(Please note, this matter is not currently being litigated in Australia)In the last few days, the families’ of QZ8501 passengers experienced the worst case scenario when Indonesian authorities located some of the deceased in the Java Sea together with other evidence of a crash – aircraft debris clearly from the Air Asia A320 aircraft.
The recovery and salvage effort is still in its infancy with major parts of the aircraft fuselage considered to be in four or more separate pieces at a depth of some 30 metres.
Potential airline regulatory breaches come to lightAt the same time, swift moves by Indonesian transport regulators have cast doubts on many aspects of Air Asia Indonesia’s operations, particularly in relation to the Surabaya-Singapore flight route. The relevant transgressions, based on media reports, are breach of Indonesian permission for Air Asia to fly the route only on Mondays, Tuesdays Thursdays and Saturdays. The accident flight was operated on a Sunday. The consequence of such a breach was that Air Asia’s route license for that route has been suspended. More generally, such a breach is something which casts doubts on the communications between; industry compliance with; and, Government oversight of, Indonesian aviation regulations both by this airline and the Government.
In terms of compensation implications, the failure of an airline (if it can be categorised as wilful misconduct, and is causative of the deaths of passengers) allows the strict liability limits within the Warsaw Convention to be broken, and families to recover more realistic and modern levels of compensation than the measly $10,000 USD permitted by the 1929 treaty.
Initial thoughts are that such a breach would not in and of itself amount to such wilful misconduct, but the issue remains open until more is known about the range and scope of issues which have together caused this accident. No accident is caused by a single issue or problem.
Another aspect of this which has come to light following the accident is the Indonesian Government’s contribution in other respects, to allowing the flight to operate without proper permission. In this case, the airport operator at Surabaya and officials in the air traffic control sector have been suspended from operation.
Yet another significant and potentially more directly applicable aspect of airline indiscretions which may be causative of the accident is an aspect of the airline’s pre-flight preparations. There are indications that Air Asia had stopped picking up paper copies of weather reports (which are useful as backups to the digital information pilots use for flight planning online) some time ago.
Other aviation industry participants including major Indonesian airlines and the Indonesian Navy continue to use paper weather briefing information and, in addition, several carriers operate with a safety measure which involves weather dispatchers speaking with operating pilots in person prior to flight to debate detours and avoidance of severe weather systems. It is thought that Air Asia does not avail itself of this system, preferring to self-brief in respect of information it gathers from the Government’s weather agency (“BKMG”). There is no suggestion that one method can replace another but certainly prudence would dictate the more sources of information used, the greater the potential safety margin attainable by a carrier.
The Indonesian situation demonstrates a typical dichotomy in civil aviation regulation – the fact that, legally, the pilot in command has the ultimate responsibility for the disposition of a flight (from everything to do with flight planning and actual operation of the flight), but there are also competing regulatory and commercial considerations which impact on that assertion of responsibility. Such factors include airline policies and guidelines for pilots, as well as particular domestic aviation laws which dictate the nature of the briefings pilots must avail themselves of before operating a flight – for example, the Indonesian Civil Aviation Safety Regulations Part 91 Amdt 2 at 91.103 require the pilot in command of each flight to “become familiar with all available information concerning that flight… [which information must include] weather reports and forecasts”.
While such rules are uncontroversial, the various obligations do not sit easily with each as other except insofar as they are all designed to mitigate risks through redundancy and mandatory engagement with typical safety risks. Airlines and aviation is often considered the most regulated industry in the world (with good safety reasons for that) but the downside of plentiful regulation can sometimes manifest as an unwieldy burden on operators at the coal face.
Operational documents releasedTwo documents internal to Air Asia, and originally thought to have been released by the Indonesian Government, have been found online and include a Flight Dispatch Release form and the weight and balance calculation sheet for the flight.
It is not typical that such documents are officially released by regulatory authorities before the publication of an official Preliminary report, and especially unaccompanied by explanation.
Our Aviation Department is considering these documents as part of its broader enquiry into the circumstances of the accident but will not present any comment or analysis which may prejudice future litigation.
Written by Shine Lawyers. Last modified: January 7, 2020.