CVR The inexplicabble mutilation carried out in the

ICAO Final Report by some appointed Member States1

the CVR was like an electronic fly on the cockpit wall2

The reader

I originally planned to write some pages on the subject wich

the knowledge I acquired during my career. But late I decided
to also include other information available on the Internet
given its relevance to improbe aviation safety

1. December 12th, 2007

In the Final Report of the of the AF 358 accident,3 the CVR
transcript was not included as an appendix.

This transcription of crucial importance and key to understant the

decisions taken by the crew minutes before the accident took place.

This incomprehensible omission on the Final Report us to the

following question:

What is the real reason that some Member--

States do not publish to the Final Report the CVR
transcript?

This question brings up another question:

Really wants to protect the safety of aviation or related

interests of third parties (Lobbying)?

1 The real inspirador for this article was reading the article FLAWED REPORT - Questions about
the overrun accident in Toronto went unanswered by ERIK REED MOHN, a fellow of the Royal
Aeronauticla Society, is an A340/330 captain for SAS. He was co-chair of the FSF ALAR
Operations and Training Working Group.. Published in FSF ASW - April 2008 - Pag 42-43.
2 See: Ontario Supeior of Justice (Judge G.R. Strathy) - Pag.40 (9) in this article.
3 The Transportation Safety Board authorized the release of this report on 16 October 2007.
It was published in 12 December 2007.

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2. Purpose

The main goals of this article are to highlight the

darelessness by some appointed Member--States
of iCAO when released the Final Report without
the CVR transcript and to answer the questions
mentioned above.

Here is the article.

3. The invention of the Flight Recorders

3.1 Background
3.1.1 Serious accidents that triggered the idea
On May 2, 1952, the company BOAC realized the first commercial flight
of the world in Havilland's jet plane COMET, between the cities of
London Johannesburgo. The Comet flew at 490 mph and could fly above
30.000 pies. Each time an airplane takes off, the cabin was pressurized
for passenger comfort. This causes the skin of the aircraft to expand and
contact each time. It was the whole success.

One year to the day after the first passenger flight, May 2, 1953, a
Comet with 6 crew members and 37 passengers flew inside a storm
and disintegrated over India six minutes alter taking off from
Calcutta/Dum Dum to Rangoon/Burma while it was climbing around
10.000 feet to 32.000 feet. The investigators assumed it was as a result
of flying into severe turbulence. The next tragic event would have them
reconsidering this finding. Later on having happened other accidents
questioned the reasons of this accident.

On January 10, 1954, a Comet departed Romes Ciampiro Airport for

London in its last stage from Singapore with six crew members and 29
passengers. It was the same plane that two years before had
inaugurated the passengers' first flight in a jet plane. At about 27.000
feet the aicraft disintegrated. In this accident, the weather could not be
the culprit because weather conditions at time of the accident were
good.

While the investigations were continuing and without having managed

to determine the real reason of the accidents, the BOAC was authorized
to continue by the flights of the COMET. This decision turned out to be
fatal.

On April 8, 1954, a COMET of the BOAC in Suoth African's charter

flight Airways with 7 crew members and 14 passengers takeoff of Rome

2
 with destination the Cairo. On having reached 35.000 feet it called the
Cairo the hour to happen to him of I arrive. Nevermore it was known of
the aircraft.

Remains were found floating in the ocean and they determined that the
COMET had disintegrated and that the condciones meterolgicas did
not have anything to see. All the COMET were supported in land.

3.1.2 Result of the investigation of the accidents of

the aircraft Comet
Since result of these accidents I carry out the biggest and more
expensive investigation realized up to this moment.

At first the task of finding out what happened was difficult. In 1954,
there were no black boxes, no cockpit voice recorders or flight
data recorders so there was no way of knowing what was going on.
Established protocol for aircraft accident investigation did not exist.
(Empasis added). (http://en.wikipedia.org/wiki/BOAC_Flight_781)

The investigation of the accidents of the aircraft Comet determined that:

( http://en.wikipedia.org/wiki/Metal_fatigue - de Havilland Comet)

The failure was a result of metal fatigue caused by the repeated

pressurisation and de-pressurisation of the aircraft cabin. Another fact
was that the supports around the windows were riveted, not bonded,
as the original specifications for the aircraft had called for. The
problem was exacerbated by the punch rivet construction technique
employed. Unlike drill riveting, the imperfect nature of the hole created
by punch riveting caused manufacturing defect cracks which may
have caused the start of fatigue cracks around the rivet.
In addition, it was discovered that that stresses around pressure cabin
apertures were considerably higher than had been anticipated,
especially around sharp-cornered cut-outs, such as windows. As a
result, all future jet airliners would feature windows with rounded
corners, the curve eliminating a stress concentration. This was a
noticeable distinguishing feature of all later models of the Comet.
Investigators from the RAE told a public inquiry that the sharp corners
near the Comets' window openings acted as initiation sites for cracks.
The skin of the aircraft was also too thin, and cracks from
manufacturing stresses were present at the corners.

4. The ARL Black Box Flight Recorder Invention

and Memory - Jeremy Sear Lenght of Thesis
14,000 words - Department of History Faculty of
Arts The University of Melbourne October,
2001).

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4.1 Summary of the thesis
Introduction
The CVR was invented in 1954 by an Australian scientist, Dr David
Warren, and subsequently developed by the Aeronautical Research
Laboratories (ARL now the Aeronautical and Maritime Research
Laboratory, AMRL) in Melbourne at which he worked. It was, for many
years, completely ignored. Although the ARL technology was developed
into flight recorders used in airlines around the world, and although
Australia was in 1963 the first country to make flight recorders
mandatory, the ARL recorders were never used by Australian airlines.
Australian industry never profited from the idea.

Chapter One Dr. Warrens Idea

Invention really is one percent inspiration, ninety-nine percent perspiration.

David Warren, 2001, parodying Thomas Alva Edisons famous observation on genius.

This first chapter explores the question of memory and history through the
narrative of Warrens development of the idea of a cockpit voice and flight
data recorder. Warrens recollections are complemented by those of
representatives of organisations which have traditionally been blamed for not
enthusiastically taking up the idea. It investigates the issue of judging people
according to the unreasonable standards of hindsight. Finally, it explores the
historical context ignored by the literature to date of the initial stages of
the recorders development.

The reception within Australia of Dr Warrens idea for a combined

cockpit voice/flight data recorder was a direct result of the state in which
the country found itself after the Second World War: an isolated
producer of raw materials Predominantly British in population and
culture, the country had been shocked when Prime Minister Curtin
turned to America for assistance after the Royal Navy lost its two capital
ships Prince of Wales and Repulse to Japan off the east coast of
Malaysia in December 1941. The Ottawa Conference in 1932 had
established the principle of imperial preference, by which
Commonwealth countries gave each other mutually agreeable tariff
treatment. This meant that Australia provided Britain with raw materials,
and Britain provided Australia with manufactured goods. The ARL in
Melbourne, founded by Lawrence Coombes in 1939, had spent the war
trying to produce a little tank carrying an automatic heavy-duty machine
gun, andfailed for the entire six years. After the war it was left
supporting the Royal Australian Air Force (RAAF) and the
Commonwealth Aircraft Corporation (CAC) in enhancing the capabilities
of existing aircraft.

Australia was also isolated by its great distance from the recognised
centres of western civilisation. The quickest journey from Europe was

4
 three days flight on propeller-powered aeroplanes directly descended
from Second World War technology There was therefore great local
excitement in both public and private circles when the first commercial
jet-powered airliner was flown in 1949.

The Comet (1949)

The graceful, futuristic De Havilland DH-106 Comet certainly looked
the part gleaming metal, sweeping lines, and four advanced Ghost
jet engines nestled in the wings. A young Australian chemist named
David Warren who had seen it at its debut at the Farnborough Air Show
in 1949 later recalled being awe-struck at this wonderful bird that
offered the prospect of cutting the time to travel to Australia from three
days to one. The Comet flew faster and higher than any commercial
aircraft before it.

Unfortunately, as the forerunner of new aeronautic technology, the

Comet was prone to accidents. Some were partly due to human factors,
as pilots struggled to adapt to the flying techniques required by the new
aircraft. The first major Comet incident was of this type in October
1952 in Rome a BOAC pilot raised the nose too early, failed to become
airborne and overshot the end of the runway. Although no-one was
killed, the Captain was initially blamed. Later crash analysis of the
accident and another in March 1953 in which a Comet collided with a
bridge during takeoff and caught fire, killing all aboard determined that
the Comet takeoff technique needed to be refined.

The cause of the next few crashes, however, proved more difficult to
determine. A BOAC flight from Singapore to London, in May 1953, flew
into a heavy tropical thunderstorm at 10,000 feet over India and
disintegrated. Its remains were found over twenty square kilometres. It
was followed in January 1954 by another BOAC Comet, on the same
route, which exploded at 25,000 feet over the Mediterranean in daylight,
witnesses reporting three blasts. All DH-106s were grounded and more
than sixty modifications were made to the design, such as different fuel
pipes, and the addition of fire and smoke detectors. Engineers thought
the problem had been solved, and flights recommenced on March 23.
On April 8, another Comet exploded above Stromboli, Italy, with no
survivors, and no witnesses.

Investigating the Comet Mystery, and Warrens

Inspiration (1953)

Soon after the Indian crash, in 1953, the DCA convened a meeting with
Australian experts in all fields of aircraft design in Melbourne to discuss
what may have been causing the crashes. As this was part of the
function of the ARL,the meeting was held on its site at Fishermans
Bend, and one of those invited was the young chemist, Dr David
Warren.

5
 Warren was at the meeting because he was an expert in fuel
combustion at ARL, and it was possible that the Comets fuel tank had
exploded. Jet engines used a new fuel, kerosene prior to that, aircraft
used petrol which had a different range of explode-ability at varying
temperatures and pressures.

Each of the fifty to sixty people at this meeting presented a possible

explanation for the accidents. Unfortunately, since the wreckage from
each disintegrating Comet was the only evidence available (and it was
usually spread over a wide area in small fragments), these theories
were not provable. After Warren had presented his evidence, he waited
while another thirty or forty people gave their opinions. While he waited,
in his own words:

It went on for hours and hours I didnt know anything about

many of these specialised problems I remember thinking about
something Id recently seen at the first Australian Post-war Trade
Exhibition I had gone along to see what inventions might be
there, and the one that captured my mind was the Minifon
recorder, the worlds first pocket [magnetic] wire recorder it
had a two-hour storage capacity. The thing I liked about it, too,
was that it was good for speech or music, because it had a wide
range of audio capacity, and my hobby was swing music. And the
thought had come to me while the meeting droned on, that if
Benny Goodman or some of my heroes came to Australia I could
come along and sit in the front row for one pound two and
threepence and with a few spools of wire I could record them
and copy them and share them with my friends. Its known as
bootlegging now

I remember then somebody getting up to say could this have

been a hijack? Was it possible that in the middle of flying over
India, a man had stood up and raised his hand in the air and said,
Ive got here a hand grenade, the pilots going to take me to
Cuba! Somebody mentioned How would we ever know?
Because everybody was dead, nobody could tell us. There was
no record. It was at that stage that it clicked two ideas both in
my mind at the same time. One was how beautiful it was to have
this pocket recorder, really designed for men to dictate things to
their secretary. If thered been a man sitting in the passenger seat
with one of these, he might have been talking into it and if wed
been able to pick up that bit of wire out of the wreckage, we could
play it over and wed hear somebody saying, Ive got here a
hand grenade, if anyone moves Ill pull the pin! Then youd hear
a rustle and people yelling out Grab him someone! Stop him!
Dont let him let the thing go! Grab him! Then youd hear an
explosion and youve got the answer.

It just could happen. And then I thought yes, and if you put it up
in the cockpit, if the cockpit people had said anything whether it
was hijack, or whether it was just ow, Im having trouble with this
control, or should we do this or should we go up, or whats

6
 wrong with the engine or why has it stopped whatever they
said there could also be recorded on one of these gadgets, and
then taken out of the wreckage and give you an answer.

The ARL Instruments Group leader agreed to have a look at the idea,
when we get a bit of time. When Warren came back later, after he had
finished with the Comet-type fuel tanks, to see what progress had been
made by the Instruments Group, the answer was Oh? What idea?.

Technical Memorandum 142, and Silence (1954)

Warren went back to his office and very quickly whipped out Technical
Memorandum 142 (TM-142), titled A Device for Assisting Investigation
into Aircraft Accidents and dated April 1954.

In it he suggested that investigation of any aircraft accident would be

greatly assisted by the development of a device which provides a
record of flight conditions, pilot reactions, etc. for the few moments
preceding the crash. It would make all the difference in determining
whether the accident was the result of something of which the cabin
crew would have had some slight warning such as structural failure,
meteorological abnormalities, error-of-judgment, over control by the
pilot or by some sudden event of which the crew could have no
warning or knowledge such as a fuel-tank or sabotage explosion. In the
case of the Comet disasters, being able to determine whether there
were in fact some common factors was of paramount importance.
Warren explained the logic:

It may be assumed that in almost all accidents the pilot receives some
pre-indication either by sight, feel of controls, automatic alarm or
instrument reading. In most cases this would evoke a complaint of
difficulty or a shout of warning to attract the attention of the co-pilot.
Unless radio contact is actually in progress there is often not time to get
any information through before the crash.

Warren took an idle wish, silently voiced by accident investigators

around the world, and explained how modern technology that of wire
recording, incorporated in the Minifon could be used to achieve it. It
was such a clear, concise proposal anticipating as it does the main
objections which would later be raised against the device (cost, privacy),
and explaining so convincingly why voice recording is essential that
sections of it are worth quoting in full. Warrens experience in accident
investigation as a chemical engineer was also clearly evident:

To preserve the valuable evidence offered by these few seconds

conversation it is suggested that the following simple device could
be fitted in all major aircraft, especially those in early stages of
development. A small magnetic recorder could be made in which
a continuous closed circle of steel wire passes an erasing head
followed by a recording head in, say, a 2-minute cycle. Such a

7
 device would, therefore, provide a permanent memory of the
conversation in the control cabin for the two minutes immediately
prior to switching off, which would occur automatically in the case
of an accident.

This period is probably all that is required to give a clue to the

trouble encountered. In the case of fire the period would almost
certainly contain a shout from the first crew-member to detect it,
followed by verbal instructions. Careless control or error-of-
judgment (as is often suspected in landing and take-off accidents)
would probably elicit criticism, suggestion or warning from the co-
pilot. An unexpected fuel-tank explosion would be recorded as an
interruption of normal conversation by the first part of the
explosion noise followed by immediate cut-out.

This first paper proposed a recorder of much less in size, weight and
cost than a normal wire recorder since it was only intended to record
two minutes worth of conversation, and neither high-fidelity nor play-
back facilities were required. The device would be what is now known
as fit and forget it could be automatically switched on with the
engines and thus would not place any further burden on crew
responsibility. Finally, Warren anticipated the objections the
Australian Federation of Airline Pilots (AFAP) would make the
possible objection by crew to having their conversation
continually recorded is countered by the fact that the device has
such a short memory. If no accident occurs, anything said during
flight is obliterated during the time taken to taxi in.. (Emphasis
added).

Industry responds: A Solution Looking for a Problem

(1955)

Warren was still not prepared to let the idea die, and
prompted by a letter in Aviation Week describing a photographic
flight recorder,sent another memo, dated 31st October 1955,to
Keeble, who was much more sympathetic than anyone else had
been up to that point. What think you?

Keeble agreed with (a) and suggested that Warren make sure that the
device would work, by going up in an aircraft, and seeing if pilots
conversation could be recorded over the background noise.
Neither Warren nor Keeble felt that they should apply formally for
assistance; they were not certain that the person above, Chief
Superintendent Coombes (and the people above him who were very
limited in their up-to-date-ness), would approve it and if it was
formally rejected, Warren would be in real trouble if caught still working
on it. The photographic and other recorders which were being
publicised at that time were, however, for that purpose; Warren felt that
he could do better. The DCA, the airlines and the ARL were directing a
lot of effort to trying to anticipate failures, and these were foremost in
their minds; not the sort of failures that a voice recorder would pick up.

8
 ARL had actually invented a fatigue meter in order to measure the
strength and frequency of gusts encountered by aircraft.

Mirfields Prototype (1957)

In February 1957, The Age published a short article entitled Australian
Invents Air Safety Device, about a spherical fire-proof crash recorder
designed by a Western Australian electrical engineer named Robert
Orgill. Warren quickly penned an Internal Memorandum to the Acting
Chief Superintendent of the ARL asking what had happened to TM-142.
Since there was general interest elsewhere in such a device, he
challenged

I would appreciate some definite directive as to what further

action, if any, should be taken here at ARL. Should a prototype be
built, or can some reason be put forward to show why the idea
should be abandoned? Acceptance, criticism or condemnation of
an idea are all acceptable. Only apathy is demoralising, the more
so when the idea is taken up by others.

The 1960 ARL team added enhanced electronics to the recording

circuit (external to the box), and an advanced ground-station, but the
Mirfield model remained largely unchanged until Davall & Sons
reshaped it to fit into their Red Egg recorder in 1963. It had a four-hour
storage capacity for eight instrument channels. They tested it on a DCA
aircraft in September, with the permission of the Director-General of the
DCA. It worked, proving that Warrens idea was sound, although
instrument readings were not particularly accurate. Mirfields name
appeared on the unit, and he was named as joint author of Warrens
report on the device in the Australian Journal of Instrument Technology.

At the beginning of 1958, Keeble and Warren took the unit to show
Coombes, who was reportedly delighted. Warren recalls Coombes
then officially notifying DCA that they had a working unit, and requesting
an assessment. Dated 4th July 1958, one sentence has been used to
condemn it for a lack of foresight: Dr Warrens instrument is really
intended for a fundamentally different purpose to those required by the
[US] Civil Air Regulation 42.22 and, consequently, it has little immediate
use in civil aircraft. Almost every article about Warrens black box
since Maslens has quoted this sentence to demonstrate that the
bureaucracy was myopic. Dr Warren believed that DCA should take
his recorder, arrange for it to be manufactured, and make its use
mandatory.

The Englishman (1958)

Warren had reached an impasse without external funding, which he

and the ARL believed should come from the DCA (since it had money

9
 to spend on aircraft safety research), the ARL Crash Recorder could
not be developed further. However, in the interim, serendipity
intervened.

One lunch-time in June 1958, Warren remembers, he was working on

the unit when Coombes came into the room with a complete stranger,
and said, Dave, Ive got here a friend tell him what youre doing. Tell
him about your idea. Warren described the function of the Flight
Memory Unit. When he paused, a very English voice announced I
say, Coombes, old chap. Thats a damn good idea. Put that lad on the
next Courier and well show them in London. The voice was Robert
Hardingham, Secretary of the Air Registration Board in the UK. Warren
looked to Coombes, who had a twinkle in his eye and said: what are
you sitting there for Dave? You heard what the man said. Get your
passport ready. In hindsight, Warren notes Coombes knew that this
was the breakthrough wed been longing for.

A little over a month later, Warren was on his way to England, and the
cockpit voice/flight data recorder was about to leave contemporary
obscurity.

Chapter Two The Hunt for Manufacturers

In the aircraft industry, Australia was and still is a buyer and a user.
It does not have the infrastructure or the financial capital to manufacture
aircraft or complex aircraft components except under licence to foreign
manufacturers. Thus, in the 1950s, ARL had to sell its ideas offshore.
- Frank Yeend, Air Safety Investigation Branch.

This second chapter explores the complexities of the subsequent

black box history that are completely ignored within the literature. The
work of the ARL team, now publicly recognised, but never investigated,
is explained in this context. The ultimate decision of the Australian
airlines to use American tape recorders instead of the Australian wire
recorders is also discussed in depth for the first time. This chapter
presents an analysis of previously ignored primary materials, and
endeavours to represent a balanced contribution to the almost non-
existent secondary writing on the subject.

England, Canada and America (1958)

Warren and an assistant (possibly named Hurley) visited the UK in

early August, on a converted four-engined RAF Hastings bomber which
became a three-engined aircraft between the unbearable desert heat
of Tunis[ and the torrential hail storm that greeted them in
England.[(The Commonwealth Air Transport Council later distributed
copies of this report widely.) On the 27th Warren gave a lecture at
Berkeley Square House at which officials from various branches of the
Civil Service and a representative from Bristol Aircraft asked questions
and made comments. It caught the attention of four British aircraft

10
 manufacturers Bristol Aircraft Ltd, Faireys, Avros and Vickers. In the
United States on the 6th, Warren examined a Lockheed recorder which
he had read about in Flight in February[; a letter from Coombes in
November, after Warren had returned and been debriefed, noted that
this was a very clumsy recorder which is not only large and heavy but
has no memory and the whole record must be read laboriously with a
microscope; it is also not crash proof. I therefore hope the UK will
decide to back up the [ARL] recorder. In Technical Memorandum 187
(TM-187) in November, Warren noted that Pan American Airways like
most other American Airlines was not content with [the Lockheed]
recorder which was heavy and bulky.

EMIs Six Months (1960)

On the 25th of November 1958, R.B. Reynolds of the EMI division in

Salisbury, South Australia, proposed to ARL that EMI undertake to
manufacture the Flight Memory under a similar formula to that used in
the case of Xerography (the technique for an important part of the dry
copying process having been invented at the ARLs sister laboratory in
Salisbury some years before). Coombes felt that EMI had the best claim
to produce the crash recorder because it: (a) had wide experience in all
the fields involved (recording, telemetry, transducers, multiplex
switching, acoustics), (b) held the Minifon licence, and (c) was willing to
produce the unit in Australia, thus retaining its prestige value.

In the meantime, since EMI did not care what the device would be
called, Coombes suggested that it be called The AUSTRAL Flight
Memory, a name which used neither the words crash nor recorder,
and which kept the Australian tag in such a way that a clever logo
could make the initials ARL prominent.[The same day, December 23,
1958, the Federal Minister for Supply (the Hon. Alan Hulme) publicly
announced the development of the crash recorder. Both The Age and
The Herald carried stories describing Warrens device in reasonable
detail. Mirfield was ignored in these articles, and wrote to Hulme
demanding that proper recognition be given - then again, as Warren
pointed out in the ARL reply, the articles did not mention any ARL
people by name, either (The Age article, which Mirfield saw, did not
even mention Warren).In October, Dr BG Gates, Controller of Research
and Development, wrote to the UK Ministry of Aviation, noting:

We are not following up the project any further at ARL.

The Operational Requirement, No. O.R./8003, decided on January 25,

1960, set a requirement for flight data recorders to be in service on all
aircraft by the end of 1961. In February Coombes wrote to Reynolds
asking if EMI could produce one airborne electronics unit for us on a
contract basis. Unfortunately, the EMI person directly concerned had
left and EMI suggested with regret that ARL ask the local PMG
Instrument Division to do it.

11
 The Mackay Disaster (1960)

The jolt which revived the project was the mysterious crash on Friday,
June 10, 1960, of a Trans Australian Airlines (TAA) Fokker Friendship,
which crashed into the sea off Mackay in north Queensland, killing all
29 people on board. Now there was a clear example, in Australia, of
why a cockpit voice/flight data recorder could be critical in an
investigation. Senator Shane Paltridge, the Minister for Civil Aviation,
called a full, open public inquiry. The Board of Accident Inquiry, with
Justice Spicer as Chairman, sat for thirteen days in Brisbane from
October 4. Spicer was highly impressed and lavish in his praise of the
DCA investigation teams work.

Explaining that it was not the [DCA] inspectors fault that in the end
they had not solved [the] accident, John Starke, QC, for the DCA, told
the Board and was quoted in the newspapers that DCA had been
working on [a unit] since 1955 which would record readings of all vital
instruments while a aeroplane was in flight, and any conversations
between pilots. Warren was incensed they must mean ours! He wrote
to Coombes:

DCA have NOT been working on it since 1955. In actual fact hardly anyone has
been working on it either then or now, for the very reason that we have never had
the necessary backing either financial or by statement of a definite requirement
from the appropriate authorities. For example, it was the lack of a DCA
requirement that was given as a reason by HJ Brown as why Rola would not
undertake the project. Should the court not be informed (via FSS, perhaps) that the
development of the device has always been and still is an on-and-off part- time
project because no firm decisions have ever been made. If the Judge wished he
could then exert a little pressure in his summing up, instead of assuming that the
device is being developed at full speed and is just around the corner.

Coombes wrote to Anderson, the Director-General of the DCA - I feel

that the position is unsatisfactory as far as ARL is concerned. If the
recorder has real potential value, we should be developing it; if not, it
should be abandoned. As it is, we are uncertain and precious time is
slipping by. In an earlier letter he had expressed frustration with the
DCA attitude while [they] might well wish for some further
development, the market in Australia alone would not justify any real
effort in engineering for production.

On the other hand, as Langford later pointed out, just as the DCA
received funding for its own functions, ARL also received its funding
from the Department of Supply for research. Paltridge announced that
the Department would order the installation of equipment to record
talks between the captain and first officer of a aeroplane to show what
happened in a aeroplanes last few minutes before a crash and
readings of the aircrafts instruments.

The ARL recorder was suddenly, in December 1960, the focus of praise
in the newspapers. The DCA commended the ARL for having made a
very practical contribution in this very complex field. Hulme, opening

12
 the [ARL] laboratories for inspection, stated that great work was being
done by the 400 people employed there.Warren even managed to
express some of his frustration with its progress in The Sun - because
of our air safety record, selling crash investigation equipment in
Australia is like selling a refrigerator to an Eskimo however, the
aviation writer explained no more, leaving Warren to look slightly
churlish in the face of praise. The Age hinted at Warrens difficulties by
noting that the DCA has until now been wary of putting a flight
recorder into airlines where it might not be regarded favourably by
both pilots and executive. (Emphasis and underline added).

Objections of The Australian Federation of Airline Pilots

(1960-1980s)

The pilots were cautious. B.I. Crofts of the AFAP then an extremely
powerful union - told the newspapers that we would object if it was
used as a spy flying alongside the pilot. Later, he expressed fears
that this instrument could become a Big Brother. The AFAP
(and its American counterpart, the Air Line Pilots Association,
ALPA), have ever since demanded strict legal protections for
pilots where CVRs are installed. Whilst the AFAP agreed that CVRs
be used for accident investigation where the crew had not
survived, it did not agree that pilots should work in an
environment in which evidence from CVRs could be used against
them in a court of law. Other workers were not under constant
surveillance; it was an invasion of pilots privacy.The pilots were
being asked to accept an intrusion into their workplace the like of
which had never happened before they had no control over the
use of the device (yet would be responsible for it) and no
knowledge about where and how the information gained would be
used either by their companies or by the Courts. Legislation had
to weigh the need for courts to have at their disposal, as a matter
of justice, all relevant evidence in a case, and the threats of the
AFAP to take serious industrial action if pilots were not protected.
(Emphasis and undeline added).

When in February 1983 a TAA A300 was hijacked enroute from

Perth to Melbourne by a man who wanted to be taken to the
Franklin River Dam site, the Victorian Police Force demanded the
CVR so that a voice analysis could be conducted, positively
placing the hijacker in the cockpit. The TAA Flight Operations
Manager refused to produce the CVR; so the police obtained a
search warrant and seized it. The AFAP immediately passed a
directive, allowing the President of the AFAP to instruct all
Australian pilots to de-activate the CVR if someone managed to
read the tape, this would be enforced. As it happened, the police
could not decode the tape, and the Bureau of Aircraft Safety
Investigation (BASI) was instructed by Department of Aviation not
to transcribe it. (Emphasis and underline aded).

13
 The 1984 amendments to the Air Navigation Act 1920 provided
legal protection for flight crew members against the use of CVR
information, formalising a 1975 gentlemans agreement with the
AFAP and making CVR evidence inadmissible in any criminal
proceedings against crew members and prohibiting it from being
used by a person to take disciplinary action against an employee.
These were moved to Sections 19HE to HH in 1995, leaving CVR
evidence unusable except subject to an order of a court in civil
proceedings not against a member of the flight crew. (Emphasis
and underline added).

The ARL Instruments Team Sear, Boswell and Fraser

(1960-3)

While the Inquiry was taking place, there were two other developments.
In July, the US Federal Aviation Agency (FAA) announced Civil Air
Regulations Amendment 40-27, effective August 18, 1960, requiring the
installation of data (but not voice) recorders in all turbine-powered
aircraft in the US.[Warren wasnt an electronics expert, so ARL provided
him with a team from the Instruments Group, under Gerry Rundle
well give you some of these blokes who are geniuses Lane [Sear],
Wally [Boswell] and Ken [Fraser].

ARL was quite an extraordinary place to work in those days, Schofield

recollects, where they worked on mad schemes, like Warrens later
Belsen Bunny-Bumping Box (a device for determining how much
carbon monoxide was required to poison rabbits), and more serious
ones, like the guidance system for the Ikara missile. Sears assistant at
the time, Marie Welch (now Ferrari) remembers it as a good place to
work. Fraser remembers him having a strong grasp of extremely tricky
things built up from experience and know-how. Boswell was a very
skilled technical officer who excelled at making very precise, beautiful
electronics and models. Sadly, since Sear preferred actual electronics
work to writing reports, and since both he and Boswell firmly adhered to
the public service rules which stated that work was not to be discussed
outside, even with family, much of their involvement can only be pieced
together second-hand. Warren recalls the division of labour Sear and
Boswell worked on the encoder (Sear did the design and the conceptual
thinking, Boswell constructed the unit), and Fraser designed the
playback system (which was just as brilliant).

Warrens original unit had used the volume of high-pitched beeps to

record instruments (if a beep was loud it meant the instrument was
reading high, if soft, low). It recorded eight data channels at 4 per
second with 5% uncertainty. Coombes ARL specification from 1959
called for 24 channels per second with much greater certainty. Sear
was responsible for devising an improved encoding system for the
recorder.[ His idea was to use pulse count modulation: to put a note on
at 3500 Hz, and count the number of wobbles in the note.

14
 Matters were made slightly awkward due to a personality clash between
Warren and Rundle. In March 1961, Warren and Sear flew to Salisbury,
South Australia, to discuss manufacturing a unit in Australia with
Armstrong-Whitworth Ltd. Rundle was very annoyed. The only
surviving member of Rundles team, Fraser, agrees Rundle felt that
Warren regarded it as his project, and just wanted the instrumentation
guys to make something for him. Why had Rundle taken it on, then?
Fraser supposes that, in spite of these reservations, Rundle did believe
that innovative science was required, that he had the people who could
meet the challenge, and that undertaking this work aligned with his
charter.

Later, when in May 1963 Warren and Sear were to present a pre-
production prototype of their work to Davall & Sons (and a large group
of its potential customers) in the UK, at the last minute Rundle stopped
Sear from going with Warren.

The ARL Flight Memory now offered five advantages over competing
recorders, as a press release sent to the ARL Head Office on
December 20, 1961 outlined:

(a) It uses fine steel wire instead of plastic tape as a

recording medium. This requires additional electronic
apparatus to record both speech and data on the one wire,
but greatly simplifies the problem of protecting the record
against both fire and impact damage;
(b) The unit can record the readings of any desired
number of instruments at a sampling rate of 24 per second.

The one and only[ flight test of the whole ARL system took place on
March 15, 1962 on a DCA Fokker Friendship (VH-CAV) flying from
Essendon Airport to Avalon. Fraser remembers it as a critical moment,
and that the team were very pleasantly surprised to find that everything
worked the first time we recovered everything.

Government Makes Voice Recorders Mandatory (January

1963)
The Minister for Civil Aviation announced in March 1961, that technical
developments enabled his department to require the installation of flight
recorders in airlines each recorder would have a device to erase all
recordings of cockpit conversations at the conclusion of a successful
flight by January 1963. Australia was the first country in the world to
make CVRs mandatory. DCA outlined the requirement, based on the
English OR/8003 but adding the need for flight station voice it also
applied only to turbine-powered aircraft (as had the US one), which
Rundle noted was strange why single out only turbine-powered
aircraft? This works against our device which was originally intended for
all aircraft, even if small. Still, the requirement improved matters for the
ARL recorder a requirement would create an industry.

15
 In September, however, the ARL team found themselves left behind.
Ansett-ANA had convinced TAA to pool with it to purchase 70 units of
the American United Data Corporation (UDC)s 2500 flight data and
1750 voice recorders. The National Instrument Company (NIC), a
subsidiary of Ansett-ANA, represented UDC in Australia, and although
TAA had been interested in another recorder, they decided that the
advantages of having the same type of flight recorder throughout
Australia were considerable. Langford responds angrily that this was
not the DCAs fault: We did NOT look to American Corporations for
Australian recorders. Neither did we overlook or bypass the ARL
recorder. We made the recorder mandatory. R. Hardy of NIC wrote to
Coombes in April 1961 to suggest that NIC and Ansett-ANA contribute
to the ARL recorder; ARL met with the NIC, and matters were
proceeding smoothly.
The confusion appears to have also arisen out of an error-filled
transcript of a talk given by Warren in September 1963. A sentence
delivered by him DCA preferred to ask an American firm to develop a
recorder to the anticipated American requirement, to fit in Australian
aircraft was mistyped by the Department of Supply and promulgated
to the DCA as DCA is preferring to ask an American firm to develop our
recorder to anticipate the American requirements which meant quite
the opposite.

Canadian Tumbling Aerofoil Housing Unit (1962)

At Warrens first meeting with the Canadian NRC in 1958, they had
proposed combining the wire recorder with their tumbling aerofoil
beacon device. Throughout the stop-start ARL development, letters
would arrive periodically for Warren from Canada asking whether
progress was being made.

Unfortunately, in the meantime a Canadian company called Dominion

Scientific Instruments Ltd (DSI) had developed a very nice system
providing voice, time, and 96 data channels on inch tape. NRC
were still interested in seeing the ARL device, Thurston wrote, but it did
on the surface appear to be a duplication of effort already in progress
commercially. Coombes replied that news of the development in
Canada of a lightweight recorder is quite a surprise to us. However, a
launch system still seemed to be an asset for the ARL recorder, so he
noted, we are nevertheless very keen to accept your offer to deploy our
equipment for us in one of your tumbling aerofoils as we believe it may
prove to have some advantages over the DSI model. Thurston agreed,
and a combined model was built in time for it to be displayed along with
the ARL system at the International Trade Fair in Melbourne in
February 1963. When tested in 1964 (and sent out to Australia as a gift
from NRC), examination of [the ARL] recorder showed no damage
the whole device worked.

Patenting the Flight Memory (1954-63)

16
 In 1958, Warren and Coombes had wanted to apply for a patent for the
Flight Memory, believing that patent applications would certainly
strengthen our position in negotiating with manufacturers. In March
1963, McDonough, Chief Commercial Officer, Planning Branch,
Department of Supply summarised: it has been found impossible to get
any effective patent protection, and the prospect of getting this in the
future appears slim. In October 1958 ARL recommended the filing of a
patent application. This was investigated carefully by our Patent
Attorney, who advised that because of prior disclosure by ARL,
particularly in an official report ARC.20, in his opinion there was no
prospect of obtaining a valid patent. Since Warren had first suggested
applying for a patent in March 1954, before he wrote TM-142 or
ARC.20,[his would have been rather frustrating. McDonough noted that
efforts to get the improved ARL Flight Memory patented in March 1962
had met with similar difficulty.

Davall & Sons and the Red Egg (1963)

In March 1963, ARL received a serious commercial approach from
Davall & Sons in the UK. The device would be called the Davall ARL
Flight Recorder. Arrangements were made for Warren and Sear to go
over in June (four weeks later, to McKinnons concern the time
situation here is critical, he wrote to Coombes), then, because of
Rundle, Sear was replaced by Cocks[, so it was Warren and Cocks who
arrived in the UK on June 11th, 1963 and spent the next month and a
half with Davall.

Davall wrote to ARL, thanking Warren and Cocks for their invaluable
services while in the UK, and commending the demonstrably high level
of technical achievement of Messrs. Sear, Fraser and Boswell in the
development of the electronics.
I am quite appalled at some of the teleprinters and other
communications which seem to be flowing between ARL and Warren
and McKinnon in London regarding the Flight Recorder. The
department got nothing apart from a one-off payment to cover some
ARL costs.

Davalls interest in contracting with ARL was, however, mainly killed by

its failure to win a contract with the airline BEA for their recorders, losing
to a company named Plessey, which used then-expensive computer
decoders that were seen to have potential for refinement which the
Davall-ARL recorder lacked. Davall began work on the Plessey-Davall
Flight Data Wire Recorder, which was finished in February 1965.
Warren remained in friendly contact.

When the next major aircraft crash occurred at London Airport in

October 1965, the Plessey-Davall recorder was recovered from the
wreckage.[Langford announced that in view of the proven reliability of
the foil recorders and the lesser available experience to date with wire

17
 recorders, there would be little incentive for operators to change over to
the new system without other motivation.

In any case, it was no longer either Warrens or the ARLs problem. In

December 1967, the Chief Superintendent of ARL advised Warrens
team: It seems that you have achieved your object of informing DCA
as I see it, our role is complete. Their involvement was over. It had to
be, Warren notes, Youve got to call it off at some stage.

Conclusion

The black box presents a difficult historical record.

Secondly, the documentary evidence of the two folders full of
correspondence held by AMRL and the Australian Archives comprises
only documents seen by people at ARL. Collated by Warren and Fraser
for the AMRLs sixtieth anniversary celebrations in 1999, it is a rich
source of primary historical evidence; but care must be taken not to
depend solely on these records.

Further, there were many contributions to the development of the black

box by people whose names can no longer be recalled. When Warren
first built a version of his device with valves, one of his young
colleagues rebuilt it with the new transistor devices. One point about
invention that Warren notes is that it is cumulative inventors adapt
previous ideas, they dont reinvent the wheel each time. Warren did
not invent all the technology, like the Minifon, required to make his
device work.
(Which is why the 2001 Lawrence Hargrave Award names Fraser, Sear
and Boswell along with Warren.)
In a more general form, there is a desire to link with heroes from the
national family, which explains the patriotic tone of popular black box
history, noted in the Introduction. If national history is seen as national
advertisement (Prime Minister John Howard condemning scholarship of
matters the nation would rather forget as black armband history), and
is therefore not critical when evidence warrants it, how credible can it
be? Much of the popular writing referred to in this thesis does not match
up with the documentary record. This can partly be explained by an
over-reliance on oral testimony far easier for a newspaper journalist to
simply interview Warren, who is a friendly and entertaining subject, than
to piece together evidence from archive sources.
There is an unhelpful tendency in the literature to fit evidence into an
assumed and easy story, of heroes and villains, goodies and baddies.
A more balanced analysis, such as that intended here, can finally give
the black box narrative a genuine place in Australian historical writing.

The oral evidence is problematic for the historian it (a) can no longer
be contradicted by the other parties, now dead, and (b) has evolved into
a popular legend through repeated retelling. There is an unhelpful
tendency in the literature to fit evidence into an assumed and easy story,
of heroes and villains, goodies and baddies. The latter are those who

18
 simply did not immediately see the black box as a great Australian
invention but the difficulties Warren faced, as described throughout
this thesis, were clearly systemic rather than personal. The simplistic
story does disservice to all parties involved, including those painted as
goodies. A more balanced analysis, such as that intended here, can
finally give the black box narrative a genuine place in Australian
historical writing. (Until here the summary of the thesis of Jeremy Sear.)

The full version can be on http://jeremy.110mb.com/blackbox.htm

See also: The Black Box. An Australian Contribution to Air Safety

http://www.dsto.defence.gov.au/attachments/The%20Black%20Box.pdf

5. ICAO

5.1 Existing Documentation about Accident -

Investigation
In the investigation of Aircraft accidents by Contrating States that are
members of ICAO (as of 31/10 2013 Total: 191)4 typically used up to
the following documents: (Catalogue of ICAO Publications 2015).

o Annex 13 Aircraft Accident and Incident Investigation Tenth

Edition July 2010 This edition incorporates all amendments
adopted by the Council prior to 23 February 2010 and
supersedes, on 18 November 2010, all previous editions of
Annex 13.

o Doc 6920-AN/855/4 Manual of Aircraft Accident Investigations

Edition 04 (1970) Reprinted, incorporating Amendments 1.11
which is corrently being replaced by Doc 9756.

o Doc 9756 AN/965 Manual of Aircraft Accident and Incident

Investigation: Part I Organization and Planning Second Edition
2015; Part II Procedures and checklis First Editon --2012;
Part III Investigation First Edition 2011; Part IV Reporting -
Second Edition (2014).

o Doc 9859 AN/474 Safety Management Manual (SMS)Third

Edition - 2013

As ICAO member states are sovereign states, most of the ICAO

documents have the character of recommendations. However, member
states undertake to follow these recommendations or report an
discrepancies that may exist. (See Annnex 13 Foreword Action by

4 Currently are 191

http://www.icao.int/MemberStates/Member%20States.English.pdf

19
 Contracting Satetes). In practice, recommendations and ICAO
standards have the force of law in most countries.

5. 2 Extracts

5. 2.1 Annex 13 Aircraft Accident and Incident

Investigation
Chapter 1 Definitions

Investigation. A process conducted for the purpose of accident

prevention which incluyes the gathering and analisys of information,
the drawing of conclusions, including the determination of causes
and/or contributing factors and, when appropriate, the making of safety
recommendations. (Emphasis added).

Chapter 3. General

OBJECTIVE OF THE INVESTIGATION

3.1 The sole objective of the investigation of an accident or incident

shall be the prevention of accidents and incidents. It is not the
purpose of this activity to apportion blame or liability. (Emphasis
added).5

APPENDIX. FORMAT OF THE FINAL REPORT

APPENDICES AAP-4

Include as appropriate, any other pertinent information

considered necessary for the understanding of the report.
(Emphasis added).

5. 2.2 ICAO Doc 6920-AN/855/4 Manual of Aircraft

Accident Investigation6
The fundamental purpose of the investigation of an accident of aviation
it is the determination of the facts, conditions and relevant
circumstances with a view to establishing the probable cause
of the same, which will serve to take appropriate measures to
prevent the recurrence of the accident and the factors that
made it posible.

5 See Doc 9756 AN-/965 Manual of Aircraft Accident and Incident

Investigation - Part IV - Appendix 2 to Chapter 1 - REPORT WRITING

CONVENTIONS 5. TONE OF EXPRESSION 5.1 Blame or liability Page 32 in this
article.
6 This document has been replaced by the Doc. 9756.

20
 The investigation should not have accusatory carcter since his end is
adopt corrrective measures and not punitive. The determination of guilt
or responsibility should not be included among the tasks of the
authorities in charge of the investigation. This function usually
constitutes a prerrogative of the judicial authorities of the interested
State.

However, it is inevitable that sometimes reveal clearly that there

had been acts or omissions on the part of certain persons or
entities, and in such cases those conducting the investigation
have a duty to mention them. Any statement of this type should not
alter the purpose of the investigation, which is primarily to draw the
causes and not by those who were the perpetrators: this last
responsibility to other. (Emphasis added).

5.2.3 ICAO Doc 9756 AN/965 Manual of Aircraft

Accident and Incident Investigation Part I
Organization and Planning Second Edition
2015
CHAPTER 1
THE OBJETIVE OF AN AIRCRAFT
ACCIDENT INVESTIGATION

1.1.1 The sole objective of an investigation into an aircraft accident

conducted under the provisions of Annex 13 shall be the prevention of
accidents and incidents. Annex 13 also states that it is not the purpose
of an investigation to apportion blame or liability. Any judicial or
administrative proceedings to apportion blame or liability shall be
separate from any investigation conducted under the provisions of
Annex 13.

1.1.2 An aircraft accident or incident provides evidence of hazards or

deficiencies within the aviation system. A well- conducted
investigation should identify all immediate and underlying
systemic causes and/or contributing factors of the accident or
incident. The investigation may also reveal other hazards or
deficiencies within the aviation system not directly connected with the
causes of the accident. The emphasis of an aircraft accident or incident
investigation shall be on determining why the accident or incident
happened and on recommending appropriate safety actions aimed at
avoiding the hazards or eliminating the deficiencies. A properly
conducted accident investigation is an important method of
accident prevention. (Emphasis added).

6. Specific ICAO-documentation about CVRs

6. 1 Doc 9756 - AN/965 Manual of Aircraft Accident

21
 and Incident Investigation - Part III
Investigation First Edition - 2011

Chapter 7
FLIGHT RECORDERS
7.1 GENERAL
7.1.1

b) Cockpit Voice Recorder (CVR), is a crash survivable system for

recording the internal acoustic environment of the flight deck and
internal cockpit crew conversation along with inter-aircraft radio
communications through a cockpit area microphone (CAM), boom
microphones and Public Address system (P.A.) and radiotelephony
communications.

c) Airborne Image Recorder (AIR), is a crash survivable system

intended to capture and record cockpit images. Image recording,
at the time of this writing, is not required by any States however
several major accidents have highlighted the potential benefits of
this capability in the future. The term video recording was
intentionally replaced with image recording to reinforce that voice is a
separate function and that the frame rate required for images for
accident investigation is far less than the typical 30 frames/second of
standard video. 5 frames per second are considered adequate to
capture motion and longer recording duration is favored over higher
frame rates for any image recording device.(Emphasis added)7

7.3 COCKPIT VOICE RECORDER

General

7.3.1 The need to install cockpit voice recorders on transport

aircraft results from the fact that in many accidents and serious
incidents, the actions or lack of actions of the flight crew are a
significant component to understanding the investigation. In
addition to valuable inter-crew communications, the acoustic
environment of the flight deck can shed important light on many
investigations. (Emphasis added).

Purpose of the cockpit voice recorder

7.3.2 The primary purpose of the cockpit voice recorder is to

provide the accident investigation with a record of the
communications on the flight deck, the radio communications

7 Currently designated as CIR (Cockpit Image Recorder)

22
 with the ground controllers as well as a record of the general
acoustic environment onboard the aircraft. (Emphasis added).

7.3.3 Experience has shown that significant sounds are often

recorded, e.g. switches being actuated, flap and landing gear
selectors being operated, aural warning signals, engine-noise,
cockpit noise associated with changes in airspeed, etc. This type
of information is of considerable assistance to the investigation,
especially when the precise time of each sound can be determined
from the recording. (Emphasis added)

Selection of parameters

7.3.4 Cockpit voice recorders should normally record the following:

a) voice and/or digital communications transmitted from or received

in the aeroplane by radio

b) voice communications of flight crew members on the flight deck

b) voice communications of flight crew members on the flight deck

using the aircrafts interphone system

c) voice or audio signals identifying navigation or approach aids

introduced into headset or speaker

d) voice communications of flight crew members using the

passenger
loud speaker system, when there is such a system and the fourth
recording channel is not in use.

7.3.5 To record effectively the voices of flight crew members on the

flight deck, a cockpitmounted area microphone is installed in the best
position to record voice communications originating at the first and
second pilot stations as well as voice communications of other crew
members-on the flight deck when directed to those stations. Care must
be taken in locating the microphone and adjusting or supplementing the
preamplifiers and filters of the recorder to assure a high level of
intelligibility of the recorded communications when recorded under
cockpit noise conditions in flight.

Readout and anlisis

7.3.13 A CVR transcript is usually conducted by a group of multi-

discipline specialists including acoustic analysis specialists, operations
specialists and systems specialists. The purpose of the group is to
produce an accurate transcript of relevant conversation. States
should apply considerable privilege and protection to CVRs. The

23
 group should only transcribe relevant information as there is usually no
need to transcribe personal information that does not contribute to the
investigation. If personal conversation is consuming an inappropriate
amount of time during the flight, an editorial observation may be used to
note that a personal conversation occurred during a specific time period.
Sometimes it may be necessary to transcribe personal
conversations. Care must be exercised when transcribing the actual
words of a personal conversation. The need for using the actual
words must be balanced against the privacy issues of the crews
and the needs of the investigation process It is also an accepted
practice to substitute symbols (#) for expletives. Other useful
symbols for transcripts include () to denote where specific words have
been translated from a specific language. (Author note: See for
example: Aircraft Acciident Report, NTSB/AAR-01/02, Little Rock,
Arkansas, June 1, 1999, page 176 Appendix B-Cockpit Voice
Recorder Transcript LEGEND).

7.3.14 States shall not release the audio cockpit voice recording
or a transcript of the recording to the public. Recordings and
transcripts should be adequately protected to prevent inadvertent
release. It may however, be essential to the analysis and
understanding of the occurrence to include relevant parts of the
transcript from the CVR in the Final Report or its appendices.
When doing so care must taken to ensure that in the Final Report a
description of what was said is included rather than a quote of the
actual words of a personal conversation. Parts of the transcript not
essential to the analysis shall not be disclosed. Chapter 5 of
Annex 13 contains provisions pertinent to transcribed voice
recordings and should be taken into account when it is considered
necessary to include relevant parts of a transcript in the Final
Report or its appendices. (Emphasis and underline added).

6. 2 Annex 13 Aircraft Accident and Incident

Investigacion Tenth Edition July 2010 (Extract)

CHAPTER 5. INVESTIGATION
Non-disclosure records

5.12 The State conducting the investigation of an accidento or incident

shall not make the following records avialable for purposes other than
accident or incident investigation, unless the appropriate authority for
the administration of justice in that State determines that their
disclosure outweighs the adverse domestic and International impact
such action may have on that or any future investigation:

a) all statements taken from persons by the investigation authorities

in the coursse of their investigation;

24
 b) all communications between persons having been involved in
the operation of the aircraft;

c) medical or private information regarding persons involved in the

accident or incident;

d) cockpit voice recorder and transcripts from such recording;

e) recording and transcriptions of recordings from air traffic

control units;

f) Cockpit airborne image recordings and any part of

transcripts from such recordings; and

g) opinions expressed in the analysis of information, including flight

recorder information.

5.12.1 These records shall be included in the final report or its

appendices only when pertinent to the anlisis of the accident or
incident. Parts of the records not relevant to the analysis shall not be
disclosure. (Emphasis and underline added).

Note 1. Information contained in the records listed above, which includes

information given voluntarily by persons interviewed during the investigation of an
accident or incident, could be utilized inappropriately for subsequent disciplinary,
civil, administrative and criminal proceedings. If such information is distributed, it
may, in the future, no longer be openly disclosed to investigators. Lack of access to
such information would impede the investigation process and seriously affect flight
safety.

Note 2.- Attachment E contains legal guidance for the protection of information from
Safety data collection and processing systems.

APPENDIX. FORMAT OF THE FINAL REPORT

APPENDICES

Include, as appropriate, any other pertinent information

considered necessary for the understanding of th report.
(Emphasis added)

ATTACHMENT E (Extract)

7. PROTECTION OF RECORDER IFORMATION

Considering that ambient workplace recordings required by legislation,

such as cockpit voice recorders (CVRs), may be perceived as
constituting an invasion of privacy for operational personnel that

25
 other professions are not exposed8 to:

a) subject to the principles of protection and exception above,

national laws and regulations should consider ambient
workplace recordings required by legislation as privileged
protected information, i.e. information deserving enhanced
protection; and

b) national laws and regulations should provide specific measures

of protection to such recordings as to their confidentiality
and access by the public. Such specific measures of
protection of workplace recordings required by legislation
may include the issuance of orders of non-public disclosure.
(Emphasis and underline added).9

6. 3 Returning to Doc 9756 AN/965 Part III Investigacin

Chapter 7
Flight Recorders
Operational/human factors analysis

7.3.15 The primary purpose of the cockpit voice recorder is to record

the flight crews communication. Experienced accident investigators
with specific training in the necessary fields typically accomplish the
analysis of the cockpit voice recorder for the human factor and
operations portions of an investigation. The analysis of the cockpit
voice recorder content typically includes a review of operating
procedures, crew interaction and crew performance. The analysis
can be broad to encompass generalize events or it can be very specific
to analize the speech patterns of a crewmember or the
pronunciations of specific syllables. The analysis can also provide
valuable insight into crew physical actions through evaluation of
grunts or straining during speech. Use of CVR analysis in
conjunction with findings from other areas of the investigation can
facilitate the identification of crew actions, crew state, and any
other potential factors affecting human performance (such as
impairment due to medical conditions).(Emphasis and underline edded).

Acoustic Analysis

8 Voyage Data Recorder (VDR) Like aircraft large vessels are required to carry a Black Box
that records all activity during the last 12 hours of navigaion. There are various sensors placed on
bridge of the ship and on prominent location from which the required data is continuously
collected. Information help voice communications in the VHF and radiotelephone. Voice
conversations even in the six sites in the ship, etc. In case of sinister can be analyzed in great
detail the causes that will help clarify the facts and avoid future sinisters.
9 IFALPA news Feb.2008 Article: Decriminalisation of aircraft accidens - by Capt. Pat Lawrence,

Chairman, IFALPA Legal Committee. IFALPA is particularly concerned about the protection of
Cockpit Voice Recorder and full supports ICAO Attachment E which says:(See page 25)

26
 7.3 16 The cockpit voice recorders primary purpose is to record voice
communications. Most cockpit voice recorder systems are designed for
voice and have a bandwidth and/or filters that optimize the recording of
the human voice. The cockpit voice recorder is not an acoustic recorder
that is, although the cockpit voice recorder records all audio that is
received by the microphones, the microphones may not pick up all of
the audio in the aircraft. Additionally, because each aircraft and its
cockpit may be subject to different environmental conditions, the fidelity
of the microphones may be vastly different between aircraft. Integrity of
the installation and age of the cockpit voice recorder system is also a
factor in the quality of the recording.

7.3.17 With these limitations, however, it is still possible to obtain

acoustic information usefull in analizing several aspects of the aircraft,
including engine speed, propeller rotational speed, rotor speed,
transmission operation, hydraulic pump operation, and ground speed.
This information may be recorded on the cockpit area microphone
channel. While it is possible to analyze the sounds and make accurate
calculations, it is not usually possible to determine precise location of an
acoustic source using the cockpit area microphone recording, because
it is a single source recording. It also not possible to determine, for
instance, which engine failed in an engine failure the recording would
simply show a signal reducing in frequency, but it is not possible to
determine from the recording, if it is the left, right or center engine.

7.3.18 Acoustic analysis using a cockpit voice recording from an

accident should be done with caution. While the analysis can typically
provide direction in an investigation, the interpretation of the acoustics
can vary and should be confirmed through physical evidence or other
data sources.

7.5. OTHER RECORDING DIVICES

Radar data and ATC transcript

7.5.17 Analogue and digital recorders are utilized by most States for
ground air traffic control services (ATS) centres and units. Recordings
may cover not only air-ground voice and data link communications, but
also voice, radio, satellite and land line communications between the
various ground services or stations (aircraft movement and control
coordination exchanges, exchanges between ATS and Meteorological
officers, fire-fighting vehicles, etc.). Information on Radar Data and ATC
recorders is covered in detail in Chapter 5.

7.5.18 During an accident investigation, it may be necessary to collect

datalinked information that was transmitted from the Aircraft
Communications Addressing and Reporting System (ACARS) or
Aircraft Condition Monitoring System (ACMS). It is possible that an
operator may also record communication between the aircraft and

27
 ground personnel that covers a period not contained on the CVR.

7.6 FUTURE REQUIREMENTS

New design

While not required in most States yet, manufacturers and operators are
employing dual redundant combination recorders, and two-hour long
CVRs to replace the old thirty-minute version. Also, independent power
supplies cor CVRs which would continue operation ten minutes after
power to the recorder has ceased, has been proposed.

Datalink recordings

In the past, exchanges between ATC and the crew were normally
preserved on the CVR. With the advent of Communication Navigation
Surveillance/Air traffic management, this will no longer be the case. In
the future it might be mandated for CNS/ATM information to be
recorded. Some CVRs are equipped today to meet this requirement.
These will be recorded for the same length of time as CVRs, usually for
two hours.

Airborne image recording

Accident investigators have also recommended the implementation of

Airborne Image Recorders (AIR). EUROCAE has already developed a
technical standard and the technology is available to employ them.
While traditional FDRs and CVR are invaluable, additional information
could be gained from gaining an inside view of the cockpit. The
benefits of AIR include a documentation of human-machine
interaction (switches-throttles-controls), the ambient cockpit
environment (smoke-lighting), non-verbal communications (hand
signals) and crew interaction. It has the potential to capture
hundreds of additional parameters not currently recorded.
Additionally on aircraft that are not equipped with either a
traditionally FDR or CVR a cockpit image recorder might be a low
cost means of equipping the aircraft with a FDR or CVR. A cockpit
image recorder would provide parametric data from the cockpit
instruments.10 (Emphasis added).

10 See:
1) Safety Recommendatiions and Advocacy
http://www.ntsb.gov/recsletters/DisplayLetters.aspx?FolderYR=2000
Go to: A00 30 31. Pdf
2) Cockpit Image Recorders: A Picture is Worth a Thousand Words by
David E. Rapoport and Paul D. Richter May 2005
http://www.rapoportlaw.com/Publications/PDF-CockpitImageRecorders.pdf
3) Pilots Blast NTSB on Cockpit Video Cameras Call cameras fools gold of
crash investigation By Robert Longley, About.com Guide
http://usgovinfo.about.com/od/technologyandresearch/a/cockpitcams.htm

28
 6. 4 DOC 9756 Manual of Aircraft Accident and Incident
Investigation Part IV Reporting Second Edition-
2014

Chapter 1

THE FINAL REPORT

1.1 General

1.1.1 The Final Report of an aircraft accident investigation is the

foundation for initiating the safety actions which are necessary to
prevent further accidents from similar causes. Therefore, the Final
report of an accident must establish in detail what happened, how
it happened and why it happened. The findings and causes
mentioned in the Final Report should lead to safety recommendations,
so that appropriate preventive measures can be taken. (Emphasis and
underline added)
Appendix 1 to Chater 1
FORMAT AND CONTENT OF THE FINAL REPORT
1.11 Flight recorders
1.11.1 Provide the particulars for each flight recorder, such as
manufacturer, model, number of parameters recorder, recording
medium and duration of the recording. The recorders woud include fight
data recorders (FDR), cockpit voice recorder (CVR), quick Access
recorders, engine parameter recorders, airborne image recorders,
data link recorders, non.volatile memory chips in aircraft systems, and
other on-board or ground-based recorders. (Emphasis added)

4) Cockpit Cameras
http://www.iasa.com.au/folders/Safety_Issues/dfdr-cvr/cockpit_cameras.html
5) Most wanted transportation safety Improovements Federal Issues AVIATION
Require Image Recorders
http://www.ntsb.gov/news/events/2007/most_wanted_progress/presentations
/aviation_recorders.htm
6) Flight Safety March 2003 -ELECRONIC VIDEO IMAGERY IN THE COCKPIT By
Steven R. Mitchel Embry-Riddle Aeronautical University Pages 39-60
7) Flight Safety Information Journal July 2010 - NTSB Most Wanted Cockpit
Image Recorders Curt Lewis, P.E.,CSP, ATP Darwin Copsey, MAS - Chris
Montgomery, BS
8) http://www.customessaymeister.com/customessays/Aviation/7909.htm

29
 1.11.3 In this section, provide information recorded by flight recorders.
Because of the length of a flight data recording read-out report, include
here in an appendix to or the Final Report only those parts of the
read- out reports which are pertinent to the analysis and findings.
(Emphasis and underline added)

1.11.4 Transcripts from the cockpit voice recordings should be

included in the Final Report or its appendices only when essential
to the analysis and understanding of the occurrence.11 Parts of the
recordings not essential to the analysis shall not be disclosed. Chapter
5 of Annex 13 contains provisions pertinent to transcribed voice
recordings and should be taken into account when it is considered
necessary to include such transcripts in the Final Report or its
appendices. (Enphasis
and underline added)

5. APPENDICES

The appendices should include, as appropriate, any pertinent

information considered necessary to understand the report, such as a
glossary, supporting technical reports, accident site diagrams,
photographs and flight recorder data. Graphics and diagrams should
have a professional
appearance and should show only the information required for
understanding the report. The appendices should be numbered and
listed in the table of contents. The following is a list of appendices
commonly found in a Final Report:

--- communications transcripts; (Enphasis added)

Appendix 2 to Chapter 1

REPORT WRITING CONVENTIONS

5. TONE OF EXPRESSION

5.1 Blame or liability

5.1.1 Annex 13 states that iy is not the purpose of the investigation to

apportion blame or liability. Nevertheless, blame or liability might
sometimes be inferred from the findings. When such is the case, it
is essential that all the causes established be clearly presented in
the report. To do otherwise would jeopardize the objective of the
investigation which is the prevention of accidents and incidents.
(Emphasis and undeline added).

11 There was the question of who determines what is relevant or essential to the

transcript of the CVR to be published to an understanding of what happened.

30
 6. 6 Doc 9859 AN/474 Safety Management Manual
(SMM) Third Edition 2013

Appendix 5 to Chapter 4

SAFETY INFORMATION PROTECTION

Extract
1.12 Lastly, the guidance introduces the protection of recorder
information and, considering that ambient workplace recordings
required by legislation, such as cockpit voice recorders (CVRs),
may be perceived as constituting an invasion of privacy for
operational personnel that other professions are not exposed to,
proposes that:

a) subject to the principles of protection and exception

above, national laws and regulations should consider ambient
workplace recordings required by legislation as privileged
protected information, i.e. information deserving enhanced
protection; and

b) national laws and regulations should provide specific

measures of protection to such recordings as to their
confidentiality and access by the public. Such specific measures
to protection of workplace recordings required by legislation may
include the issuance of orders of non-public disclosure. (Emphais
and underline added)

7. The contrast - Examples of Repots of Aviation

Accidents

7. 1 Disclosure

NTSB - Aircraft Accident Report AA Fligh 1420

31
 On June 1, American Airlines flight 1420 a MaDonnell Douglas DC-9-82
(MD-82) N215AA, crashed after it overran the end of the runway 4R
during landing at Little Rock National Aiport in Little Rock,
Arkansas,Texas, with 2 crewmembers, 4 flight attendants and 119
passengers aboard. The captain and 10 passangers were killed; the
first office, the flight attendants, and 105 passangers received serious
or minor injuries. The airplane was destroyed by impact forces and a
postcrash fire.

On October 23, 2001 NTSB Aircraft Accident Report published

(PB2001-910 402 - NTSB/AAR-01/02 - DCA99MA060) :(See:
http://lessonslearned.faa.gov/American1420/AAR0102.pdf
on the accident AA Flight 1420 occurred in Little Rock, Arkansas in
which it was determined:

The NTSB determines that probable causes of the accident were the
flight crew failure to discontinue the approach when severe
thunderstorms and their associated hazards to flight operations had
moved into the airport area and the crews failure to ensure that the
spoilers had extended alter touchdown. Contributing to the accident

32
 were the flight crews (1) impaired performance resulting from fatigue
and the situational stress associated with the Intend. To land under the
circumstances, (2) continuation of the approach to a landing when
companys maximum crosswind component was exceded, and (3) use
of reverse thrust greater than 1.3 engine pressure ratio alter landing.
(See Executive Summary and 3.2 Probable Cause).

On page 42 the report says:

1.11 Flight Recorders

1.11.1 Cockpit Voice Recorder

The CVR data started at 2319:44 and continued uninterrupted

until 2350:48.1 when electrical power to the CVR ceased. The
recording consisted of four channels of good quality audio
information. The four channels contained the cockpit area
microphone, the captains audio panel, the first officers audio
panel, and the interphone and public address system. A
transcript was prepared of the entire 31-minute 4-second
recording (see appendix B). (Emphasis added).

Authors note: This is not an exception. The NTSB consistently

publishes the transcription of the CVR on its Aircraft Accident
Reports. The NTSB is unequivocally clear that the transcript of the
CVR is appropriate, relevantand of vital importance to help
understand In totum the crews decisions-making process
(especially how and why), and would also help in improving both
similar accident prevention and operational safety.
The last words or words that do not contribute anything are
replaced by symbols as has been done in many accidents.

In this website of accident can be found a wide additional information.

NTSB AA 1420 Public Hearing

http://ntsb.gov/events/2000/aa1420/default.htm

7.2 Mutilation

TSB - Aviation Investigation Report AF flight

358

33

On August 2, 2005, at 2002 UTC (1602 eastern daylight time) an Air
France flight 358 a Airbub A-340-313 F-GLZQ during landing at the
Toronto/Lester B. Pearson International Aiport, Ontario past end runway
24L which a speed of 80 knots, crossed two roads, plowed a ravine and
burned wich 2 flight crewmembers 10 flight attendants and 297
passengers on board. All passengers and crew members were able to
evacuate the aircraft before the fire reached the escape routes. A total
of 2 crew members and 10 passengers were seriously injured during
the crash and the ensuing evacuation. The aircraft was substantially
damaged during the overrun, and was subsequently destroyed by the
post-crash fire.
In December 2007, the TSB (Transportation Safety Board of Canada)
published its final report on the Air France Flight 358 accident at
Toronto in August 2005.

www.tsb.gc.ca/eng/rapports-
reports/aviation/2005/a05h0002/a05h0002.pdf

On page 42 the report says:

34
 1.11 Flight Recorders

1.11.1 Cockpit Voice Recorder

The cockpit voice recorder (CVR) was recovered from the accident site.
The CVR was a Team model SSCVR, part number AP7123-2101 and
serial number 170. This model of CVR is a solid-state recording
device with a storage capacity of approximately two hours. An
external examination of the CVR revealed significant heat exposure.
The CVR identification plate was missing. The underwater locator
beacon (ULB) or pinger bracket was damaged, and the ULB was
missing. All relevant data were transcribed in full. (Emphasis and
underline added).

Authors note to 1.11.1

It is noted that:

In spite of the mentioned in 1.11.1 there is not a single word included in

the Final Report done by TSB about the operational communications
between the pilots (two hours of recording availeble for analysis). More
over, not even a word was included of the conversation between the
crew when the airplane was under 10.000 feet of altitude, a situation
know as sterile cockpit where only operational communications is
allowed12

The CVR was was not published as an Appendix.

The Final Report performed by TSB should have had a full and
exact transcript of the CVR attached, because, one thing is what
expressed by the pilots (CVR) and another thing Is what it says
(TSB) expressed pilots.

8. What we known about communications between

Air Traffic Sevices and aircraft crew.

8.1 The following is an excerpt of the communications

betweenToronto Approach Control and Air France 358
published by Aviation Safety Network:

http://aviation-safety.net/database/record.php?id=20050802-0

Around 15:52 the crew contacted Toronto Approach.

12 See also: FLIGHT SAFETY FOUNDATION AEROSAFETYWORLD APRIL 2008 INSIGHT -
Flawed Report Questions about overrrun accident in Toronto went unanswered. By ERIK REED
MOHN. Pages 42-43.

35
 The controller replied: "Air France 3-5-8 Heavy roger, 2-4 Left is your
runway, the altimeter 3-0-0-0 and when you are able fly heading 2-10
and intercept the localizer."

The Air France pilot then responded: "When able within.... five
nautical miles we can intercept the localizer, Air France 3-5-8."

The crew then received further instructions to descend to 5000 and to

reduce their speed to 190 knots.

About 15:55 they were cleared down to 4000 feet and one minute later
the controller cleared the flight for the ILS approach to runway 24 Left.
Within less than a minute the controller asked "...Air France 3-5-8
reduce speed now to160 knots", which was correctly read back.

Thirty seconds later the controller radioed: "Air France 3-5-8 slow to
your final approach speed".

Then, about, 15:58 they were instructed to contact the Toronto Tower:
"Air France 3-5-8 contact Toronto tower at the KIREX fix on frequency
1-18 point 3-5".

The KIREX fix is located at 6.0 DME.

After being cleared to land, the Airbus touched down on runway 24L, a
9000 feet (2743 m) runway. The airplane was not able to stop before
the end of the runway and overran. It careened to the left, down a slope,
ending up in a gulley. The airplane caught fire, but everyone on board
was evacuated safely.

8. 2 Canadian Press made public the following

Communications between AF Flight 358 and Air Traffic
Control at Pearson International Airport:

http://www.cbc.ca/news/background/plane_fire/flight358_transcript.html

Canadian Press
Date: Thu. Aug. 4 2005 10:28 AM ET

The following is an excerpt of a conversation that took place between

air traffic controllers at Pearson International Airport and pilots looking
to land, including Air France Flight 358 which slid off the end of runway
24L and burst into flames.

Air Traffic Control: Air France 358 (inaudible) approach 24 left.

AF358: . . .24 left.

36
 Air Traffic Control: . . .Air France 358 reduce speed now to 160
knots.

AF358: Reducing to 160, 358. . .

Air Traffic Control: Air France 358 slow to your final approach
speed.

AF358: (Pilot response inaudible)

Air Traffic Control: Correct, minimum speed Air France 358. . .

Air Traffic Control: . . .Air France 358 contact Toronto tower at

the (inaudible) frequency 118.35. . .

Air Traffic Control: . . .AM691 keep me advised if you require

any deviation off the approach course. I'm showing what appears
to be now some lightning at your 12:30 over to your 2:30 position
at a range of about six miles.

AM691: Yeah, we've got it on the radar. . .

Air Traffic Control: . . .Air Canada 1105 still 150. You'll go

through the approach course. I'm going to run you down to the
south towards Downsview Airport, get you around some of the
heavier weather I'm showing right now in the vicinity of Downsview
Airport. . .

Air Traffic Control: . . .AC1105 turn right to the heading of 220

degrees. Going to parallel 24 left a little bit. Once you are on the
west side of the weather, I'll bring you back to the approach
course. . .

AC1156: . . .Air Canada's 1156 is showing that weather at about

11 o'clock at about 10 miles.

Air Traffic Control: Yeah, 1156, you are going to have to turn
back here very shortly. Turn left at a heading of 320 degrees
now. . .

Air Traffic Control: . . .Air Canada 1105, apparently we've had an

aircraft slide off the end of the runway. You will not be landing on
runway 24 left. Your approach clearance is cancelled. . .

AC1105: Air Canada 1105 requesting (inaudible) direct London.

Air Traffic Control: Air Canada 1105, roger. Steer heading 220
degrees now and continue to climb to 6,000. . .

Air Traffic Control: . . .Air Canada 1105, we'd like an expeditious

climb through 5,000. . .

37
 Air Traffic Control: Air Canada 1156, I would suggest you
probably want to go to your alternate now, I think the airport is
going to be closed for quite a while.

9. Litigations

9. 1 Ontario Superior Court of Justice

Several litigations were filed in march following the AF 358 accident.

Here is what the ONTARIO SUPERIOR COURT OF JUSTICE DATE:
20091209 determined:

http://www.canlii.org/en/on/onsc/doc/2009/2009canlii69321/2009canlii69321.p
df
Also in:
http://www.icao.int/safety/airnavigation/AIG/Database2Docs/Societ
e%20Air%20France%20v.%20Greater%20Toronto%20Airports%2
0Authority%20et%20al.%202009%20.pdf

COURT FILE NO.: 07-CV-337564

05-CV-294746
07-CV-337545
07-CV-336943
DATE: 20091209

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Socit Air France et al., Plaintiff

Greater Toronto Airports Authority et al., Defendants

BEFORE: G.R. Strathy J.

COUNSEL: Robert Fenn, Richard Rohmer Q.C. & Patrick Floyd, for the
Moving Party, NAV Canada

Peter Pliszka & Richard Butler, for Respondent, Transportation

Safety Board

T. Tremblay, for Socit Air France

Doug Wray & Gail Misra, for Airline Pilots Association and Air
Canada Pilots Association, Proposed Intervenors

Ann Christian-Brown, for Plaintiff Strugarova et al.

DATE HEARD October 1 & 2, 2009

EXTRACT

38
 REASONS FOR DECISION
[1] This motion is about whether the cockpit voice recorder (CVR)
part of an aircrafts black box should be produced to a party to
litigation resulting from the crash of that aircraft.

[2]
A class action has been launched on behalf of the passengers on the aircraft
and a multi-million dollar lawsuit has been brought by Air France and its
insurers against the Greater Toronto Airports Authority (GTAA), NAV
Canada (NAV) (the entity responsible for air traffic control), and the
Attorney General of Canada, (representing Environment Canada and the
Ministry of Transportation).

[3] NAV moves for production of the CVR under s. 28 of the

Canadian Transportation Accident Investigation and Safety Board
Act, S.C. 1989, c. 3 (the TSB Act). NAV claims that the CVR
contains vital information and that the parties and the court should
have the benefit of this information to ensure fair trials. The request
for production is opposed by the Transportation Safety Board
(the TSB) as well as two pilots unions, who have requested
amicus curiae status for the purposes of this motion. They say
that the contents of the CVR should be suppressed in the
interests of aviation safety and the personal privacy of the
pilots. (Emphasis and underline added).

[5] I have concluded that the CVR should be produced. Its

production will be restricted to the parties to these proceedings and it
will not be made publicly available. (Emphasis added).

I. Background the crash the TSB investigaron the litigation

The accident and TSB investigation

[7] As they began their descent, Air Frances sterile cockpit

rule came into effect. Personal conversation was prohibited and
only operational communications between the pilots were
permitted. During the descent until the final seconds of the flight,
there were a number of communications between the pilots and air
traffic control and also between the captain and the first officer.
(Emphais added).

[9] For two hours before to the crash, the CVR was like an
electronic fly on the cockpit wall. It heard and recorded every
sound and every word that was spoken by the two pilots during
this critical period.(Emphasis and underline addec)

[11] The TSB released its report on December 12, 2007. It is

available on the TSBs website. It runs 142 pages and is highly

39
 detailed. Section 7(2) of the TSB Act provides that it is not the
function of the TSB to assign fault or to determine civil or criminal
liability, but the TSB shall not refrain from fully reporting on the
causes and contributing factors [of an accident] merely because
fault or liability might be inferred from the Boards findings. A
fair reading of the TSBs report suggests that certain acts or
omissions of the pilots during the last two hours of AFR 358,
particularly during the last 30 minutes of the flight, may have
contributed to the accident. (Emphasis and underline added).

[12] The CVR performed an important role in the investigation of the

accident and in the TSBs interviews of the captain and first officer.

Litigation arising out of the accident

[13] At least four lawsuits have benn commenced as a result of

accident.
( See above URL Internet).

[18] The parties in these actions make serious allegations against

the pilot and first officer. For example, NAVs pleading alleges that
the pilots were negligent in the manner in which the aircraft
approached the runway and landed and that they:

(a) failed to perform necessary landing distance

calculations;

(b) failed to make the necessary communications;

(c) failed to conduct mandatory challenge and response

protocols and checklists during the approach and
landing;

(d) failed to execute appropriate navigational

maneouvres, including a missed approach when
they should have aborted the approach to Toronto
due to the weather and diverted to Ottawa; and

(e) failed to carry out proper standard operating

procedures and engaged in unsafe operations.
(emphasis added).

II. The statutory privilege for CVRs its evolution and purpose

Genesis of the privilege the Dubin Commission13

13 The Dubin Commission released its report in 1981.

40
 [29] These privilege provisions of the TSB Act and the statutory
process for disclosure of communication records and witness
statements were the product of a Commission of Inquiry on Aviation
Safety, appointed by the federal government in 1979 and chaired by
The Honourable Mr. Justice Charles Dubin (the Dubin Commission).
The appointment of the commission was triggered by an accident in
1978 at Cranbrook, B.C., involving a Boeing 737 jet, which resulted
in numerous fatalities and serious injuries. As the investigation into
the accident progressed, investigators were accused of
incompetence and destruction of evidence. There was a real concern
about the potential for conflicts of interest in the investigation of
aviation incidents by government investigators and proposals were
made for an independent investigative body. The Dubin Commission
was given a broad mandate touching upon every matter which
affects aviation safety from a legislative and procedural point of view.

[30] The Dubin Commission released its report in 1981. It made

recommendations designed to promote aviation safety in Canada
and proposed a new legislative framework for accident investigation.
Those recommendations included the development of an
independent federal agency called the Canadian Aviation Safety
Board, with a duty to investigate and report on aviation accidents
and to make recommendations concerning safety. In 1984, as a
result of the recommendations of the Dubin Commission, Parliament
enacted the Canadian Safety Board Act, S.C. 1980-81-82-83, c. 165.
This statute ultimately evolved into the TSB Act, which expanded the
scope of the agencys responsibility to rail, marine and pipeline
transportation.

[31] The Dubin Commissions Report addressed the question of the

confidentiality of CVRs, air traffic control tapes and witness
statements. The commission concluded that CVRs were an
invaluable tool for the accident investigator; however, because CVRs
also record conversations of a personal or private nature, ...which
cast no light on the cause of the accident or incident, their
publication could prove unnecessarily embarrassing for pilots. The
commission recommended that CVR data should be privileged and
should not be disclosed unless aviation safety and the administration
of justice required disclosure. It recommended that to override the
CVR privilege, the court should be convinced that the public interest
in the proper administration of justice outweighs the importance of
any reasons advanced for maintaining confidentiality.

[32] In particular, the Dubin Commission made the following

comments, at pages 224-225 of the report:

In the investigation of an accident or incident the recording

becomes an invaluable tool for the investigator. However, it
records not only conversations which may be relevant in the
determination of the cause of an accident or incident, but also

41
 records conversations of a personal or private nature, which
cast no light on the cause of the accident or incident. A
publication of the conversations of the latter nature could prove
embarrassing. The pilots complain that the cockpit voice
recorder is an unprecedented invasion of privacy, and that
no other employees are subjected to electronic
eavesdropping in their work place. Although they
recognize the necessity of such a recording device, their
claim is that it should be used only by accident
investigators, and for the sole purpose of assisting them in
the determination of the cause of the accident in aid of
preventing future accidents as a result of the information
obtained. In order to ensure such exclusive use of the
cockpit voice recorded, they seek legislation which would
permit only the accident investigators to have access to
the cockpit voice recording, and a ban on the publication
of its contents. (Emphasis and underline added).

[33] Later, after discussing the law of privilege, the Commission set
out its reasons for recommending that the use of CVRs in civil
proceedings be subject to a qualified privilege. It stated at page 234:

If the cockpit voice recorder were absolutely privileged as

contended for by CALPA [Canadian Airline Pilots
Association], an injured passenger or the estate of a
deceased passenger might be deprived of the only evidence
available with respect to the cause of the accident. This
would decide, once and for all, against the public interest in the
administration of justice. On the other hand, if the tapes were
only producible on an order of a judge in civil proceedings, he
would be in a position to weigh the public interest in the
administration of justice against the public interest in maintaining
confidentiality. In weighing these interests, the judge would be
able to take into account the damage to the relationship of the
pilots and their employers, the availability of the evidence from
other sources, the effect of the production of the document on
aviation safety and any other submissions which might support a
ruling in favour of the privilege if objection is taken to production,
as well as to the cogency of the material. In order to make that
determination, the court might require production of the tape and
have an opportunity of reviewing it in its entirety. If production is
ordered, only so much of the transcript that is relevant to the
issue at trial would form part of the public record, and thus the
portions of the tape which are not relevant, but the publication of
which might prove embarrassing, would not be disclosed.
(Emphasis added).

It cannot be assumed that the information provided by a cockpit

voice recorder would cease to be available if portions of it are
held to be necessary in civil proceedings as a result of a ruling by

42
 a judge that the interests of justice require it. It would be
undesirable to create a privilege on the ground that those
seeking it would otherwise not obey the law.

[34] The Dubin Commission recommended that the enabling statute

should provide that CVR recordings be privileged and that they should
only be produced after a judge had concluded that the public interest in
the proper administration of justice outweighed the importance of any
reasons advanced for maintaining confidentiality (at page 259). This
was substantially the provision that was ultimately incorporated into the
TSB Act.

International Standards - ICAO14

[40] It appears that Canadian law, as set out in s. 28 of the TSB Act, is
generally consistent with Annex 13. Other jurisdictions, including the
United States, have filed exceptions or differences to Annex 13
and have enacted domestic law that does not precisely follow
Annex 13. In the United States, disclosure of the CVR is regulated by
the United States Code, Title 49, Transportation, Ch. 11, National
Transportation Safety Board, sections 1114 and 1154. Section 1114
provides that the recording itself and the transcript of the recording are
not to be produced in their entirety, but that the National
Transportation Safety Board shall make public any part of a
transcript of a CVR recording that the board decides is relevant to
the accident or incident. Further, section 1154 provides that a
court may allow discovery by a party of a CVR recording if, after
an in camera review of the recording, the court decides that the
parts of the transcript previously made public under section 114
do not provide the party with sufficient information to receive a fair
trial. In this situation, discovery of the CVR is necessary to provide
the party with sufficient information to receive a fair trial.
(Emphasis added).

[41] The test to be applied in the United States by the board and
the court in determining whether to release the transcript does not
take into account the potential adverse domestic or international
effects on investigations that might result from such access. It
appears that the National Transportation Safety Board in the
United States regularly discloses extracts from CVR transcripts in
its reports. (Emphasis added).

[42] France is a party to the Chicago Convention. The Airbus in this

case was registered under French law. It appears that in France it is
common to append CVR transcripts to the report of the investigating
authority (the Bureau dEnqutes et dAnalyses).15 (Emphasis added).

14 The documents and annexes to the ICAO referente to the CVR were cited extensively.

15 However, the transcript of the CVR in the Aircraft Accident Report is not provided.

43
 [43] This suggests that the international practice regarding the
publication of transcripts of CVR recordings is not entirely
uniform. (Emphasis added).

The Report of the TSB Act Review Commission

[45] On the subject of CVRs, the commission recommended that the

TSB be permitted to publish transcripts containing excerpts from CVRs,
but that the production of these records to litigants should remain
subject to court authorization. The commission stated, at p. 156:

We have heard a considerable number of submissions on

the issue of confidentiality for on-board recordings.
Although we understand that the introduction of cockpit
voice recorders was based on what was in effect a social
contract between flight crew and their employers and
regulators, granting this right was an extraordinary
concession which should not go any further. Conferring
special rights on distinct groups is now subject to review
under section 7 and 15 of the Charter. If crews press for
complete protection, they risk losing protection altogether.In
our view, the United States Independent Safety Board Act of
1974 contains a more appropriate and workable model for
the use of on-board recordings than the present section 28
of the [TSB] Act. The U.S. statute requires the NTSB to
publish cockpit voice recorder transcripts with irrelevant
sections removed. (Empahis added).

Under this model, for example, carrier flight instructors or

the TSBC could use excerpts from on-board recordings to
emphasize safety lessons. These recordings still could not
be used for litigation or regulatory purposes, unless a court
or coroner ordered otherwise. We appreciate that an on-
board recording may be the only source of some relevant
evidence for litigants, so a controlled exception to the
general prohibition on collateral use of TSBC information is
justified.
(Emphasis added).

[46] The recommendation that transcripts of CVR recordings be

made public suggests that the review commission was not
concerned that this would have an effect on that it would
somehow restrict communication ithe cockpit.

III. The evidence and the submissions of the parties

The evidence and submissions of the NAV

44
 [49] Mr. MacDonald gives an overview of the TSBs investigation of the
AFR 358 accident investigation and explains the TSBs position that the
CVR data should not be disclosed in this litigation. He says that access
to information is improved, and the TSBs accident investigation and
reporting is enhanced, when the information gathered by the TSB
remains privileged. He also explains the TSBs position that sustaining
the privilege in this case does not pose any risk of prejudice to the
proper administration of justice.

50] Mr. MacDonald makes it clear that the CVR data was used in
the production of the TSBs report and that a number of sections of the
report contain relevant information that was gleaned from the CVR;
however, there are no direct quotations from the recording in the
TSB report. (Emphasis added).

[51] The recording of conversations between crewmembers, traffic

controllers and other protagonists is a necessary part of the
investigations information base. As noted by the Dubin Commission
report, individuals involved in the provision of transportation services
agreed to CVR technology in their place of work on the understanding
that the information would be used in analyses designed to reduce the
incidence of aviation accidents, and would not be used against them. ...
This philosophy is illustrated in the various privilege protections set out
inthe Act and can also be found in the enabling legislation of
investigative bodies of several other nations.

[52] Mr. MacDonald acknowledges that the CVR is absolutely

essential to the investigation of aircraft accidents by the TSB. He says,
however, that there is no risk of prejudice to the parties to these
actions if the CVR is not produced because all relevant
information, including information taken from the CVR, is available
in the TSB report.16 (Emphasis added).

[53] The essence of the TSBs position on this motion is summed up

by
para 53 of its factum:

TSB firmly believes that the privilege related to CVR data is

necessary to encourage full, accurate and objective
communication between air traffic regulators and pilots, and
between crew members, in times of crisis. Within the context of
the accident investigation framework described above, TSB
believes that the release of CVR data, as with other privileged
materials under the Act, would chill the relationship between
investigators and parties involved in accident investigation (e.g.
pilots, manufacturers, traffic controllers, regulators, brokers,
transporters, operators, crew members ...). The adverse effect
of disclosure contrary to the privilege remains the same

16 The repor of the TSB lacks the CVR transcript as an annexe.

45
 whether the Air France 358 Investigation Report has or has
not already been released. (Emphasis added)

The Evidence ALPA and ACPA

[56] ACPA represents more than 3,500 Air Canada pilots in

collective bargaining. It is the successor to the former Canadian Air
Line Pilots Association (CALPA), of which Air Canada was a founding
member. ACPA has been frequently recognized as an authoritative
voice on behalf of Canadian airline pilots and has appeared before
legislative committees addressing issues of aviation safety,
including the regulation of the use of CVRs in Aircraft. (Emphasis
added).

[57] ALPA is a trade union that represents more than 54,000

airline pilots at 36 airlines throughout North America. It is also a
successor to CALPA, with which it merged in 1997. It is presently
certified to represent approximately 2,400 airline pilots in Canada and is
the exclusive bargaining agent for pilots at a number of Canadian
airlines, other than Air Canada. Like ACPA, it is frequently recognized
as an important spokesperson for the interests of airline pilots in North
America. It too has appeared before legislative committees, in
Canada and the United States on issues of aviation safety. It has
obtained intervenor status in litigation in the United States in
which the use of cockpit voice recorder information has been an
issue.(Emphais added).

[58] Although neither of the two pilots on AFR 358 were members
of the two unions, counsel for NAV did not oppose the unions
being given an opportunity to make submissions, but opposed
intervenor status. Counsel for the TSB submitted that it would be
appropriate to hear submissions on behalf of the pilots as they have a
legitimate interest and a unique perspective on the issue. (Emphasis
added).

[65] Having heard the submissions of Mr. Wray on behalf of ACPA

and ALPA, I was satisfied that the pilots had an interest in the outcome
of the motion and that their perspective on the issues might not
necessarily be reflected in the submissions of the other parties. In
particular, the TSB, which is the main opponent to the motion,
approaches the issue from the viewpoint of transportation safety
and investigative efficacy, whereas the pilots approach the issue
in terms of both safety and privacy. I was satisfied that the two
organizations had a unique and direct interest in this issue, that the
court would benefit from submissions on behalf of pilots and that those
submissions could be made without unnecessary delay, costs or
inconvenience to any party. The two organizations undertook to be
bound by the confidentiality order and undertook that their submissions
would not result in repetition or re-argument. (Emphasis added).

46
 [66] The motion of ALPA and ACPA is supported by two affidavits, one
by Captain Bryon Mask, a retired Air Canada Pilot and Director of Flight
Safety for ACPA and the other by Captain Raymond Gelinas, a pilot
with Air Canada Jazz, a member of ALPA International and Chairman of
that organizations Accident Analysis and Prevention Committee. While
there are some differences in the background given by the two
deponents, their evidence is substantially the same and in many
cases the language used in their affidavits is identical. (Eadded)

[67] Both pilots express the opinion that the information from CVRs is
invaluable in determining the causes of airline accidents and in allowing
investigative bodies such as the TSB to make safety recommendations
in the public interest. They express the opinion, however, that the
release of the CVR information beyond those purposes is
detrimental to aviation safety. (Emphasis added).

[68] They give several reasons for this opinion. First, they say
that the airline cockpit is the pilots place of employment, like an
office, and that the introduction of a recording device into that
location is a substantial infringement of the pilots privacy and
dignity. They say that this is particularly true because the CVR will
record not only very private conversations between the pilots but
also the pilots final utterances and occasionally terrified screams
in catastrophic accidents. They say that pilots accept the use of
CVRs for the purpose of enhancing safety based on two
fundamental understandings. The first is that the recording
devices will be used in the carefully controlled and expert
environments of investigative bodies, such as the TSB, for the
investigation of the causes of accidents in the interest of aviation
safety. Second, they say that pilots operate under the assurance
that the invasion of their privacy is minimized by the design of the
equipment (because it runs in two hour loops) and by statutory
provisions that restrict disclosure of the information to the public.
(Emphasis and under line added)

[69] The deponents express the belief that the release of CVR
information particularly in a raw unedited, unparaphrased or otherwise
unredacted form, inhibits the CVRs acceptance by the pilots ... This
acceptance of the legitimacy of the CVR in the cockpit is the bulwark of
the entire CVR program. Without the assurance that their
conversations will be kept confidential to the highest extent
possible, pilots will resist the imposition of such recording
devices. (Italics in original] (Emphasis and underline added)

[70] Finally, the pilots express the opinion that the level of
candour of discussion in the cockpit environment would be
markedly decreased were pilots no longer able to assume that
their cockpit conversations would be confidential and secure from
broader dissemination and scrutiny by third parties. It is axiomatic
that an open and uninhibited exchange of information and views

47
 between pilots in an airplane cockpit is essential to securing a
basic level of safety. Critical, and often highly complex, decisions
must be made by professional airline pilots in the course of
fractions of a second, based on information supplied by the other
pilot in the cockpit. They express the opinion that the speed and
quality of pilots decisions could be impaired if they were aware
that their conversations might be disclosed to third party litigants.
(Emphasiis added)

[71] I make several observations about the evidence the pilots.

First, I accept without reservation that ALPA and ACPA have an
important interest in matters of aviation safety and that the views
of their spokespersons are entitled to attention and respect.
Second, I cannot see any purpose in the disclosure of purely
personal conversations between pilots except in the exceptional
case where there is a concern that those conversations have
interfered with the performance of their duties. Third, it goes
without saying that no purpose would be served by the disclosure
of utterances of pilots in the agony of impending impact except to
the very rare and unusual extent where the utterances are directly
relevant to an issue. Fourth, I do not necessarily accept that the
potential for release of CVR data to parties other than the TSB and
like agencies would impair the free exchange of information
between pilots, any more than the potential for release to the TSB
would do. There is no evidence that the introduction of CVRs since
the 1960s has impaired communication between pilots, in spite of
the fact that third parties have had access to those recordings and,
in some cases, the recordings have actually been made public
through government investigative bodies or otherwise. (Emphasis
and underline added)

[72] It is difficult for me to accept that highly trained, responsible

and professional pilots would somehow curtail their important and
necessary communications because there is a recording device in
the cockpit that will only be accessed in the event of an accident,
and potentially an accident with very serious and even fatal
consequences. The extract I have quoted earlier,1 from page 234 of
the report of the Dubin Committee, suggests that the committee
did not consider this argument to be particularly compelling.
(Emphasis and underline added)

[73] Finally, the evidence of the two pilots supports the

conclusion, which can hardly be doubted, that the CVR is an
invaluable investigative tool. This is particularly so in view of the
likelihood that the pilots will be unable to accurately reconstruct
from memory the precise sequence and content of a series of
communications and split second decisions made in the crucial
minutes before an accident.(Emphasis end underline added).

IV. The applicable test

48
 [74] In this section, I will set out the test applicable to motions of this
kind. It is worth reminding myself that the statute requires that I examine
the CVR (i.e., listen to the recording), hear submissions of the parties,
and determine whether, in the circumstances of the case, the public
interest in the proper administration of justice outweighs in importance
the privilege attached to the on-board recording by virtue of s. 28 of the
TSB Act. If I order production of the CVR, I may impose such
restrictions or conditions as are deemed appropriate.

[100] In Propair Inc. et a. v. Goodrich Corporation, [2003] J.Q. No. 243,

J.E. 2003-67 (S.C.) an application was brought to compel production of
the CVR following a crash in June 1998 at Mirabel Airport, resulting in
the deaths of nine passengers and two crew members. The
application was opposed by the TSB as well as ALPA and ACPA.
The Court found, having listened to the CVR, that the recording
should be produced because it was important evidence that could
not otherwise be obtained from a reliable and accurate source. The
judge, Viau J., found that the public interest in the administration
of justice required that this important piece of evidence be
provided to the parties. (Emphasis added)

[101] The judge rejected the submissions of ALPA and ACPA and
what he described as their assertion of a vague right of privacy
at. 13: (Emphasis added)

Les deux pilotes dcds dans l'crasement n'taient

membres ni d'ALPA ni D'ACPA. Et, l'examen, force est de
constater que le seul intrt de ces associations est de
bloquer tout accs l'enregistrement. Invoquant un vague
droit la vie prive, elles s'objectent partout o elles peuvent
le faire, tentant de transformer en une sorte de dbat public
des causes d'intrt priv. Elles n'ont aucun autre intrt dans
les prsentes affaires et les lments de preuve qu'elles
prsentent sont loin d'tre convaincants. Elles renforcent
plutt cette attitude d'opposition radicale et systmatique qui
n'a t, semble-t-il, retenue nulle part ailleurs, en Amrique du
Nord du moins.

Translation of the author

Both pilots died in the crash were not members of ALPA
or ACPA. And, upon examination, it is clear that the only
interest of these associations is to block all access to the
record. Citing a vague right to privacy, they objected to
wherever they can, trying to turn into a kind of public
discussion of the causes of private interest. They have no
other interest in these cases and the evidence they
present are far from convincing. They reinforce this
attitude rather radical and systematic opposition has been,

49
 it seems, held anywhere else in North America at least.
(Added translation) (Emphasis and undeline adde)

[102] An application for leave to appeal was dismissed: [2003] J.Q.

No. 2523, J.E. 2003-576 (C.A.).The court noted that the decision
was within the scope of the scope of the judges discretion.

[109] Against the background of this jurisprudence, I now return to the

issues in the case before me.

V. Application of the Test

[110] In order to apply the statutory test in s. 28 of the TSB Act, I must
first consider the content of the CVR and the circumstances of this case.
I must then determine whether, in the circumstances of the case, the
public interest in the proper administration of justice outweighs in
importance the privilege attached to the on-board recording by virtue of
that section. This in turn requires that I consider the meaning and
content of the public interest in the proper administration of
justice and the importance of the privilege attached to the CVR.
This necessarily involves a balancing of the two interests. If,
having engaged in this balancing process, I determine that production is
desirable, I may impose such restrictions and conditions as I deem
appropriate. (Emphasis added).

[111] I begin with the CVR. The statutory requirement that I do so

presumably requires that I ensure that its contents are relevant and that
there are no irrelevant private communications or disturbing utterances.
I have listened to the recording of the CVR, which covers the two hour
period prior to the termination of the flight. I have also read and
considered the transcript of the recording. The recording, although
enhanced for the last 30 minutes of the flight, is not particularly easy for
a lay person to follow. However, the transcript provides a useful tool for
understanding the recording. The recording and the transcript would
be readily comprehensible to an experienced aviation expert or
pilot. (Emphasis added).

[112] The CVR contains no communications of an irrelevant personal

nature that would be embarrassing to either of the pilots. Nor are there
any utterances made in the agony of impending impact, the
publication of which would be unseemly, sensational or an
unreasonable infringement on the privacy of the pilots. There are
predictable remarks as it becomes apparent to the pilots that the
runway is running out, but these are neither surprising nor
embarrassing. (Emphais added).

[113] Having listened to the recording and read the transcript, I have

50
 no doubt whatsoever that the contents of the CVR are highly
relevant, probative and reliable and that they are of incalculable
value in the investigation of this accident. Neither the TSB nor the
intervenors dispute this as a general proposition and indeed the TSBs
report makes it clear, as noted earlier, that the use of the CVR was
a very useful tool in interviewing the pilots and in reconstructing
the final critical minutes of the flight. In the context of this litigation,
in which the communications between the pilots is an important issue, I
am satisfied that the contents of the CVR are very relevant to the
issues, very reliable, and contain no private, prejudicial or
scandalous material. (Emphasis and underline added)

[115] I turn then to the circumstances of this case. First, broadly

speaking, the litigation before the court is important and substantial in
personal and monetary terms. The inquiry concerns a very serious
aviation accident. It has given rise to a class action involving a
class of almost 300 people, some of whom suffered serious
injuries. There are several other lawsuits that involve claims for
hundreds of millions of dollars.(Emphais added)

[116] Second, looking at the relative importance of the CVR in the

circumstances of the case, some of the fundamental issues before the
Court in these actions relate to the crucial period of about 30
minutes from the time that AFR 358 began its descent until it came
to a crushing stop in the ravine. The communications between the
two pilots during that period will be central to liability and those
conversations have been captured live on the CVR. (Emphasis
and underline added)

[118] The utility of the TSB report lies primarily in its

informational value. It is not admissible in evidence as proof of the
pilots conversations or as proof of the content of the CVR. While
one might say that it gives all parties knowledge of the facts of the
accident, it is simply the TSBs version of the facts, based on the
investigation it carried out. (Emphasis and underline added).

[119] In contrast to these testimonial shortcomings, the CVR is,

quite obviously, highly reliable evidence. (Emphasis and underline
added).

[126] In considering the public interest in the administration of

justice, it is worth keeping in mind that it is an interest that
extends beyond the immediate interests of the parties. The public
interest in the administration of justice includes an interest in the
integrity of the judicial fact- finding process and the reliability of
the evidence before the court. (Emphais added).

51
 [128] The last branch of the test is to examine the importance of the
privilege attached to an on-board recording by virtue of section 28 of the
TSB Act.

[129] As a starting point, it seems to me that the section 28

privilege for on-board recordings is slightly different from the
section 30 privilege attaching to statements. While both are
motivated by an overall desire to promote aviation safety through
effective accident investigation, the purpose of the privilege attached to
statements under s. 30 is to encourage witnesses to be co-operative
and forthcoming with TSB investigators, secure in the confidentiality of
their evidence. As the Review Commission of which Justice Gauthier
was a member pointed out: the confidentiality assurance is largely
illusory and the information provided by witnesses invariably finds
its way into TSB reports. (Emphasis edded).

[130] In contrast, the section 28 privilege has two purposes. The first,
as pointed out by the report of the Dubin Commission, is to protect the
pilots privacy, which has been infringed by the intrusion of the
CVR into their workplace an intrusion they have accepted in the
interests of aviation safety. The second is to encourage free and
uninhibited communications between the pilots. (Emphasis added).

[131] On the subject of privacy, and to deal with an obvious concern, it

is difficult to imagine that anyone would demand, still less order,
production of purely personal communications, made outside critical
time periods that are irrelevant to the issues in the case. This is
presumably one of the reasons the Dubin Commission recommended,
and the statute provides, a judicial vetting of the CVR. As I have
pointed out earlier, Air France sterile cockpit policy would prohibit
non- operational communications during the descent in any event.
(Emphasis added).

[132] For the same reason, the judicial examination process would
screen out any irrelevant exclamations in the agony of impending
impact. I repeat that there are no such communications in this
case. (Emphasis added).

[133] The more substantial concern is the pilots general interest

in privacy. In my view, the concern is largely illusory for the
reasons identified in the report of the TSB Act Review Commission.
Much of the content of the communications between the pilots has
already been disclosed in the report of the TSB which, although
not quoting the conversations verbatim, has given its own
summary of them. The pilots privacy has already been infringed
by the disclosure in the TSB report of the substance of their
communications and conversations. This report has been publicly

52
 released and posted on the TSB web site. I fail to see how the
disclosure of the actual conversations, to the parties to this
litigation, for use only in this litigation and subject to a
confidentiality order, could be a more serious invasion of the
pilots privacy than the public disclosure of the report itself. As
well, the privacy concern is generally illusory because, in at least
some jurisdictions, the CVR transcript is included in the report of
the investigating authority and in others it is routinely published.
Thus, in both the particular sense and the general sense, the pilots
privacy has already been infringed. (Emphasis and underline
added)

[134] The second reason for the privilege attached to on-board

recordings is the desire to encourage open and timely communications
between aircraft flight crew counsel for the TSB suggests that the
disclosure of CVRs would have a chilling effect on communication
that would ultimately impair safety because pilots would limit their
communications due to the electronic fly on the wall. (Emphasis
and underline added).

[135] As I stated above, I have great difficulty in accepting that

the disclosure of the CVR in this case would have a chilling
effect on communications between pilots. This argument carried
no weight with the Dubin Commission, which concluded that the
CVR could be released by the court, in appropriate cases, without
impairing aviation safety. As I have noted, the transcripts are
released as a maevetter of course in some countries. The Review
Panel has recommended that the TSB be permitted to disclose the
CVR record in its reports. The suggestion of a chilling effect has
no evidentiary basis and is nothing more than speculation.
(Emphasis and underline added)

[136] The public places a great deal of trust in pilots. I am certain that
pilots take this responsibility very seriously indeed and that they
deserve the publics trust. I cannot imagine that pilots would curtain
critical communications, endangering their own safety and the
safety of their passengers, simply because those communications
might be disclosed in some future legal proceedings in the event
of an accident. (Emphasis and underline added)

[137] Nor do I accept that in the circumstances of this case the

release of the CVR would damage the relationship between the
pilots and their employer. There are no disciplinary proceedings
pending and the CVR could not be used in such proceedings in
any nt. (Emphasis added).

[138] I have concluded that this is a case in which the public

interest in the administration of justice outweighs the importance
attached to the statutory privilege. Simply by way of summary, and

53
 without being exhaustive, the factors that I have considered in this
case, which to some extent expands those considered by Gauthier
J. in The Hyde Park, are as follows: (Emphasis added).

1. The CVR: contains highly relevant, probative and reliable

evidence that is central to the issues in the litigation.

2. The circumstances of the case include:

(a) it is important and substantial litigation involving a

class of some 300 people and damages in the
hundreds of millions of dollars;

(b) there is a large volume of evidence from other

sources, inclding FDR data, air traffic control data
and evidence from the pilots;

(c) there is some concern about the reliability of the

pilots evidence;

(d) the CVR has already been used to refresh the pilots
recollections;

(e) one of the pilots consents to the release of the

CVR; the other, and Air France, take no position;

(f) the CVR contains no personal communications or

communications of a sensational or dusturbing
nature;

(g) there are no pending disciplinary or criminal

proceedings against the pilots;

(g) concerns as to privacy can be addressed

pursuant to the existing confidentiality order and
the limited scope of disclosure of the CVR.

3. The public interest in the administration of

justice: whithout the CVR evidence in this case,
there is a real risk that the parties, and trier of fact,
will not have the best and most reliable evidence
concerning the central issue in these cases.

4. The importance of the privilege attaching to the

CVR: there is no basis on which one could conclude
that the release of the CVR in this case, under
appropriate restrictions of confidentiality, would
interfere with aviation safety,would damage relations
between pilots and their employers, or would impede
investigation of aviation accidents.

54
 139] For these reasons, the TBS shall be required to produce a
copy of the CVR and transcript to counsel for NAV for use in this
litigation. Subject to any further order of the trial judge, these records
shall remain confidential and shall be used for the purposes of these
proceedings only. They shall not be disclosed by the parties to anyone
other than their experts, consultants, insurers and lawyers without
further order of the court. The provisions of s. 28(7) of the TSB Act will,
of course, apply. If the parties can agree on a draft order, it shall be
submitted to me for approval. If the parties are unable to agree,
submissions may be made in writing or a hearing may be convened.
(Emphasis added).

[140] Counsel for NAV has also requested production of an

animation, which was prepared by the TSB from the FDR data. The
TSB report indicates that the animation was used in the TSBs
interviews of the flight crew and that it stimulated the crew to recall
specific events. Although I would not normally order production of the
TSBs work product, particularly as it is said to be publicly available on
the web site, it is clear that the pilots memories of the events have
been assisted by the animation. Fairness requires that it be produced to
the parties in the litigation who may wish to contest its accuracy or to
use it to probe, stimulate or challenge the pilots recollection on
discovery or at trial.

G.R Strathy J.
DATE: December 9, 2009

Authors note:

The ruling by Jury Strathy was forceful, lapidary and, devastating

for TSB ALPA and ACPA.

10. See comments on the decision of the Ontario Superior

of Justice

10.1 Transportation Notes Volume 5, Issue 12 December 2009

Production of Cpckpit Voice Recorder

http://www.lexcanada.com/lib-av-0912-01.html

http://www.lexcanada.com/data/TransportationNotes_Vol5-12.pdf

Actions have been commenced by and on behalf of passengers and

there are also claims for damages by and against the Greater Toronto
Airports Authority. Air France seeks contribution and indemnity from
NAV Canada and Environment Canada relating to the provision of

55
 information to the flight crew.

The aircraft was equipped, as is mandatory, with an on-board

recording device, the cockpit voice recorder or CVR. This was
retrieved following the accident and it was possible to recover the
data which had been recorded, thus allowing investigators to
know what conversation passed between the pilots on the flight
deck during the last two hours of flight. NAV Canada made an
application for production of the CVR. (Emphasis added)

The use which can be made of a CVR is addressed in the Canadian

Transportation Accident Investigation and Safety Board Act (the TSB
Act). The investigative body created by the TSB Act is the
Transportation Safety Board (the TSB). Section 28 of the Act provides
that a CVR is privileged and shall not be released by the TSB unless a
court first concludes that the public interest in the proper administration
of justice outweighs the importance of the privilege. The TSB Act also
creates a similarly qualified privilege in respect of statements given to
TSB investigators.

The practice in Canada has favoured maintenance of the privilege

and in this Canada is markedly different from the United States
where the NTSB necessarily makes public those parts of a
recording it finds relevant to the accident. The TSB is not obliged,
and indeed not allowed, to make public any part of a CVR without
court order. (Emphais added)

It is also argued that recording workplace conversations is a

remarkable invasion of privacy and that pilots deserve a degree of
protection from the consequences of this intrusive act. On the
other hand, it is well recognized that the CVR is a very important
tool which can assist in accident reconstruction. Failure to make it
available to parties in litigation may lead to an unjust
result.(Emphasis and underline added)

The utility of the TSB report lies primarily in its informational value. It is
not admissible in evidence as proof of the pilots conversations or as
proof of the content of the CVR. While one might say that it gives all
parties knowledge of the facts of the accident, it is simply the TSBs
version of the facts, based on the investigation it carried out. 17

Turning to the facts of the case, Justice Strathy confirmed that the CVR
is highly relevant, probative and reliable.

Socit Air France v. Greater Toronto Airports Authority, [2009]

O.J. No. 5337

17 Quoted FILE COURT DATE 20091209 SUPERIOR COURT OF JUSTICE ONTARIO (118)

56
 10 .2 Alexander Holburn
Aviation Law Blog
Court Orders Production of Cockpit Voice Recording
February 24th, 2010
http://www.airlawblog.com/2010/02/court-orders-production-of-cockpit-
voice-recording/

A judge of the Ontario Superior Court has ordered the Canadian

Transportation Safety Board to produce a copy of the cockpit voice
recording (CVR) in the multi-million dollar litigation which followed an
overrun accident at Torontos Lester B. Pearson Airport.

ICAO Annex 13, dealing with Aircraft Accident and Incident

Investigation, provides that cockpit voice recordings and related
transcripts shall not be made available unless a judge determines that
disclosure outweighs the adverse effect on the integrity of future
accident investigations. In the United States and Europe, where
domestic legislation echoes the ICAO language, safety authorities
commonly disclose some or all of the contents of cockpit voice
recordings, often attaching them as an appendix to accident
investigation reports. (Emphasis added).

In Canada, the Transportation Safety Board has been far more

rigorous in protecting the legal privilege conferred upon cockpit
voice recordings by Section 28 of the Canadian Transportation
Accident Investigation and Safety Board Act. The disclosure of
cockpit voice recordings has been aggressively opposed by
Canadian pilot unions, who express concern that the contents of
the r ecordings may be used for disciplinary purposes against
pilots and argue that pilots may disable cockpit voice recorders
rather than permit possible disclosure. (Emphasis added).

The Ontario Superior Court judge concluded that the CVR

contained highly relevant, probative and reliable evidence that is
central to the issues in the litigation. He found that there was no
basis upon which one could conclude that the release of the CVR
in this case (under appropriate restrictions of confidentiality)
would interfere with aviation safety or damage relations between
pilots and their employers. On the contrary, he found that without the
CVR evidence in this case, there would be a real risk that the parties
and the Court would not have the best and most reliable evidence
concerning the central issues in the case. This case has been
appealed by the Transportation Safety Board. If the Court of Appeal
sustains the trial court decision, it will provide a powerful
precedent for a more balanced approach to the production of
CVRs in Canada. (Emphasis added).

10 .3 thestar.com - Legal battle erupts over Air France

black box from Pearson crash

57
 http://www.thestar.com/news/gta/article/816327--legal-

Published On Sat May 29, 2010

Article
Tracey Tyler
Legal Affairs Reporter

It has been five years since Air France flight 358 overshot a runway at
Pearson International Airport and burst into flames.

The pilots knew, before taking off from Charles de Gaulle Airport in
Paris, that Toronto was bracing for thunderstorms so they took on extra
fuel in case they had to circle or divert to Ottawa.

Instead, they landed at Pearson, with first officer Frederic Naud

struggling to control the Airbus A340 in turbulence, lightning and heavy
rain before it crashed into a ravine.

Now, all these years later, a major legal battle has developed over
access to the cockpit voice recorder that was recovered from the
wreckage and described by one judge as an electronic fly on the
cockpit wall.

It captured every word spoken by the pilots during the last two hours of
the Aug. 2, 2005 flight, including the critical moments of descent into
Toronto.

In a case coming before the Ontario Court of Appeal next week, NAV
Canada, the agency responsible for air traffic control, says it needs
access to the recording device to defend itself against a $200 million
lawsuit brought by Air France.

The airline and its insurers are suing NAV Canada, the Greater Toronto
Airports Authority and the Attorney General of Canada, representing the
federal environment and transportation departments, for loss of the
plane and indemnity for all losses.

NAV Canada alleges the pilots were negligent.

But in its attempt to gain access to the recorder, NAV Canada faces
massive opposition from the Air Canada Pilots Association and the Air
Line Pilots Association International, which represents some 54,000
pilots across North America, as well as the Transportation Safety Board.

The pilots argue the cockpit is their place of employment, much

like a lawyers office, and allowing parties to the litigation to have
access to what is said in that environment would infringe their
privacy and dignity. Emphasis and underline added)

58
 In Canada, the contents of an aircrafts black box the cockpit voice
recorder and the flight data recorder are privileged communications,
to be reviewed only by accident investigators and never to made public
or disclosed during litigation arising from a crash.

The restrictions are set out in federal legislation governing

transportation accident investigations and stem from the
recommendations of a royal commission headed by former Ontario
chief justice Charles Dubin into the 1978 crash of a Boeing 737 jet in
Cranbrook. B.C.

There can, however, be exceptions and a court can order the contents
of the cockpit voice recorder to be disclosed to litigants when there is an
overriding public interest, which is exactly what Justice George Strathy
concluded in a decision that went largely unnoticed last fall.

The cockpit voice recording, he found, would help ensure a fair trial
because it would be the most reliable evidence in the case a case in
which the actions of Naud and Captain Alain Rosaye will be under the
microscope and doubts linger about whether either will provide useful
testimony.

Rosaye is fighting a court order to appear for pre-trial questioning and

Naud had difficulty two years ago in describing what transpired in the
cockpit.

I cannot recall what was actually said on that day, the first officer
testified during an examination for discovery.

In court documents, however, the pilots argue if they can no longer

assume privacy in on-board discussions, which can also include
personal conversations, they could become much more guarded about
what they say, which could jeopardize the speed and quality of their
decision-making.

Strathy found that hard to fathom.

The public places a great deal of trust in pilots, he said. I cannot

imagine that pilots would curtail critical communications, endangering
their own safety and the safety of their passengers, simply because
those communications might be disclosed in some future legal
proceedings in the event of an accident.
he judge, who reviewed the cockpit voice recording, said there was
nothing sensational or embarrassing about the words spoken, no
terrifying screams.

But the pilots and Transportation Safety Board officials are appealing
his decision. The board says opening up access to the recording could
impair their investigations because pilots are more willing to be
interviewed after a crash if they know inflight recordings wont be used

59
 against them in a lawsuit.

10 . 4 BLOOMBERG
Air France 05 Tapes Must Say Secret to Protect Pilots,
Canada Board Says
http://www.bloomberg.com/news/2010-06-03/air-france-
cockpit-tapes-must-remain-secret-canada-transport-
board-says.html

By Joe Schneider - Jun 3, 2010 6:18 PM GMT-030

Recordings made aboard an Air France Airbus that overshot a runway

in Toronto five years ago and crashed must remain secret to protect
pilots privacy and ensure cooperation in investigations, a lawyer for
Canadas Transportation Safety Board told Ontarios highest court.

That is their workplace, Peter Pliszka told a three- judge panel of

the Court of Appeal for Ontario at a hearing in Toronto today, referring
to the cockpit. Its akin to a lawyers office. (Emphasis and
underline added).

The appeals panel reserved its decision. The board, supported by

two pilots unions, is appealing a judges order to release to NAV
Canada, which is responsible for Canadas air- traffic control,
cockpit voice recordings and transcripts of pilots conversation
before the Aug. 2, 2005, crash. (Emphasis added).

Air France Flight 358, with 297 passengers and 12 crew members on
board, was on a scheduled flight to Toronto from Pariss Charles de
Gaulle Airport when it overshot the runway by 200 meters (656 feet) on
landing and slid into a ravine. Everyone evacuated the plane within two
minutes before it caught fire and broke in half.

Air France and its insurers sued the Greater Toronto Airports Authority,
NAV Canada and the Attorney General of Canada, seeking
compensation of more than C$200 million ($192 million) for the loss of
the Airbus. The passengers sued Air France, NAV Canada, the pilot
and the first officer. Air France filed a countersuit against NAV Canada
in that case.

Privileged Recordings

Under Canadas Transportation Safety Board Act, cockpit voice

recordings are privileged, to be used by the board for its investigation,
and not to be released for use in litigation. An exception can be made if
a judge determines the public interest in the proper administration of

60
 justice outweighs in importance the privilege.

The protection provided to pilots by the law encourages their

cooperation during investigations, Gerard MacDonald, executive
director of the safety board, said in court papers. The board
believes that releasing the information, even after a probe is
completed, would chill the relationship between investigators
and pilots, MacDonald said. (Emphasis and underline added).

Judge James MacPherson challenged that assertion, citing the Jan. 15,
2009, U.S. Airways flight piloted by Chesley Sullenberger that crash-
landed on the Hudson River in New York after striking a flock of Canada
geese.

Stay Secret

That night you heard on the news Captain Sullenbergers comments

when he hit the birds, MacPherson said. Are you alone in the world in
insisting the recording stay secret? he asked Pliszka.

The U.S. is in the minority among countries that allow publication of

cockpit recordings, Pliszka responded. Canada is in the majority.

NAV Canada needs the recordings because the Air France pilots dont
remember their conversation before the crash in Toronto, the agencys
lawyer, Robert Fenn, told the panel.

All we get in discovery is, I dont remember, Fenn said.

The Air Canada Pilots Association, which represents 3,500 pilots

at the airline, and the Air Line Pilots Association, which represents
54,000 pilots at 36 airlines in North America, said releasing the
recordings would infringe the pilots privacy and dignity.
(Emphasis and underline added).

The case is Societe Air France v. NAV Canada. C51542. Court of

Appeal for Ontario (Toronto).

61
11. Decision Court of Appeals of Ontario

http://www.icao.int/safety/airnavigation/AIG/Database2
Docs/Societe%20Air%20France%20v.%20NAV%20Can
ada%202010%20ONCA%20598.pdf

CITATION: Socit Air France v. NAV Canada, 2010 ONCA 598

DATE: 20100917
DOCKET: C51542
COURT OF APPEAL FOR ONTARIO

Goudge, MacPherson and Simmons JJ.A.

BETWEEN
Socit Air France, Gie Appollo Finance 1 and Arch Insurance Co,
Generali Assrances Iard, Mapfre Industrial Sas, Les Mutuelles Du
Mans Iard, Sompo Japan Insurance Co, and Groupama Transport and
ACE Global Markets (Lloyds Syndicate 2488), GE Frankona
Reinsurance A/X, Axis Specialty Europe LTD., New Hampshire
Insurance Company, Allianz Marine & Aviation, Axa Corporate
Solutions Assurance SA, Global Aerospace Underwriting Managers,
International Insurance Company of Hannover, Wellington (Lloyds
Syndicate 2020), Faraday (Lloyds Syndicate 435) SR International
Business Insurance Company, Great Lakes Reinsurance (UK) PLC,
Tokio Marine & Nichido Fire Insurance Company, Assicurazioni
Generali Spa, Nissay Dowa General Insurance Company, XL
(Lloyds Syndicate 1209), Samsung Fire and Marine Insurance
Company, and General Insurance Company of India
Plaintiffs

and
Greater Toronto Airports Authority, NAV Canada, Mark Patrick,
Claude Deschamps, Chris Cole, David Mastell, Andy Damer, Arlene
Harrold, and Attorney General of Canada

Defendants (Respondent)
and
Alain Rosaye, Frederic Naud, Pierre Caussade,
John Doe 1, John Doe 2, John Doe 3, John Doe 4,
John Doe 5, John Doe 6, John Doe 7, John Doe 8,
John Doe 9, and John Doe 10

Third Parties

62
 Page 2

and
BETWEEN

Hussein Abdulrahim and Fadi Abedrabbo

Plaintiffs
and
Air France, Greater Toronto Airports Authority,
Nav Canada, Alain Rosaye, Frdrick Naud, Goodrich Corp.
and Airbus S.A.S

Defendants(Respondent)

BETWEEN

Greater Toronto Airports Authority

Plaintiffs

and
Air France, Nav Canada,
Alain Rosaye, and Frdric Naud

Defendants
(Respondent)
and
BETWEEN

Mariana Stefanova Strugarova, Miroslav Pavlov Kissiov,

Stefan Miroslavov Kissiov
Plaintiffs

and
Air France, Greater Toronto Airports Authority,
Nav Canada, Alain Rosaya, Frdrick Naud

63
 Page: 3

Goodrich Corp, and Airbus S.A.S.

Defendants (Respondent)

Peter J. Pliszka and Richard D. Butler, for the Transportation Safety Board of
Canada, the appellant

Gail Misra, for the Air Line Pilots Association and the Air Canada Pilots
Association, the interveners

Robert J. Fenn, Richard Rohmer Q.C., Patrick Floyd, and Ryan Moriarty, for
NAV Canada

Tim Trembley, for Air France, Alain Rosaye and Frdric Naud

Ann Christian-Brown, for Mariana Stefanova Strugarova et al.

Heard: June 3, 2010

On appeal from the order of Justice George R. Strathy of the Superior Court of
Justice, dated December 12, 2009, with reasons reported at 2009 CanLII
69321 (ON S.C.).

Goudge J.A.:

64
 Page: 4

Introduction

[1] The issue in this appeal is the test that s. 28(6) of the Canadian
Transportation Accident Investigation and Safety Board Act, R.S.C. 1989 C-3
(the Act) requires the court to apply before ordering production of an aircrafts
cockpit voice recorder (CVR) that the Act deems otherwise privileged. In a
thoughtful and comprehensive set of reasons, the motion judge found the test
satisfied and ordered production of the CVR on certain terms. For thereasons
that follow, I agree with him and would dismiss the appeal. (Emphasis
added)

Background

[2] On August 2, 2005 an Air France flight landed in a severe thunderstorm

at Torontos Pearson International Airport. It overshot the runway, pitched into
a ravine, and burst into flames. The aircraft was totally destroyed. Fortunately,
no lives were lost, but passengers were injured, some of them seriously.

[3] A class action was commenced on behalf of the passengers against a

number of parties. A multi-million dollar lawsuit was also commenced by Air
France and its insurers. The respondent NAV Canada (NAV) is responsible for
air traffic control at the airport. It is one of the defendants in both lawsuits.
Its pleadings allege that the Air France pilots were negligent in the way
in which they approached the runway and landed the aircraft that night.
(Emphasis added).

Page: 5

[4] Under the Act, the appellant Transportation Safety Board of Canada (the
Board) is charged with investigation of aircraft accidents. It is mandated to
make findings as to their causes in order to advance transportation safety.

[5] It is not a party to any of the litigation arising out of this crash, but in the
course of its investigation, it took possession of the aircrafts CVR. The
CVR complete recordings of the conversations between the pilots, and
their communications with air traffic control prior to the crash. The Board
investigators interviewed the two pilots at length, and used the CVR to
assist the pilots in refreshing their memories and reconstructing the final
two hours of the flight. As the motion judge found, not surprisingly, there
is some concern about their imperfect recollection without such
assistance. (Emphasis added).

[6] After completing its investigation, the Board made public a very detailed
report. While it is prevented by the Act from assigning fault or determining
liability, the motion judge found that the Boards report suggests that
certain acts and omissions of the pilots during the last two hours of the

flight, in the last thirty minutes, may have contributed to the crash. While

65
the report does not quote the pilots conversations verbatim, it does
contain the substance of much of their communications.(Emphasis and
underline added).

[7] Section 28 of the Act provides that an on-board recording like the CVR
is privileged, and not required to be produced in any legal proceeding. It also
allows the

Page 6

Board to make use of the recording in discharging its mandate but

prohibits the Board from communicating it to anyone.

[8] However, the section also allows a court to order its production if a
request is made, and a court, after listening to it, and giving the Board an
opportunity to make representations, concludes that the public interest in the
proper administration of justice outweighs in importance the privilege that the
section accords to it. The relevant subsections of s. 28 read as follows:

Definition of on-board recording

28.(1) In this section, on-board recording means the whole or any part
of (a) a recording of voice communications originating from, or received
on or in,

(i) the flight deck of an aircraft,

...

Privilege for on-board recordings

(2) Every on-board recording is privileged and, except as provided by

this section, no person, including any person to whom access is
provided under this section, shall

(a) knowingly communicate an on-board recording or permit it to be

communicated to any person; or

(b) be required to produce an on-board recording or give evidence

relating to it in any legal, disciplinary or other proceedings.

Access by Board

(3) Any on-board recording that relates to a transportation occurrence

being investigated under this Act shall be released to an investigator
who requests it for the purposes of the investigation.

66
 Page: 7

Use by Board

(4) The Board may make such use of any on-board recording obtained
under this Act as it considers necessary in the interests of transportation
safety, but, subject to subsection (5), shall not knowingly communicate or
permit to be communicated to anyone any portion thereof that is
unrelated to the causes or contributing factors of the transportation
occurrence under investigation or to the identification of safety
deficiencies.
...
Power of court or coroner

(6) Notwithstanding anything in this section where, in any proceedings

before a court or coroner, a request for the production and discovery of
an on-board recording is made, the court or coroner shall

(a) cause notice of the request to be given to the Board, if the Board is
not a party to the proceedings;

(b) in camera, examine the on-board recording and give the Board a
reasonable opportunity to make representations with respect thereto; and

(c) if the court or coroner concludes in the circumstances of the

case that the public interest in the proper administration of justice
outweighs in importance the privilege attached to the on-board
recording by virtue of this section, order the production and
discovery of the on-board recording, subject to such restrictions or
conditions as the court or coroner deems appropriate, and may
require any person to give evidence that relates to the on-board
recording. (emphasis added).

[9] Pursuant to s. 28(6), NAV moved for production of the CVR. The Board
opposed the order being sought.

[10] As a preliminary matter, the motion judge determined that, while the
procedure for a motion seeking production of the CVR from a non-party may be
governed by r. 30.10

Page: 8

of the Rules of Civil Procedure, if NAV meets the requirements of s. 28(6) of

the Act it also meets the requirements of the Rule. That is not in issue in this
court.

[11] Following a review of the authorities, the motion judge began the
explanation of his decision by describing the task he set for himself:

[110] In order to apply the statutory test in s. 28 of the TSB Act, I must

67
 first consider the content of the CVR and the circumstances of this case.
I must then determine whether, in the circumstances of the case, the
public interest in the proper administration of justice outweighs in
importance the privilege attached to the on-board recording by virtue of
that section. This in turn requires that I consider the meaning and
content of the public interest in the proper administration of justice and
the importance of the privilege attached to the CVR. This necessarily
involves a balancing of the two interests. If, having engaged in this
balancing process, I determine that production is desirable, I may
impose restrictions and conditions as I deem
appropriate.(Emphasis added).

[12] Having listened to the recording and read the transcript, he then described
his conclusions about the contents of the CVR:

[113] Having listened to the recording and read the transcript, I

have no doubt whatsoever that the contents of the CVR are highly
relevant, probative and reliable and that they are of incalculable
value in the investigation of this accident. Neither the TSB nor the
interveners dispute this as a general proposition and indeed the TSBs
report makes it clear, as noted earlier, that the use of the CVR was a
very useful tool in interviewing the pilots and in reconstructing the final
critical minutes of the flight. In the context of this litigation, in which the
communications between the pilots is an important issue, I am
satisfied that the contents of the CVR are very relevant to the
issues, very reliable, and contain no private, prejudicial or
scandalous material. [Emphasis in original.](Bold emphasis added).

Page: 9

[13] He then summarized the factors he considered in determining that,

in the circumstances of this case, the public interest in the
administration of justice the importance attached to the statutory
privilege at paragraph 138: (Emphasis added).

1. The CVR: contains highly relevant, probative and reliable evidence

that is central to the issues in the litigation

2. The circumstances of the case include:

(a) it is important and substantial litigation involving a class of some 300

people and damages in the hundreds of millions of dollars;

(b) there is a large volume of evidence from other sources including

FDR data, air traffic control data and evidence from the pilots;

(c) there is some concern about the reliability of the pilots evidence;

(d) the CVR has already been used to refresh the pilots recollections;

68
 (e) one of the pilots consents to the release of the CVR; the other, and
Air France, take no position;

f) the CVR contains no personal communications or communications of

a sensational or disturbing nature;

(g) there are no pending disciplinary or criminal proceedings against the

pilots;

(h) concerns as to privacy can be addressed pursuant to the existing

confidentiality order and the limited scope of disclosure of the CVR.

3. The public interest in the administration of justice: without the

CVR evidence in this case, there is a real risk that the parties, and the
trier of fact, will not have the best and most reliable evidence
concerning the central issue in these cases.

Page: 10

4. The importance of the privilege attaching to the CVR: there is no

basis on which one could conclude that the release of the CVR in this
case, under appropriate restrictions of confidentiality, would interfere
with aviation safety, would damage relations between pilots and their
employers, or would impede investigation of the aviation accidents.
[Emphasis in original.]

[14] He concluded by attaching to the production order the condition that,

subject tofurther order of the court, the CVR remain confidential, be used only
for the litigation and not disclosed to anyone not involved in it.

[15] In the final paragraph of his reasons, the motion judge considered the
separate request by NAV made in its notice of motion that the Board produce
the animation of cockpit activity that it prepared from the data gathered in its
investigation. Although this was the Boards work product, the motion judge
nonetheless ordered it produced.

Analysis

[16] In seeking to reverse the order at first instance, the appellant Board
raises three arguments. None attack the balancing done by the motion judge
or the weight he attached to the factors he considered. These exercises of
judicial discretion would attract considerable deference on appellate review.
Rather, the arguments allege errors of law for which the standard of review is
correctness.

[17] First, the appellant argues that the motion judge rejected the proper legal
test for determining whether production should be ordered, and in doing so
applied a threshold that must be met to order production that is lower than that

provided by the legislation.

69
 Page 11

[18] I do not agree. The motion judge clearly understood that the test he was
required to apply is that prescribed by s. 28(6) of the Act, particulary s.
28(6)(c). His description of the task he set for himself, quoted above, puts this
beyond doubt.

[19] He then proceeded to carry out the task exactly as described by the Act.
Having examined the CVR recording and found it highly relevant,
probative and reliable on the issues central to the litigation, he went on
to an examination of the circumstances of the particular case before him,
and concluded that the public interest in the administration of justice
served by production outweighs the importance attached to the statutory
privilege served by non-production. (Emphasis and underline added)

[20] Nor do I think that by proceeding in this way the motion judge lowered
the bar set by s. 28(6) by effectively diminishing the importance attached to
the privilege. There is no doubt about that importance. It is reflected in the
requirement of the Act that the privilege prevail in all circumstances. The only
exception is if a particular case can be brought within the circumstances
described in s. 28(6). The reasons of the motion judge make clear that he was
well aware of that importance. However, contrary to the appellants argument,
s. 28(6) does not require the moving the party to prove or the court to describe
the circumstances to be exceptional or rare or compelling or unusual for
production to be ordered. What the court must find is that in the particular
case, public interest in the administration of justice outweighs the
importance attached to the statutory privilege. That is what the motion
judge did here. In doing so he put the bar exactly where the Act specifies.
(Emphasis Added).

Page: 12

[21] The appellants second argument is that the test used by the motion
judge displays three legal errors.

[22] The appellant says the motion judge equated the public interest in the
proper administration of justice with whether the CVR contained the best and
most reliable evidence of the cockpit conversations.

[23] I do not agree. The motion judge did not hold that the public interest in
the administration of justice prevails here only because the CVR is the best
and most reliable evidence. In assessing the importance of production of
the CVR to the public interest in the proper administration of justice, the
motion judge considered a number of factors beyond whether the CVR is
the best and most reliable evidence. These include that the contents of

the CVR concern the central issue in the litigation; there is some
concern about the reliability of the pilots viva voce evidence; that the
CVR has already been used to refresh their recollections; that one pilot
consents to the release of the CVR and Air France takes no position; that

70
the CVR contains no communications that are personal or sensational or
disturbing; and that this is important and substantial litigation. All these
circumstances add to the importance of the public interest in the
administration of justice when production of the CVR is being
considered. They were appropriate for the motion judge to consider.
(Emphasis added).

Page: 13

[24] The appellant says that the motion judge also erred in law by failing to
require NAV to establish that there would be a miscarriage of justice if the
CVR were not produced.

[25] The motion judge held that a miscarriage of justice test is more
stringent than s. 28 requires. I agree. The section does not limit production
only to a case where otherwise a miscarriage of justice would occur. That is
not what s. 28 provides, nor, as the motion judge said, would it be a test easy
to apply prospectively.

[26] That said, just as the factors that the motion judge considered that make
production of the CVR important if the public interest in the administration of
justice is to be properly served, these factors also mean that failure to order
production makes an unjust result more likely.

[27] Viewed either way, the court must take the impact of the decision about
production on the public confidence in the administration of justice and weigh it
against the impact of that decision on the statutory privilege. I disagree with
the appellant however that unless a miscarriage of justice would result without
production the latter must always outweigh the former in importance. The Act
requires the court to consider all the circumstances of the case in assessing
the balance.

[28] Finally, the appellant argues that the motion judge erred in law in
misapprehending the evidence of the importance of the CVR privilege. It
says that he failed to appreciate that the disclosure of the contents of the
CVR would, in the

Page: 14

appellants opinion, remove or greatly diminish the trust pilots have in

the confidentiality of the appellants investigation process, thus reducing
the information they would provide to it in future.(Emphasis Added)

[29] Although his reasons address in more detail any possible impact of
disclosure on pilot communications in the cockpit, the motion judge
concluded that, in general, the appellants suggestion of a chilling effect
from production has no evidentiary basis and is nothing more than
speculation. While the appellants opinion is otherwise, it is simply baldly
asserted and is unsubstantiated by evidence, for example, that previous
orders for disclosure have caused pilots to be less cooperative with

71
subsequent investigations. It was entirely open to the motion judge to
discount the appellants opinion as he did.(Empasis added).

[30] The appellants third argument is that the motion judge erred in ordering
production of the flight animation because counsel had agreed beforehand
that this issue would not be part of the motion. As a consequence, the
appellant says that the issue was not argued at first instance. The respondent
does not seriously contest this, and indeed the record appears to substantiate
the appellants position. I would therefore find in the appellants favour on this
issue and order that paragraph five be removed from the order appealed from.

[31] In summary, therefore, except to the limited extent just referred to,
the is dismissed.(Emphasis added).

Page: 15

[32] Costs of the appeal to the respondent fixed at $17,500 inclusive of

disbursements and applicable taxes.

RELEASED: SEP 17 2010 (S.T.G.)

S. T. Goudge J.A.
I agree. J. C. MacPherson J.A.
I agree. J. M. Simmons J.A.

12. Comments on the decision of the Court of Appeal

12. 1 thestar.com - Air France must disclose cockpit

voice recorder

Published On Fri Sep 17 2010

Article
Tracey Tyler
Legal Affairs Reporter

The cockpit voice recorder that captured conversations

between the pilots aboard Air France Flight 358 before it
overshot a runway at Pearson airport and exploded in flames
must be disclosed to Canadas air traffic control agency, the
Ontario Court of Appeal has ruled.

In a unanimous decision Friday, the court dismissed

arguments from the Transportation Safety Board of Canada

72
 that disclosing the contents of the voice recorder part of a
planes black box would destroy or greatly diminish the
trust pilots have in the confidentiality of the process for
investigating airline crashes.

NAV Canada, which is responsible for air traffic control at the

airport, says it needs the voice recorder described earlier in
the case as an electronic fly on the cockpit wall to defend
itself against lawsuits from Air France and nearly 300
passengers on-board the flight from Paris on Aug. 2, 2005.
The Airbus A340 plunged into a ravine while landing in
lightening and heavy rain.

NAV Canada alleges pilots Alain Rosaye and Frederic Naud

were negligent.

Naud, the first officer, was not opposed to having the voice
recorder released as part of the litigation.

But the board contended that if the contents were disclosed,

pilots will hold back on what they are willing to tell
investigators in the future.

Writing for a three-judge panel Friday, Justice Stephen

Goudge characterized that as little more than speculation.

It is simply baldly asserted and is unsubstantiated by

evidence, for example, that previous orders for disclosure
have caused pilots to be less cooperative with subsequent
investigations, he said.

The court also rejected the boards claim that cockpit

recordings should only be disclosed if withholding them would

73
 lead to a miscarriage of justice.
In Canada, cockpit voice recordings are normally privileged,
to be disclosed only to aviation investigators.

But under the Canadian Transportation Accident Investigation

and Safety Board Act, a judge can order the voice recorder to
be disclosed if the importance of the evidence outweighs
confidentiality concerns.

Two pilots unions, the Air Line Pilots Association and

the Air Canada Pilots Association, representing nearly
60,000 pilots around the world, intervened in the case,
arguing the cockpit is their inner sanctum, a private
workspace comparable to an office. (Emphasis Added).

Disclosing the recording would be detrimental to aviation

safety, they maintained, because pilots may not speak freely
to the control tower if their every word might later be reviewed
in court.

The transportation safety boards report into the Air France

crash suggests certain acts or omissions of the pilots may
have contributed to the accident, according to a Superior
Court judge, who last year ordered the voice recorder
disclosed, a decision the board appealed.

Justice George Strathy also ordered the board to provide

NAV Canada with its animation of cockpit activity.
In court documents, NAV Canada alleges a passenger was
flying in a cockpit jump seat contrary to Canadian aviation
regulations.

http://www.thestar.com/news/gta/article/862903

74
--air-france-must-disclose-cockpit-voice-recorder

12. 2 the COURT.ca

THE COURT is the online resource for debate & data

about the Supreme Court of Canada.

Ontario Court of Appeal Struggles to Land Public
Interest: Release of CVR Ordered in Socit Air France v.
NAV Canada
September 30th, 2010
by Alysia Lau

On September 17, the Court of Appeal for Ontario (OCA)

released its decision for Socit Air France v. NAV Canada,
2010 ONCA 598, ordering production of the Air France Flight
358 aircrafts cockpit voice recorder (CVR) to the litigation
parties. The CVR was previously held under statutory
privilege. The decision confirmed the order made by Justice
Strathy of the Superior Court of Justice in Socit Air France
v. Greater Toronto Airports Authority, 2009 CanLII 69321,
released December 9, 2009.
This case presents an interesting analysis of a legal issue
that travelers do not usually think about but of which most are
well aware the airplane black box.
It started with a thunderstorm and a black box
On August 2, 2005, Air France Flight 358 overshot the
runway while landing during a severe thunderstorm at
Pearson International Airport in Toronto. The plane, which
had pitched into the ravine and burst into flames, was
completely demolished. Although all the passengers and
crew escaped, several people were injured, some critically.
The Transportation Safety Board of Canada (TSB), an
independent government agency dedicated to advancing
transportation safety, was charged with investigating the
accident. It retrieved the CVR at the scene. After conducting
an extensive investigation, which included interviewing the
pilots and the crew with the help of the CVR, the TSB
released its report in December 2007. The TSB is statutorily

75
 prevented from assigning fault or civil liability. However,
although it did not quote the pilots conversation recorded by
the CVR, it did suggest that acts or omissions committed by
the pilots might have contributed to the crash. The CVR
continued to remain in the TSBs possession.
A number of lawsuits ensued, including a class action
launched by a group of passengers and a multi-million dollar
lawsuit brought by Air France against the Greater Toronto
Airports Authority, NAV Canada (responsible for air traffic
control), and the Attorney General of Canada.
Statutory privilege granted to on-board recordings
Section 28 of the Canadian Transportation Accident
Investigation and Safety Board Act (the Act) states that
every on-board recording, which includes CVRs, is
privileged and can be produced solely to a TSB investigator
who requests it for the purpose of an investigation.
According to Justice Strathy, there are two main reasons for
privileging on-board recordings. The first is to protect the
pilots, whose privacy and dignity are already infringed by the
placement of a recording device in their workplace. The
second is to ensure that the TSB can obtain frank and
complete disclosure from any person with knowledge of the
incident, without having to consider that that person might
tailor their statement based on potential personal
consequences. This allows the TSB to carry out
comprehensive and thorough investigations.
In the course of this litigation, NAV Canada moved for the
production of the CVR pursuant to 5.28(6) of the Act. The
section states:
Notwithstanding anything in this section, where, in any
proceedings before a court or coroner, a request for the
production and discovery of an on-board recording is
made, the court or coroner shall
(a) cause notice of the request to be given to the Board
[the TSB], if the Board is not a party to the proceedings;
(b) in camera, examine the on-board recording and give
the Board a reasonable opportunity to make
representations with respect thereto; and

76
 (c) if the court or coroner concludes in the
circumstances of the case that the public interest in
the proper administration of justice outweighs in
importance the privilege attached to the on-board
recording by virtue of this section, order the
production and discovery of the on-board recording,
subject to such restrictions or conditions as the court or
coroner deems appropriate, and may require any person
to give evidence that relates to the on-board
recording.(Emphasis in original
In this and other cases involving the release of the CVR,
courts are charged with the task of weighing the public
interest against the importance of CVR privilege.
OCA: Public interest prevails over privilege for Air
France Flight 385
The OCA, in agreeing with Justice Strathy, ruled that the trial
court made no error of law and that, in accordance with s.
28(6), the public interest component of this case outweighed
the importance of the privilege attached to the CVR.
Although Justice Strathy (and, subsequently, the OCA)
considered several factors in balancing public interest against
the importance of privilege, the decisions of both courts hinge
on three of Justice Strathys findings.
(1) The TSB used the CVR to refresh the pilots memories
while interviewing them. Having the pilots testify at trial
without the aid of the CVR may make for less reliable
evidence.
(2) The CVR contains no personal communications. One
of the pilots consents to its release and the other takes no
position.
(3) There is no evidence that the production of the
CVR would interfere with aviation safety or cause
pilots to restrict communication in the cockpit. There
is also no evidence that it would impede future
investigations. (Emphasis added).
Both courts render a defensible decision but leave a
cloud of dust for statutory interpretation

77
 Both courts appear to have arrived at a justifiable outcome,
especially given the context of this case. The case involves
some substantial litigation, including over 300 people and
hundreds of millions of dollars. Neither pilot of AFR 358
objected to the production of the CVR. Justice Strathy found
that an order for production was unlikely to interfere with
aviation safety. The Act prevents on-board recordings from
being used against aircraft crew members for legal or
disciplinary proceedings (see s. 28(7)), and the CVR would
only be made available to the litigation parties.
In essence, it seems and both the OCA and Justice Strathy
appear to suggest that no harm would be done in releasing
the CVR. If production were to effect any change, it would be
for the better, in helping to elucidate contested facts and
improve the reliability of the pilots evidence.
The decision is at least defensible, but both courts err in the
setup of their analysis and their focus on harm, rather than
public interest. This leaves behind some confusion about
statutory interpretation, the importance of privilege, and the
role of the s. 28(6) public interest exception.
Despite the lip service paid to privilege, the approach of both
the OCA and Justice Strathy seems to overlook that the
public interest test laid out in s. 28(6) is the exception, not the
rule. The primary focus of Justice Strathys analysis is the
potential harm that could be caused by releasing the CVR.
The conclusion is made that the production of the CVR is
unlikely to bear any ill effects, necessitating the decision that
its release would only assist the development of the case.
However, the Act is designed first to protect the privilege
of on-board recordings. The exception in s. 28(6) should
be applied where their release would be important for the
public interest, not merely where producing the CVR
would generate little harm. Otherwise, s. 28(6) would be in
danger of being exercised in any situation where the potential
harm generated by the release of on-board recordings could
be minimized. Privilege would no longer be the governing rule,
and the public interest would no longer be the focus of s.28
(6). The test would have changed. (Emphasis added).
In this case, both court decisions fall short of delineating how
the production of the CVR holds significant public interest. It

78
 is unquestionable that the CVR would be a relevant aid rather
than an impediment to the search for the truth. This could
be said of any case. The finding, therefore, that releasing the
CVR would simply help improve the reliability of the pilots
evidence seems to hold insufficient weight to exercise the s.
28(6) order. Moreover, the courts do not defend that any
evidence concealed in the CVR is particularly unique or vital
to the disposition of this case. In fact, they state that there is
a large volume of evidence from other sources and that the
main purpose of the CVR would be to refresh the pilots
recollections.
Defining public interest still a leap in the dark
Finally, the OCA decision only generates more ambiguity
surrounding the notion of public interest, particularly with
respect to s. 28(6). Justice Strathy writes that it goes beyond
the [unfairness] test under Rule 30.01(1)(b) of the Rules of
Civil Procedure. Yet, contrary to past provincial and federal
court decisions (reviewed in paras. 74 to 109 of Justice
Strathys judgment), both courts assert that a party
requesting a s. 28(6) order need not establish that a
miscarriage of justice would occur if the CVR were not
produced.
Instead, this decision and its treatment of court precedent
muddles the water of what exactly constitutes the public
interest component mandated. Justice Strathy ultimately
defines public interest in the proper administration of justice
as
the public interest in the fairness of the trial process a
trial in which the party can fairly make out its case and
can fairly meet the case of the other party [It] includes
an interest in the integrity of the judicial fact-finding
process and the reliability of the evidence before the court.
This definition does not merely cast an exceptionally wide net.
It also appears oddly similar to the unfairness test outlined in
Rule 30.01(1)(b), a test that Justice Strathy had earlier
insisted was inadequate to meet the public interest
requirement.
Rather, the new definition proposed by Justice Strathy and
implicitly affirmed by the OCA, together with the courts

79
 interpretation of s. 28(6), delineate a new threshold for the
public interest requirement one that is significantly lower,
more ambiguous, and which may result in a demoted regard
for the importance of a privilege vested by the Legislature.

12.3 Cockpit Voice Recording Decision Confirmed

October 8th, 2010 | Comments

In a previous post, we reported the decision of Justice
Strathy of the Ontario Superior Court requiring production by
the TSB of the cockpit voice recording taken from the Air
France A340 which crashed at Toronto Airport on August 2,
2005.

That decision was appealed by the TSB to the Court of

Appeal for Ontario which recently dismissed the appeal and
confirmed the decision of Justice Strathy. Click here for the
Courts ruling.

In its appeal, the TSB argued that the motion judge had failed
to apply the proper legal test set out in Section 28(6) of the
Canadian Transportation Accident Investigation and Safety
Board Act (the Act) for determining whether production of
the CVR should be ordered. The Court of Appeal disagreed,
approving the thoughtful and comprehensive reasons of the
motion judge who balanced the public interest in the proper
administration of justice against the importance of the
privilege attached to the CVR by the Act.

The TSB argued that only in circumstances which were

exceptional, rare, compelling or unusual should
production of the CVR be ordered. The Court of Appeal
rejected this position concluding:

What the Court must find is that in the particular case, the
public interest in the administration of justice outweighs the
importance attached to the statutory privilege.

These decisions provide an authoritative analysis of the test

in the Act for release of the CVR, which will assist the parties

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 to aircraft crash litigation in obtaining access to the highly
relevant cockpit voice recordings.

http://www.thecourt.ca/?p=7330

13. About Black Box

13.1 Cabinet Magazine

Issue 7 Failure Summer 2002

Black Box (Extract)
Tom Vanderbilt

As an object, however, the black box recorder should not be

overlooked, for it might be the purest representation of the
function of design in one form. As multiple observers have
noted (e.g., Christopher Alexander in Notes on a Synthesis of
Form, and Henry Petroski in To Engineer is Human: The Role
of Failure in Successful Design), failure is one of the most
essential factors in the best design: Only by what has not
worked do we learn to create what does work. Rarely is a
product ever final. Its form merely represents a transient
compromise between human need and technological ability,
and the best designers are those able to extrapolate failure
out of a seemingly successful status quo. And thus it should
come as no surprise that, at the dawn of the jet age in the
early 1950s, the de Havilland company's "Comet," the world's
first plane powered by jet propulsion rather than propellers,
suffered a number of well-publicized crashes. There were
stress tests, there were wind tunnels, there was test databut
once a plane had crashed, it was not easy to discern why from
the wreckage alone (in those cases where the wreckage was
retrievable). With the physical body damaged beyond
recognition and without witnesses present, who was to
account for the cause of death? The airplane needed a
mechanism for providing an autoautopsy.18 (Emphasis
and underline added).

Enter David Warren, a researcher at Australia's Aeronautical

Research Laboratories. An electronics buff whose father had,
ironically, died in one of Australia's seminal airline disasters
(the 1934 crash of the Miss Hobart), Warren was working on
the investigation of the first Comet crash in 1953 when he
proposed that cockpits be outfitted with a device that could

18 Never so well expressed.

81
 record up to four hours of speech as well as a variety of inputs
from flight instruments. In 1954, he circulated a paper, "A
Device for Assisting Investigation into Aircraft Accidents," but
it was not until he fashioned a working prototypecalled the
"ARL Flight Memory Unit"that it began to receive some
interest. Many doubted the necessity or practicality of
the device, however. The pilot's union even hinted at
sinister motives: the device would be "a spy flying
alongside. No plane would take off in Australia with
Big Brother listening." As Australia then boasted the world's
best airline safety record, it was slow to take on the project,
which gained faster ground in England. In 1958, the British
firm of S. Duvall & Son released its "Red Egg" recorder, which
quickly became a market leader globally. After a series of
airline accidents in the 1960s, it was Australia, strangely
enough, that then became the first country to require
mandatory flight data and cockpit voice recorders. (Emphasis
and underline added).

There are some 20,000 planes that depart on any given day in
the United States alone, the vast majority of which proceed
without incident. Black boxes play no small part in this
achievement, having helped to provide the electronic
fingerprints necessary in understanding such phenomena as
wind shear, wing ice, or electrical failures. The design of
airplanes has proceeded in response to the data laid out by
black boxes, and the Federal Aviation Association (FAA),
understandably, is intent on requiring carriers to outfit planes
with the latest black boxes: the older the black box, the
greater the chance it will fail to record some variable in the
ever more complex workings of a jumbo jet. Failure is an
aberration in commercial aviation, yet as the statistical profile
grows more encouraging, so too does the imperative to learn
the reasons for a crash which, according to the numbers,
should not be happening. No wonder the black box recorder is
far more rugged than the airplane itselfa thin aluminum shell
so fragile that pilots in an emergency landing must dump fuel
to prevent undue stress upon the gossamer frame. Black
boxes are subjected to any number of tests, the "static crush,"
the "pierce test," the "crash impact test," the "fire test," each
with their own otherworldly sets of pressures and
temperatures.

Since the onset of the industrial age, the idea of providing

machines with diagnostic systems has been alluring: Charles
Babbage envisioned putting black boxes of sorts on railway
cars, while the Wright Brothers installed a device for

82
 measuring propeller revolutions. Now, everything from
NASCAR race cars to the space shuttle are equipped with black
boxes, Detroit is investigating black boxes for its own products,
and a company called DRS Flight Safety and Communications
Corp. is making a push into black boxes for shipping. As the
company president explained, "deployable recorder
technology can be used on any platform from which
data survival and recovery are essential." All around us,
failure is being read, divined from the bones of the
technological deaddesign thus marches on. No product is
ever perfect, but failure pushes us toward perfection, and
every form is a compromise between the failure of yesterday
and the promise of tomorrow. The human body itself is in this
threshold zone: In societies not marked by endemic war or
poverty, one can assume to live longer than one's forebears,
but not perhaps as long as one's successors. The form keeps
evolving. The human body, with its myriad sensors and
indicators, its inner workings kept carefully concealed and
rarely considered, may be the ultimate black box. The lesson,
for either man or machine, is clear: None of us outlive our
data. (Emphasis and underline added).

http://cabinetmagazine.org/issues/7/blackbox.php

13. 2 The ICAO Journal - CVR and Aviation safety

13. 2.1 The ICAO Journal Vol. 61, NO.6, 2006 Page 26
Extract.

DATA PROTECTION

Guidance material addresses concerns about

protection of safety Information
Silvrio Espinosa Marcus Costa Daniel Maurino
ICAO Secretariat19

Legal Guidance

As the guidance material primarily relates to two chapters of

19 Silvrio Espnola is the Principal Legal Officer in the Legal Bureau at ICAO headquarters, Montreal. Marcus
Costa is the Chief of the Accident Investigation and Prevention (AIG) Section in the ICAO Air Navigation Bureau;
Capt. Daniel Maurino, of the Flight Safety (FLS) Section in the Air Navigation Bureau, is the Coordinator of the
ICAO Flight Safety and Human Factors Programme.

83
 ICAO Annex 13, the most effective means of disseminating
the information was through an attachment to Annex 13.
Consequently, notes were added to Chapters 5 and 8 of
Annex 13, with a further note added to Annex 6 (para 3.2.4 of
Part I), referring to the legal guidance contained in new
Attachment E to Annex 13. (See page 25 of this article).

The objective of the guidance material is to prevent the

inappropriate use of information collected solely for the
purpose of improving aviation safety. (Emphasis added).

The sole purpode of protecting such information from

inappropriate use is to ensure its continued availability so that
proper and timely preventive actions can be taken to improve
aviation safety, The protection of safety information is not
intented to interfere with the proper administration of
justice. (Emphasis added)

National laws and regulations protecting safety information

should ensure that a balance is struck between the need for
protecition and the need for the proper administration of
justice.

Safety information should not be used in a way that is

different from the purposes for which it was collected.
Furthermore, its use in disciplinary, civil, administrative and
criminal proceedings should be carried out only under
suitable safe- guards provided by national law.

According to ICAO guidelines, exceptions to the protection of

safety information should only be granted by national laws
and regulations when there is evidence or whenever an
appropriate authority considers that circumstances
reasonably indicate that the occurrence was caused by an
act legally defined as conduct with intent to cause damage,
or conduct with knowledge that damage would probably
result, behaviour that is equivalent to reckless conduct,
gross negligence or wilful misconduct. (Emphasis added).

This principle would also apply when an appropriate

authority determines that the release of the safety
information is necessary for the proper administration of
justice, and that its release outweighs the adverse

84
 domestic and international impact such release may
have on the future availability of safety information.
(Emphasis added).

In addressing the subject of public disclosure, the ICAO

guidelines propose subject to the principles of protection
and exception outlined above that the onus to justify the
release of information should be on those seeking disclosure.
Formal criteria for disclosure should be established and
should require that several conditions be met. Information
may be released provided its disclosure is necessary to
correct conditions that compromise safety or to change
policies and regulations, so long as the disclosure does
not also inhibit the availability of information in the
future. Such disclosures should be made in a de-identified,
summarized or aggregate form. Moreover, disclosure of
relevant personal information included in the safety
information needs to comply with applicable privacy
laws. (Emphasis added).

Lastly, the guidelines address the protection of recorded

information, which ICAO recommends be treated as
privileged protected information (i.e. information deserving
enhanced protection) since ambient workplace recordings
required by legislation, such as cockpit voice recorders
(CVRs), may be perceived as an invasion of privacy.
Whats more, ICAO proposes that national laws and
regulations provide specific measures of protection to such
recordings, upholding their confidentiality and spelling out
rules for public access. Specific measures of protection for
workplace recordings could include orders denying
public disclosure. (Emphasis and underline added).I

13.2.2 IFALPA news - February 2008

Decriminalisation of aircraft accidents (Extract)

By Capt Pat Lawrence, Chairman, IFALPA Legal Committee

At a meeting last year it was decided that the Legal

Committee, which has been working on this issue along with
the AA Committee, should prepare material to be given to
the MAs to enable them to lobby their CAAs and

85
 Governments to adopt ICAOs recommendations,
particularly those of Annex 13. (Emphasis and underline
added)

Criminalisation is a counter safety position

The fear of self-incrimination, and therefore a lack of

cooperation with the accident investigators, will also exist if
the accident report, witness statements and other confidential
material, e.g. CVRs, are allowed to be used for judicial
purposes. The judicial authorities should collect their
evidence separately, and not rely on the accident report
and the confidential data contained therein. Again this
has been recognised by ICAO: (Emphasis added)

Referring to the use of data in Annex 13 Chapter 5 paragraph

12

Data used for aircraft incident/accidents shall not be used for

purposes other than the investigation of the incident/accident

And in Attachment E to Annex 13:

a.The sole purpose of protecting safety information from

inappropriate use is to ensure its continued availability so
that proper and timely preventive actions can be taken and
aviation safety improved.

However, ICAO recognizes there will be situations where

the needs of justice outweigh the needs of flights safety.
(Emphasis added)

c. National laws and regulations protecting safety

information should ensure that a balance is struck
between the need for the protection of safety information
in order to improve aviation safety, and the need for the
proper administration of justice.

Exceptions to the protection of safety information should only

be granted by national laws and regulations when there is
evidence of a crime, or of reckless, gross negligent or willful
misconduct, and an appropriate authority determines that the

86
 release of safety information is necessary and outweighs the
needs of flight safety.

IFALPA is particularly concerned about the protection of

Cockpit Voice Recorders and fully supports ICAO Attachment
E which says:

Considering that ambient workplace recordings required by

legislation, such as cockpit voice recorders (CVRs), may
be perceived as constituting an invasion of privacy for
operational personnel that other professions are not
exposed to. ( See page 25 in this articla). National laws and
regulations should consider ambient workplace recordings
required by legislation as privileged protected information,
i.e. information deserving enhanced protection; and
national laws and regulations should provide specific
measures of protection to such recordings as to their
confidentiality and access by the public. Such specific
measures of protection of workplace recordings required
by legislation may include the issuance of orders of non-
public disclosure. (Emphasis and underline added) (The
same arguments from the 50-60s).

13. 2.3 The ICAO Journal Vol. 64. NO.2, 2009 Pages 4 and 9

Defending the data: The SMS perspective on the

appropriateness and role of safety reporting data
in legal proceedings

Capt. Daniel Maurino.

Captain Daniel Maurino is well-known to Journal readers as ICAOs
foremost expert in the field of Safety Management Systems (SMS).

(Extract Interview)

Maurino notes that a very clear distinction needs to be drawn

between information from flight data recorders and that
which can be derived from the voluntary cockpit
recordings that pilots and controllers allow? to be made
specifically for safety purposes. (Emphasis, underline and
question mark added).

87
 No other industry, not even the public sector where
employees are paid with public funds, submits its
workers and managers to the degree of invasion of
privacy and potential for self-incrimination that is
represented by the
cockpit voice recorder, he explains.20 (Serious error and
Emphasis added).

13.2.4 SAFETY

Accident safety data and the media: An

investigators perspective

Marcus Costa, Chief of ICAO's Accident Investigation and

Prevention (AIG) Section, speaks to the Journal concerning
the mutually exclusive needs of accident investigators and
media outlets when the latter remain willing to offer large
sums of money in exchange for investigation reporting data.

(Interview)

We need to constantly hit home that the repercussions

of inappropriate or illegal releases of safety investigation
records may adversely affect not just something we call
aviation safety, but more directly the innocent
passengers who benefit day-in and day-out from our
communitys tremendous efforts and otherwise excellent
record in this area. (Emphasis original).

Why is this such an important issue from an investigators

standpoint?

What we classify as Annex 13 investigations, namely the

specific efforts of aviation stakeholders to determine
accident/incident contributing factors or causes, are
conducted purely to improve aviation safety. During

20 See for example:

Ships: 1) http://www.marineinsight.com/sports-luxury/equipment/voyage-
data-recorder-on-a-ship-explained/
2) http://laws-lois.justice.gc.ca/eng/regulations/SOR-2011-203/index.html
3) VDR_S-VDR Guide.pdf
4) Train controls: http://www.law.cornell.edu/cfr/text/49/229.135

88
 investigations, investigators usually assure those involved
that anything they say will be used only toward the prevention
of accidents and incidents.

As these procedures have improved over time, and as

lessons have been learned regarding how we can improve
this type of safety data gathering to better inform
stakeholders in the post- accident environment, tools such as
the black box flight data recorders (FDRs), now very familiar
to the public and usually of essential and indisputable value
for investigations, began to become standard issue on all
commercial aircraft. Similarly, pilots and air traffic control
(ATC) professionals also began to permit (?) their
conversations to be recorded and for these
conversations to be saved to the FDRsa tremendous
invasion of workplace privacy by any standard but one
which was agreed to by these parties specifically to
assist in achieving safety objectives.21 (Serious mistake
and the same arguments from the 50-60s. Enphasis,
underline and question mark added).

The great concern to investigators, as with all

stakeholders who have an interest in the ongoing and
effective improvement of aviation safety, is that if some
Annex 13 investigation records begin to officially or
unofficially find their way into the media on a regular, or
even semi-regular basis, the willingness of those
involved to have their communications recorded and to
share additional and relevant information post-accident
will become severely restrained. Ultimately this would
place serious limits on all investigations and
significantly undermine safety improvement efforts.
( Wrong again.Emphasis and underline added)

How do these Annex 13 requirements correspond to the

needs of local legal enquiries when negligence or some other
form of civil malfeasance may need to be confirmed?

21 IFALPA- Safety Seminer 2011. Accident Analysis and Prevention Committee.

Cockpit Voice Recordings are not voluntarily provided by pilots, CVR are
required to be opertative in every flight and the crew cannot switch off the device.
Capt. Juan C. Lozano, Chairman of the IFALPA .

89
 The general process is that a judicial authority in a pertinent
State would begin its own investigation to determine its own
results. The Annex stipulates that judicial officials need to
weigh the relative merit of releasing some safety
Investgation records for these purposes versus the
adverse effect on aviation safety already discussed here
(for more detail in this regard please see the IFALPA
viewpoint and its references to some of the pertinent
ICAO Annex 13 Guidance, page 12). Annex 13 further
stipulates that any judicial or administrative proceedings
to apportion blame or liability should be separate from
any investigation conducted under its provisions.
(Emphasis Added).

In your opinion, might Annex 13 need to be amended in some

way to help protect the data more rigourously?

I dont think so. The problem in this instance was more than
likely external to the investigation stakeholders and also
external to the local judiciary.
Whats important to remember in this context is that
there can be a lot of money involved when large media
firms become interested in gaining access to restricted
information to help generate their print, web and
broadcast news revenues. (Emphasis added).

If money talks to this extent, what can aviation do to try and

plug this hole?

I am a firm believer that the answer rests with education. The

most important thing the aviation community can do is to
continually and proactively educate the public that there
is an important reason for protecting safety data from
inappropriate use. We need to constantly hit home that the
repercussions of inappropriate or illegal releases of safety
investigation records may adversely affect not just something
we call aviation safety, but more directly the innocent
passengers who benefit day-in and day-out from our
communitys tremendous efforts and otherwise excellent
record in this area. (Emphasis added).

13.2.5 IFALPA View (Quoted by Marcus Costa and

published at the foot of the interview.)

90
 The following is an excerpt from IFALPA advisory
09POS03, entitled The use of accident related safety
information. The omitted sections refer to existing
portions of Attachment E to ICAO Annex 13.

The IFALPA Executive Board notes that the provisions of

ICAO Annex 13 are not consistently implemented around the
world, causing some difficulty during, and subsequent to, the
technical investigation. Further, there is a mistaken belief
amongst some IFALPA Member Associations that ICAO
Annex 13 grants immunity from prosecution for pilots and that
IFALPA supports this position. The purpose of this statement
is to clarify IFALPAs understanding of the intent and scope of
ICAO Annex 13.

IFALPA supports the proposition of Annex 13 that:

3.1 The sole objective of the investigation of an accident or

incident shall be the prevention of accidents and incidents. It
is not the purpose of this activity to apportion blame or liability.

It is important to note that this paragraph only refers to the

investigation itself. It does not speak to other administrative
or judicial action connected with an accident or incident. The
real issue when dealing with such an administrative or judicial
action is the use that may be made of the results of the
investigation. IFALPA believes that many of the questions in
this area may be resolved by application of Annex 13:

5.12 The State conducting the investigation of an accident or

incident shall not make the following records available for
purposes other than accident or incident investigation,
unless the appropriate authority for the administration of
justice in that State determines that their disclosure
outweighs the adverse domestic and international impact
such action may have on that or any future
investigations: [emphasis added - in the original).

a) all statements taken from persons by the investigation

authorities in the course of their investigation;

b) all communications between persons having been

91
 involved in the operation of the aircraft; (Emphasis
added)

c) medical or private information regarding persons

involved in the accident or incident;

d) cockpit voice recordings and transcripts from

such recordings; and (Emphasis added)

e) recordings and transcriptions of recordings from

air traffic control units; and (Emphasis added)

f) opinions expressed in the analysis of information,

including flight recorder information.

IFALPA does not support the emphasised caveat in 5.12, but

while it exists, IFALPA expects the caveat to be interpreted
strictly by the applicable court or other authority. The
principles of the non-disclosure of records are amplified in
Attachment E to Annex 13 which, while not a Standard,
contains guidance material to assist States in amending their
laws to allow safety programmes generally and compliance
with the provisions of the Annex, specifically those in
paragraph 5.12.

14. IFALPA

The challenges in the protection of safety information

Generated through SMS / SSP implementation.

The IFALPA visin

Capt. Juan Carlos Lozano Chairman IFALPA Accident
Analysis & Prevention Committee.
ICAO-COPAC Safety Seminar 2011. The IFALPA Vision on
Protection of Information.

(Extract)

The Power Of Information

Every event is a chance for safety enhancement

An event is a malfunction, an error or violation of rules
We learn from understanding WHY the event happened

92
 We improve by preventing it from happening again

IFALPA Proposal

Protection of privacy
Fairness (avoiding consequences where there is no
indication of an intent to cause harm)
Balanced approach (as in ICAO Annex 13
Attachment E)

Key Element 1: Protection of Privacy (I)

Recordings of the flight deck are essential investigative

tools
They were never intendet to be public
The actual recordings must be protected from being
published to general public
Often, they are the last words of the crew
They deserve respect and privacy

Key Element 1: Protection of Privacy (II)

Cockpit Voice Recordings are not voluntarily provided
by pilots
CVRs are required to be operative in every flight and
the crew cannot switch off device
All conversations are recorded
Future provisions for Cockpit Image Recording (CIR)
could worsen the situation

IFALPA Vision

The actual recordings (CVR, ATC inter-facility) must be

fully protected from publication

Information from the recording can be useful for safety

and justice investigations if properly edited for
relevancy

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15. David Ronald de Mey Warren (20 March 19 July
2010) (Photo Wikipedia)

Australian Goverment-Department of Defense David

Warren Inventor of the black box flight recorder.
http://www.dsto.defence.gov.au/page/3383/

15.1 Inventor and developer of the black Box flight data

recorder. By Macus Williamson Saturday 31 July 2010
Fuente: The Independent- Obituaries David Warren:

http://www.independent.co.uk/news/obituaries/david-
warren-inventor-and-developer-of-the-black-box-flight-
data-recorder-2040070.html

(Extract)

The idea was not at first well received by airlines. Pilots

rejected the concept, fearing that these black boxes
might be used to spy on crew, and their union, the Pilots'
Federation, insisted that "no plane would take off in
Australia with Big Brother listening". The Royal
Australian Air Force further commented that "such a
device is not required" and that " ...the recorder would
yield more expletives than explanations". (Emphasis and
underline added).
Warren's work at the Defence Science and Technology
Organisation continued until his retirement in 1983. In
2001 he received the Lawrence Hargrave award for
outstanding achievements in Australian aeronautics
and in 2002 he was appointed an Officer in the
Order of Australia for his service to the aviation
industry. (Emphasis and underline added).
15.2 Black box inventor David Warren dieJuly 22, 2010

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 Source: The Sidney Morning Herald
http://www.smh.com.au/technology/technology-
news/black-box-inventor-david-warren-dies-20100722-
10loz.html

(Extract)

It took five years before the value and practicality of the flight
data recorder concept was realised and a further five years
until authorities mandated they be be fitted to cockpits in
Australian aircraft," the Department of Defence said in a
statement on Wednesday.
The modern-day equivalent of Dr Warren's device, installed
in passenger airlines around the world, is a testament to his
pioneering work.
It is now also used in other forms of road transport to capture
information in the lead-up to accidents.
In 2008, Australian flag carrier Qantas named an Airbus A380
aircraft after Dr Warren for his pioneering work.

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16. CIR - The History repeats itself

Killing another: electronic fly on the cockpit wall

16.1 WIRED
Inside Aircraft Black Black Box Recoders
Dave Demerjian March 6, 2009
(Extract)

Speaking of crew behavior, pilots have aggressively

pposed moves by the National Transportation Safey
Board to take things up a notch by installing
comprehensive image recorders that would show
cockpit conditions.They say it constitutes a Big-Brother-
style privacy violation. (Emphasis and underline added)

16.2 NTSB Safety Recommendation

Date: January 22, 2015
In reply refer to: A -15 - 1 throug - 8

The Honorable Michael P Huerta

Administrator
Federal Aviation Admistration
Washington, DC 20590
See Doc:

https://ntsb.gov/safety/safetyrecs/recletters/A15-001-008.pdf

16.3 ALPA Quick To Attack NTSBs Video

Recording Idea
The Air Lines Association (ALPA) waste no time to
voice its displeasure with the NTSBsuggestion
AIN alerts FOCUS IN SAFETY January 26. 2015

On Thursday that tamper-proof cockpit video recorders be installed on Part

121 aircraft. The Safety Boards recommendations, which focused on
facilitating the tracking and locating of downed aircraft, favor an on-board
system capable of storing the last two hours of a flight on video, as well as
the ability to broadcast sufficient information to establish an impact point
within six nautical miles. ALPA president Tim Canoll said, ALPA is
deeply concerned that the recommendations the NTSB released

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 today related to cockpit image recorders are a premature
overreaction that do not fully evaluate consequences of the
recommended actions. The association emphasized it has long favored
recorders from Air France Flight 447, as well as the continuing hunt for
Malaysia Airlines Flight 370, NTSB acting chairman Christopher Hart said,
Technology has reached a point where we shouldnt have to search
hundreds of miles of ocean floor in a frantic race to find these
valuable boxeslost aircraft should be a thing of the past.
(Emphssis and underline added)

16.4 AINonline Business Aviation

IFALPA Stands Firm Againt Cockpit Video

By Robert P. Mark April 22, 2015, 4.49 PM

The Montreal-based International Federation of Air Line Pilots

Associations (Ifalpa) released a position paper last week confirming the
associations continued strong opposition to the use of cockpit
airborne video recording systems on transport aircraft. Ifalpa said that
while it strongly supports safety improvement initiatives, airborne image
recording (AIR) would not add anything significant to an accident
investigation because visual data is always subject to misinterpretation, a
position it says is supported by a UK CAA study.

When flight crews are subject to video recordings, even for training purposes,
they behave very differently, Ifalpa said.
There is clearly a fear of cameras, in front of which flight crews mostly
focus on avoiding behavioral mistakes to the detriment of decision
making and problem solving. The presence of AIRs also has an
adverse impact on the willingness of the crew to report events, which
in itself has a negative effect on safety and accident prevention, and
makes the installation of such recorders counterproductive.

The association believes the theoretical gain provided by AIR use

in an accident investigation would be minimal and has not been
proved to enhance safety. It weighed this concern against the
massive infringement of privacy represented by video recordings, as
well as the fundamental personal rights of the flight crews.
(Emphasis and underline added).

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17.6 USA TODAY

Jim Hall May 21, 2015

AIRPLANE cockpit need a cameras oversight: Column

We already require audio recordings. Video footage can answer questions

that still remain

(Extract)

Despite the clear investigative value of cockpit cameras,

significant opposition to them remains. The airlines
themselves are unwilling to foot the bill for their installation;
however, in 2003 the NTSB stated that it costs less
than $8,000 per plane to install a video recording system.
The search for Air France Flight 447 cost $40 million, not
counting the millions more for the investigation itself, the
lost equipment, and payments to the victims' families. This
would pay for over 5,000 video recording systems, or more
than it would to equip Air France's entire fleet with
cockpit cameras almost 15 times over.
Pilot unions have also come out against cockpit
cameras over privacy concerns, just as they did during
the earlier debate over cockpit audio recorders. When
audio recorders were mandated, rules were put in place to
ensure pilot privacy. Under U.S. law, investigators alone
have the right to listen to cockpit audio recordings and only
after an accident. If video recorders were installed, they
should be governed by the same rules currently in place for
audio recorders in order to strike a balance between pilot
privacy and investigative value.

Cameras in cockpits will not stop all air travel

accidents, but they will ensure that we can learn as
much as possible from each one in order to avoid
repeating the mistakes of the past.
See article in: http://www.usatoday.com/story/opinion/2015/05/21/airline-
camera-cockpit-ntsb-column/27736967/

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17.6 Aviation Todays Daily Chechlist
Thursday, January 14, 2016

NTSBs 5 Most Wanted Aviation Safety Improvements in

2016
Woodrow Bellamy III
(Extract)

1.- Cockpit Image Recorders Aviation safety investigators for NTSB

as well as other agencies and manufacturers extensively use Flight
Data Recorders (FDRs) in flight accident investigations to review
exactly what happened at what time during what phase of flight to
what components or systems on the aircraft.

NTSB ha recommended cockpit image recorders several times

in past safety recommendations to the FAA, including once in
2000 and in 2015 to prevent future occurrences similar to
Malaysia Airlines Flight MH370, which required a year of searching
to locate. Pilot unions have repeatedly opposed these
recommendations, arguing that the images or
footage could be misused by investigators,
prosecutors and media.

18. Analysis
1. It is clear that, this beginning, Commercial Pilot
Associations tried to stop the installation of CVR on
commercial planes.

2. As we have seen in this article, pilot associations have

discredited and opposed the need for installation of CVRs for
the past 60 years.

3. It has also been a constant opposition to the CIR with the

same arguments. See footnote 10 of this article pages 28.

18.1 Years 1960 2016 (CVR)

1. then an extremely powerful union - told the newspapers

that we would object if it was used as a spy flying
alongside the pilot. Later, he expressed fears that this
instrument could become a Big Brother Pag. 13

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 2. invasion of pilots privacy.The pilots were being
asked to accept an intrusion into their workplace the
like of which had never happened before Pag. 13

3..may be perceived as constituting an invasion of

privacy for operational personnel that other professions
are not exposed: Pag. 25
4 , such as cockpit voice recorders (CVRs), may be
perceived as constituting an invasion of privacy for
operational personnel that other profesions are not
exposed toPag.30

5. Such specific measures to protection of workplace

recordings required by legislation may include the
issuance of orders of non-public disclosure. Pag.31

6. Inappropriate use refers and/or disclosure of the

information to the public. Pag.33

7. They say that the contents of the CVR should be

suppressed in the interests of aviation safety and the
personal privacy of the pilots. Pag.38

8. The pilots complain that the cockpit voice rcorder is

an unprecedented invasin of privacidad Pag.41

9. They give several reasons for this opinion. First, they

say that the airline cockpit is the pilots place of
employment, like an office, and that the introduction of a
recording device into that location is a substantial
infringement of the pilots privacy and dignity. Pag. 46

10. It is also argued that recording workplace

conversations is a remarkable invasion of privacy
Page 55

11. The pilots argue the cockpit is their place of

employment, much like a lawyers office, and allowing
parties to the litigation to have access to what is said in
that environment would infringe their privacy and
dignity. Pag.57

100
 12. That is their workplace, Peter Pliszka told a three-
judge panel of the Court of Appeal for Ontario at a hearing in
Toronto today, referring to the cockpit. Its akin to a
lawyers office. Pag.59

13. Board believes that releasing the information, even

after a probe is completed, would chill the relationship
between investigators and pilots, MacDonald said.
Pag.60

14. The Air Canada Pilots Association, which represents

3,500 pilots at the airline, and the Air Line Pilots
Association, which represents 54,000 pilots at 36 airlines
in North America, said releasing the recordings would
infringe the pilots privacy and dignity. Pag.60

15. Two pilots unions, the Air Line Pilots Association and the
Air Canada Pilots Association, representing nearly 60,000
pilots around the world, intervened in the case, arguing the
cockpit is their inner sanctum, a private workspace
comparable to an office.Pag.77

16. Many doubted the necessity or practicality of the

device, however. The pilot's union even hinted at sinister
motives: the device would be "a spy flying alongside.
No plane would take off in Australia with Big Brother
listening." Pag. 84

17. , such as cockpit voice recorders (CVRs), may be

perceived as an invasion of privacy. Pag.88

18. , such as cockpit voice recorders (CVRs), may be

perceived as constituting an invasion of privacy for
operational personnel that other professions are not
exposed to and national laws and regulations should
provide specific measures of protection to such
recordings as to their confidentiality and access by the
public. Such specific measures of protection of
workplace recordings required by legislation may
include the issuance of orders of non-public disclosure.
Pag.89

101
 19. No other industry, not even the public sector where
employees are paid with public funds, submits its workers
and managers to the degree of invasion of privacy and
potential for self-incrimination that is represented by the
cockpit voice recorder, he explains. Pag.90

20. a tremendous invasion of workplace privacy by

any standard but one which was agreed to by these
parties specifically to assist in achieving safety
objectives. Pag.91

21. The idea was not at first well received by airlines.

Pilots rejected the concept, fearing that these black
boxes might be used to spy on crew, and their union, the
Pilots' Federation, insisted that "no plane would take off
in Australia with Big Brother listening". The Royal
Australian Air Force further commented that "such a
device is not required" and that " ...the recorder would
yield more expletives than explanations". Pag.96-97

18.2 CIR (AIR or CIR)

1. pilot have aggressively opposedInstalling

comprehensive image recorders. They say it
constitutes a Big-Brother-style privacy
violation. Pag.100

2. ALPA president Tim Canoll said, ALPA is deeply concerned

that the recommendations the NTSB released today related to cockpit
image recorders are a premature overreaction that do not fully
evaluate consequences of the recommended actions.
Christopher Hart, presidente interino de NTSB, "La
tecnologa ha llegado a un punto en el que no
deberamos buscar cientos de kilmetros de fondo
ocenico en una carrera frentica para encontrar estas
valiosas cajas ... los aviones perdidos deberan ser cosa
del pasado". Pag. 100

3. associations continued strong opposition to the use of

cockpit airborne video recording systems on transport
aircraft. Pag.101

102
 4. There is clearly a fear of cameras, in front of which flight
crews mostly focus on avoiding behavioral mistakes to the
detriment of decision making and problem solving. The
presence of AIRs also has an adverse impact on the
willingness of the crew to report events, which in itself has a
negative effect on safety and accident prevention, and
makes the installation of such recorders counterproductive.
Pag.101

5. massive infringement of privacy represented by video

recordings, as well as the fundamental personal rights
of the flight crews. Pag.102

6. Pilot unions have also come out against cockpit

cameras over privacy concerns, just as they did
during the earlier debate over cockpit audio
recorders. Pag 102

Cameras in cockpits will not stop all air travel

accidents, but they will ensure that we can learn as much
as possible from each one in order to avoid repeating the
mistakes of the past. Pag.102

7. NTSB ha recommended cockpit image recorders

several times in past safety recommendations to the
FAA, including once in 2000 and in 2015

Pilot unions have repeatedly opposed these

recommendations, arguing that the images or
footage could be misused by investigators,
prosecutors and media. Pag 103

16.8 THANKS AND CONDEMN

1. I would like to thank Mr. David Warren for his idea,

strong perseverance and for implementing it. Mr.
Warren has immensely contributed to a safer
commercial aviation worldwide.

2. THANKS you to everyone that contributed in making

103
 the CVR mandatory in all comnercial aircarft.

3. THANKS you to everyone that has contributed to the

continuous improvement of Flight Recorders.
They helped save many lives and many more will be
surely saved because of their effor (crews,
passengers and people on land).

4. THANKS you to the Accidents Investigation Boards

that made available in their Final Reports a full CVR
transcript for pilots. They have helper immensely in
prevention of accidents and incidents.

5. THANKS to everyone that has understood that CVR

transcript are always relevant and necessary to
better understant the reasons behind an accident.

6. THANKS to Erik Reed Mohn is an A340/330 Capt.

for SAS that his article Flawed Report led to me
to write this article.

7. CONDEMN the incomprehensible attitude of

comercial pilot associations who tried to prevent the
CVRs installation in the copckpit of comercial,
leaving aside the prevention of accidents.

8. It is not acceptable that for mas than 60 years, the

pilot associations have been repeating the same old-
fashioned arguments (cited above) to stop the
publication of full transcripts (or even sterile cockpit)
in Final Reports, as this article shows.

9. CONDEMN the lobbying done be pilot unions

against the disclosure of the CVR transcript in the
Final Reports.

10. CONDEMN to pilot unions that continue using the

same arguments ( 60 years) to oppose the installation
of CIR.

18. ANSWERS

104
 1. At the beginning we were asking ourselves
about the reason some member states had
for not including the full CVR transcripts in the
Final Reports.

The answer is simple: when the full CVR

transcript is not made public is because there
is something to hide, therefore damaging any
chance in understanding what wrong in order
to prevent from happening again. As simple as
that.

If we want to safer industry we must banish the

old-fashioned concepts claimed by the pilots in
regards to CVR: privacy, invasin, privilege,
confidentialility, Big-Brother.etc.

Pilots Unions should advocate to have the CVR

transcripts attached t the Final Reports as
mandatory. These Unions should be fighting
for this as it will help sabe lives.
This is what Mr. David Warren was thinking
When he invented de Black Box.

2. We were also asking ourselves why would

someone want to avoid the release of the CVR
transcript.

The comercial aviation industry involves many

activities: Aircraf manufactures, Airlines, Pilots,
Maintenance personal, Traffic control personal,
Aeronautical information personal, Weather
Forecast services personal, Insurace
Companies, etc.

Therefore, there are many and different interest

in play and especially when accidents happen.
Proof of that is the Air France Flight 358

105
 litigation process.

3) THANK AND END

THANK

to Erik Reed Mohn, a fellow of the

Royal Aeronautical Society, is an A340/330
Captain for SAS. He was co-chair of the FSF
ALAR Operations and Training Working Group.
His article Flawed Report (Accident AF 358
Ontario-Canad on August 2, 2005) was the
true inspirator of this article.

4) END

This article is destined to all the pilots,

associations of pilots and members of
investigation teams of flight accidents, from all
countries, so they become aware of the vital
importance of the publication of CVR
transcripts.


August 1, 2017
Autor: Capt. Sergio Badano
Montevideo - Uruguay
sebadano@gmail.com

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