By: Joshua C. Moscow
PDF: Independence and Liability in Civil Aviation Accident Investigations
International law governs the investigation of civil aviation accidents through the Chicago Convention and the International Civil Aviation Organization. Their standards, outlined primarily in Annex 13 to the Chicago Convention, require accident investigations to be conducted in an independent and impartial manner. Notwithstanding this requirement, a state with a nationalized airline may lead an Annex 13 investigation into an accident involving (essentially) itself. The conflict that arises when this occurs challenges Annex 13 independence––a challenge that may be difficult to avoid given the prevalence of nationalized airlines.
While Annex 13 independence is threatened when a state assumes the role of investigating its own civil aviation asset, this Note exposes a deeper source of conflict in the Annex 13 investigation process that stems from the civil aviation liability provisions contained in the Montreal Convention. Using Malaysia Airlines Flight 370 and other notable air disasters to illustrate, this Note shows how Montreal’s liability rules create incentives for state owners of airlines to conduct investigations in ways that reduce their exposure to liability, exacerbating the treat that conflicted investigations pose to Annex 13 independence. This troubling dynamic undermines the fundamental aims of international civil aviation governance: to promote safe skies and passenger parity. It also demonstrates that consideration of Annex 13 independence is incomplete without understanding Montreal Convention’s effect on the investigation process. Using this insight, this Note proposes bolstering investigation independence with reforms to both Annex 13 and the Montreal Convention, and invites further consideration by civil aviation policymakers, practitioners, and scholars.