(Please note, this matter is not currently being litigated in Australia)Sharing of information on the investigation with families On 20 May 2014, the Malaysian Government finally agreed to support MH370 families’ demands to see raw satellite data provided by Inmarsat which was used to determine the northern and southern “corridors” flight MH370 potentially followed.
In a joint statement Inmarsat (UK) and the Department of Civil Aviation (Government of Malaysia) said it would work to make the raw data relied upon to determine the potential “corridors” earmarked for intense search efforts public “in line with our commitment to greater transparency”. The Shine Lawyers Aviation Department applauds this move but demands that more be done in this unusual situation both for families of MH370 and for the future evolvement of international air transport safety and regulation.
The accident investigation and efforts to locate MH370 will be the longest in aviation history. We have always maintained the view that, notwithstanding the prudent policy thinking behind the standards and recommended practices in Annex 13 to the Chicago Convention which deals with accident investigations, families should have greater input or at least accessibility to accident investigations as they progress. This could be realised by rules dictating that there be greater transparency from airlines and governments as we noted here or by the regulated inclusion of family members of victims as special observers in the investigation itself. The ultimate need is not just to ensure the future of flight safety, but permit appropriate and respectful engagement with those most affected by this and potential aviation tragedies in the future.
One rule in Annex 13 is that countries which have a special interest in an accident by virtue of fatalities or serious injuries to its citizens are entitled to “have access to relevant factual information which [are] approved for public release by the State conducting the investigation, and information on the progress of the investigation”: Ch 5.27 at 5-8 - 5-9. While it has been argued that no-one knows better than accident investigators the importance of their role (to make aviation safer) we maintained (less than 2 weeks after the aircraft’s disappearance) that:
"… passengers’ families need to be represented within investigations, both during the search phase and during the investigation phase. … It is only these people, with their human feelings and passionate concerns for answers (owing to their unique losses and experience), which can serve to remind investigators of the reason they are doing what they are doing – to prevent the suffering which has been caused to family members – not the lofty ambition of “making aviation safer” (a trite comment in the context of the shared global pain of those hoping with the families of MH370 passengers to get answers)."
We do not depart from those views.
Predictably, the efforts within the International Civil Aviation Organisation (ICAO) thus far, as prompted by MH370, have been technical and co-operative. They have not directly addressed the unprecedented toll on the victims’ families caused by the lack of information and answers.
Commitment to prioritise global airliner tracking The announcement that families will receive the satellite tracking data they sought comes a week after ICAO convened a special high level industry and diplomatic gathering in Montreal to expedite the consideration of technological and regulatory means to improve global airliner tracking worldwide.
The ICAO meeting, attended by 207 delegates, crystallised ICAO-member States’ consensus on the short term priority to track airline flights regardless of their destination and where on the globe they occurred. The meeting also established a pathway towards future efforts needed in the mid to long term.
Some of the recommendations reflected proposals outlined on our website in the article “MH370 investigation: roles, responsibilities and rule changes” published here on 17 April 2014. In particular, we opined that 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 rigor as are “typical” air accident investigations under Annex 13. …" We suggested that existing high level rules and guidance such as that found in Annex 12 to the Chicago Convention in relation to search and rescue 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."
Relevantly, the Conclusions and Recommendations document which resulted from the ICAO meeting published on 14 May 2014, said: " a) global tracking of airline flights will be pursued as a matter of priority to provide early notice of and response to abnormal flight behaviour;
b) a DRAFT concept of operations on flight tracking will be developed that includes a clear definition of the objectives of flight tracking that ensures that information is provided in a timely fashion to the right people to support search and rescue, recovery and accident investigation activities, as well as, the roles and responsibilities of all stakeholders; [and] … f) … ICAO will develop guidance material, based on available flight tracking best practices;"
The conclusion that a “concept of operations” is to be developed is a step forward to the creation of a regulatory means of ensuring the promulgation of standards and recommended practices to make international aircraft tracking and location foolproof.
The final version of the concept of operations is to be delivered to the ICAO High Level Safety Conference in February 2015. Additionally, ICAO and the International Air Transport Association (IATA) agreed that the industry body would establish a short term joint advisory group to support the global tracking initiative.
Further work this month and beyond The long term goal of ICAO as set out in the Recommendations document was that ICAO will work in coordination with The International Telecommunication Union (ITU) to develop aviation requirements for network communications associated with remote storage of flight information.
This, thankfully, spells the beginning of the end of the physical black boxes on modern airliners, which, owing to the fact that they can be lost or destroyed along with aircraft, are decades-old technology operating in a world which has the ability to provide better safeguards.
The ITU announced that it will gather with Malaysia Airlines and Malaysian Government officials in Kuala Lumpur from 26-27 May 2014 to discuss real time monitoring of flight data following the MH370 incident.
Several companies have suggested that the technology to improve aircraft tracking already exists. Some of these systems, such as the Star Navigation System In-Flight Safety Monitoring System (ISMS) have been approved by some countries for widely used commercial aircraft such as the Airbus A320 and Boeing 737.
What remains lacking at this time is the regulatory imperative for that technology, or alternative approaches, to be made mandatory by ICAO. It is hoped that the efforts begun this month in Montreal will result in expedited and unanimous take up of appropriate technologies and more concrete and transparent legal guidance on necessary cooperative efforts to prevent MH370-type incidents from happening ever again.
Written by Shine Lawyers. Last modified: May 22, 2014.