Emergency Preparedness: “Unforgivable, Murderous Acts”

With those words, the President of South Korea announced that prosecutors would be deciding in the next several days whether to issue arrest warrants for two first mates, one second mate and a chief engineer who were aboard the ferry Sewol when it capsized and sank off South Korea’s south-west coast killing as many as 300 people, most of them teenagers on a school trip.  The ship’s captain and two other officers already have been arrested.  Meanwhile, the manslaughter trial of Francesco Schettino continues in Italy for the deaths of 32 passengers on the Costa Concordia when it ran aground.

It’s easy to look at these accidents and say, well, those are different, they involve ships and maritime law.  That, however, is a distinction without a difference, particularly when an accident occurs overseas, and the highest levels of government make themselves the public face of an accident investigation.  One need look no further than the numerous press conferences called by Malaysian Prime Minister Najib Razak in the disappearance of MH Flight 370 to see how quickly an accident can become a political crisis, with the fate of the government hanging in the balance.

While criminal investigations arising out of aviation accidents in the United States are not unheard of, those investigations are rare, typically take time to gear up, and are secondary to the ongoing accident investigation.  As the sinking of the Sewol shows, when an accident happens overseas, particularly one that takes on the aura of a national tragedy, the criminal process can begin almost immediately, with arrests of crew members occurring while rescue operations are still underway.

In many foreign countries, the government has the legal tools to pursue criminal charges under circumstances that an American operator might find surprising.  For example, the South Korean Aviation Act, Amended Act No. 9071, Mar. 28, 2008 provides:

Article 160 (Criminal penalty – Causing danger by negligence in flight)

(1) Any person who damages or destroys by negligence an aircraft, aerodrome, airport facilities or navigation aids, or causes any danger in aviation by other ways, or crashes or overthrows an aircraft in flight, shall be punished by imprisonment with or without prison labor for not more than one year, or by a fine not exceeding twenty million won.  Amended by Act No. 4647, Dec. 27, 1993; Act No. 5794, Feb. 5, 1999.

(2) If a person commits the offense as referred to paragraph (1) by any malpractice or severe negligence, he shall be punished by imprisonment with or without prison labor for not more than three years, or by a fine not exceeding fifty million won.

The statute provides for possible prison time, even in cases of simple negligence, with gross negligence permitting sentences of three years “with prison labor.”

The time to start thinking about these issues is not in the immediate aftermath of an accident, when you are going to be pulled in a million different directions at once and just trying to keep up with unfolding events.  Plans need to be developed now so that they can be set in motion at a moment’s notice.

Every airline operating regularly overseas should have a plan for how to deal with potential criminal issues in the immediate aftermath of an accident.  These should include contacts at consulates and embassies who can assist in criminal matters, obtaining a list of local criminal lawyers who have the expertise to handle criminal accident investigations and prosecutions, as well as plans to secure the flight crew to avoid exposing them to unnecessary risks after an accident.

(Originally posted April 22, 2014)

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