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  • #16
    Originally posted by Gabriel View Post
    Punishing the liable parties has never worked to reduce the accident rate. Rather the opposite, it tended to create a culture of not admitting responsibility, hiding information and not collaborating with the investigation
    You are funny. That culture of not admitting responsibility is as old and pervasive as industry itself (It's called 'lawyering'). It will be there regardless of investigations or punishment. And it certainly isn't unique to France (See: Boeing)

    But I agree with you that the goal here is to see that changes are bought about to ensure that this sort of negligence cannot persist. So the goal is improvements. not punishment.

    That said, I'd be happy to see some top AF execs fry for this (with egregious salaries comes responsibility). But don't drag Airbus down with them. Their airplane performed flawlessly according to its certified design, all the way down. It's not idiot proof. It's not weather-proof. It was never supposed to be.

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    • #17
      Originally posted by Evan View Post
      You are funny. That culture of not admitting responsibility is as old and pervasive as industry itself (It's called 'lawyering'). It will be there regardless of investigations or punishment. And it certainly isn't unique to France (See: Boeing)
      You have airlines and aircraft manufacturers constantly proactively reporting their own deviations from requirements that happened by accident, not-robust processes, and even individual acts of negligence. You would not have that if a criminal investigation was launched every time they did so. In the same approach, you have airlines collecting de-identified operative deviations (FOQUA) and NASA collecting pilot reports of self-deviations that cannot be used against themselves for administrative action. Not only that, but if you report it there before someone else reports you in any place, it gives you immunity against administrative action for that event. This is an incentive for pilots to speak up about their own mistakes, not only in execution but also in planning, judgement, and decision making.

      That said, I'd be happy to see some top AF execs fry for this (with egregious salaries comes responsibility). But don't drag Airbus down with them. Their airplane performed flawlessly according to its certified design, all the way down. It's not idiot proof. It's not weather-proof. It was never supposed to be.
      And Air France complied with the training requirements and had a training program approved by the regulator. And it was not like Air France was hiding from the regulator the "true and obscure nature" of their training, like Boeing was doing with the FAA regarding the MCAS.

      --- Judge what is said by the merits of what is said, not by the credentials of who said it. ---
      --- Defend what you say with arguments, not by imposing your credentials ---

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      • #18
        Originally posted by Evan View Post

        You are funny. That culture of not admitting responsibility is as old and pervasive as industry itself (It's called 'lawyering'). It will be there regardless of investigations or punishment. And it certainly isn't unique to France (See: Boeing)
        i dont usually defend indefensible lawyering bullshit and i wont here. but how is the CORPORATE culture of denying responsibility "lawyering?" you likely have little if any real knowledge of how corporate counsel work.

        i would bet that when af's corporate assholes met with their corporate lawyers, they did not admit even with attorney-client privilege any liability and more than likely swore on their mothers' lives that they and AF did absolutely nothing wrong.

        i've never been in-house counsel for any large corporations and have never represented any corporations even close to the size of AF. but i have litigated against some that make AF look like a pebble (VW, Wells Fargo, Western Union, Paypal...) and have had many off-the-record conversations with the big lawyers. inevitably, they end up saying things like, "my client never advised me of this" or, "my client assured me "X" when "Y" came out in the wash. i take all these statements with a grain of salt, but i'm sure there is truth in at least some of them.

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        • #19
          Gabe, the boeing fiasco is classic american "save the corporation" bullshit. gotta protect wall street. money above all else, including lives, especially when those lives are not american lives.

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          • #20
            Originally posted by Gabriel View Post

            You have airlines and aircraft manufacturers constantly proactively reporting their own deviations from requirements that happened by accident, not-robust processes, and even individual acts of negligence. You would not have that if a criminal investigation was launched every time they did so. In the same approach, you have airlines collecting de-identified operative deviations (FOQUA) and NASA collecting pilot reports of self-deviations that cannot be used against themselves for administrative action. Not only that, but if you report it there before someone else reports you in any place, it gives you immunity against administrative action for that event. This is an incentive for pilots to speak up about their own mistakes, not only in execution but also in planning, judgement, and decision making.
            Yes, all preventive and all very good. But after-the-fact... after negligence leads to something big and/or lots of someones getting broken... it's all radio silence on responsibility. BTW, I called this 'lawyering' because it is driven by council and enforced by things like NDA's, contractual censorship and implied threats of lawsuit for damages to the company. The lawyers direct the spokespeople and no one else gets to talk. You don't often see corporate airline pilots publicly admitting error after a major accident, even if they want to. They're not allowed to. Companies do not admit 'my bad', drop their trousers and bend over for real punishment. It's unthinkable. Morality does not apply to business.

            And Air France complied with the training requirements and had a training program approved by the regulator. And it was not like Air France was hiding from the regulator the "true and obscure nature" of their training, like Boeing was doing with the FAA regarding the MCAS.
            Doing what is required of you by rules and regulation and doing what is required of you by the public trust and moral obligation are two different things. But only one is enforceable.

            But they know. They know what they did (or failed to do) to cause this tragedy. That doesn't stop them from pointing the finger elsewhere.

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            • #21
              evan, if you truly believe that folks at the top always listen to corporate counsel, you clearly have no clue. most of the time its the lawyers that get told to STFU...it's the money stupid!

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              • #22
                Originally posted by Gabriel View Post
                .. reality has shown that at least for aviation safety it works better not to press criminal charges on people upon accidents except in really outrageous cases where people acted really with a criminal mens rea (
                Cogently argued Gabriel. It's just possible that French Law may be on your side in this one as it specifically permits corporate manslaughter under Article 121-3 of the criminal code, the issue being whether the organization acted with provable mens rea: Business crime and investigations in France | Practical Law (thomsonreuters.com). Key question is whether there was a "direct causal link" between the act and the harm. Penalties include (potentially massive) fines or imprisonment of company officers.

                What exactly does the prosecution have on AF I wonder?

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                • #23
                  I could not open the link. However, and I am under no way an expert in law in any jurisdiction, these 2 things make no sense whatsoever to me:

                  the organization acted with provable mens rea: I don't even know what does mean. Organizations don't have a mind of their own, whether a criminal mind or another kind.
                  imprisonment of company officers: So wait, so you find one (judicial) person (the company) guilty of a crime and, as a penalty for that crime, imprison a different person (the officers)????

                  That is absolutely crazy.

                  Also I am curious... who receives the money from the (potentially massive) fines?

                  --- Judge what is said by the merits of what is said, not by the credentials of who said it. ---
                  --- Defend what you say with arguments, not by imposing your credentials ---

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                  • #24
                    Sorry about the link not working. Here'e the google-cached version of the same. Hopefully this will work better:

                    Business crime and investigations in France | Practical Law (googleusercontent.com)

                    I completely agree that it seems counter-intuitive to suppose a mindset by a lifeless entity such as a corporation. But in French law: "A corporation will be held criminally liable for corporate manslaughter (or any other crime) if the offense was committed on its behalf by a person or group qualifying as an organ or representative (Article 121-2, Criminal Code). "An 'organ' is generally a person or group exercising powers inherent to their position or derived from a corporation's by-laws or internal governance". So the prosecution needs to first establish that an "organ" within Air France has acted with "clumsiness, imprudence, distraction, negligence or breach of a duty of safety or prudence imposed by statute or regulation" (not a good translation from the French!). This means that in France (unlikely many other European countries) "a corporation is always criminally liable if it satisfies the test for a simple fault".

                    All well and good, but case law has established that once you get this far, the "organ" then becomes subject to the test that there must be a "direct causal link" between the act and the harm - a test normally only applicable to individuals. Which leads me to wonder what exactly the prosecution has on AF.

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                    • #25
                      Originally posted by flashcrash View Post
                      Sorry about the link not working. Here'e the google-cached version of the same. Hopefully this will work better:

                      Business crime and investigations in France | Practical Law (googleusercontent.com)

                      I completely agree that it seems counter-intuitive to suppose a mindset by a lifeless entity such as a corporation. But in French law: "A corporation will be held criminally liable for corporate manslaughter (or any other crime) if the offense was committed on its behalf by a person or group qualifying as an organ or representative (Article 121-2, Criminal Code). "An 'organ' is generally a person or group exercising powers inherent to their position or derived from a corporation's by-laws or internal governance". So the prosecution needs to first establish that an "organ" within Air France has acted with "clumsiness, imprudence, distraction, negligence or breach of a duty of safety or prudence imposed by statute or regulation" (not a good translation from the French!). This means that in France (unlikely many other European countries) "a corporation is always criminally liable if it satisfies the test for a simple fault".

                      All well and good, but case law has established that once you get this far, the "organ" then becomes subject to the test that there must be a "direct causal link" between the act and the harm - a test normally only applicable to individuals. Which leads me to wonder what exactly the prosecution has on AF.
                      Thank you. That link worked.

                      Corporations or other legal entities (other than the French state) can be held criminally liable for offences committed on their behalf by their organs or representatives...
                      Sounds very... French?

                      Still makes no sense to me. Make the company liable for the civil damages and prosecute the individuals for their crimes.

                      --- Judge what is said by the merits of what is said, not by the credentials of who said it. ---
                      --- Defend what you say with arguments, not by imposing your credentials ---

                      Comment


                      • #26
                        Originally posted by Gabriel View Post
                        Still makes no sense to me. Make the company liable for the civil damages and prosecute the individuals for their crimes?
                        Possibly. Although I wonder if the strategy might be to go for the low hanging fruit first, and establish criminal culpability on the part of AF using the "simple fault" test, then pursue specific individuals (i.e. "organs") within the organization by showing a direct casual link between their actions and the events of the fateful night? My concern with this approach is that it may end up with merely civil penalties for the individuals, while holding only the organization itself to be criminally liable. Would that really be good use of the prosecution's time? Perhaps in terms of financial penalties. I don't know.

                        It would be interesting to get the view of someone who has experience with corporate criminal prosecutions. Someone like TeeVee perhaps who, while working in the very different legal domain of the USA, could help explain some of the strategy options that might be available to the prosecution.

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                        • #27
                          i dont do criminal law. i also gave my very brief opinion on the prosecution of corporations in my limited experience earlier in this thread

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                          • #28
                            Just adding this to the post for the record. The prosecution has pulled out.

                            French prosecutors will not seek Airbus, Air France convictions over 2009 Rio-Paris crash (france24.com)

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                            • #29
                              At the heart of eight weeks of hearings in Paris has been the role of defective so-called Pitot tubes, which are used to measure the flight speed of aircraft.
                              The pitots were not ‘defective’. They were not robust enough to withstand the marginally understood phenomena of high-altitude ice crystallization experienced in the ITCZ. The replacements were more robust but still vulnerable to failure in these conditions.

                              The ‘defective’ thing here was CRM. Air France is clearly guilty of insufficient training and safety culture.

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                              • #30
                                Originally posted by Evan View Post
                                The pilots were not 'defective'
                                They pretty much were.

                                --- Judge what is said by the merits of what is said, not by the credentials of who said it. ---
                                --- Defend what you say with arguments, not by imposing your credentials ---

                                Comment

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