Beware of Prosecution! Criminal Product Liability ... in Europe 05_17_11.pdf · Criminal Product Liability: Aviation Accidents in the ... 2 1 Cap Skirring crash: ... Beware of Prosecution!

Beware of Prosecution! Criminal Product Liability: Aviation Accidents in the European

Courts - A Focus on France and ItalyTuesday, May 17, 2011

Presented By the IADC Product Liability, International, and Aviation and Space Law Committees

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Presenter

Thomas RouhetteHogan Lovells LLPHogan Lovells LLP

Paris, [email protected]

• 6-7 October, 20116 7 October, 2011

•Paris, France

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Beware of Prosecution!

Criminal Product Liability: Aviation Accidentsin the European Courts A Focus on France and Italyin the European Courts - A Focus on France and Italy

Thomas RouhetteHogan Lovells ParisHogan Lovells Paris

May 17, 2011

OverviewOverview

1. Features of French Criminal Litigation with a Focus on Aviation

2. Examples of Criminal Actions in Franced It l i A i ti M ttand Italy in Aviation Matters

www.hoganlovells.com 7

1. Features of French criminal litigation with a focus on aviationa focus on aviation

1.1 What are the different phases of criminalproceedings?

1.2 What are the basic principles of criminalproceedings?proceedings?

1.3 What are the procedural specificities of criminalinvestigations in aircraft accidents?


1 1 The different phases of criminal proceedings in France1.1 The different phases of criminal proceedings in France

Preliminary phase:Preliminary phase:Preliminary investigation by the policeFirst phase:Public Prosecutor’s decision on whether or notto launch a criminal investigation / Complaintfiled by victimsSecond phase:Criminal investigation by an Investigating JudgeCriminal investigation by an Investigating Judge(examinations, cross-examinations, searchesand possible appointment of experts). Referralbefore the criminal court.Last Phases:Last Phases:Trial hearing and judgment (subject to appealand then review by the Supreme Court)


1 2 Basic principles of criminal proceedings1.2 Basic principles of criminal proceedings

Involvement of the victims

Statutes of limitations

Interaction between criminal and civil actions

Who may be held criminally liable?

For which criminal offenses?

U d h t ti ?


Under what sanctions?

The involvement of the victimsThe involvement of the victims

The victims may participate in the proceedings asy p p p gparties• Can trigger a criminal investigation by filing a

complaintcomplaint• Can participate in the proceedings at any time• Have access to the criminal file• Can ask the Investigating Judge to carry out specific

investigations• Can claim damages before the criminal court (exceptCan claim damages before the criminal court (except

under Warsaw/Montreal)


Statutes of limitationsStatutes of limitations

Differences between criminal / civil proceedings

• Criminal: 1, 3 or 10 years + exceptions

Ci il f ll i t f 5 + ti• Civil: following a recent reform, 5 years + exceptions


Interaction between criminal and civil actionsInteraction between criminal and civil actions

General principle: the civil decision must be consistent with theCriminal Court’s decisionCriminal Court s decision

Victims can be awarded damages when they have suffered a loss as aconsequence of the criminal offense; no need for separate civilproceedingsproceedings

The civil action is stayed until a decision has been handed down in thecriminal action (Article 4 of the French Code of Criminal Procedure)

- Criminal reform of 2007: the stay is mandatory only when the compensationsought in the civil proceedings arises from the criminal offense itself. If such isnot the case, the stay is optional

The standards for civil liability are usually less demanding than thestandards for criminal liability; a person found not guilty may be held liablefrom a civil standpoint


Criminal liability of directorsCriminal liability of directors

• When?When?He/she did not cause the damage directly but:- caused or contributed to the

conditions allowing the damage tooccur; or

- did not take the necessary steps to avoidthe damage from occurring

• Conditions- Deliberate infringement of a specific

precautionary or safety rule; or- Gross negligence causing damage

that could not have been ignored


Criminal liability of companiesCriminal liability of companies

• When?Th C i ll d fi i ll b fit d- The Company economically and financially benefitedfrom the offense

- In addition to the potential liability of the director

• What for?- A criminal offense committed by a representative or a

b d f th ll ff ( i D bbody of the company: all offenses (since December31, 2005)

Li it ti• Limitations- Mergers


Applicable offensesApplicable offenses

No specific offense in product liabilityy• Directors or companies have never been

convicted of intentional offensesUsually, held liable for a negligence or for the breach

of a duty imposed by law


Applicable offenses (examples)Applicable offenses (examples)

• Manslaughter (Art. 221-6 of the Frenchg (Criminal Code)Sanction: 3 years' imprisonment and/or a fine of€45 000€45,000

• Unintentional bodily harm (Art 222-19 of theUnintentional bodily harm (Art. 222 19 of theFrench Criminal Code)Sanction: 3 years' imprisonment and/or a fine ofy p€45,000

→ Negligence, recklessness or breach of a duty of


Negligence, recklessness or breach of a duty ofsafety or care imposed by law

Applicable offenses (examples)Applicable offenses (examples)

• Direct exposure of another person to anp pimmediate risk (Art. 223-1 of the French CriminalCode)

Exposure to a risk of death or injury, not yet sustained,likely to cause mutilation or permanent disability.

Sanction: 1 year imprisonment and/or a fine of €15,000


SanctionsSanctions

Directors

• Fines: to be paid by the director personally

• Prison: rarely applied


SanctionsSanctions

Companies• Fines: fines applicable to

individuals x 5• Examples of additional

sanctions:− Publication of the sentence in

newspapers or display inpublic places

− Suspension of the illegalactivity

− Debarment− “Death penalty": dissolution


1 3 Procedural specificities in aircraft accidents1.3 Procedural specificities in aircraft accidents

Plurality of investigationsPlurality of investigations• The Annex 13 investigation is run by

the Bureau of Investigations andAnalysis for the Civil Aviation securitya ys s o e C a o secu y(“Bureau Enquête et Analyse” orB.E.A.) when an accident occurs inFrance or on the high seas and when the aircraft is registered in Francethe aircraft is registered in France

• The criminal investigation is run bythe G.T .A . ( “Genda rmer i e desTransports Aériens”) under the

i i f th I ti ti J dsupervision of the Investigating Judge

Separate investigations with specific goals


p g

What is the B E A ?What is the B.E.A.?

• Created in 1946Created in 1946• Department of the Ministry in

charge of Civil AviationC d f 80 l tl• Composed of 80 people, mostlyinvestigators

• Large investigative powers• Publication of a report on the

causes of the accident toincrease aviation safetyc ease a a o sa e y

• The BEA is involved inadministrative investigations


What is the G T A ?What is the G.T.A.?

• The G T A (“Gendarmerie des Transports Aériens”) is a• The G.T.A. ( Gendarmerie des Transports Aériens ) is aspecialized aviation police department

• It is part of the Ministry of the Transports and Equipment• Composed of 1,000 professional members of the French

military• The G.T.A. is involved in criminal investigationsThe G.T.A. is involved in criminal investigations


Criminal litigation in aviation mattersCriminal litigation in aviation matters

• Criminal investigation at therequest of the Publicrequest of the PublicProsecutor

"Di " d t d b• "Discovery" conducted by anInvestigating Judge

• Technical investigationconducted by the GTA underthe supervision of theInvestigating Judge≠ Annex 13 investigation =



• The Investigating Judge alwaysappoints one or several judicialappoints one or several judicialexperts to investigate the causesof the accident.

• Official lists of judicial expertsbefore Court of Appeals andSupreme Court

• Several technical backgrounds:engineers, former pilots, formerBEA employeesBEA employees...

• Experts file reports, theconclusions of which tend to be


conclusions of which tend to befollowed by the courts


• Criminal proceedings areCriminal proceedings aresystematic when the accidenttakes place in France, when theairline is French or when thereare strong connections withare strong connections withFrance

• The passengers or their relativesmay opt to recover damages inthe course of the criminal actionthe course of the criminal actionas "civil parties"= the Criminal Court can decidein a single judgment on the

i h t f th ff d dpunishment of the offender andon the financial compensation tobe awarded to the victims(except Warsaw/Montreal claims)


• "Civil parties" have access to thecriminal file

2. Example of criminal investigations in France/Italy2. Example of criminal investigations in France/Italy

Cap Skirring crashCap Skirring crashFebruary 9, 1992

Saint-Barthélemy crashMarch 24, 2001

Concorde crashJuly 25, 2000y

Tuninter crashA t 6 2005


August 6, 2005

2 1 Cap Skirring crash: the accident2.1 Cap Skirring crash: the accident• February 9, 1992, flight of a Convair 640 between

Dakar and Cap Skirring, in Senegal• At night, the pilot mistook the alley of a hotel for Cap

Skirring's runway (31 miles away...)

• 30 people, including crew members, died and 26people were seriously injured


people were seriously injured

2 1 Cap Skirring crash: the parties2.1 Cap Skirring crash: the parties

• The French tour operator/charterer:Club Méditerranée

• The Senegalese charter company:• The Senegalese charter company: Air Sénégal

• The Gambian sub-charter company:


Gambcrest

2 1 Cap Skirring crash: the pilot2.1 Cap Skirring crash: the pilot

• Lemuel Lester Long

• Three lawsuits in the US

• Prohibited from flying in the US by the NTSB: held responsible for two accidents during landingp g g


2 1 Cap Skirring crash: the pilot2.1 Cap Skirring crash: the pilot

• Lemuel Lester Long was analcoholic: passengers sawhim several times with abottle of whisky in the cockpity p

• He was myopic and almost deaf


2 1 Cap Skirring crash: the trial2.1 Cap Skirring crash: the trial

• 2000: trial before the Paris Criminal Court


2.1 Cap Skirring crash: the jugdment of July 6 2000the jugdment of July 6, 2000

• On July 6, 2000, Gilbert and Serge Trigano, co-founders and CEOs ofClub Méditerannée, were found guilty of manslaughter and involuntaryClub Méditerannée, were found guilty of manslaughter and involuntarybodily harm for having recklessly ignored the poor maintenance of thechartered planes despite numerous warnings

• Sentence: 8 months of suspended imprisonment and a fine of 30,000French Francs (approx. €4,500)


• First time a charterer is held criminally liable

2.2 Saint-Barthélemy crash: the accidentthe accident

• On March 24, 2001, a DCH6 Twin-Otter 300operated by Air Caraïbes crashed behind a house inSaint-Barthélemy, causing the death of 20 people(17 passengers 2 crew members and a man on the(17 passengers, 2 crew members and a man on theground)


2.2 Saint-Barthélemy crash: the partiesthe parties

Were indicted for involuntaryl htmanslaughter:

The airline company: AirThe airline company: AirCaraïbes (formerly AirCaraïbes Transport)

Th CEO f Ai C ïb hThe CEO of Air Caraïbes whowas also the director of airoperations


p

2.2 Saint-Barthélemy crash:the criminal trial / episode 1the criminal trial / episode 1

On September 15, 2006, the Criminal Court of Basse-TerreOn September 15, 2006, the Criminal Court of Basse Terre(Guadeloupe) handed down its decisionIt held that the accident had been caused by a maneuver of thecaptain and flying pilot of the aircraft: he wrongfully selected thecaptain and flying pilot of the aircraft: he wrongfully selected thereverse beta range for the propellers, which resulted in animmediate loss of speed and a stalling of the aircraft. Such amaneuver in flight was strictly prohibited by the manufacturer's flying


g y y y gmanual


• Air Caraïbes’ CEO was sentenced to a 1 yearsuspended imprisonment and was prohibited from being asuspended imprisonment and was prohibited from being aCEO for a 2-year period

• Air Caraïbes was ordered to pay a fine of €250 000• Air Caraïbes was ordered to pay a fine of €250,000

It is the first time that an air carrier is heldcriminally liable in an aviation mattercriminally liable in an aviation matter

• Two associations representing the families of the victims(AFDV d FENVAC) h i t d i il ti(AFDV and FENVAC) who registered as civil parties wereawarded €150,000 and €5,000, respectively, as damages tobe paid by Air Caraïbes and its CEO



• All the parties lodged an appeal

• On April 29, 2008, the Court of Appeals of Basse Terreconfirmed the conviction of Air Caraïbes and of its CEO forconfirmed the conviction of Air Caraïbes and of its CEO forinvoluntary manslaughter


2.2 Saint-Barthélemy crash:the criminal trial / episode 2the criminal trial / episode 2• Contrary to the lower Criminal Court, the Court of

Appeals of Basse Terre declined jurisdiction to rule on thecivil claims for damages brought by the two associations

• Reason:- the civil liability of the air carrier results from they

provisions of the Warsaw Convention and the FrenchCode of Civil Aviation, with a presumption of liability ofthe air carrierthe air carrier,

- the criminal court may only allocate civil compensationto victims of a criminal offense,

- the action for damages directed against an air carrier isdifferent from the action for damages as a result of thecommission of a criminal offense (different standards


commission of a criminal offense (different standardsof liability, etc)


• On June 3, 2009, thei i l h b f thcriminal chamber of the

Supreme Court dismissedthe challenge filed byg yassociations of relatives

Th i fi d h l k• Thus, it confirmed the lackof jurisdiction of the criminalcourts to award damagesgfor losses that do not derivefrom the criminal offense


2.3 Concorde crash: the accident of July 25 2000the accident of July 25, 2000


2 3 Concorde crash: the parties2.3 Concorde crash: the parties

• The air carrier: Air France

Th i ft Ai F• The aircraft owner: Air France

• The aircraft manufacturer: Aerospatiale

• Continental Airlines

• The French Civil Aviation Authority: DGAC• The French Civil Aviation Authority: DGAC

• Some plaintiffs acting as "civil parties"


2.3 Concorde crash: the criminal proceedingsthe criminal proceedings

Criminal investigation closed on November 2007

Continental Airlines, two Continental employees (JohnTaylor and Stanley Ford) two Aerospatiale employeesTaylor and Stanley Ford), two Aerospatiale employees(Henry Perrier and Jacques Herubel) and one DGACemployee (Claude Frantzen) were indicted for involuntary

l h d i l b dil hmanslaughter and involuntary bodily harm

The Investigating Judge referred all the indicted personsThe Investigating Judge referred all the indicted personsbefore the Criminal Court of Pontoise in July 2008


2.3 Concorde crash: the alleged causes of the accidentthe alleged causes of the accident

• According to the InvestigatingJudge the causes of theJudge, the causes of theaccident are:

1. Loss of a wear strip by a DC10p yoperated by Continental

2. Failures in the follow-up of thepConcorde's airworthiness


2.3 Concorde crash: the alleged causes of the accidentthe alleged causes of the accident

• Loss of a wear strip by a DC10 operated by Continental which caused abreak of one tire of the Concordebreak of one tire of the Concorde

• The loss of the wear strip from the DC 10 and the subsequent break ofthe Concorde's tire were allegedly caused by:- a failure to comply, for the replacement of the wear strip, with GE's

instructions and with those appearing in the maintenance manual, and- the use of inadequate material (titanium instead of stainless steel or

aluminium) for the wear strip


2.3 Concorde crash: the criminal prosecutionthe criminal prosecution

P ti f J h T l• Prosecution of John Taylor,boilermaker at Continental, whochanged the wear strip on the DC10in Houstonin Houston

• Was subject to an internationalt tarrest warrant

• Prosecution of Stanley Ford, JohnTaylor's supervisor, for havingrecklessly provided theAirworthiness Release Signature ofthe DC 10 after the change of the


the DC 10 after the change of thewear strip

2.3 Concorde crash: the criminal prosecutionthe criminal prosecution

• Prosecution of ContinentalAirlines for the faults committedAirlines for the faults committedby its employees:

St l F d d- Stanley Ford, and

- Kenneth Burtt, Continental's VicePresident of Technical Services,for several failures in themaintenance of the DC 10 which

lt d i th l f thresulted in the loss of the wearstrip


2.3 Concorde crash: the criminal trialthe criminal trial

• Trial before the Pontoise Criminal Court between Februaryd M 2010and May 2010

C ti t l Ai li ' d f• Continental Airlines' defense:• "28 persons saw the plane took fire well before it rolled on

the wear strip, but their testimonies were not considered.


the wear strip, but their testimonies were not considered.Everything was done to hide the truth"

2.3 Concorde crash:the jugdment of Dec 6 2010the jugdment of Dec. 6, 2010

• 296 pages long

• "The loss of the wear strip is the causethat manifestly contributed to create thesituation which allowed the occurrence ofthe damage [ ]"the damage [...]

• John Taylor, Continental's boilermaker inHouston, Texas, "committed several actsof negligence in the scope of his functions

h h f t d th t i [iwhen he manufactured the wear strip [intitanium] and installed it on Continental'sDC 10 on July 9, 2000, in not complyingwith the manufacturer's instructions andthe state of the art in the field of

ti "John Taylor

aeronautics"= he committed "characterizednegligence" and is thereforepersonally criminally liable

yGUILTY OF MANSLAUGHTER

Sentence: 15 months' suspended imprisonment and fine of


€2,000


• Stanley Ford, John Taylor'sy , ysupervisor, recklessly provided theAirworthiness Release Signature of theDC 10 after the change of the wearstrip by John Taylor

• Stanley Ford's negligence may beattributed to Continental because inhaving the power to sign theAi thi R l Si tAirworthiness Release Signature,Stanley Ford is Continental'srepresentative under Frenchcriminal law

Continental (acting through• Yet, since Stanley Ford's negligence is

not "characterized", he is notpersonally criminally liable and wasfound not guilty

Continental (acting through its "representatives")

GUILTY OF MANSLAUGHTERSentence: fine of €200 000


Sentence: fine of €200,000


• All other defendants in the case - including threeformer French officials - were found not guilty

• Continental Airlines claimed to be the victim of a"patriotic" French legal system

• Appeal lodged byContinentaland Air France


2 3 Concorde crash: civil compensations2.3 Concorde crash: civil compensations

• Most, if not all, of the relatives ofthe passengers were indemnifiedthe passengers were indemnifiedafter the accident by Air France'sinsurers through amicablesettlements.settlements.Amount: confidential butaccording to the press+/ €1 Million/seat+/- €1 Million/seat

• The owner of the hotel inGonesse, some employees andother persons on the groundother persons on the groundwere awarded civil damages bythe Pontoise Criminal CourtAmount: between €8 700 and


Amount: between €8,700 and€40,000 per claimant

2.3 Concorde Crash:the merger between Continental Airlines and United Airlinesand United Airlines

• The merger between Continental Airlines and United Airlineshas been officially anounced on May 3, 2010 and approvedby the shareholders on September 17, 2010by the shareholders on September 17, 2010

• Finalized in October 2010


2.3 Concorde Crash:the impact of the merger on the criminal liabilitieson the criminal liabilities

• 2 decisions from the French Supreme2 decisions from the French SupremeCourt (June 20, 2000 and October 14,2003)

Wh hi h h• When a company which hascommitted a criminal offense is taken-over by another company, theabsorbing company cannot be

t d f h ffprosecuted for such an offense

• → application of the fundamentalFrench criminal law principle wherebyFrench criminal law principle wherebycriminal prosecutions and sanctionsare personal and individualized

B t


• But...

2.3 Concorde Crash:the impact of the merger on the criminal liabilitieson the criminal liabilities

• ... if it was decided in order to avoidcriminal liability, the merger might beconsidered as a fraud and lead tosanctions

• No case law on this issue, but legalpublications mention two possiblesanctions:the merger could be declared void (andth b b d ld th bthe absorbed company could then beprosecuted)the absorbing company could beprosecuted (as an exception to thegeneral rule set out above)g )

• Merger = fraud if it has no economicinterest for the companies and if it isonly carried out to avoid criminal


yliability

2 4 Tuninter crash: the accident2.4 Tuninter crash: the accident

O A 6 200• On August 6, 2005, anATR-72 of the Tunisianair carrier Tuninterair carrier Tuninterfllying from Bari (Italy)to Jerba (Tunisia)

kmakes an emergencylanding off the Sicilancoastcoast

• 16 deceased


2 4 Tuninter crash: the parties2.4 Tuninter crash: the parties

• The air carrier: Tuninter(subsidiary of Tunisair)

• The aircraft manufacturer: ATRGIE Aerospatiale + Aeritalia

• 35 Italian passengers


35 Italian passengers

2.4 Tuninter crash: the causes of the accidentaccident

• The Tunisian French and Italian experts determined• The Tunisian, French and Italian experts determinedthat the fuel level was too low (570 kilos), while thegauge indicated 2,700 kilosgauge indicated 2,700 kilos

• Cause: The gauge, designed for a smaller aircraft(ATR-42), was showing an incorrect fuel level( ), g


2.4 Tuninter crash: the criminal investigationinvestigation

• Criminal investigation opened by the Palermo PublicProsecutor for manslaughter, involuntary injuries andnon-premeditated catastrophe

• End of the investigation on August 16, 2008

• Conclusions: the gauge was not appropriate + thepilots could have reached Palermo airport byf th i th ll


feathering the propellers

2 4 Tuninter crash: the trial2.4 Tuninter crash: the trial

• Criminal trial before the Palermo criminal court



• Decision of the Palermo criminal court on March 23, 2009

• Were convicted by default (in absentia):Were convicted by default (in absentia):- Tuninter's pilot and co-pilot → 10 years' imprisonnement- Tuninter's general and technical managers → 9 years' imprisonnement

T i t ' h i 8 ' i i t- Tuninters' mechanics → 8 years' imprisonnement

• First time that pilots and mechanics are found criminally liable



• Tuninter was ordered to pay €45,000 as non-economic damages (€30,000 to one family +€15,000 to a victims' association)

• The aircraft manufacturer was found not guilty,although the gauge rated for one type of aircraftcould be fitted on another typecould be fitted on another type.

• Tuninter lodged an appeal.


Aviation accidents: beware of prosecution!Aviation accidents: beware of prosecution!

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Beware of Prosecution! Criminal Product Liability: Criminal Product Liability:

Aviation Accidents in the European Courts –A F F d It lA Focus on France and Italy

Tuesday, May 17, 2011

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Beware of Prosecution! Criminal Product Liability ... in Europe 05_17_11.pdf · Criminal Product Liability: Aviation Accidents in the ... 2 1 Cap Skirring crash: ... Beware of Prosecution!