Whereas” it mentions that national legislation became inapplicable due to its lack of concordance with international norms ratified by Guatemala in the field of civil aviation and those of the Chicago Convention. That gives room enough to understand that for this country the internal order is hierarchically below the international one. The reading of articles 1 and 5 confirms this conclusion[18]: Art. 5 specifies that “For the activities foreseen in this Act, the Government of Guatemala adopts the international norms of the International Civil Aviation Organization”. 

The authority of application is the Civil Aviation Head Office, belonging to the Ministry of Communications, Infrastructure and Housing. According to article 6.f), the General Direction must “Coordinate and investigate the aircraft incidents and accidents occurred on the national territory, or participate in the investigation of those that take place outside the territory when they [the aircraft] are registered in Guatemala”.

Unlike the Venezuelan legislation, but like in other countries, the accident is the necessary prerequisite to generate the responsibility of the air carrier towards the passengers (article 92).

2. –  The investigation of aircraft accidents and incidents is regulated in Title XIV, formed by articles 116 and 117. The first one entitles the Head Office “to investigate and coordinate from the administrative and technical point of view the aircraft accidents and incidents in Guatemala….. [in order] to determine its causes and to establish the measures to prevent its repetition, and if necessary sanctioning the infractors”. Accordingly, article 129 of Title XV stipulates that “If during the investigation of an accident or an infraction….the Civil Aviation Head Office discovers the commission of an infraction, illicit act or crime, it will forward the pertinent documentation and other elements of evaluation to the competent authority”.

The same norm, article 116, establishes the obligation to denounce the existence of all aircraft accident and incident (its breach is considered an administrative fault by article 120), as well as the obligation to survey the remnants of the aircraft until the arrival of the aeronautical authority. The police authority “will be also responsible for monitoring the remnants  of the aircraft without interfering with the tasks undertaken by technical investigators”. Once more it is stated that “The removal and release of the aircraft or its remnants can be undertaken only with the authorization of the aeronautical authority”.

As far as concerns the coordinated participation with other organisms, the same clause establishes that “The intervention of the aeronautical authority does not prevent any judicial action nor the police intervention in case the accident is connected with illicit facts, nevertheless all such activities shall be coordinated by the inspectors and investigators of the Civil Aviation Head Office”. That cooperative action is completed by article 128, which adds that “The police or judicial authority that takes part in every investigation concerning an aircraft, shall notify it to the Civil Aviation Head Office”.

The duty to declare is ruled by article 117, whose third paragraph determines that “The investigation of aircraft accidents and incidents will be subjected to the norms and procedures established in international treaties ratified by Guatemala and its aim is the prevention of them”. As can be seen, there is an evident inconsistency between this clause (which implies the incorporation of Annex 13 within the Guatemalan internal order, especially numeral 3.1) and the previous one, through which the Head Office is empowered to sanction the infractors, and also with the previously commented article 129. These inconsistencies can be completed with the already mentioned article 5, through which the ICAO norms and Annexes are incorporated into the Guatemalan aeronautical legal order.

E.-  Civil Aviation Act of Mexico

1. –  With the last amendment introduced on January 1998, the present Mexican Civil Aviation Act regulates the topic addressed in this paper from articles 79 to 82 of Chapter XVI, entitled  “Accidents and Search and Rescue Activities”. The first remarkable note of this legislation is its nature of being of public interest (article 1). In harmony with this feature the international norms and treaties are beneath the national Law (article 4).

Safety is dealt with in several dispositions, and the accident is not a pre-condition for establishing the responsibility of the air carrier towards the passenger (article 61).  The definition of accident and incident given by article 79, paragraphs I and II, is in harmony with the one given by Annex 13. Second paragraph of article 80 indicates that “Expenses stemming from the investigation… shall be paid by the manager or the owner of the airport, and in the case of non-commercial air transport service such expenses shall be paid by the operator or the owner of the aircraft”.  I do not have further information on the matter (which as was already said is also a norm given on the public interest), but considering how costly it is to carry out a technical investigation of a civil aviation accident, it is improbable that all airport managers or owners and all owners or operators of aircraft can afford such expenses. On this ground, I considerer that the norm leaves room to much doubt about the efficiency of the regulation. On the other hand, this type of clause does not have precedents in other States’ legislation. On the contrary, there is an opposite stream supporting the financial cooperation among the State where the accident took place, the flag’s State, and the manufacturing State to perform the technical investigation of the mishap.

2. – The investigation shall be carried out by the Secretariat of Communications and Transport (article 81) “…with hearing of the interested parties”, adding that “…it will determine the probable cause of [the accident] and, if necessary, it will impose penalties…”.  As in most part of the already analyzed Latin American legislations, this norm is in frank contradiction with what is stipulated in Annex 13.  Nevertheless, Mexico is listed among the countries about which ICAO never received a notification detailing with the asymmetries between its norms and the international ones. Then, based on pacta sunt servanda and bona fide principles, and considering the assertive meaning that silence has in Chicago Convention[19], ICAO as well as any other MemberState are entitled to deduce that both legal systems are identical. Nevertheless, there is an important difference, stronger than in other countries and only comparable with the Chilean situation, since the Mexican Civil Aviation Act represents public interest and it does not leave room to support the idea that the international order prevails on the internal one replacing it in everything what stands against its principles and prescriptions.

The Chapter ends with article 82, which does not have any direct connection with the investigation of the accident but with the juris tantum presumption that the aircraft is lost if 30 days after the accident there is no news about it.

Finally, and as part of Chapter XIX, articles 86.V and 88.XI  determine as  an administrative fault if the accident or incident is not denounced. That obligation weighs on the aircraft operator or owner, and differs from that assigned to the commander in the sense that he or she shall be obliged to perform this duty within the next 48 hours after the disaster.

F. – Civil Aeronautic Act of Peru

1. –  From mid 2000 Peru has a new Civil Aeronautic Act, sanctioned by law number 27261. Its first article establishes an order of preference among the different sources of Law, placing the national Constitution on the top, then the international instruments in force, and thirdly the Civil Aeronautic Act.

The authority of application is the Civil Aviation Head Office, belonging to the Ministry of Transport, Communications, Housing and Building. By article 9.e) this Head Office must collaborate in the investigation of accidents with the Commission of Investigation of Aeronautical Accidents.

2. – Articles 154 to 156 of Title XV regulate the topic addressed by this paper. The objective of the investigation of the accident is “…to determine its causes and to establish the measures to avoid their reiteration”. 

Regarding paragraph 2 of article 154 determines that the removal of the aircraft or its parts or remainders “will only be practicable with the authorization of the  Commission of Investigation of Aeronautical Accidents…without prejudice of the judicial or police activities”, there is enough room to affirm that such Commission is not only an autonomous organism but also independent, because it has the custody and the management  of the evidence.

The obligation to denounce the accident or incident is established in article 155, whereas the obligation to declare is laid down in article 156.1. The following paragraph deals with the duty of furnishing the information as required by the Commission. Finally, numeral 3 of the same article 156 indicates that “Penalties established in the Civil Procedural Code are applicable in all the cases”. It is evident that this paragraph marks a strong asymmetry with the norms of Chapter 3 and Chapter 5 of Annex 13, since it allows judges to apply the legal assumption of  false testimony if there are differences between what was declared before the Commission and before the Court.

The final report shall be release for public information (article 154.4), and apparently none of its parts is protected as confidential information, as is required by numeral 5.12 of Annex 13. Finally, the necessity for cooperation between the technical  and the judicial authorities can be deduced by reading article 163, inserted in Title XVI upon “Infractions and Sanctions”, since it stipulates that “The police or judicial authority that takes part in all performance or investigation connected with an aircraft or with an aeronautical activity shall communicate the occurrence immediately to the Civil Aeronautics Head Office”.

Like Mexico, Peru is also listed among the contracting States of ICAO who never notified about the asymmetries between its norms and those of numerals 3.1 and 5.12.

G. – Aeronautical Code of Uruguay

1. – In Uruguay the Aeronautical Code approved by Act 14305 has been in force since 1974. Its last modification dates from 1993 and was ordered by Act 16403.

As in Peru, in Uruguayan legislation the responsibility of the air carrier is also due to the accident that caused the damage to the passenger (article 151).

2. –  Prevention and investigation of accidents are treated in the ten articles that form Title VII. The persuasive norm is included in the first one (article 92), entitled “Principle”, through which it is established that “Every aviation accident shall be investigated to determine its causes and to prevent its repetition”.  The fact that the law-maker has determined that the prevention is a “principle” obviously strengthen  the objective of  the norm, and goes even beyond the regulations of Annex 13. However it should be lamented that nowhere a reference can be found as to the obligation to investigate and to prevent further incidents.

The fact that incidents are not investigated shows a remarkable difference to Annex 13, the reason of which it shall be communicated to ICAO. Nevertheless, on September 1994, Uruguay formally notified ICAO that no difference exists between its Code and the Annex. Until now this notification has not been revoked.

That preventive goal is strengthened by article 93 by creating “…a Coordinating Centre of Flight Security with the assignment to advise the aeronautical authority in all questions connected with prevention and investigation of aviation accidents”.

Article 95 establishes the obligation to denounce the existence of an aviation accident, parts or remainders of an aircraft, whereas article 96 encourages the authority that first arrives at the place of the disaster not only to communicate  to the Aeronautical Authority but also “…to adopt the most urgent measures for the  rescue of the victims and to prevent the intervention of non authorized persons in the accident area”.

Although Article 98 in numeral 5.10 is visibly inspired by Annex 13, its scope is larger since it does not only order the implementation of coordinated action between the aeronautical authority and the judicial power, but also with “military and sanitarian authorities, and police and customs officers, within the limits of their respective competences”.  Argentinean and Chilean lack a similar clause.

The obligation to declare and thereby to provide information, is ordered by article 99. As to article 100, it makes a remission to international treaties, which reminds me of the identical rule inserted in article 190 of the Argentinean legislation, which at the time  of its drafting was source of inspiration to many Latin American Air Navigation Codes. Finally, article 101 – related to the accident suffered by Uruguayan aircraft on the territory of third States -, compels “the commander or – in case – any other crew member [to notify the accident immediately] to the Uruguayan aeronautical authority so that it can adopt the pertinent measures of investigation”.

H. – Civil Aviation Act of Venezuela 

1. –  The new Venezuelan Civil Aviation Act was approved on 18 September  2001 by Decree-law (Decreto-ley) 1946.

This legal text is rich in novelties. For example, as part of the hierarchical scale of sources of Law, article 2 gives the first place to international treaties subscribed and ratified by the Republic so that the norms and principles that shall regulate civil aviation in Venezuela shall be deduced from them. Hence, it is easy understand the role of the 1944 Chicago Convention and its annexes. Moreover, according to Alvarez Méndez’s words[20], Venezuela also published the plaintext of the 18 Annexes in its Official Newspaper.

In addition to what is established in article 3, it can be observed throughout the full text that the extent in which the operational security, safety and ordered transit of aircraft is one of the most importance targets (vide articles 3.3; 6.4; 30; 40; 83; 90.3/4/6; 92.4; 117; 174.1.e; 174.3.j; 175.2.j; 176.2.j; 177.5 to 7; 185.10).  Moreover, numeral 4 of the above mentioned clause also highlights the goal of “[Approving] norms applicable in the area of the State’s security, and oriented to achieve the uniformity and equality of methods and procedures internationally accepted to improve the security, regularity and efficiency of air navigation” .

According to article 15.2 the Ministry of Infrastructure is responsible for “The investigation of all elements connected with incidents or accidents in which are involved civil aircraft aims at the determination of its causes and at the development of the corrective measures based on prevention…”. Article 133 of Title IX confirms this faculty. Nevertheless, in the Venezuelan legislation the accident is not the necessary pre-requisite to establish the responsibility of the air carrier for the damages suffered by passengers.

The Decree-law indicates that the Ministry of Infrastructure shall establish the National Institute of Civil Aviation as an independent organ, with legal personality and its own patrimony, different and independent of the National Public Property, and with technical, financial, organizational and administrative autonomy (article 16). According to article 18, it has the  competence “to ensure that International Treaties subscribed and ratified by Venezuela in aeronautical matter are observed” (numeral 1), “to approve the safety technical standards …” (numeral 5), and “to collaborate in the investigation of the aeronautical accidents and incidents” (numeral 7). It is also authorized “to initiate, to substantiate and to decide the administrative procedures arise from presumed infractions to this Decree-law, or its regulations” (numeral 15), and finally “to impose administrative sanctions”  (numeral 16).

According to article 20, the President of this organisation is the Aeronautical Authority of the BolivarianRepublic of Venezuela, and among other attributions it is empowered “to declare the confidential character of documents registered in the Public Office of Aeronautical Records”  (art. 25.11). Taking into account the role of this institution what has drawn my attention is the broad procedural faculties that the Decree-law accords to its President, placing him almost in parity with a judge competent in contentious-administrative matters (see articles 190 to 203).

2. – Title IX  (from article 133 to 141) is entirely dedicated to the investigation of aircraft accidents and incidents.  In it are laid down the classic duties of informing and taking care of airplane in order “…to preserve the conditions of the aircraft, its rests and parts, and also the preservation of the adjacent zones where they could have dispersed” (article 134). The obligation to declare and to send the information required by the authority appears in article 141.

The last goal of the technical investigation “… is to determine the causes and factors that contributed to the occurrence of the event, and to implement the remedial actions to prevent their repetition; without detriment of the civil, penal, and administrative responsibilities than can arise in accordance with the legal order”  (article 137). From the persuasive point of view it is obvious that this is a dual norm, since it not only considers the prevention valuable, but in addition also considerers worthy to find who was guilty for the damage suffered by people with respect to life, physical integrity or patrimony as a result of the accident. Nevertheless, Venezuela has not yet notified ICAO about the asymmetries between its Law and Annex 13.  This duality is observed not only in Latin American countries but also in all other countries of the world.

The obligation to denounce the existence of any aircraft accident is deducted from an extensive interpretation of article 175.n.2, since it considers as administrative infraction “no informing to the Ministry of Infrastructure and to the National Institute of Civil Aviation the aircraft accidents”.

The consent for the removal of the aircraft or its parts is established by article 135.

The cooperative action is indicated in article 136, by which the authorities of other States are invited to participate in the investigation of the flight accidents “…in accordance with their owns competences”, having to “adjusts their own conduct and procedures to the recommendations given by the Ministry of Infrastructure, offering its collaboration in everything what it is indispensable to the preservation of the aircraft and the evidences that contribute to the elucidation of the facts”.

Article 138 gives the Ministry of Infrastructure ample authority “… to require all the relevant information, to make the tests, examinations, or experiments, and other activities that are considered necessary to the determination of the causes of the accident or aerial incident…”

Article 139 orders “Those accidents or incidents suffered in Venezuelan territory by civil aircraft registered in another State will be subject to the Venezuelan law and jurisdiction”, whereas “The accidents or incidents suffered by Venezuelan civil aircraft in the territory of a third State will be subject to the law and to the jurisdiction of that country”.  The last paragraph adds that “In both cases are to be applied the dispositions of international treaties”. But regarding what is laid down in international norms it notably differs from what is established by Venezuelan rules as far as the necessity of non-disclosure of records and other information gathered by the technical authority. Also as far as the object of the investigation is concerned it will not be to apportion blame or liability and it is obvious that under the circumstances described in article 139, Justice will have to act not according to Venezuelan law but in accordance with the international norms. This interpretation is consistent with article 2, which places them in the pinnacle of the Venezuelan civil-aviation order.

The last paragraph of article 138 sets forth that “the final report of the accident and incident is a free-access document for interested persons”. As can be easily understood such assumption is also in frank opposition with Annex 13, specially with the rule in numeral 5.12 about confidentiality.  Perhaps the faculty given by article 25.11 to the President of the National Institute of Civil Aviation (in his role of collaborating with the Ministry of Infrastructure in the investigation of aircraft accidents and incidents), could be useful at the time to temporize the internal norm with the international, because through that article the President is authorized to declare the confidential character of documents concealed in the Public Office of Aeronautical Records.

PART  TWO

ANALYTIC ASPECTS OF LEGAL CONSTRUCTIONS CONNECTED WITH ACCIDENT and INCIDENT INVESTIGATION

I. – The binding value of the technical Annexes elaborated by ICAO

1. It is well known that the 1944 Chicago Convention has been the outcome of the United States´initiative which – even before the conclusion of the World War II – called for a diplomatic conference to be held between November and December of 1944 in Chicago with the main objective of elaborating an agreement upon international civil aviation.

53 States and two governments in exile attended the diplomatic conference. Unfortunately, Argentina  – along with the USSR – declined their presence.

As a result of the conclave, a Final Act composed by five Appendices was approved, the Second of which contained the text of the 1944 Chicago Convention, and the Fifth one a project of twelve Ordinances dealt with technical issues of international civil aviation[21]. The most interesting question that here prevails is to discern whether those twelve Ordinances were included as part of the Chicago Treaty and, in such a case, which are their binding parts[22]. Finally, it is also relevant to inquire whether there is any legal difference between the first twelve Ordinances and the subsequent six technical Annexes elaborated by the ICAO Council.

2. –  From the point of view of International Law, 1969 Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more” (article 2.1). The last part of the sentence would allude – among others -, to the treaty’s Annexes. Accordingly, article 31 on General Rule of Interpretation, mentions that a treaty normally comprises a Preamble, a text and possibly one or more annexes. Hence, should be concluded that – in principle – annexes are an integral part of a treaty and therefore that they have the same binding value. The Vienna Convention has not explicitly dealt with this topic. Nevertheless distinguished publicists[23] almost unanimously consider that in order to decide whether an Annex has the same binding value as the treaty if it is indispensable to find out whether the Treaty can be understood, implemented and applied without the application of such an Annex.  For example, 1987 Montreal Protocol to the 1985 Vienna Convention on Ozone Layer Protection imposes – through its Annexes – a very strict schedule and some other complementary rules in order to eliminate certain substances exhausting the stratospheric ozone layer. Thus, there is no way to fulfil the obligations set forth the treaty and its protocol if the application of such annexes is not considered to be binding.

Nevertheless, from my point of view the Annexes to Chicago Convention do not have the same nature as the Annexes to the 1987 Montreal Protocol, since it is not necessary to go to the Technical Annexes to assure the fulfilment of the treaty, and also because the 1944 Chicago Convention contains very concrete and self-operative obligations where the Annexes are not necessary for their performance[24].  To make the point more clear it shall also be recalled  that, in connection with the Norms and Practices Internationally Recommended by ICAO, the obligation assumed by Contracting Parties is completely consumed within their internal order, because according to articles 37 and 38 of Chicago Convention they shall collaborate in achieving the highest possible degree of uniformity in the regulations and procedures that facilitate and improve air navigation by adapting – as much as  possible – national regulations to  international norms and recommended practices. This commitment to collaborate, doubtlessly inspired by the good faith principle, is enforceable per se since the simple invocation of articles 37 and 38 is sufficient to make its binding value effective.

3. Then, which would be the legal nature of the ICAO Annexes?. According to the dominant opinion of contemporary authors, it could be stated that they are the so called norms of International Regulation Law. Taking care of the ontological differences, they resemble the decrees approved by public administration of any State with the intention of regulating the rights and obligations contained in the laws dictated or approved by the national Parliament.

Since International Law lacks a universal Parliament this role is fulfilled by States whenever they meet in multilateral Diplomatic Conferences, or direct negotiations – generally bilateral – to adopt new agreements or treaties. In case the treaty creates an inter-governmental international organism[25] and one of its bodies, for instance named Council or Committee, is entrusted to elaborate a certain type of norms, such norms do not belong to the category of substantive law because they are not adopted by States directly, nor do the members of such a Council or Committee act on behalf of any State as subjects of International Law. So, the competence of such bodies is reduced to generate norms of derived law, often with non-binding character (soft law), such as recommendations, standards, or codes of conduct.

It is not redundant to remember that, when the international air traffic order was regulated by the 1919 Paris Convention, the binding value of its technical Annexes had the same legal nature of the norms adopted directly by the contracting parties, since the organism in charge to elaborate them was the CINA itself. But its successor, the ICAO, chose a different modus operandi through which the effectiveness of the International Regulation system was dramatically reduced.

To sum up, International Regulation Law presupposes the existence of an intergovernmental organism with a body which has the capacity to elaborate norms of derived law.  In our case, such organism is the International Civil Aviation Organization and the entitled body is the Council.

4. In order to clarify even more this point, I believe that it is advisable to take up again the thoughts developed some paragraphs back. The Chicago Convention entered into force as Appendix 2 of the Final Act signed in 1944, as well as the twelve Ordinances entered into force as Appendix 5 of the same Act. Ergo, the agreement and those twelve Ordinances are norms of original or substantive law, since they were directly elaborated by States during the Diplomatic Conference in Chicago. Therefore the international law-maker had to clarify in article 54.l) of the Chicago Convention that “the Council shall adopt international norms and recommended practices….call them for reasons of convenience, as annexes to the present Agreement…” (the underlined was added by the author). Therefore, it could be held that only with respect to Annex 13 we can speak about “Annexes” in the strict sense. The first twelve Regulations would be, however, norms of substantive or original law like those laid down in the Chicago Convention, but meanwhile the Convention is per se a rule of substantive law, while the first 12 Regulations are rules of technical substantive law.

If the first twelve Regulations have a different nature from the six last Annexes, for being the first ones of substantive law and the others of regulative law, common sense indicates that some legal consequence had to be derived therefrom (for example, that the Regulations only can be modified through the procedures which are necessary to modify a treaty). Nevertheless, the practice of ICAO Member States along the last 55 years denotes the opposite, since all Annexes – without any distinction – have received a treatment proper of being rules of derivative law (regulative rules).  We have to accept this as customary international law although it does not keep any consistency with the postulates of legal logic.

5. Once the Council approves an Annex in a plenary session and with the affirmative vote of a two thirds majority of its members (article 90), the Annex is distributed among Member States. Within 3 months, States have the right to notify the asymmetries between their internal order and the international recommended norm in the Annex. Then the Annex is considered to be effective. As to the majority necessary to modify the annexes, there is an interesting controversy between Buergenthal and Bin Cheng: the first considers it is necessary to get the same majority of two thirds that is required to adopt the first version of the annex, whereas the second maintains that the general rule of the simple majority should be applied because of the lack of an special indication[26].

6. What happens if a State does not adapt its internal order to the international norms and recommended practices?, Or what happens if  a State does not communicate the asymmetries between both orders?.

Argentina has notified, at least with respect to the definition of accident.  But, what happens if Argentina has other asymmetries that were not communicated?. To what extent is Argentina internationally responsible? In order to answer this question it is necessary to go back to the binding value of the annexes.  If they are regulations comprised within the notion of International Regulation Law they obviously impose legal obligations. However their binding nature would not be based on the principle of pacta sunt servanda (which would be indirectly  applicable here), but on the good faith principle, which is unanimously considered by publicists as ius cogens, that is to say, as a peremptory norm which is part of the international “public order”. Once the State communicates the asymmetry (and here it is necessary to emphasize that such a notification is a pacta sunt servanda obligation), ICAO immediately distributes the news to other members notifying that there is a country where  the international recommended norm does not prevail or prevails with the communicated modifications. By communicating the asymmetry such State can oppose its national rule towards other members. All this contributes, indeed, to good international faith.

At first, the obligation to notify the differences was demanded only with respect to legal norms, but as of 1950 the Council decided to extend this obligation also to recommended practices if the communication of an asymmetry was important for the observance of safety requirements in air navigation[27].

In Argentina, whenever a new Annex is approved or modified by ICAO, a simple communication effected by the Air Force – as authority of application – is enough to make it effective within our internal order, or simply by letting pass the term of 3 months indicated by article 90 of the Chicago Agreement. This procedure is completely different from the procedure to be followed for the implementation of a treaty, which can only be effected by a complex federal act. This is another argument to support the idea that the Chicago Annexes do not have the same legal nature as a treaty. Otherwise those asymmetries could only become effective if the State undertakes another complex federal act by formulating a reservation (conf. Articles 19 to 23 of 1969 Vienna Convention), and in addition such reservation have at least to be expressly or tacitly accepted by other States. None of these requirements are demanded for Chicago’s Annexes, clearly because they do not have the same legal nature of a treaty.

7. To sum up, the Annexes elaborated by ICAO are norms of International Regulation Law and such as they are norms of derivative law. Because of that, their binding value is preferably due to the principle of good faith rather than pacta sunt servanda This motivates that, in case of breach, the derived legal consequences lack the severity of the case where the breach of a substantive legal norm could be detected. For that reason the Chicago Convention does not indicate any specific sanction against the defaulting State. This omission debilitates both the effectiveness of article 38 and the proclaimed target of reaching the highest possible degree of uniformity within the regulations in order to facilitate and improve the safety of air navigation (article 37).

II. The use of the final technical report by Courts to apportion blame or liability

1. The concentration of damage resulting from aerial accidents is normally in direct proportion to the complexity of air navigation, and the complexity of air navigation is also in a direct relationship with the complexity of the evidence which is necessary for apportioning blame or liability in civil or criminal procedures.  Being incapable of producing such complex proof the victims of the accident or their heirs as well as Justice, try to transmit to the Courts all evidence gathered by the Investigation Board, but no longer with preventive  but with liability aims.

Thereby, the declarations of witnesses made with preventive purposes before the Technical Board are used in judicial processes to apportion blame or liability. This has lead to a progressive reticence to make such declarations, as is highlighted in the footnote to numeral 12 of Chapter 5 of Annex 13. The immediate effect is the obstruction of the work performed by the Investigation Board and accordingly a diminution of its preventive effectiveness.

This double use of the same declaration in different scenarios and with totally different purposes is encouraged from many aeronautical codes which provide their persuasive norms with dual and opposite purposes. Obviously that generates both epistemological and hermeneutical problems which in turn naturally affect the effectiveness of the norm.

Rijsdijk considers that when Justice uses the witnesses’ declarations made before the Investigation Board with the purpose of blaming a person or persons, this cannot be considered as an obstructive action to the work performed by the technical organism because after all judges and technical investigators are called to cooperate[28]. This interpretation is based on a proposal made by the European Commission at the time of adopting Directive 94/56, but the proposal was finally not accepted by the Council. The motion supported the idea of including an article which stipulated especially that the judicial authorities could only make use of the factual information contained in the technical report. Its refusal by the Council is interpreted by Rijsdijk as a clear support to the unrestricted use of such technical information. But this position considers only one angle of the norm, forgetting that not only the European norm but also the international one insists in not using the technical report to apportion liabilities.

2. It would be necessary to analyze, then, which is the legal nature of the burden of declaring imposed by the Aeronautical Codes and Aviation Acts which were examined here (i.e., article 188 of the Argentinean Aeronautical Code). From my point of view it is just an administrative burden rather than a procedural one, because the tasks performed by the Investigation Board are far from being those proper of civil or criminal proceedings, neither those proper of a contradictory motion. Moreover, because of these reasons they are not carried out under the guarantees of the due process. Finally, the investigators do not have jurisdiction since the faculty of juris ditcio has not been given to them. What they have is competence, and only of a technical nature.

Obviously, if some evidence with respect to the commission of a crime arises during the technical investigation, the investigators – as government’s officers – have the duty to denounce this information, under penalty of incurring the crime of non compliance to their duties towards the Government (as this omission is typified by the Argentine Criminal Code). And here a new dilemma arises in cases where there is no complete coincidence between the statement / declaration that was given before the investigator and before the judge. Then the Court can prosecute or blame the witness for false testimony or perjury.

Following the same line of thought it can also be argued:  if during the civil or criminal process the witness is immediately accused of false testimony, the principle about the presumption of innocence would be seriously affected, and if the declaration which was made before the technical investigators is considered testimonial, it would be incurring in the non-sense of investing the technical investigators with the same jurisdictional faculties that judges naturally have.

It is illustrative here to evoke the sentence pronounced by the Spanish Constitutional Court on 24 July 1985[29]. It turns around the notion of presumption of innocence. The Court maintained that such presumption covers any unfavourable legal effect that has been imposed on the presumed offender on the basis of some facts which were merely affirmed in the process but which were nevertheless  taken into account by the Court for drawing an unfavourable conclusion, although these facts were not  considered as proved by the Court.

3. It merits to pay attention to the sentence “facts merely affirmed in the process but…not ….considered as proved” because of its close relationship with other sentence pronounced by the Spanish Supreme Court (3rd Cir) on 27 May 1988.  There, the technical report emitted by the Spanish Commission of Civil Aviation Accidents is described by the Tribunal like an “act of information”, adding that as such “…they lack decision-making content [because] they only express an opinion supported just on technical criteria and with any purpose of resolving a procedure…, for such a reason they can neither be object of impugnation in the administrative sphere nor in jurisdictional field, …. but nevertheless its probative value can be objected in the judicial process because of the lack of constitutional guarantees in its elaboration or because other evidences prevail”.

The connotation of the legal nature of the technical report as “act of information” gives an interesting solution to the teleological conflict appearing when it is used as evidence in civil, criminal or contentious-administrative proceedings.  Regarding the similarities between both the Spanish and the Argentinean Law, the argument could be successfully used before our Courts. And what is more, perhaps this reasoning could also be useful to counterbalance the principle of freedom of evidence existing in Argentinean[30] and Spanish Criminal Law (unlike in Civil Law).

4. To summarize, there are sufficient reasons to maintain that the obligation to declare before the technical investigators of the accident is not a procedural burden but an administrative one. Because of that, such declarations are not made under the guarantees of a due process simply since they are made during a technical and not a judicial investigation. So, the asymmetries that could appear between such declarations and those made before the Court cannot give rise to perjury crime.  As well, this partial conclusion is not against – but rather in favour in the sense of harmonization – with the legal nature of the technical report as an “act of information”, according to the interpretation held by the highest Spanish jurisprudence.

5. In order to safeguard their international responsibility before ICAO and before other Member States, several countries have communicated asymmetries between their internal order and the recommended norm, like Austria, the United States, Denmark, Finland, Iceland, Holland, Sweden and Switzerland.

With respect to numerals 3.1 and 5.12, for example, Argentina has not yet notified any difference. Nevertheless, our Courts regularly use the technical report to discern responsibilities, to apportion blames and to apply sanctions[31]. There is also no control with respect to the spreading of the contents of such reports by means of massive diffusion.

As this example describes the behaviour of many countries with respect to the Annexes of 1944 Chicago Convention, it is important to analyze the consequence of such an omission.

If the above mentioned asymmetry was not notified, every time the final-technical report is used in judicial courts to apportion liability, the respective State is infringing Annex 13 of Chicago Convention and the pacta sunt servanda obligation imposed by article 38. But since the Annexes are norms of derivative law, there is also a breach of the good faith because the State has omitted to alert other member States of that asymmetry. The first legal consequence of such an omission is that – in case of accident – the defaulting State cannot oppose the application of its internal norms to the aircraft registered in other member States.  Therefore, and even though the competence of courts is based on the principle of lex loci delicti, I believe that the foreigner-defendant parties have the right to claim that no part of the technical report shall be used against them in civil or criminal procedure, unless the exception which was established by the Annex can be invoked (disclosure of information is more important than the adverse consequences that such decision could have on the investigation or on the future investigations). Furthermore, according to the gravity of the case, and under special circumstances, the foreigner defendant could even apply for the diplomatic protection of the State of his or her nationality.

In addition, if in that nation the internal legal order is subordinated to the international according to its constitutional dispositions, it is valid to maintain that national law is implicitly derogated by international norms in everything that speaks against the national dispositions. Hence the nationals of such a
State would also enjoy the same prerogatives as foreigners.

In case that a State has notified the ICAO the disparity between its national norms and the international ones, they are automatically contradicted by the other contracting parties.  Nevertheless, a latent  breach of  pacta sunt servanda principle subsists, since the State has not “collaborated [ in achieving] the more high degree of possible uniformity in the regulations, norms, procedures and organization… in all the questions in which such uniformity facilitates and improves air navigation”  (article 37 Chicago Convention).

With a certain degree of hesitation I have stated that there is a “latent breach”, because I have in mind all the difficulties which go along with the execution of an obligation of “doing something” as imposed by the Chicago Convention. It is even more difficult if there is an in tuitu personæ obligation, which is not even imposed on an ordinary person but on a State. If article 37 is interpreted to the light of Roman Law, it can also be added that it only establishes an obligation of trying to find the suitable means for reaching the agreed result (in Civil Law this is called  “obligation of means”[32]) instead of imposing an obligation to achieve a concrete result (called “obligation of result”[33]). Therefore the first obligation is weaker than the second and the infringement of Annex 13 does not have the same consequences as the breach of substantive norms.

In addition, the Chicago Convention has not formulated any sanctions in case of breach.

III. – Concepts of privileged information and confidentiality: their application in accident investigation

1. Even though Prof. Videla Escalada holds in his fundamental book  “Aeronautical Law”, that one of the essential purposes of the technical investigation of aircraft accidents is the determination of its causes with the intention of preventing its repetition by similar reasons, he also adds that such investigation facilitates the judicial task to apportion liabilities and blames. He also suggests that it should be necessary that the performances before the administrative organism which investigates the accident should have contradictory motion character[34] in order to give the technical report a greater probative value. For reasons shown in the previous paragraphs I do not agree with this opinion. 

Nevertheless, Prof. Videla Escalada recognizes that in some other countries such technical information is protected by law. In the United States, for instance, the Federal Aviation Act 1958 as well as the Independent Safety Board Act, legally settle the absolute independence of the National Transportation Safety Board (NTSB) as a technical organism of investigation. The first Act prohibits that any element or report linked with the technical investigation of the accident is used as evidence before tribunals in order to discern responsibilities. The NTSB’s employees can neither declare nor act as experts on the civil or criminal cause (Testimony of Board Employee, 1975). Since case Ratuer v. Arrington the American courts have ruled that it is the purpose of such regulations to avoid that the view of the investigating organism replaces the point of view taken by the judges. However, since the sixties this general prohibition has been made less restrictive, first through 1966 Freedom of Information Act and later through 1974 Privacy Act.  On the other hand, via Federal Evidence Rule (501) there are certain witnesses’ statements – as well as their disclosure- and other evidence that are protected by the law.  Among them is the information gathered in case of aircraft accident investigation. More precisely, 49 USCA § 1441(e) stipulates that “No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports”.  Since it is Privileged Material, the judge is specially entitled to review the report privately to determine whether some of its elements or parts can be disclosed in the process[35].

According to the Public Reliability Information Act only that part of the report is publicly accessible which determines the probable causes of the accident and formulates the safety recommendations.

With the purpose of strengthening its status of technical and independent organism, the NTSB directly reports to the President of the U.S.A. It also lacks any sanctioning power which is just at hands of the Federal Aviation Administration (FAA).

2. Great Britain, besides Annex 13 and the supranational Directive 94/56, also has the Civil Aviation Act 1967, amended in 1996 just to integrate the communitarian norm into the internal order (Rule N° 4). Therefore, the technical report cannot be used in civil lawsuits.  Only the nearest relatives of the victims have access to their contents. Nevertheless, as from 1997 the jurisprudence understands that the conclusions obtained by the Investigation Board cannot be used to apportion civil or criminal liabilities (case R.D. v. Ministry of Defence).  They simply inform about occurrence of the facts.

In an interview held with the Air Attaché of Great Britain in Argentina a couple of years ago, Mr. Brewer confirmed that British judges do not have access to the final report prepared by the Air Accident and Investigation Branch (AAIB), and even though only some passages can be incriminatory, no information or declaration gathered during the technical investigation is admitted as evidence before the Court[36]. Therefore, the Court must to collect all evidence, including testimonial declarations on its own behalf.

3. France offers the most interesting regulation from the legal as well as from the organisational point of view. In France, for instance, the Judiciary is not a branch of government (as the Legislative or Executive), but an organism belonging to the Ministry of Justice. The Bureau Enquêtes Accidents, as well is part of the Ministry of Transport and Public Services.

The French Civil Aviation Code 1981 was amended in 1999 by Act n° 99-243 to modify Part VII upon “The Technical Report of Accidents and Incidents”[37]. In harmony with European Directive 94/56/CE, its first article (L.711-1, i) indicates that the only purpose of the technical investigation of an aircraft accident or incident is to determine the causes and to settle safety recommendations aiming at the prevention of futures accidents or incidents[38], without prejudice of carrying out the judicial survey.

In France two parallel and independent investigations are carried out, judicial and technical. But if the judicial investigation is undertaken first, all the recordings and evidences are directly seized by the judicial authority (articles 97 and 163 of the Procedural Criminal Code), and the investigators do not have access to such evidences unless they request them to the judge, who hands out a copy  – but only under the control of an official of the Judicial Police (article L.721-2). If there is no previous judicial proceeding the recorders can be taken directly by the investigators, although before the presence of an official of the Judicial Police.

If a judicial examination is undertaken, the investigators can only take the remainders, fluids, pieces, elements or mechanisms that are considered necessary to determine the causes of the accident or incident if they were previously authorized – according to the case – by the Attorney of the Republic or by the Judge of Instruction. If not, they will fulfil their task obtaining the information and test material rendered by judicial experts (article L.721-3). The same clause determines that technical investigators can only make destructive analyses of the remainders of the aircraft if the judge has authorized them.

These norms throw some doubt on the observance of certain norms of Annex 13, specially numerals 5.4 and 5.6, which emphasize “The investigator-in-charge shall have unhampered access to the wreckage and all relevant material, including flight recorders and ATS records and shall have unrestricted control over it to ensure that a detailed examination can be made without delay by authorized personnel participating in the investigation”.

Articles L 731-1 and L 731-3 set forth that all experts and members of the technical commission have the obligation to observe the professional secret with respect to the information gathered or inferred during the technical investigation of the accident; otherwise they are punished to the light of Criminal Law.  This generic obligation to keep professional secret only falls in a very restricted number of situations indicated by the law, such as in case that it is necessary to transmit certain data to the administrative authorities, or to the manufacturer of the aircraft, or to the companies in charge of the maintenance, and also to the operators, in all cases only if it is weighed that the disclosure of those partial details can be useful to prevent future accidents or serious incidents.

Succinctly, in France justice undertakes its independent investigation of the accident[39]. Judges have the control and management of the evidence[40] which will be used to apportion liabilities[41], whereas the Bureau Enquêtes Accidents performs its own investigation with preventive aims – although not always in an independent way -. So that, numerals 3.1 and 5.12 of Annex 13 are satisfactorily fulfilled. But as the control of the aircraft, its recorders, parts, and materials, are in the hands of the Judge of Instruction, France breaks the obligations as contained in numerals 5.4 and 5.6 of the Annex.  Until now this has not been communicated to ICAO.

4. In The Netherlands, the right of access to the information and documents used by the government is a right which is guaranteed by article 110 of the Constitution. Its execution is regulated by the Wet Openbaarheid van Bestuur (WOB), which is the law on freedom of information, sanctioned in 1991 and reformed in 1998.

Nevertheless, the confidentiality of the registries, declarations and documents gathered during the investigation of a mishap are protected by article 27.4 of the Aviation Accident Act of 1992, which establishes that “Exclusion of information from the Final report is justified if the interest in publication does not outweigh the interest:  a) of criminal investigation and prosecution, b) of privacy and the protection of individual medical and psychological examination results;  c) to prevent an unreasonable favour or prejudice to persons involved in the occurrence or third parties; d) of confidential protection of business information and manufacturing secrets if so requested as well as information received from another state under a confidentiality embargo”.

The WOB was invoked by a journalist, employed by the most important national newspapers, to carry out their own investigation on the accident occurred to El Al flight 1862, in Ámsterdam airport on 4 October 1992. Of course, the technical investigation was conducted by the Netherlands Aviation Safety Board (NASB), who concluded and published the final report on February 1994[42].

The journalist was interested in obtaining a copy of all declarations obtained by the investigators, as well as of certain parameters measured by the DFR (Data Flight Recorder). The NASB refused to give such information on the basis of the already mentioned Aviation Accident Act. Because of the refusal, the journalist appealed the decision before the Administrative Chamber of Courts in Ámsterdam and argued that these registries and declaration were not mentioned among the exceptions quoted by articles 10 and 11 of the Freedom of Information Act. The Board, in turn, based its defence on the argument that  the Aviation Accident Act was lex specialis and thereby countermanded the WOB as lex generalis.

Regarding the legal-logic of the principle invoked by the Board, the judge had to analyze whether these documents fitted the criterion of “exhaustive information” as defined by the WOB as one reason which fully justifies their non-disclosure.  The Court also examined if the confidentiality system settled by the Aviation Accident Act was consistent with numeral 5.12 of Annex 13. In both cases the journalist’s claim was rejected (Arrondissements Rechtbank te Amsterdam, Sector Bestuursrecht, nr. 97/3146 WET 37 d.d. 7 January 1998)[43].

Supported by the Netherlands Association of Journalists, he appealed before the Administrative Section of the Council of State, which confirmed the previous sentence emphasizing that the confidentiality system was established in the interest of aviation safety.

A similar outcome had the demand suit by passengers’ relatives of the accident occurred on June 1989 in Surinam, during a flight between Holland and that country.  In The Hague, the District Court and the Appeals Court[44] denied the access to documents and transcripts of CVR and DFR included in the final report of the accident, not only because of their confidentiality status, but also because of Section 3.1 of Annex 13 which prevents the use of that report especially in order to discern liabilities[45].

As from 1st July 1999, the Netherlands Aviation Safety Board was replaced by the Netherlands Transport Safety Board as a new independent organism in charge of the multi-modal investigation of all accidents. For that reason, the Aviation Accident Act also was modified to reflect these new competences, but the confidentiality system remains intact[46].

5. In New Zealand, for instance, there was a very interesting case in 1995 when the conversations recorded in the CVR were used by justice to blame the aircraft commander for the accident. As a consequence of this event a legislative reform gained more and more importance. To protect certain data under the legal figure of privileged information, the reforming process was inspired by the North American, Canadian and Australian legal systems. Now, mass media are prohibited to publish conversations recorded in the CVR, as well as to reproduce images of the cabin video recorder or statements of witnesses.

The fact that triggered the legislative reform in New Zealand was the accident which happened in 1995 to a Dash-8-100 during the landing manoeuvre to the Palmerston North airport. The occurrence was investigated by the Transport Accident Investigation Commission (TAIC), who made a transcription of the CVR recordings (Cabin Voice Recorder).

As also the police authorities opened a summary process to blame the commander and the first officer for the accident, they seized the CVR and the DFR under a search warrant, which is a written judicial order authorizing a law-enforcement officer to conduct a search and to seize the evidence[47].

As the TAIC refused to hand out the evidence basing their right on the obligations assumed through Annex 13, Chapter 5.12 of the 1944 Chicago Convention, the police authorities brought an action which was finally decided favouring the plaintiff position[48]. The TAIC released approximately 50% of the recordings, whereas appealed the sentence before the Chamber. Simultaneously, the New Zealand Airline Pilots Association (ALPA) also started an action because from their point of view still the use of 50% of the transcriptions of the CVR was still not pertinent under numeral 5.12 of Annex 13[49].

In an interesting sentence, the Court of Appeal analyzed the constitutional status of the Chicago Convention and concluded that numeral 5.12 of Annex 13 did not integrate into New Zealand Law because there was no Act ordering it. The Court also observed that, although the above mentioned Chapter 5 had been part of the New Zeeland Law, its inclusion had been omitted when TIAC Act was amended in 1990.

The police investigation was completed five years later, and the commander was found guilty on the basis of the CVR transcripts. However, an exciting debate about the judicial use of the technical report arouse. It culminated with the approval of the TAIC Amendment Act in 1999 which substantially protects more strictly than Annex 13 the information contained in the CVR and restricts its use for the purpose of apportioning blame or guilt. The other parts of the report can only be disclosed by sentence of the Court, which will also determine the conditions under which it should be admitted as evidence.

According to Section 14B of the already mentioned Act, the elements that can never be disclosed nor admitted as evidence in any process are:

a) declarations or other statements made before the TAIC during the investigation;

b) recordings of the interviews taken by officers in charge of the technical investigation, or its transcripts;

c)  investigators’ opinions or notes they have taken  while performing their duties;

d) any other information linked with the investigation and provided under confidentiality by the TAIC to any other person or organization;

As far as the CVR, Section 14C prime facie prohibits to reveal its content or to use it as evidence, except in case of Court’s decree or sentence. Documents and information provided by third parties to the TAIC during the course of the investigation are also protected to the extent that they contain information about natural persons clearly identified[50]. Sections 14E and 14F describe the mechanisms to be followed if the judge allows access to the protected information, whenever “…the Court determines, on the balance of probabilities, that the interests of justice in the disclosure of the record outweigh the adverse domestic and international impact the disclosure may have on the investigation to which the record relates or any future investigation into an accident or an incident”.  As can be seen, the letter of the law reproduces almost literally the suppressive condition contained in the first paragraph of numeral 5.12 of Annex 13.

Nevertheless, only those demands which claim damages at least for NZ$ 200,000 or beyond, can ask for access to confidential information. It is worth to consider whether or not the human rights principle of non discrimination is affected by this disposition.

Last but not least, the conclusions drawn up to this point are valid for civil procedure only, since it is absolutely prohibited to use the final report or parts thereof or CVR transcripts in penal procedure to apportion liability or to incriminate crew members.

6. As to the international level we have both numerals 3.1 of Chapter 3 and numeral 5.12 of Chapter 5 of Annex 13, where the last numeral establishes that “The State conducting the investigation of an accident or incident shall no make the following records available for purposes other than accident or incident investigation, unless the appropriate authority the administration of justice in the State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations: 

a) all statements taken from persons by the investigation authorities in  the course of their investigation; 

b) all communications between persons having been involved in the operation of the aircraft; 

c) medical or private information regarding persons involved in the accident or incident; 

d) cockpit voice recordings and transcripts from such recordings;

e) opinions expressed in the analysis of information, including flight recorders information.

These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed”.

8. Summing up: considering the tension between two equally legitimate legal interests, the Law must find a balance point between them and establish under which conditions or circumstances the right of free access to information (as contained in the final report of the accident investigation) must be considered less important than the necessity to strengthen the safety of civil aviation.

PART THREE

FUTURE  ASPECTS:   Drawing up probable conceptual map

1. Taking into account the necessity of establishing the boundaries for  the use of information as contained in the final report of the accident investigation with aims other than prevention, including the use as juridical evidence, I have elaborated a conceptual map showing the complexity of legal and technical interests as well as the borderline between independence and necessary cooperation within the framework of an efficient  investigation.

Consequently, from my point of view the general theory of systems offers the more suitable theoretical frame for an approach to this problem, not only because the Law in itself is a system, but since aircraft per se and aeronautical activities  perfectly fit within the systemic theory. Therefore, the proposed conceptual map would have the following attributes:

a) At least two units of analysis and one dependent-variable can be distinguished. The units consist of the juridical organism (rectangle A) and the technical organism (rectangle B). The most important functions of the judicial organism are described in the vertical arrows, just like those of the technical organism. The dependent-variable is the final report elaborated by those who are in charge of the investigation of the accident.

b)  A third rectangle representing the final report is superposed, like nexus or binding point between A and B. The graphic is superposed in greater measurement on the technical organism since almost its entire activity is based on the accomplishment of that report. It is superposed in smaller proportion on the judicial organism because the use of the final report by justice is one of the evidences that Courts can admit. Graphically, the model would have the following design:

                                                                                                 to denounce offences

                                                                                                           take declarations

                                                                                                           from witnesses

                                                                                                                  financial recovering      detect actions or omissions

     (culpa or dolus)

                                                                                                                            prepare the

                discern liabilities                                                                                   final report

                            fix amount of compensation

                                     apply sanctions

     A                                                                                                                           B

                                          Public               could be disclosure      confidential

                                                              by judicial decision

                                                                (is privileged

                                                                  information)

            causes

                                    safety                         CVR                    witnesses

                           recommendations              videos                  statements

                                                                                      (except criminal offence)

                                                                                     disclosure of professional

                                                                               secrecy or manufacturing secrets

What kind of use could make justice of the final technical-report? I consider that in order to avoid the entropy of the system, that is to say, in order to avoid a confrontation between the incumbency areas of one organ and the another, it would be necessary to distinguish three different dimensions within the final report.

v     The first dimension is of free-public access. That would be the part that indicates the causes which produced the accident and which are the safety recommendations of the Board.

v     The second dimension must be protected as privileged information, which can only be disclosure by judicial decision determining that the disclosure of such information outweighs the adverse consequences of such an action on the current technical investigation or on other investigations in the future, as much at national level or at international.  It would be necessary to include at least the CVR, the Cabin Video Recorders and all related clinical or psychiatric information into this concept, unless the last two are already under special protection conferred by the civil laws.

v     The third dimension is strictly confidential including the following information: testimony of witnesses as well as data which are protected as professional or manufacturing secret. Nevertheless, and having in mind the principle sumsum ius, summa injuria (that which refuse to enshrine absolute rights), it would be necessary to distinguish two situations. The first works like a relative exception to the principle of confidentiality, and the second like an absolute exception.  a) In the first case it would be possible to include those cases where the technical investigator is convinced of the existence of some criminal offence, since most of the Penal Codes (which are peremptory norms) demand that every public officer who has knowledge of a crime shall have to denounce it; otherwise he could be prosecuted for breach of his official duties.  Once the fact is brought into the open, the court would have to commence its own investigation in order to gather the necessary evidence to prove the crime. In other words, within the proposed conceptual model, the witnesses’ declarations made before the Technical Board could never be used for apportioning criminal liability. b) Within the absolute exception to the principle of confidentiality it would be necessary to include all cases where the perpetration of a crimen laesae majestas is noticed. In this field it is advisable to consider the 1948 Geneva Protocols, the 1998 Rome Convention upon the International Criminal Court, the 1997 International Convention for the Suppression of Terrorist Bombings, and the 1999 Convention for the Suppression of the Financing of Terrorism.

Conclusion

The technical investigation of aircraft accidents or incidents is a key element of safety in international civil aviation. It is the best preventive tool for ensuring safety in the future rather than a valuable auxiliary for analyzing the past in many cases.

During the technical investigation the data obtained shall be safeguarded as privileged and confidential information. Such protection must prevail over the interest of persons involved or affected by the accident. Evidence however which reveal an international crime or a crimen laesae majestas do not deserve such legal protection.


[1] Bourayne, Cyril : « Accidents aériens et maritimes vers une responsabilité désincarnée ? », RFDAS, Vol. 199/1996, page 341.

[2] Abeyratne, Ruwantissa : Liability for Personal Injury and Death Under The Warsaw Convention and  its Relevance to Fault Liability in Tort Law, Annals of Air & Space Law, Vol. XI, Part I,1996,     page 1.

[3]   Goldhirsch, Lawrence : Definition of ‘accident’ : revisiting ‘Air France v. Saks’ “,  Air & Space   Law,  Vol. XXVI/2, April 2001, page 86

[4]   UN Doc. A/Conf. 39/27 1969; UNTS 1155, page 331.

[5]  Goldhirsch, L.: ibídem footnote 3.

[6] Abeyratne, Ruwantissa: Access to financial statements of airline pilots and privacy issues – The  Silk Air crash, Air & Space Law, Vol. XXV, Nr. 3, 2000, page 97-107.

[7]   Bouvet, Geoffroy: La notion de mise en danger d´autrui appliquée au commandant de bord, RFDAS, Vol. 197/1996, page 203.

[8] Capaldo, Griselda: La Construcción de aeronaves: su estatuto y régimen de responsabilidad (Manufacturing of aircraft: legal framework and liability system),  Ed. Facultad  de Derecho – UBA, Buenos Aires 2000, page 85.

[9] Pérez Collar, Juan Manuel: La investigación en Factores Humanos para la prevención de accidentes, not yet published, work presented at the “Seminario de Investigación de Accidentes Aéreos” (Seminar on Investigation of Air Accidents), Madrid 23-25 October 2001.

[10] Ortiz, Luis – Capaldo, Griselda: Can Justice Use Technical and Personal Information Obtained Through Aircraft Accident Investigations?, Journal of Air Law and Commerce, Vol. 65 – N° 2/2000.

Ortiz, L.- Capaldo, G.: Problems Linked with the Use by Justice of the Technical Information of Accident Investigation,  Proceedings   of   Boston   Seminar   of   the International Society of Air Safety Investigators, Boston 1999 (page 55/66).

Mannin, Colm: Enquête sur les accidents et incidents d´aéronefs en Europe Directive du          Conseil du 21 novembre 1994, n° 94 / 56 / EC,  RFDA et S, Vol. 197 N° 3/1996,  page 333.

[11] Official Newspaper n° L 319 de 12/12/1994 P. 0014 – 0019.

[12] On the other hand, the English version properly alludes to “stowaway”.

[13] Méndez de De Santis, Mercedes : Investigación de accidentes de aviación, not yet published, work presented at Seminario de Investigación de Accidentes Aéreos (Seminar on Investigation of Air Accidents), Madrid 23-25 octubre 2001.

[14] Explanatory definitions are useful to fix boundaries aiming at avoiding legal ambiguities.

[15] Article 187: The authority responsible of the custody of the damaged aircraft and its parts or remainders, will avoid in such area the intervention of other non-authorized people. The release of the damaged aircraft, its parts, objects or other affected elements will only take place with the previous consent of the aeronautical authority.

The intervention of the aeronautical authority does not prevent neither the judicial action nor the police intervention when the accident is connected with unlawful events that make necessary to     act in accordance with the criminal law proceedings, or when it is necessary to assist or save people.

(La autoridad responsable de la vigilancia de los restos o despojos del accidente, evitará que en   los mismos y en las zonas donde puedan haberse dispersado, intervengan personas no   autorizadas. La remoción o liberación de la aeronave, de los elementos afectados y de los objetos   que pudiesen haber concurrido a producir el accidente sólo podrá practicarse con el   consentimiento de la autoridad aeronáutica.

La intervención de la autoridad aeronáutica no impide la acción judicial ni la intervención policial en los casos de accidentes vinculados con hechos ilícitos, en que habrá de actuarse conforme a las leyes de procedimiento penal, o cuando deban practicarse operaciones de asistencia o salvamento.)

[16] Article 188: People shall declare before the aeronautical authority upon all questions connected with the investigation of the air accident.

(Toda persona está obligada a declarar ante la autoridad aeronáutica, en todo cuanto se relaciones con la investigación de accidentes de aviación).

Article 189: The authorities, persons and institutions shall give the information what is required for  the aeronautical authority, as well as let the authority examining the documents and antecedents needed for the investigation of the aviation accident.

(Las autoridades, personas e instituciones tendrán obligación de producir los informes que les requiera la autoridad aeronáutica, así como permitir a ésta el examen de la documentación y de los antecedentes necesarios a los fines de la investigación de accidentes de aviación.)

[17] For a different opinion see the work written by Esteban Regales Cristóbal, which was  presented in the Seminario sobre Investigación de Accidentes Aéreos (Seminar on Investigation of Air Accidents), Madrid 2001, page 11.

[18] Article 1. Objective.- The present Act has as objective to rule the exercise of civil aviation  activities, as well as the support of the rational, efficient and safety use of the air space, base on what is prescribed by the Constitution of the Republic, on the international treaties and conventions ratified by Guatemala, on the regulations and on other complementary rules.

(La presente ley tiene como objetivo normar el ejercicio de las actividades de   aeronáutica civil, en apoyo al uso racional, eficiente y seguro del espacio aéreo, con fundamento en lo preceptuado en  la Constitución Política de la República, los convenios y tratados internacionales ratificados por Guatemala, los reglamentos emitidos para el efecto y demás normas complementarias).

[19] Ducrest, Jacques: Une Nouvelle Dynamique des Fonctions Législatives et Quasi-législatives de L’OACI?, Annals of Air and Space Law, Vol. XXI-II/1996, page 81.This author pointed out the differences between the rules of contracting in and contracting out. In the first ones, the State silence is interpreted as a manifestation of its will of not being tied by the norm. In the second case, the silence implies an acceptance, but it leaves the doubt whether this is genuine consent or whether it only demonstrates a lack of interest. However article 90 of Chicago Convention encourages me to hold that the silence here has an assertive meaning, and it shows the harmony between both orders, the national and the international. To discern whether the State is conscious of the legal consequences of its silence, or  whether  silence is just an act of lenience or lack of interest is a question that goes beyond the Law itself, specially in this case where certainty plays an essential role. If the State remains silent such indifference does not alter the juridical result, which will be the State’s tacit acquiescence. This interpretation is also consistent with the principle of propriam turpitudinem non est alegans  and also with the principle that holds that mental reservations can not be taken into account by the Court.

[20] Presentation made at XXVI Ibero-American Conference on Air and Space Law celebrated in Tegucigalpa.

[21] Primavera, Joaquín: Uma questao prévia: Vigoram os Anexos da ICAO na ordem jurídica Interna portuguesa, in Na data do 50° Aniversário da Convencao de Chicago de 1944.

Abeyratne, R.I.R.: The legal status of the Chicago Convention and its Annexes, in Air & Space Law, Vol. XIX, N° 3, June 1994.

[22] The difference between Norm and Recommended Practice (or Standard) was settled for the very  first time in Resolution A1-31 of the ICAO’s General Assembly.

[23] see Statute of International Court of Justice, article 38.1.d).

[24] Capaldo, Griselda: Transporte aéreo de mercancías peligrosas: relaciones entre el Derecho Internacional y el Derecho Interno (Carriage by air of dangerous goods: the relationship    between International Law and Domestic Law), in Avances de Investigación en Derecho y Ciencias Sociales,  Departamento de  Publicaciones de  la  Facultad  de  Derecho  y  Ciencias Sociales, University of Buenos Aires, page 237.

[25] Of course, within this analysis the author excludes the special situation of the regional integration processes, like the European Union, which has supranational organisms entitled to  enact binding rules for all Member States.

[26] Ducrest, Jacques: Une Nouvelle Dynamique des Fonctions Législatives et Quasi-législatives de L’OACI?, Annals of Air and Space Law, Vol. XXI-II/1996, page 74.

[27] Ducrest, J.: ibídem.

[28] Rijsdijk, Onno : European guidelines for aircraft accident and incident investigations, in Air &    Space Law, Vol. XX n° 4/5, Sep 1995, page 196.

[29] Quoted by Esteban Regales Cristóbal in his work upon Investigation of Aerial Accidents, (see footnote 17 of Part I, published in Zeitschrift für Luft- und Weltraumrecht 3/2003)

[30] Donna, Edgardo: Investigation of Aircraft Accidents from the Criminal Law point of view, First National Conference for Federal Judges and Prosecutors upon Technical and Legal Aspects of             Aircraft Accident Investigation, Faculty of Law of the University of Buenos Aires, 8 – 9 September       2000.

[31] Vide:Topolevsky, Moisés c.ALFA, Cámara Nac. Apel. Civil, Com. y Penal Especial de Capital Federal (15.6.1953); Deganutti de Pasqualini, María y otros c.ALFA; Cámara Nac. Especial    (23.4.1954); Mendiguren, Elena y otros c.Aerolíneas Argentinass, Cámara Fed. Civil y Com. (3.9.1956); Marino, Rosario c.Dirección Nacional de Aeronáutica, CS (26.5.1977); caso Inter-    Austral, Cám. Fed. Civil y Com. (9.8.1985).

[32] For instance the obligations assumed by a Lawyer or by a maid or a servant.

[33] For instance the obligations assumed by an Engineer or by a Book-keeper before their customers.

[34] Ortiz, Luis – Capaldo, Griselda: Can Justice Use Technical and Personal Information Obtained Through Aircraft Accident Investigations?, Journal of Air Law and Commerce, Vol. 65 – N° 2/2000.

[35] Matthewson, Charles: It is a privilege, Flying Safety, October 1994, and May 1995.

[36] Baker, T.: RAF Aviation Board of Inquiry: a Lawyer´s Perspective, Airclues, N° 2/2000.

[37] Guibert, Claude – Venet, Max : Commentaires sur le Loi n° 99-243 du 29 Mars 1999 relative     aux enquêtes techniques sur les accidents et les incidents dans l’aviation civile, RFDA et S, Vol. 211 N° 3, 1999, page 275-290.

[38] Loukakos, Nikolas : Les accidents de sûreté et le rôle de la prévention dans le transport  aérien de passagers,  RFDA et S, Vol. 197 n° 3, 1996, page 315-331.

[39] Guichard, François : Les Incidences de L´évolution  du Droit Pénal  français sur les activités    aéronautiques,  RFDA et S, Vol. 197 N° 2, 1996, page 155-160.

[40] Bouvet, Geoffroy : La notion de mise en danger d´autrui appliquée au commandant de bord, RFDA et S, Vol. 197/1996, page 203.

[41] Lepine, Cyril : La mise en danger délibérée d´autrui, en RFDA et S, Vol. 197 N° 2, 1996, page 167-      171.

[42] Geut, Henk: Freedom of information versus confidentiality in accident investigations in The       Netherlands, Air & Space Law, Vol. XXV, N° 1/2000, page 27-30.

[43] Geut, H.: ibídem.

[44] Pres.Rb ‘s-Gravenhage, 4 July 1991, case n° 91/522,  y Hof’ s-Gravenhage, 9 April 1992, case n° 91/1110, respectively.

[45] van Baren, Willem: Recent aviation case law from the Benelux, Air & Space Law, Vol   XVIII, N° 1,  February 1993, page 29-35.

[46] Geut, H.: ibidem nota 42.

[47] Conf. Black’s Law Dictionary – Abridged Seventh Edition, ed. West Group, Minnesota 2000, page 1085.

[48] Gedye, Nathan : Use of Aircraft Accident Investigation Evidence en New Zealand, Air &  Space Law, Vol. XXV, N° 4-5, 2000, page 159.

[49] NZ Airline Pilots’ Association Inc. v. Attorney-General  (1997) 3 NZLR 269.

[50] Gedye, Nathan: ibídem footnote 48.

Autor: Griselda Capaldo

PhD in Law (University of Buenos Aires), post-doc in Universität zu Köln. Scientific Researcher (CONICET) Professor Unviersity of Buenos Aires (Air Law, Environmental Law and Maritime Law) AUTORA: del Proyecto de Código Aeronáutico Argentino (2010) PUBLICACIONES - 3 libros como autora, 5 como co-autora, 3 como editora, 2 como directora, y 1 como coordinadora - 15 capítulos de libros y 72 artículos en revistas especializadas nacionales e internacionales (en Alemania, Australia, Brasil, Canadá, Colombia, EE.UU., España, Inglaterra, Paraguay, Perú, Uruguay) CONGRESOS - JORNADAS - PANELES - CONFERENCIAS - Ponente en 92 Congresos, Talleres, Jornadas y/o Seminarios (nacionales e internacionales) - Asistente a más de 150 Congresos, Jornadas, Seminarios y Cursos MEMBRESÍAS -Miembro plenario de 3 Organismos Internacionales (IUCN -World International Union; IUCN-CEL Commission on Environmental Law; Instituto Iberoamericano de Derecho Aeronáutico y Espacial – Consultivo de NU) -Miembro plenario de 3 Organismos Nacionales

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