(SOS) COPY PASTE YAHOO [12.05AM] - Legal limbo hampers probe into missing MAS plane
Investigators trying to solve the disappearance without trace of a
Malaysia Airlines plane face an extremely rare challenge that could
hinder their efforts: they lack the powers of a formal air safety investigation.
Four days after flight MH370 went missing in mid-air with 239 people on
board, no nation has stepped forward to initiate and lead an official
probe, leaving a formal leadership vacuum that industry experts say
appears unprecedented.
Malaysian officials are conducting their own
informal investigations, in cooperation with other governments and
foreign agencies, but they lack the legal powers that would come with a
formal international probe under UN-sanctioned rules.
Those
powers include the legal rights to take testimony from all witnesses and
other parties, the right to have exclusive control over the release of
information and the ability to centralise a vast amount of fragmentary
evidence.
A senior official familiar with the preliminary
Malaysian probe said Malaysian authorities could not yet convene a
formal investigation due to a lack of evidence on where – namely, in
which national jurisdiction – the Boeing 777-200ER jet crashed.
He
said this was not hampering their work, that preliminary investigations
had begun and that they were working with their neighbours, US officials
and the jet's maker, Boeing.
The Malaysians have begun
collecting information from neighbouring countries without any problems,
including air-traffic control communications and radar data, he said.
"There have been no issues in getting that information."
But
Southeast Asian waters are rife with territorial disputes, and any
decision by Malaysia to unilaterally open a formal investigation under
UN rules could be seen as a subtle assertion of sovereignty if the crash
site turns out to be inside another country's territory.
Without a formal investigative process being convened quickly under
rules set out by the International Civil Aviation Organization (ICAO), a
UN agency, there is a risk that crucial early detective work could be
hampered, and potential clues and records lost, air accident experts
said.
Witnesses such as cargo handlers, mechanics and company
officials might be reluctant to speak to Malaysian investigators who
were operating outside a formal ICAO-sanctioned probe which could offer
them some protection from law suits, experts said.
"The sole
objective of an accident investigation is to prevent future accidents
and not to apportion blame or liability," said aviation lawyer Simon
Phippard of international legal firm Bird & Bird.
"The
international standards attempt to provide a degree of protection, for
example from criminal prosecution, for individuals who give statements
to the enquiry."
The lack of a formal investigation also means
Malaysia does not have exclusive control over the release of information
or the ability to centralise fragmentary evidence such as wreckage
parts and witness accounts, effectively relying for cooperation on other
parties' good-will, the experts said.
Under a formal
investigation, a board is set up to designate parties to the
investigation, including the plane maker, engine maker, unions, the
airline and aviation safety regulatory agency of the country where the
airline is based. Each of these parties typically has a representative
on each of the working groups.
"If they haven't even decided
what country is in charge of the investigation, then whatever is being
done at this point is probably suffering from a severe lack of top-down
control and coordination," said Ted Ellett, an aviation lawyer at Hogan
Lovells in Washington and a former Federal Aviation Administration (FAA)
chief counsel.
US investigators from the National Transportation
Safety Board (NTSB), FAA and Boeing arrived in Kuala Lumpur yesterday
and, according to the official familiar with the Malaysian probe, have
been talking with the Malaysian investigators.
An NTSB-led
team, including the FAA and Boeing officials, is "standing by for when
the aircraft is located and they are in touch with Malaysian officials
and have offered our assistance and support for anything they may need,"
NTSB spokeswoman Kelly Nantel said.
Boeing and FAA declined to comment.
● Lacking formal powers
A lack of clarity over the investigation already appears to be a source
of tension between Malaysia and China, which had up to 154 citizens on
the Beijing-bound flight and is pushing for a significant role in the
investigation.
China's Foreign Ministry urged Malaysia yesterday to
step up its search efforts and start an investigation "as soon as
possible and correctly".
The deputy head of China's civil
aviation authority urged Malaysia to help a team of investigators it has
said is ready to fly to the Southeast Asian nation to help with the
probe.
Governments usually step forward quickly after an accident to
claim leadership of the investigation, based primarily on the territory
where the plane crashed.
That crucial information remains
unknown in this case, as navies, military aircraft, coastguard and
civilian ships from 10 nations scour a huge swathe of the sea from the
South China Sea to the Strait of Malacca.
The official familiar
with the preliminary Malaysian investigation said the Malaysian
government could not launch a formal probe until the crash site had been
found, and that it planned to work closely with US authorities and
Australia.
"If we wait, we will lose precious time. We know
that. That is why our guys have been gathering all of the records and
data," the official said.
Under UN rules, if a plane crashes in
international waters, the country where the aircraft is registered – in
this case, Malaysia – is in charge of the investigation.
So,
for example, Air France quickly took control of the official
investigation when its passenger jet crashed in waters far out into the
Atlantic Ocean in 2009, even though no wreckage had yet been found.
● Legal protection
Vietnam would have jurisdiction if the plane crashed in its territory,
but it does not have the resources to lead an investigation and would
likely have to get outside help, two regional aviation officials said.
Under rules governed by ICAO, setting up an investigation grants
"unhampered access" to all relevant materials including wreckage and
data and "unrestricted control" over the evidence and public
communications.
"Parties don't relish the idea of their
officials or employees being queried or formally interviewed in these
accident investigations," Ellett said.
"If there's any question
about who has the authority to do it, the parties involved could say
we're not going to participate until we know who's really in charge."
With lawsuits potentially swirling, the investigation is meant to
encourage witnesses to speak freely about the incident in the interests
of airline safety.
Investigators will typically "freeze"
documents and records, especially the maintenance records of the
aircraft, and acquire radar images and air traffic control recordings.
Groups specialising in operations, maintenance and sometimes human factors are set up to sift through each scrap of evidence.
"I can't remember anything like this. Usually it is pretty clear who is
responsible for the investigation and they get to work straight away,"
said one European air safety official, who asked not to be identified.
"It is very important to get all the factual information as soon as possible." – Reuters, March 11, 2014.