Runway excursion abroad: accident classification, participation and the CVR
An Embraer 190 registered in State R (non-EU) is operated by an EU AOC holder on a scheduled flight from an EU state to State O. On landing at State O's international airport at night in heavy rain the aircraft fails to stop, runs off the end of the runway and the nose landing gear collapses; the aircraft is substantially damaged. Two of the four cabin crew suffer minor injuries; all 96 passengers are uninjured and evacuate via the slides. The operator's principal place of business is in EU State E, the aircraft is designed and manufactured in State D, and the engines are manufactured in State F. Within an hour the operator's insurer and lawyers are on the telephone, and the EU carrier's national aviation authority asks the operator to send it the CVR and FDR data 'for our own review' before the crew are interviewed. The CVR is a 2-hour solid-state recorder with a cockpit area microphone.
1. Is this an accident or a serious incident under Annex 13, and which state is responsible for the investigation and the notifications?
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It is an accident. Annex 13, Chapter 1 defines an accident as an occurrence associated with the operation of an aircraft in which a person is fatally or seriously injured, or the aircraft sustains damage or structural failure that adversely affects its structural strength, performance or flight characteristics and would normally require major repair or replacement of the affected component, or the aircraft is missing or completely inaccessible. The minor crew injuries do not satisfy the injury limb, but the runway excursion with collapse of the nose gear and substantial damage plainly satisfies the damage limb: it requires major repair. The alternative label 'serious incident' - an occurrence involving circumstances indicating a high probability of an accident - is not wrong in spirit, but the primary and correct classification here is accident.
Responsibility for the investigation lies with the state in which the accident occurred, State O, through its safety investigation authority. State O must notify, without delay, the state of registry (State R), the state of the operator (EU State E), the state of design and manufacture (State D) and the state of manufacture of the engines (State F), and must provide the basic facts. The sole purpose is the prevention of accidents; Annex 13 is explicit that the investigation is not for the purpose of apportioning blame or liability, which is the point to make to the insurer and the lawyers.
2. Which states may take part, in what capacity, and what may each of them actually do?
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The correct capacity is accredited representative, with advisers - not observer, and not a party acting for its commercial interests.
State R (registry), State E (operator), State D (design and manufacture) and State F (engines) are each entitled to appoint an accredited representative to the investigation conducted by State O. An accredited representative may: visit the scene; examine the wreckage; question witnesses through the investigating authority; receive copies of documents and factual reports; participate in the investigation, including the recorder read-outs and the working groups; and receive the draft final report for comment before publication, with a right to have dissenting comments appended where they are not accepted. They do not direct the investigation; State O controls it and decides the content of the report.
On top of Annex 13, Regulation (EU) No 996/2010 applies because the operator is established in the Union: the safety investigation authority of EU State E must be involved and is provided for as a participant in a foreign investigation, and EASA may be associated where relevant. Its role is to protect the Union interest and to issue safety recommendations, not to act as prosecutor or as the operator's representative.
The operator and its insurer have a legitimate commercial interest but are not accredited representatives. Their access is through the investigation process and, in due course, the published report. The operator must nevertheless cooperate fully and preserve evidence.
3. The national authority of State E demands the CVR and FDR data before the crew are interviewed. What is the legal position, and what should the operator do?
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The recordings are protected material and must not be handed over in the way requested.
Annex 13 requires the state conducting the investigation to protect cockpit voice and flight data recordings and provides that CVR recordings shall not be made available for purposes other than accident or incident investigation unless the appropriate authority for the administration of justice in that state determines that disclosure outweighs the adverse domestic and international impact on the investigation. Annex 13 also requires the operator to preserve the recordings and prohibits erasure or overwriting after an accident.
Regulation (EU) No 996/2010 applies the same principle: sensitive safety information, including CVR and FDR records, is protected, and may be used for other purposes (disciplinary, administrative or judicial) only where the relevant national law so provides and only under conditions and with safeguards. The safety investigation authority controls access; a regulator's curiosity is not a lawful basis for disclosure.
What the operator should do:
- Preserve the recorder and the aircraft, and secure the recorder in consultation with State O's investigating authority; do not allow anyone to replay or copy it.
- Refuse the request from the State E authority and direct it to the investigating authority of State O and to the legal provisions governing disclosure.
- Refuse the insurer and the lawyers access to the CVR; they may be given factual information consistent with the investigation's release policy, not the recording.
- Do not use the recording, or the crew's statements, in any disciplinary process, and make the crew available for interview by the investigating authority as soon as practicable.
Breaching these protections can itself be an offence and can contaminate the investigation, quite apart from the damage to the operator's relationship with its regulator and its crew.