Recent Developments in the Concorde Crash Criminal Proceedings

The following post has been updated a number of times by other posts in this blog. To access the latest post on the Concorde legal saga, simply click on the link in the PS note at the end of this post.

SUMMARY: More than three weeks after criminal proceedings were initiated by French justice officials in Pontoise (France), little is known yet about the key contributing factor, if any, that actually is at the centre of a chain of events that ultimately lead to the crash of Concorde in Gonesse, resulting in the loss of 113 lives. The July 2000 deadly crash of an Air France Concorde, along with extraneous factors such as the financial health of major airlines in general, signaled in 2003 the end of the Concorde program for both Air France and British Airways and, consequently, the end of a supersonic commercial transport era.

   The criminal proceedings into the supersonic airliner Concorde’s deadly crash in Paris nearly ten years ago, are in the fourth week of judicial hearing with no clear and undisputed explanation of the root cause of the crash. Justice officials reckon the Pontoise proceedings will last four months at least in order to find the truth as to who is criminally liable for the crash.

   Before the current criminal proceedings were initiated on February 2nd, 2010, an accident investigation report was completed by the BEA (Bureau des enquêtes accident) in which the root cause of the crash of Concorde has been identified as a metal strip that fell off a Continental Airlines DC-10 which took off four minutes ahead of the ill-fated Air France Concorde on the same runway. The technical accident report by the BEA is already a few years old. Why it took so long for criminal proceedings to get underway afterwards is anyone’s guess. However, the purpose of the current criminal proceedings held in Pontoise is to determine if there is conclusive evidence to convict Air France, Continental Airlines and/or two aircraft maintenance employees of Continental on the charge of involuntary homicide.

   Basically, the criminal proceedings have evolved from preliminary procedural issues to actual substantive ones argued by both the prosecution and defense lawyers during the third week. Repeated requests by counsel for Continental Airlines to have the charges against defendants dismissed on a number of grounds have been noted by the presiding judge who will deal with them later. This is to allow the proceedings to continue on the merits of the case instead of being bogged down in procedure.

   A number of civil aviation experts and lawyers are still claiming, both outside and inside the courtroom, that criminal proceedings have no place in an aviation disaster of such magnitude, once terrorism and foul play are ruled out at the initial investigation stage. Furthermore, all families of the 113 victims have been fairly compensated and are not part of the present proceedings. The reason for family members of Concorde’s captain, Christian Marty, to attend the Pontoise proceedings as civil parties is to protect the stellar flying record of the captain who also died in crash. Their goal is to ensure that Captain Marty will not be scapegoated or denigrated in absentia. According to some media sources, it would seem that during the two minutes of emergency handling in Concorde’s cockpit, the cockpit voice recorder makes it sound as if Captain Marty was running his own show while the First Officer and Flight Engineer were discussing quickly various ways of dealing with the loss of power in the two port side engines.

   Media sources sometimes don’t have the inside view as to what is actually going on in the cockpit of an airliner in distress. Assuming Captain Marty was the flying pilot, it would have been quite normal for the First Officer and Flight Engineer to deal with the technical problems at hand, leaving the Captain with the delicate task of keeping Concorde under control in the final stage of take-off and during initial climb, while these recorded discussions were taking place.

   So why all the fuss now, in a French criminal court, over this sad episode in the recent history of civil aviation?

(a) To further compensate victims’ relatives? No. They have been well compensated by now in a non-American way quite acceptable to Europeans. To my knowledge, champerty does not apply to possible civil proceedings based on judicial findings in Pontoise. This means that there would be little to gain from launching civil trials or a class action suit after the Pontoise proceedings.

(b) To prevent the same type of air crash from occurring? My mitigated answer here is also “no”, because Concorde’s crash might result from old corporate wisdom partly based on the “word of honour” system amongst highly competent professionals in the 1960s. Such a system had the potential of keeping up the prestige of an aeronautical success story at the expense of flight safety. This safety culture no longer applies to modern-day airline service. Instead, the concept of risk management has made a quantum leap since Concorde was designed, manufactured and put into service.

(c) To ascribe criminal liability to one or several defendants? Not necessarily, as French society is not seeking retribution. However, the aim of digging out, through the court adversarial process, more accurate facts than the BEA accident report provides is quite justifiable, because the BEA’s expert accident report is essentially a one-sided report. Perhaps, more can be learned through the Pontoise criminal proceedings than is known so far about the actual cause or causes of the crash. That being said, one should refrain from readily assuming that the present criminal proceedings are aimed at meeting out criminal sanctions against corporations and individuals involved in the Concorde program since its inception the early 60s. Furthermore, the proceedings are likely, in my humble opinion, to exonerate once and for all Continental Airlines of any criminal action leading up to Concorde’s crash. If anything, Continental Airlines could turn around when the Pontoise proceedings are over and initiate a lawsuit against the French government for abuse of process or wrongful/malicious (whichever) prosecution. Why? Because Continental’s lawyer requested at the very beginning of the proceedings a dismissal of the charges against his client and the presiding judge at the Pontoise hearings decided to go ahead anyway with Continental and two of its employees as co-defendants.

(d) To settle outstanding insurance matters? Possibly, although in a number of jurisdictions, criminal liability does not automatically lead to civil liability as well.

   Over the years, various civil aviation commentators and Concorde experts have pointed out that the success of the Concorde program depended on the ability of Concorde to stay well ahead of subsonic airliners’ transatlantic flying time, namely by maintaining tightly scheduled departures and arrivals times between Paris/London and New York, and vice versa. This pressure on Concorde personnel, some would say, lead Air France employees to curb potential departure delays even if it meant taking short cuts in dispatch and aircraft maintenance action. These allegations are suspect, if not foolhardy, in that they would entail that Air France’s top-notch pilots carefully selected to operate Concorde would compromise safety over time to destination. Such a scenario does not stand to reason in today’s airlines circles. There is too much at stake. Even student pilots are educated in this basic principle of flight safety philosophy and good airmanship.

   Other commentators claim that Concorde was behind the times in terms of airworthiness when the Paris crash occurred. Some also claim that officials responsible for the Concorde program turned a blind eye to airworthiness issues, managing risk in their own way, a way that would keep the obsolete Concorde pointing visibly towards the future of supersonic transport flight.

   Counsel for Continental Airlines has maintained from the start of the Pontoise proceedings that the charges against Continental are pointless and must be dismissed at the first opportunity for two reasons:

1) a relatively small piece of metal left on the runway from which Concorde took off four minutes after the Continental DC-10 should not have lead to such disastrous consequences, taking into account airworthiness standards in force in the year 2000; and

2) fire erupted on Concorde’s left wing during the take-off roll before contact with metal strip (Continental claims to have 20 eyewitnesses on hand to support this contention). However, this part of the defense contradicts French investigation experts who were able to pinpoint the area on the runway where Concorde’s left landing gear came into contact with the metal strip. Furthermore, the same experts also found the point further down the runway where traces of kerosene appear on the runway’s surface, where there shouldn’t be any in ordinary circumstances.

   Below are a few of the points canvassed by counsel for opposing parties:

(1) The lab testing of tire burst by experts is not conclusive. Their technical findings must be corroborated in some way or another because of the impossibility of recreating identical conditions as the ill-fated Concorde went through during the take-off run. According to an experienced former Concorde captain, running over an object during Concorde’s rotation (at about 190 kts, i.e.: 320 km/h approx.) increases the load on tires and makes them more vulnerable to runway debris, even though Concorde’s tires had been made more resistant to such debris and to slightly damaged runway surfaces well after initial airworthiness certification.

(2) Counsel for Continental has repeatedly cast doubt on the impartiality of Concorde’s post-crash examination, because one expert was still on salary from Air France at the time. The expert in question relies through his counsel on the French aviation culture of “the word of honour” in relation to Concorde’s original designers and to the early Concorde program administrators. Such was indeed the culture of those days. However, can “the word of honour” culture still be invoked nowadays by way of defense against allegations of self-interest or partiality in an aircraft accident investigation?

(3) Outside critics comment that the presiding judge is wrong in temporarily not allowing the scope of the Pontoise proceedings to be extended beyond the matters covered by the BEA accident investigation report.

(4) The outcome of the Pontoise proceedings is unpredictable at this stage. In fact, much of it depends on the weight of evidence put forth by counsel for Continental as to when flames started to visibly stream behind Concorde during the take-off run.

(5) Concorde’s delta wing design had faults, despite popular thinking to the contrary. For further reading on this topic, simply look at this thorough article on Concorde available on the Global Security website. In fact, in the later part of the fourth week of hearings, experts have testified in the Pontoise proceedings that Concorde did not stand a chance to climb out with only two out of four engines running, especially with the two good engines being on the right side of the supersonic airliner. Also according to expert evidence in the proceedings, the ingestion by one of the four jet engines of roughly 100 grams of tire debris was enough to cause serious trouble to the proper operation of the engine type. Expert evidence underlined again the frailty of Concorde. Back in 1995, another Concorde on approach to JFK Airport in New York lost power on one engine due to a bird strike and started throwing broken parts into the engine right next to it. The flight crew of Concorde involved in that incident managed to complete a safe landing.

3 June 1995.  An Air France Concorde, at about 10 feet AGL while landing at John F. Kennedy International Airport (NY), ingested 1 or 2 Canada geese into the #3 engine.  The engine suffered an uncontained failure.  Shrapnel from the #3 engine destroyed the #4 engine and cut several hydraulic lines and control cables.  The pilot was able to land the plane safely but the runway was closed for several hours.  Damage to the Concorde was estimated at over $7 million.  The French Aviation Authority sued the Port Authority of New York and New Jersey and eventually settled out of court for $5.3 million.  (Source: Birdstrike.org)

(6) As a side comment, attempts to address Concorde’s noise and environmental issues were made over the years at great expense, albeit with no significant results. All Concordes would have been retired soon or later due to public pressure. It is saddening that British Airways’ Concordes and especially Air France’s Concordes were removed from service on such a tragic note, despite airworthiness improvements being made to the whole fleet as a result of the Paris crash. Even without the disastrous Paris crash, all Concordes would have been retired soon or later because of a slump in the number of passengers willing to pay extra money for the sake of shaving off half the flight time on transatlantic flights.

(7) In the end, however, the old question remains: should concerned civil aviation authorities have acted more quickly in issuing airworthiness directives in respect of Concorde, and monitored compliance by Air France with such directives? Should the same authorities have shown more proactive and transparent inspections and investigations, as well as a generally higher duty of care toward paying passengers in relation to a supersonic aircraft fleet born straight out of the 1960s’ supersonic aircraft manufacturing know-how? 

(8) In the last decade, the EADS consortium took over the Concorde project from Aérospatiale, the original manufacturer. EADS was not saddled with the responsibility of issuing non-mandatory service bulletins with respect to Concorde’s airworthiness issues. However, it would seem (and this area of responsibility is somewhat murky) that EADS was more involved in taking supersonic air transport to new ‘heights’ instead of keeping the existing project in good flying order. Consequently, EADS was not named as a defendant in the current criminal proceedings; however, former Aérospatiale executives have been so named.

   Concorde had technical issues that, until the Paris crash, were addressed with mixed results. Was Concorde’s original design such that the aircraft was, realistically speaking, upwardly compatible with advances in aeronautical engineering and technology? Or could it be that airworthiness issues, such as updated certification standards, were ignored by civil aviation authorities on the strength of Concorde’s prestigious image among airline passengers? After all, the travelling public was confident until the Paris crash of Concorde that such a sleek and modern looking supersonic aircraft still had a long future ahead.

   Concorde was a legend by all accounts, a legend that possibly led to complacency on matters of design safety and airworthiness upgrades, coupled with sheer bad luck. Murphy’s Law stepped in to bring down an aviation giant. If only 113 lives had been spared in the process…

PS: News about the Concorde legal proceedings have been updated on December 22, 2009.  Click here to view: Supersonic Concorde legal saga not over yet.

 


Comments

Recent Developments in the Concorde Crash Criminal Proceedings — 2 Comments

  1. The BEA Report was pretty comprehensive but there seemed to be a disconnect between its contents and its finding. So Captain Marty knew fine well he was taking-off 6 tonnes overweight (186, should have been 180) – yet no criticism. The implications of the mis-assembled wheel remain contentious. Did increasd friction increase the length of the t/off run ?. Why did the plane veer and damage a runway light ? The cause of the accident, one can say, was a series of “if onlys” and to place the blame on the titanium strip alone, is perverse. Hopefully Pontoise will re-visit some of these issues/

  2. Sorry if it took me so long to get back to you about your comments. There are many incomplete or interrupted strands of debate in what has transpired from the Concorde trial in Pontoise (the hearing part being over now).

    Your points are well taken. The issues you bring up have been canvassed by various lawyers at the Pontoise hearings, maybe not as conclusively as one would hope.

    In fact, what remains unclear after the hearings is how the specific issues raised play in the general context of the criminal proceedings.

    One decent and professional French blogger for a Parisian daily (“La Croix”) covering the trial wrote at the conclusion of the hearings that he will come up with his own summation of the proceedings next Tuesday, June 1st. Let’s see if he comes up with a novel perspective outlining the big picture about this sad aviation accident.

    The real judicial outcome will only be known when the presiding judge at the hearing issues her decision in December 2010.

    Until then, public opinion might go in many directions.

    My personal take is that, whatever the technical and legal issues raised about Concorde are, the supersonic airliner that crashed back in July 2000, just North of Paris was but one of the very few units built for and operated by Air France and British Airways. This entails that the whole domain of supersonic public transport never really matured, as did subsonic public transport, for lack of breadth of experience and feedback from the only two commercial operators of Concorde.

    Having the best engineers and the most dedicated team of pilots, experts and managers of all sorts assigned to the Concorde program cannot make up for the glaring paucity of data on the Concorde program and commercial supersonic flight in general when such data were most needed.

    During the four-month hearing, we heard prosecution and defense lawyers juggling with specific issues. I don’t think any of them made a plausible attempt at bringing up the broad picture. Why should they? That’s not what they are hired for. Or maybe that is not even what the Pontoise trial was all about.

    Practically speaking, the Concorde project was quite advanced as far as a prolonged testing program goes, with all due respect for Concorde’s airworthiness certification by public authorities. However, in terms of day in/day out commercial flight operations, the program was short on operational feedback, i.e.: the kind of sufficient and varied data leading to timely corrective actions that could have prevented the Paris crash and resulted in the decision to retire the Concorde fleet in a timely fashion, before the commercial aspects of civil aviation ultimately so required.

    PS: There is talk of getting a Concorde back in the air for the 2012 London Summer Olympics in a “heritage capacity.” This project has yet to be confirmed.

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