(Please note, this matter is not currently being litigated in Australia)The investigation of an international air accident follows clearly defined and regulated pathways. Roles and responsibilities are given to different countries (States) and different entities within States who have specific expertise or knowledge to share, under Annex 13 to the Chicago Convention 1944 (the Convention).
The announcement by the Prime Minister of Malaysia Najib Razak on 24 March 2014 that the flight “ended in the Southern Indian Ocean” could be characterised as a trigger for the official air accident investigation under Annex 13 and the designation of official roles in the investigation thereafter.
This article will look at typical air accident investigations, describing what they are aimed at achieving, as well as suggesting some potential avenues for consideration of regulatory changes at international level to prevent initial search operations, such as those needed to find MH370, from being so reliant on individuals rather than proposed clear plans to activate appropriate State and commercial international cooperation.
Who are the players in an investigation?
When accidents occur outside the territory of any State which is a party to the Convention or otherwise, it is the State of Registry of the aircraft (for MH370, Malaysia) which must take responsibility for the investigation (para 5.3, Annex 13). It has a discretion, and on 31 March 2014 Malaysia formally exercised that discretion in favour of Australia, to delegate that responsibility in part to other States. Under that delegation the Australian official investigative body (the Australian Transport Safety Bureau, ATSB) accepted taking the lead in the search and recovery operation in the southern Indian Ocean, in support of the Malaysian accident investigation. The ATSB investigation number for this role is AE-2014-054.
The style of appointment is an interesting one. It was open for Malaysia to ask that this role be undertaken by Australia given its proximity to the search area and regional expertise however, the appointment of Australia to take the role comes by way of a procedure in Annex 13 in relation to the appointment of accredited representatives of States to an investigation if they provide information, facilities or experts. Thus, in essence Australia has asked Malaysia to be involved in the investigation by virtue of the fact that it already assisted in the search operation and Malaysia has accepted that offer. In addition to having a representative on the investigation, the same procedure entitles Australia to have advisers in the investigation.
Pursuant to para 5.25, Annex 13, specific powers to participate in the investigation as a result of the operation of Annex 13 are broad. Thus, the Australian representative and advisers may:
- Visit the scene of the accident;
- Examine the wreckage;
- Obtain witness information and suggest areas of questioning;
- Have full access to all relevant evidence as soon as possible;
- Receive copies of all pertinent documents;
- Participate in read-outs of recorded media;
- Participate in off-scene investigative activities such as component examinations, technical briefings, tests and simulations;
- Participate in investigation progress meeting, including deliberations related to analysis, findings, causes, contributing factors and safety recommendations; and
- Make submissions in respect of the various elements of the investigation.
In addition, the other States who may participate in the investigation are the State of the Operator, the State of Design and the State of Manufacture (for MH370, Malaysia and USA). A feature of the Annex is that there is broad discretion of the lead State to include any other State who may be able to assist and a mandate for States which are asked for information to provide it to the investigating authority which seeks it out.
States which have lost citizens
States which have suffered fatalities to their citizens as a result of the accident are entitled to appoint an expert to the investigation who may:
- Visit the scene of the accident;
- Have access to the relevant factual information which is approved for public release by the State conducting the investigation and information on the progress of the investigation; and
- Receive a copy of the final report.
In para 5.28 of Annex 13 there is a recommendation that:
the State conducting the investigation should release, at least during the first year of the investigation, established factual information and indicate the progress of the investigation in a timely manner.
The ATSB, in its online description of its role in the investigation, confirms that the Malaysian Department of Civil Aviation is ultimately responsible for administering the release of the final investigation report for this incident.
Likelihood of release of preliminary report
The recommendation in relation to a release of established factual information within the first year looks exceedingly unlikely given the unprecedented circumstances surrounding MH370’s disappearance and lack of clues as to its actual location.
By way of comparison with the “usual” time needed to release accident investigation reports, consider the MASwings Twin Otter crash at Kudat Airport on 10 October 2013. In that case, investigation reports were expected from the Malaysian Department of Civil Aviation within 6 months of the event, but none have yet been publicly released. That was an accident in which all the relevant evidence was available. It is clear that where next to no evidence is available, the official investigation cannot help but take significantly longer than the normal course of events which usually dictates a necessarily measured release of information in line with resourcing and other priorities on accident investigation efforts.
Official aviation accident investigationsThe Australian approach to safety factor determination
An accident investigation in Australia by the ATSB involves a no blame investigation approach in line with international practice. The following is largely adapted from discussion in “Expert Evidence” by Ian Freckelton and High Selby, Chapter 141 “Transport accident investigation” by Patrick Hornby.
The purpose of air accident investigations, and in fact all transport accident or incident investigations by the ATSB, is to search for safety factors which contributed to the incident. In practice, while many think it is the case, there is never one “cause” for an accident. Events such as airline accidents and incidents are the result of multiple contributing factors, some technical, some human factors, some organisational or regulatory influences, some relating to particular local conditions.
The ATSB examines the evidence and evaluates how each potential safety factor (i.e., potential condition or element that increases risk) could have been a contributing safety factor which affected the actual outcome or outcomes in a particular case. A contributing safety factor is one which, had it not occurred or existed at the time of the event/occurrence/accident/incident, then the occurrence probably would not have occurred, adverse consequences associated with the occurrence probably would not have occurred, or been as serious, or another contributing safety factor would probably not have occurred or existed.
This evaluation is a process which often is confused by some as involving the attribution of “guilt” or “blame”. It is not the same. The search for answers involves a “link-by-link” approach in forming judgments about whether each element or contributing safety factor related to other contributing safety factors, rather than considering each factor relative to the occurrence (accident or incident) itself. This permits the identification of higher level safety factors or issues in the conditions which developed to result in an accident. It is those higher level factors which are of most utility to organisations following the conclusion of an official investigation and aligns with the purpose of producing a report which lends itself to the prevention of future accidents.
An example may clarify. Consider a crash which has arisen due to a wing breaking off in flight. The evidence has been gathered and the ATSB notes it has been proximately “caused” (i.e., the occurrence event) by a hairline fracture in a metal join breaking up in flight on an aircraft due to normal flight stresses. However, that is not enough information for preventing that type of accident from happening in future. Only an examination of why that hairline fracture was unnoticed during routine inspections, and an examination of the rules in relation to the regularity and types of inspections of such metal joins, as well as analyses of the maintenance on the aircraft, and other factors would result in the kinds of information needed to identify the contributing safety factors in the particular occurrence.
The safety message coming out of such a hypothetical investigation may well be something along the lines of “[X] type aircraft require 500 hourly inspections of their wing spar joins, rather than the presently required 1,000 hourly inspections”. That is very different to legal blame being apportioned.
What is the ATSB’s standard of proof?
How does the ATSB determine that one factor was related to another factor and how does that link up with the actual occurrence event itself? The ATSB standard is there to be a “probable” or “likely” link between a contributing safety factor and another factor. In the ATSB’s view this must be a high probability – that is, a 66% probability that one factor impacted upon another safety factor.
This approach leads to a strong probability of relationship between the occurrence event itself (e.g., the wing break up above) and the proximal factors which may have contributed to that event (such as rules on inspections which were insufficient or maintenance practices which fell short of sufficient rules).
In the end, this approach suits the purpose of the investigation – prevention of future incidents.
What changes might be needed following the disappearance of MH370?
Annex 13 to the Chicago Convention, Annex 12 on Search and Rescue, and standard practice can be seen to assume certain factors in relation to the normal, "routine" progress of air accident investigations. The rules themselves are limited in their ability to assist in instances such as the unprecedented case of MH370, where the search and rescue stage has far exceeded the length of any prior SAR operation.
The present standards and recommended practices are geared towards providing guidance on how States and entities should work together to determine the causes of an occurrence, for aircraft whose location is known, and where the main task of determining what has caused the accident is essentially all that remains to be done for the purposes of preventing it happening again in future.
In the present situation Malaysia, as the State responsible for the search operation, had relatively little guidance on the (other than purely diplomatic) ability to recruit technical and other State assistance to determine the whereabouts of a lost aircraft. This is because the rules are written with an implied assumption that the aircraft would typically have been found within a short time (i.e., days) of the SAR operation being triggered.
What is needed and what will be addressed at ICAO in due course are procedures and strategies to ensure that a situation of uncertainty in relation to the location of an aircraft is addressed with the same rigour as are “typical” air accident investigations under Annex 13. That is, where Annex 13 sets out the roles and responsibilities of States and entities in relation to gathering, recording, and analysing evidence following a crash, and Annex 12 demands a search operation continue until “all reasonable hope of rescuing survivors has passed”, both Annexes evince a leaning or presumption that the aircraft is at least reasonably “findable” or accessible, and also that that is possible within a reasonably short period of time (i.e., during which it would be possible to reach, attend to, and rescue survivors for example). Annex 12 is arguably more geared around coordinating responses to known emergency situations, than determining whether there is one in the case where an aircraft has missed all the normal indicators of communicating to the world that it is in distress.
There is no concrete guidance to States in situations where the aircraft is somehow “lost”.
There needs to be specific high level guidance or standards and recommended practices, on how States should cooperate to “find” a lost aircraft. The search operation led by Malaysia for MH370, criticised as it was for its sluggish start, has to a large extent been hampered by a lack of appropriate international regulatory guidance. The relative “success” of the search operation (in that States have cooperated and lent support and resources) has been the result of diplomatic efforts to recruit foreign assistance, but this is not the most efficient way to handle such situations.
What is needed next?
Ideally ICAO States should consider the creation of an Annex to the Convention which bridges the gap between Annex 12 and Annex 13 – focussed specifically on international cooperation to recruit and deploy all relevant State-owned and commercial resources of member States to find lost aircraft. Of course there would be major privacy and other diplomatic challenges with such an effort, but these have been shown to be surmountable in the MH370 search situation, given time. The time devoted to meeting those diplomatic challenges should be now, before another MH370-type event happens.
It is not suggested that such a regulatory response from the international aviation community would be enough to move forward from MH370. ICAO has quite rightly looked first at the simpler, technical responses which would be needed to ensure aircraft are properly traceable especially over the high seas. This is the subject of a special meeting to be held in Montreal from 12-13 May 2014 as described elsewhere on our website. However, it certainly is an area in need of consideration, especially when one considers the explication of air accident investigation described above.
The families affected by MH370 and the world are desperate to know what happened to that otherwise seemingly routine Kuala Lumpur to Beijing flight. However, every air traveller and air transport stakeholder in the world has a stake in the prevention of such incidents again in future and as a result any higher level regulatory contributing safety factor which might need to be addressed should be.
In my mind at least, the dearth of relevant international guidance and regulation on cooperation to locate aircraft is one factor worthy of detailed attention at the international level.
Written by Shine Lawyers. Last modified: January 7, 2020.