Accidents In A Foreign Country: A Checklist: Part II

As the events involving MH 370 continue to unfold, we have all heard about the investigation protocols/procedures which are involved when an accident occurs in a foreign country.  Some of the media coverage has mentioned the International Civil Aviation Organization (ICAO) and Annex 13.

When an accident occurs in a foreign country, ICAO Annex 13 becomes the controlling document which guides the entire investigation.

This checklist addresses items which are unique to accidents which occur in a foreign country.  For a complete set of checklists and other information necessary in the event of an incident/accident, download our Emergency Response Mobile App at www.mlaemergencyresponse.com

In General:

  • The International Civil Aviation Organization (“ICAO”) is the United Nations civil aviation agency that sets international standards and regulations necessary for safe, regular, efficient air transport, and serves as the medium for cooperation in all fields of civil aviation among the 187 Contracting States, i.e. country.
  • Article 26 of the Convention on International Civil Aviation states that, in the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its law permits, with ICAO procedures. (See also 49 C.F.R. 831.2(a)(3)).
  • The State of Registry, the State of the Operator, the State of the aircraft design and the State of the aircraft manufacturer are each entitled to appoint an accredited representative to participate in the accident investigation. ICAO Annex 13, Section 5.18.  Each accredited representative is entitled to appoint one or more advisors, proposed by the Operator, to assist.  ICAO Annex 13, Section 5.19.
  • When there is an accident involving an international civil aviation flight, Annex.13 of the International Civil Aviation Convention sets forth the rules on notification, investigation, and reporting of the accident. (See FAA Order 8020.11B, p. 8, ¶ 342 August 16, 2000; FAA Order 8020.11C, pp. 1-8, 7-1).
  • The NTSB and FAA may participate in foreign accident investigations upon request by the State in which the accident occurred. (See FAA Order 8020.11B, ¶ 340, August 16, 2000; FAA Order 8020.11C, pp. 7-1 – 7-2.
  • The NTSB is responsible for investigating accident/incidents involving civil aircraft that occur outside the United States when the accident/incident is not in the territory of another country (i.e., international waters). 49 C.F.R. § 831.2(a)(1).

Notification

  • If the incident/accident involves a civil aircraft of the United States, notify the local field office of the NTSB “immediately and by the most expeditious means available.” (See 49 C.F.R. §§ 830.1(a) & 830.5).
  • The notification must include, to the extent then available: the type, nationality and operator of the aircraft; name of the owner and operator of the aircraft; name of the pilot in command; date and time of the accident; last point of departure and intended point of landing; position of aircraft with reference to some easily defined geographical point; number of persons aboard; number killed, and number seriously injured; nature of the accident, the weather, and extent of damage to the aircraft; and a description of any explosives, radioactive materials and other dangerous articles aboard. (See 49 C.F.R. § 830.6).
  • Army: 800.626.3317 (Call:  800.626.3317)
  • Navy: 800.368.3202 (Call:  800.368.3202)
  • Air Force: 800.433.0048 (Call:  800.433.0048)
  • Marines: 800.847.1597 (Call:  800.847.1597)
  • Notify the Foreign Service Post (U.S. Embassy or Consular Office) for the consular district in which the accident occurs, and the nearest office of the civil aeronautics administration for the country in which the accident occurs. (See 22 C.F.R. §102.8). The U.S. State Department is required to notify next of kin of U.S. victims. (See 22 U.S.C. § 5503).
  • Notify the Managing Director of Overseas Citizen Services, Bureau of Consular Affairs, U.S. Department of State immediately if the operator is a U.S. certificated air carrier or foreign air carrier and the accident flight was to or from the United States – 202.647.1512 (Call: 202.647.1512) (U.S. Dept. of State Operations Center).  (See 14 C.F.R. § 243.11).
  • Notify the Casualty Assistance Office of each respective service if any military or government personnel were aboard the aircraft.
  • Notify U.S. Postal Service if the aircraft was carrying U.S. mail.
  • Notify your Insurance Broker and Underwriters. Aviation insurance policies typically require immediate notification in the event of an accident.
  • Notify Corporate Security. Corporate security personnel should be advised of the accident so that security can be ensured at key corporate facilities because the press may seek access to corporate offices and key personnel immediately after an accident.  Security at the “situation room,” accident site, and on-site facilities is especially crucial.
  • Notify Environmental Programs Department. The airline/company environmental programs department should be notified of the accident in order to evaluate for a possible fuel spill or hazardous cargo situation.
  • Notify code share partners.
  • Notify Outside Counsel. Outside counsel should be notified and advised to stand by as legal questions arise and employee interviews are requested.

Coordinate with Response Team

  • Ensure both investigatory and family assistance teams are in motion.
  • Ensure logistics such as accommodations and transportation for response teams are arranged.
  • Coordinate with the Public Relations Department on initial communications.
  • Coordinate with inside and outside counsel for initial team briefings.

Provide Passenger Manifest to U.S. State Department

  • If the accident flight was operated by a U.S. or foreign air carrier to or from the United States, the airline must provide a passenger manifest to the U.S. State Department Operations Center “not later than one hour after any such carrier is notified of an aviation disaster” or, if not technologically reasonable or feasible within one hour, then as expeditiously as possible but no later than three hours after such notification. (See 7 FAM §1834.1; 14 C.F.R. § 243.11(b)).

Coordinate with Public Relations and Corporate Communications Department

  • All press releases and statements should be reviewed and approved by legal counsel.

Dispatch Legal Representative to Scene

  • An attorney should be dispatched to the accident site to provide advice on legal issues as they arise. It is helpful to have someone permanently assigned to the accident investigation and litigation.
  • Coordinate with local legal representation to protect the company/employees in the context of accident investigation, civil litigation and criminal issues.

Provide Representation to Interviewees

  • All persons interviewed should be entitled to legal representation. An airline/company should not allow any employee to be interviewed by investigating personnel without adequate preparation and legal representation.  Outside counsel may be best suited to this task.

Protect/Preserve Aircraft Wreckage.

  • In a foreign accident, the State where the accident occurred is responsible for protecting the evidence and maintaining safe custody of the aircraft and its contents for such a period as may be necessary for purposes of the investigation. (ICAO Annex 13 § 3.2).
  • Protection of evidence will include preservation of any evidence that may be removed or destroyed. (ICAO Annex 13 § 3.2).

(Originally posted April 14, 2014)

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