• The Korean Journal of Air & Space Law and Policy
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• v.9
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• pp.85-143
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• 1997

The main purpose of the investigation of an accident caused by aircraft is to be prevented the sudden and casual accidents caused by wilful misconduct and fault from pilots, air traffic controllers, hijack, trouble of engine and machinery of aircraft, turbulence during the bad weather, collision between birds and aircraft, near miss flight by aircrafts etc. It is not the purpose of this activity to apportion blame or liability for offender of aircraft accidents. Accidents to aircraft, especially those involving the general public and their property, are a matter of great concern to the aviation community. The system of international regulation exists to improve safety and minimize, as far as possible, the risk of accidents but when they do occur there is a web of systems and procedures to investigate and respond to them. I would like to trace the general line of regulation from an international source in the Chicago Convention of 1944. Article 26 of the Convention lays down the basic principle for the investigation of the aircraft accident. Where there has been an accident to an aircraft of a contracting state which occurs in the territory of another contracting state and which involves death or serious injury or indicates serious technical defect in the aircraft or air navigation facilities, the state in which the accident occurs must institute an inquiry into the circumstances of the accident. That inquiry will be in accordance, in so far as its law permits, with the procedure which may be recommended from time to time by the International Civil Aviation Organization ICAO). There are very general provisions but they state two essential principles: first, in certain circumstances there must be an investigation, and second, who is to be responsible for undertaking that investigation. The latter is an important point to establish otherwise there could be at least two states claiming jurisdiction on the inquiry. The Chicago Convention also provides that the state where the aircraft is registered is to be given the opportunity to appoint observers to be present at the inquiry and the state holding the inquiry must communicate the report and findings in the matter to that other state. It is worth noting that the Chicago Convention (Article 25) also makes provision for assisting aircraft in distress. Each contracting state undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable and to permit (subject to control by its own authorities) the owner of the aircraft or authorities of the state in which the aircraft is registered, to provide such measures of assistance as may be necessitated by circumstances. Significantly, the undertaking can only be given by contracting state but the duty to provide assistance is not limited to aircraft registered in another contracting state, but presumably any aircraft in distress in the territory of the contracting state. Finally, the Convention envisages further regulations (normally to be produced under the auspices of ICAO). In this case the Convention provides that each contracting state, when undertaking a search for missing aircraft, will collaborate in co-ordinated measures which may be recommended from time to time pursuant to the Convention. Since 1944 further international regulations relating to safety and investigation of accidents have been made, both pursuant to Chicago Convention and, in particular, through the vehicle of the ICAO which has, for example, set up an accident and reporting system. By requiring the reporting of certain accidents and incidents it is building up an information service for the benefit of member states. However, Chicago Convention provides that each contracting state undertakes collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. To this end, ICAO is to adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with, among other things, aircraft in distress and investigation of accidents. Standards and Recommended Practices for Aircraft Accident Injuries were first adopted by the ICAO Council on 11 April 1951 pursuant to Article 37 of the Chicago Convention on International Civil Aviation and were designated as Annex 13 to the Convention. The Standards Recommended Practices were based on Recommendations of the Accident Investigation Division at its first Session in February 1946 which were further developed at the Second Session of the Division in February 1947. The 2nd Edition (1966), 3rd Edition, (1973), 4th Edition (1976), 5th Edition (1979), 6th Edition (1981), 7th Edition (1988), 8th Edition (1992) of the Annex 13 (Aircraft Accident and Incident Investigation) of the Chicago Convention was amended eight times by the ICAO Council since 1966. Annex 13 sets out in detail the international standards and recommended practices to be adopted by contracting states in dealing with a serious accident to an aircraft of a contracting state occurring in the territory of another contracting state, known as the state of occurrence. It provides, principally, that the state in which the aircraft is registered is to be given the opportunity to appoint an accredited representative to be present at the inquiry conducted by the state in which the serious aircraft accident occurs. Article 26 of the Chicago Convention does not indicate what the accredited representative is to do but Annex 13 amplifies his rights and duties. In particular, the accredited representative participates in the inquiry by visiting the scene of the accident, examining the wreckage, questioning witnesses, having full access to all relevant evidence, receiving copies of all pertinent documents and making submissions in respect of the various elements of the inquiry. The main shortcomings of the present system for aircraft accident investigation are that some contracting sates are not applying Annex 13 within its express terms, although they are contracting states. Further, and much more important in practice, there are many countries which apply the letter of Annex 13 in such a way as to sterilise its spirit. This appears to be due to a number of causes often found in combination. Firstly, the requirements of the local law and of the local procedures are interpreted and applied so as preclude a more efficient investigation under Annex 13 in favour of a legalistic and sterile interpretation of its terms. Sometimes this results from a distrust of the motives of persons and bodies wishing to participate or from commercial or related to matters of liability and bodies. These may be political, commercial or related to matters of liability and insurance. Secondly, there is said to be a conscious desire to conduct the investigation in some contracting states in such a way as to absolve from any possibility of blame the authorities or nationals, whether manufacturers, operators or air traffic controllers, of the country in which the inquiry is held. The EEC has also had an input into accidents and investigations. In particular, a directive was issued in December 1980 encouraging the uniformity of standards within the EEC by means of joint co-operation of accident investigation. The sharing of and assisting with technical facilities and information was considered an important means of achieving these goals. It has since been proposed that a European accident investigation committee should be set up by the EEC (Council Directive 80/1266 of 1 December 1980). After I would like to introduce the summary of the legislation examples and system for aircraft accidents investigation of the United States, the United Kingdom, Canada, Germany, The Netherlands, Sweden, Swiss, New Zealand and Japan, and I am going to mention the present system, regulations and aviation act for the aircraft accident investigation in Korea. Furthermore I would like to point out the shortcomings of the present system and regulations and aviation act for the aircraft accident investigation and then I will suggest my personal opinion on the new and dramatic innovation on the system for aircraft accident investigation in Korea. I propose that it is necessary and desirable for us to make a new legislation or to revise the existing aviation act in order to establish the standing and independent Committee of Aircraft Accident Investigation under the Korean Government.