Case NOT closed: that 2010 verdict did not sit well with French prosecutors and lawyers for Continental Airlines. They filed an appeal which is now scheduled to be heard in March of 2012 in Versailles, near Paris. The precise grounds of appeal are not readily available at this stage, but it can be assumed that they will be publicly disclosed shortly.

   The unusual aspect of the upcoming appeal proceedings is that the appeal will involve issues of fact in addition to strict issues of law. This appeal has all the makings of a new trial. Experts will be called again to testify possibly about fresh evidence related to the crash that claimed 113 lives just short of 12 years ago.

   Another unusual aspect of the first trial and the upcoming appeal proceedings is that the joint French-British Concorde venture did not lead to charges being laid against British entities and personnel that participated in the design of the supersonic aircraft. As a matter of fact, despite similar incidents (i.e.: a blown tire on take-off) in the operation of Concorde aircraft by British Airways before the Paris crash of an Air France sister aircraft, the focus of the judicial proceedings has always been so far on French legal entities or individuals, and more so on Continental Airlines for its responsibility in the fateful dropping on the runway of a small metal strip from one of its aircraft immediately ahead of Concorde’s take-off on the same runway.

   The question that has arisen in many people’s mind is whether Continental Airlines was scape-goated during the technical investigation of the crash and the subsequent legal proceedings.

   Will the whole case be reopened in an attempt to counter allegations that there was an agreement of sorts among parties involved in the technical investigation of the crash or named in the judicial proceedings to lean one way to the detriment of Continental? 

   A number of experts still maintain that it takes more than a small strip of metal and the consenquent blow-up of a single tire to bring down an airliner in light of strict airworthiness standards and related service bulletins. Or, as others question, was it wise on the part of Concorde’s engineers to design the underside of the delta wing in a way that a strike by a piece of a blown tire on take-off could send a powerful shock wave through the fuel cells within Concorde’s wing, leading to a fuel leak that was possibly ignited by arcing electrical wires beneath the stricken supersonic? 

   It does seem as if the magnificent speed bird had a peculiar Achilles’ Heel. Technical assumptions abound about causal factors of of the crash. Rumours have been circulated to the effect that the doomed Concorde exceeded its maximum take-off weight by six tons and that it took off with a tail wind component. Who is to know for sure? Lawyers for Continental also argued in the lower court that ignited fuel started to escape from Concorde before its main landing gear overran the piece of metal dropped by the preceding Continental airliner. For the average Joe, such allegations are confusing and it’s not easy to find out how they were dealt with by the presiding judge in the lower court.

   The surprising finding by the lower court that the aircraft maintenance mechanic who installed the unsteady metal strip on the Continental jet that took-off ahead of Concorde must have forseen the catastrophic consequences of his shoddy workmanship. In fact, that point might very well be raised on appeal. (Please note that your diligent blogger here can only make an approximation about the ‘manslaughter’ or ‘negligence causing death’ charge for lack or knowledge of French law.)

   At any rate, the period from March to May of 2012 will generate much attention amongst the commercial aviation community and, to some extent, the public at large.

   Concorde was an iconic supersonic aircraft in France. Some may have turned their attention to other topics of interest over the last 12 years, while others still seek closure on the prestigious era of a French-designed marvel of an airliner, not to forget similarly concerned people on the British side.

   To what extent has French pride obscured technical and legal reasoning during the proceedings held by the lower court in Pontoise two years ago, if any connection at all? What lessons can the whole civil aviation community derive from the Paris crash and the demise of the supersonic Concorde program? We are likely to find out in 2012.

   Meanwhile, the French technical investigation authorities (known as the “BEA”) are to release their final investigation report also in the course of 2012, regarding the causes of the downing of Air France flight 447 in June of 2009, in the middle of the Atlantic ocean, also with no survivors.

   Air travellers’ confidence in the overall safety of airline transport remains strong. And it should remain strong after the final judicial outcome of the Air France Concorde crash as well as the more recent crash of the Air France Airbus 330 en route from Rio to Paris, provided the judicial outcome of both tragedies is clear, all-encompassing and entirely justified.

   On a side-note, there remains a demand for public supersonic air transport. In order to respond to such demand, a radically new generation of supersonic aircraft will need to be designed. According to aviation media, that new step in supersonic transport is not around the corner. Launching a new aircraft capable of carrying paying passengers at Mach 2 or 3 over long distances appears for now to be beyond the financial reach of aircraft manufacturers.

THE CASE OF THE CONCORDE CRASH IN JULY  2000, AT ROISSY AIRPORT, PARIS.

   Ah, the wonderful world of aviation together with a volcano eruption in Iceland have me delayed in Europe and unable to provide a proper follow-up on the Concorde crash proceedings in Pontoise (Paris) or any other interesting aviation matters!

   The one point worth sharing on this blog, for now at any rate, is a recent comment made to me by a Belgian lawyer who regularly represents clients in the U.S. and has a broader perspective on the present Concorde trial near Paris, as a result of dealing with the Civil Law system and the American Law system.

   It would seem that if the crash of Concorde had occurred in the U.S. for instance, most, if not all, issues surrounding the crash, whether civil or criminal in nature, would have been settled out-of-court or dealt with through plea-bargaining, or possibly also through a judicial inquiry with recommendation powers only. Although current criminal proceedings in Pontoise seem tedious, the same lawyer stated that Justice would not have been publicly visible without them, contrary to out-of-court settlement and plea-bargaining processes that typically do not result in full public disclosure and debate.

   Well, food for thought…So far, I was inclined to think the current criminal proceedings were not suitable for an aviation crash of such magnitude and in light of the irreparable damage to supersonic transport known so far.

   As a side-comment, I was struck in the last month by the number of references in public media to the so-called Concorde trial. Concorde is not on trial, of course; it is just a way of expressing the significance of the crash that brought a legend to a sudden stop. The trial is aimed more specifically at key figures involved in the French/British Concorde project since 1960.  It is open to debate whether or not the right figures were picked out by judicial authorities on the French side of the joint Concorde project and why the U.K. was left out.

   It was stated in a previous posting on this blog that the Concorde program was prestige-driven. This was certainly a major factor, to the point where major decisions about the continuation of the Concorde program were admittedly taken at a political level. Whether this situation had any impact on the necessary airworthiness upgrades for Concorde remains to be seen.

   In fact, he Concorde program was not entirely prestige-driven. Up to the early 1990s, there was still hope that the program might keep the U.K. and France at the forefront of knowledge and experience in SST technology while, across the Atlantic, their Americans counterparts were pursuing the same objective. More precisely, a second generation Concorde was unofficially in the offing. In addition, the words “prestige-driven” do not necessarily apply to the pragmatic desire for passengers to fly at twice the speed of sound, provided they could afford it. However, such words do capture the ‘magic’ of supersonic flight for some passengers and public figures, and also the need to maintain the public image of France and the U.K. as leading countries in aeronautical technology.

   Are such considerations material to the current Concorde trial in Pontoise? I submit they are, as these factual elements point to the highest political levels in matters concerning large expenditures of public funds to finance the upkeep and perceived safety requirements of Concorde, on the French side of the channel anyway. This was, in my opinion, the overall framework of the Concorde program until disaster struck quite unfortunately for 113 innocent lives, not counting the number of affected relatives and friends, and witnesses at the crash scene.

   Had there been no public criminal proceedings or other transparent venues related to the crash of Concorde in July 2000, how could have the aviation community, concerned airline passengers and interested members of the public  become aware that Concorde was a unique transport aircraft to the point of being certified under a separate set of rules, and operated under separate continuing airworthiness rules as well, quite apart from those applicable to popular subsonic airliners? This question begs another: is the safety level of an airliner dependent on its pedigree? Concorde had no pedigree, except perhaps for the application of military supersonic technology and experience to a much larger an demanding civilian aircraft.* Furthermore, few units of Concorde were built and operated. The result is that Concorde was operated for decades as a public transport aircraft, with limited engineering and technical feedback derived from operational experience. Both British Airways and Air France made the best of such limited feedback. That much we know, to their credit.

   With respect, however, as dedicated, knowledgeable and safety-minded the designers, engineers, manufacturers and operators of Concorde aircraft were in their times, the whole Anglo-French SST program was conducted in some sort of vacuum. In fact, Concorde kept on transporting paying passengers for decades with patchwork engineering solutions being applied from one “incident” to the next until the “accident” occurred. Furthermore, concerned civil authorities and Concorde programme managers had not set, as far as we can tell,  a gradual retirement plan for Concorde, despite its increasingly obsolete technology.  As a matter of fact, much of the current Pontoise proceedings hinge upon the issue of foreseeability of a catastrophic failure of Concorde, such as the crash that occurred near Paris in July 2000.

   Which way was the Concorde programme heading just before one of its units crashed near Paris? This is one question that should be answered in the context of the current criminal responsibility hearings in Pontoise (France). The lone judge presiding over the hearings is expected to issue publicly her findings and decision in December 2010.

   In fairness, she might also put Concorde’s 27 years of accident-free commercial operations in the balance. After all, the civil aviation community will be looking at the important outcome of a very public – yet belated – trial of civil aviation past and modern practices.

*PS:  Concorde’s limited lineage or pedigree, as a public transport aircraft, will be addressed in a posting to follow.

SUMMARY: More than three weeks after criminal proceedings were initiated by French justice officials in Pontoise (France), little is known yet about the key contributing factor, if any, that actually is at the centre of a chain of events that ultimately lead to the crash of Concorde in Gonesse, resulting in the loss of 113 lives. The July 2000 deadly crash of an Air France Concorde, along with extraneous factors such as the financial health of major airlines in general, signaled in 2003 the end of the Concorde program for both Air France and British Airways and, consequently, the end of a supersonic commercial transport era.

   The criminal proceedings into the supersonic airliner Concorde’s deadly crash in Paris nearly ten years ago, are in the fourth week of judicial hearing with no clear and undisputed explanation of the root cause of the crash. Justice officials reckon the Pontoise proceedings will last four months at least in order to find the truth as to who is criminally liable for the crash.

   Before the current criminal proceedings were initiated on February 2nd, 2010, an accident investigation report was completed by the BEA (Bureau des enquêtes accident) in which the root cause of the crash of Concorde has been identified as a metal strip that fell off a Continental Airlines DC-10 which took off four minutes ahead of the ill-fated Air France Concorde on the same runway. The technical accident report by the BEA is already a few years old. Why it took so long for criminal proceedings to get underway afterwards is anyone’s guess. However, the purpose of the current criminal proceedings held in Pontoise is to determine if there is conclusive evidence to convict Air France, Continental Airlines and/or two aircraft maintenance employees of Continental on the charge of involuntary homicide.

   Basically, the criminal proceedings have evolved from preliminary procedural issues to actual substantive ones argued by both the prosecution and defense lawyers during the third week. Repeated requests by counsel for Continental Airlines to have the charges against defendants dismissed on a number of grounds have been noted by the presiding judge who will deal with them later. This is to allow the proceedings to continue on the merits of the case instead of being bogged down in procedure.

   A number of civil aviation experts and lawyers are still claiming, both outside and inside the courtroom, that criminal proceedings have no place in an aviation disaster of such magnitude, once terrorism and foul play are ruled out at the initial investigation stage. Furthermore, all families of the 113 victims have been fairly compensated and are not part of the present proceedings. The reason for family members of Concorde’s captain, Christian Marty, to attend the Pontoise proceedings as civil parties is to protect the stellar flying record of the captain who also died in crash. Their goal is to ensure that Captain Marty will not be scapegoated or denigrated in absentia. According to some media sources, it would seem that during the two minutes of emergency handling in Concorde’s cockpit, the cockpit voice recorder makes it sound as if Captain Marty was running his own show while the First Officer and Flight Engineer were discussing quickly various ways of dealing with the loss of power in the two port side engines.

   Media sources sometimes don’t have the inside view as to what is actually going on in the cockpit of an airliner in distress. Assuming Captain Marty was the flying pilot, it would have been quite normal for the First Officer and Flight Engineer to deal with the technical problems at hand, leaving the Captain with the delicate task of keeping Concorde under control in the final stage of take-off and during initial climb, while these recorded discussions were taking place.

   So why all the fuss now, in a French criminal court, over this sad episode in the recent history of civil aviation?

(a) To further compensate victims’ relatives? No. They have been well compensated by now in a non-American way quite acceptable to Europeans. To my knowledge, champerty does not apply to possible civil proceedings based on judicial findings in Pontoise. This means that there would be little to gain from launching civil trials or a class action suit after the Pontoise proceedings.

(b) To prevent the same type of air crash from occurring? My mitigated answer here is also “no”, because Concorde’s crash might result from old corporate wisdom partly based on the “word of honour” system amongst highly competent professionals in the 1960s. Such a system had the potential of keeping up the prestige of an aeronautical success story at the expense of flight safety. This safety culture no longer applies to modern-day airline service. Instead, the concept of risk management has made a quantum leap since Concorde was designed, manufactured and put into service.

(c) To ascribe criminal liability to one or several defendants? Not necessarily, as French society is not seeking retribution. However, the aim of digging out, through the court adversarial process, more accurate facts than the BEA accident report provides is quite justifiable, because the BEA’s expert accident report is essentially a one-sided report. Perhaps, more can be learned through the Pontoise criminal proceedings than is known so far about the actual cause or causes of the crash. That being said, one should refrain from readily assuming that the present criminal proceedings are aimed at meeting out criminal sanctions against corporations and individuals involved in the Concorde program since its inception the early 60s. Furthermore, the proceedings are likely, in my humble opinion, to exonerate once and for all Continental Airlines of any criminal action leading up to Concorde’s crash. If anything, Continental Airlines could turn around when the Pontoise proceedings are over and initiate a lawsuit against the French government for abuse of process or wrongful/malicious (whichever) prosecution. Why? Because Continental’s lawyer requested at the very beginning of the proceedings a dismissal of the charges against his client and the presiding judge at the Pontoise hearings decided to go ahead anyway with Continental and two of its employees as co-defendants.

(d) To settle outstanding insurance matters? Possibly, although in a number of jurisdictions, criminal liability does not automatically lead to civil liability as well.

   Over the years, various civil aviation commentators and Concorde experts have pointed out that the success of the Concorde program depended on the ability of Concorde to stay well ahead of subsonic airliners’ transatlantic flying time, namely by maintaining tightly scheduled departures and arrivals times between Paris/London and New York, and vice versa. This pressure on Concorde personnel, some would say, lead Air France employees to curb potential departure delays even if it meant taking short cuts in dispatch and aircraft maintenance action. These allegations are suspect, if not foolhardy, in that they would entail that Air France’s top-notch pilots carefully selected to operate Concorde would compromise safety over time to destination. Such a scenario does not stand to reason in today’s airlines circles. There is too much at stake. Even student pilots are educated in this basic principle of flight safety philosophy and good airmanship.

   Other commentators claim that Concorde was behind the times in terms of airworthiness when the Paris crash occurred. Some also claim that officials responsible for the Concorde program turned a blind eye to airworthiness issues, managing risk in their own way, a way that would keep the obsolete Concorde pointing visibly towards the future of supersonic transport flight.

   Counsel for Continental Airlines has maintained from the start of the Pontoise proceedings that the charges against Continental are pointless and must be dismissed at the first opportunity for two reasons:

1) a relatively small piece of metal left on the runway from which Concorde took off four minutes after the Continental DC-10 should not have lead to such disastrous consequences, taking into account airworthiness standards in force in the year 2000; and

2) fire erupted on Concorde’s left wing during the take-off roll before contact with metal strip (Continental claims to have 20 eyewitnesses on hand to support this contention). However, this part of the defense contradicts French investigation experts who were able to pinpoint the area on the runway where Concorde’s left landing gear came into contact with the metal strip. Furthermore, the same experts also found the point further down the runway where traces of kerosene appear on the runway’s surface, where there shouldn’t be any in ordinary circumstances.

   Below are a few of the points canvassed by counsel for opposing parties:

(1) The lab testing of tire burst by experts is not conclusive. Their technical findings must be corroborated in some way or another because of the impossibility of recreating identical conditions as the ill-fated Concorde went through during the take-off run. According to an experienced former Concorde captain, running over an object during Concorde’s rotation (at about 190 kts, i.e.: 320 km/h approx.) increases the load on tires and makes them more vulnerable to runway debris, even though Concorde’s tires had been made more resistant to such debris and to slightly damaged runway surfaces well after initial airworthiness certification.

(2) Counsel for Continental has repeatedly cast doubt on the impartiality of Concorde’s post-crash examination, because one expert was still on salary from Air France at the time. The expert in question relies through his counsel on the French aviation culture of “the word of honour” in relation to Concorde’s original designers and to the early Concorde program administrators. Such was indeed the culture of those days. However, can “the word of honour” culture still be invoked nowadays by way of defense against allegations of self-interest or partiality in an aircraft accident investigation?

(3) Outside critics comment that the presiding judge is wrong in temporarily not allowing the scope of the Pontoise proceedings to be extended beyond the matters covered by the BEA accident investigation report.

(4) The outcome of the Pontoise proceedings is unpredictable at this stage. In fact, much of it depends on the weight of evidence put forth by counsel for Continental as to when flames started to visibly stream behind Concorde during the take-off run.

(5) Concorde’s delta wing design had faults, despite popular thinking to the contrary. For further reading on this topic, simply look at this thorough article on Concorde available on the Global Security website. In fact, in the later part of the fourth week of hearings, experts have testified in the Pontoise proceedings that Concorde did not stand a chance to climb out with only two out of four engines running, especially with the two good engines being on the right side of the supersonic airliner. Also according to expert evidence in the proceedings, the ingestion by one of the four jet engines of roughly 100 grams of tire debris was enough to cause serious trouble to the proper operation of the engine type. Expert evidence underlined again the frailty of Concorde. Back in 1995, another Concorde on approach to JFK Airport in New York lost power on one engine due to a bird strike and started throwing broken parts into the engine right next to it. The flight crew of Concorde involved in that incident managed to complete a safe landing.

3 June 1995.  An Air France Concorde, at about 10 feet AGL while landing at John F. Kennedy International Airport (NY), ingested 1 or 2 Canada geese into the #3 engine.  The engine suffered an uncontained failure.  Shrapnel from the #3 engine destroyed the #4 engine and cut several hydraulic lines and control cables.  The pilot was able to land the plane safely but the runway was closed for several hours.  Damage to the Concorde was estimated at over $7 million.  The French Aviation Authority sued the Port Authority of New York and New Jersey and eventually settled out of court for $5.3 million.  (Source: Birdstrike.org)

(6) As a side comment, attempts to address Concorde’s noise and environmental issues were made over the years at great expense, albeit with no significant results. All Concordes would have been retired soon or later due to public pressure. It is saddening that British Airways’ Concordes and especially Air France’s Concordes were removed from service on such a tragic note, despite airworthiness improvements being made to the whole fleet as a result of the Paris crash. Even without the disastrous Paris crash, all Concordes would have been retired soon or later because of a slump in the number of passengers willing to pay extra money for the sake of shaving off half the flight time on transatlantic flights.

(7) In the end, however, the old question remains: should concerned civil aviation authorities have acted more quickly in issuing airworthiness directives in respect of Concorde, and monitored compliance by Air France with such directives? Should the same authorities have shown more proactive and transparent inspections and investigations, as well as a generally higher duty of care toward paying passengers in relation to a supersonic aircraft fleet born straight out of the 1960s’ supersonic aircraft manufacturing know-how? 

(8) In the last decade, the EADS consortium took over the Concorde project from Aérospatiale, the original manufacturer. EADS was not saddled with the responsibility of issuing non-mandatory service bulletins with respect to Concorde’s airworthiness issues. However, it would seem (and this area of responsibility is somewhat murky) that EADS was more involved in taking supersonic air transport to new ‘heights’ instead of keeping the existing project in good flying order. Consequently, EADS was not named as a defendant in the current criminal proceedings; however, former Aérospatiale executives have been so named.

   Concorde had technical issues that, until the Paris crash, were addressed with mixed results. Was Concorde’s original design such that the aircraft was, realistically speaking, upwardly compatible with advances in aeronautical engineering and technology? Or could it be that airworthiness issues, such as updated certification standards, were ignored by civil aviation authorities on the strength of Concorde’s prestigious image among airline passengers? After all, the travelling public was confident until the Paris crash of Concorde that such a sleek and modern looking supersonic aircraft still had a long future ahead.

   Concorde was a legend by all accounts, a legend that possibly led to complacency on matters of design safety and airworthiness upgrades, coupled with sheer bad luck. Murphy’s Law stepped in to bring down an aviation giant. If only 113 lives had been spared in the process…

PS: News about the Concorde legal proceedings have been updated on December 22, 2009.  Click here to view: Supersonic Concorde legal saga not over yet.