Concorde, Ten Years On

I understand that Simon Foreman observed at a meeting of the RAeS Law Group on 28 April this year on the criminalisation of aviation accidents, reported here in Flight International by David Learmount, that the French legal system does not have a mechanism of the English legal system, the inquest, to determine what went on in an accident. It seems to follow that, in France, for the state to determine what indeed went on in an incident of public interest, there must be a criminal trial.

First point: there at least two reasons for society to determine what went on. The first is to prevent a recurrence. This is the reason for the ICAO-mandated accident investigation bodies, here the BEA. They have long done their job.

The second reason is to apportion responsibility for compensation, an age-old and widespread human activity. Concerning this second reason, it’s a shame for all that France doesn’t have inquests. I imagine many French people might agree. It is particularly harsh for one person by the name of John Taylor.

Second: why an inquest?

Amongst other things , the results of an inquest help figure out who should ultimately pay. There is an ancient general principle of compensating victims of mishaps and this should not only follow rules but also be seen to be “fair”, adjudicating amongst competing claims, and that is what an inquest does.

Some commentators, including the BBC in their report, have spoken of “gaining closure” for the victims’ families. This notion is a US import to Europe and not one with which I sympathise, even when I was living in the US. I don’t sympathise with it, in part because it gives cover to seeking revenge, an activity of which I expressly do not approve in the case of accidents.

In particular, an inquest is not a criminal trial. It doesn’t punish anyone. It assigns cause.

Third: some have speculated, as in this note on PPRuNe that this will be a bonanza for tort lawyers.

If this follows the time scale of most major commercial airline accidents, seeking compensation for victims’ families will be mostly over by now. The airline (that is, the airline’s insurance company) will have already paid to settle most or all tort claims, as is by now the general practice in commercial aviation. The cost is reported to be in the realm of €100 million.

Fourth, the ruling is reported to contain the following apportionment: Continental 70%, EADS 30%, everyone else (Air France, DGAC, Paris Airports Authority, etc) 0%. That means that the insurance company will be negotiating with those parties to recover the relevant proportion of its costs. Since there is now a legal ruling which will act as precedent, there would be little point in disputing it in court.

So that will settle the compensation bit.

Fifth, what is this ruling based on?

The ruling is based on the obvious physical ABC of the accident occurrence.

The report said: titanium strip fell off Continental onto the runway; Concorde ran over strip; strip sliced into tire and caused tire burst of unprecedented form and strength; large tire fragment hit tank; impact shock wave caused tank to explode from within; resulting hole allowed fuel to stream out in large quantity; fuel was ignited (not completely sure how, but probably by reheat); fire engulfed critical wing structure and contributed to critical performance degradation of two engines; Concorde cannot accelerate after TO on two engines alone (BTW, there is no evidence that Concorde was overweight at TO) and went down.

That’s what the court found also, as far as I understand the verdict (not yet having read it :-) ).

People have said “missing spacer“. Our work on that said: not causally relevant.

People have said “overweight at dispatch“. Maybe, but not at takeoff, as far as anyone can tell.

People have said “airport should have swept runway better“. Maybe , but that wasn’t a direct contributing cause in the intuitive sense of the above sequence of physical events. It would be like blaming the police for Fred’s broken jaw in a street fight because they weren’t around at the time. Thousands of years of legal tradition says the person responsible for the broken jaw is the person who threw the punch. So here: the court said that the entity responsible for the burst tire is the entity that left the titanium strip on the runway; and further, as I understand it, the person who mounted that titanium instead of an aluminium part (presumably because he was judged to have made a professional error: he should have known to mount a softer metal); as well as, to some degree, the people responsible for the aircraft design, even though (and others will agree with me here loudly) the airplane was a triumph of aeronautical technology, as well as the most beautiful artifact ever to have taken to the skies.

Other people (Continental, apparently) said the plane was on fire before it encountered the strip. The report, as well as all of the people I know who know about Concorde, indeed, physical common sense given the undisputed evidence of what happened, have no explanation at all of how that could possibly have been the case. The evidence presented is circumstantial – eye witness testimony from witnesses who were some way away from the scene. There is no physical explanation of the accident which coheres with that testimony at all, after ten years of thinking about it. I take it that that eye-witness testimony was rejected.

Now, that all seems to me, given the system, appropriate, fair, and straightforward.

What is inappropriate, in the minds of many including myself, is that it seems to need a criminal trial, rather than an inquest, to serve this necessary legal function of apportioning the enormous costs of compensation.

It seems to be particularly inappropriate in the case of poor Mr. Taylor. He repaired an airplane. Imagine a wise-owl supervisor, or some angel with perfect foresight, going up and saying “You can’t mount that there! It might fall off in Paris, and Concorde might run over it and lose a huge chunk of tire which causes a fuel tank to explode and dump fuel into the exhaust and lose power and crash!” and him saying “oh, yes, you’re right” and changing it, as it was in Dickens’ Christmas Carol.

Dickens notwithstanding, to English minds there just doesn’t seem sufficient proximity between act and event to justify a criminal-negligence connection. Dickens’ tale was, after all, a Carol. But there he is now, poor chap, with a criminal record, and a 15-month suspended sentence. Mr. Taylor, on behalf of many, probably most, Europeans, I am very, very sorry!

And that is why people are going to shut up and instruct their lawyers, rather than telling accident investigators all about everything they know, if accidents continue to be criminalised. Just as they are already known to do in rail accidents in Germany, for example.

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