(Please note, this matter is not currently being litigated in Australia)An Airbus A320 airliner (registration D-AIPX) belonging to Lufthansa's Germanwings low cost subsidiary has crashed en route between Barcelona and Duesseldorf in the French Alps. It was a 24 year old aircraft, originally operated by Lufthansa.
At this time it is feared that all 150 people on the flight (flight number 4U9525) were fatally injured. This regular passenger service was tracked over southern France and is reported to have come down on a rugged mountainside at an altitude of about 5,000 feet.
The French aviation authority has reported that no emergency calls were made by the pilots, but details about the maintenance history of the recently maintained aircraft as well as all reasonable possibilities behind the 31,000 foot descent in the last nine minutes of the flight will need to be considered by French investigators.
The world will question how such an event happens during the cruise portion of flight in such a heavily trafficked airspace, but thankfully at least one of the aircraft black boxes has already been recovered, and that will hold valuable clues.
As an international accident the official international investigation will focus on and be the legal responsibility of the State where the debris was found – France. As the aircraft is manufactured by Airbus, which is also domiciled in France, the proximity of technical and investigative manufacturer expertise is of practical benefit to the investigation (which, under international norms, will include these nations but also those with an interest as their citizens were fatally injured, including Germany and Spain).
In France a peculiar construction of the international aviation laws with respect to accident investigation means that the French judicial authorities may seize flight data recorders and cockpit voice recorders for the purpose of investigation to establish legal (criminal) blame. They may then, under police supervision, allow the official accident investigation authority (the Bureau d’Enquêtes et d’Analyses pour la sécurité de l’aviation civile, “BEA”) to copy the black boxes for their purposes.
This method of investigation is at odds with Annex 13 to the Chicago Convention which establishes that such information is only for the purpose of safety investigations (ie, to prevent like accidents occurring again in future). The French methodology is a by-product of history as the Napoleonic Code stipulates that fatal accidents must be investigated in order to establish blame.
Thus, a feeling that there is a right of families to hold “perpetrators” criminally accountable for mistakes is the overall objective of investigations of this nature. Regrettably, this focus on blame has been, in the past, considered to be the cause of alleged tampering of black box data recordings which ultimately benefits no passenger, family member, aviation purpose nor aviation stakeholder.
All of this will be of cold comfort to the sadly grieving passengers’ families who learned of the tragedy last night or this morning including, according to the Department of Foreign Affairs and Trade, one Australian family.
We would implore the French authorities to work cooperatively to ensure the paramountcy of the safety investigation come first, rather than the search for legal (criminal) blame.
Our thoughts go out to those affected by this disaster.
Written by Shine Lawyers. Last modified: September 26, 2018.