Legal Environments & Business Decision Making AIR FRANCE (Case Study #3) 2023

Teaching team: O. Beddeleem, E. Monteny, A. C. Witt

Air France, Concorde… and Liability Rules

KEY CONCEPTS: see on Blackboard, “Liability Lecture: Criminal & Civil Liability Rules”,
pp. 1-13.

1. The Concorde Crash

First flown in 1969, Concorde had been considered

among the world's safest planes. It became an emblem
of trans-Atlantic luxury travel. Flying at twice the speed
of sound, its Paris-New York crossing took less than four
hours. However, the plane was retired in 2003 after the
crash of Air France Flight 4590, in which all passengers
and crew were killed.

1.1. The accident

On July 25, 2000, Air France flight 4590 crashed in the town of Gonesse shortly after taking off in flames
from Charles de Gaulle airport outside Paris. The stricken Concorde hit a hotel, killing all 109 people
on board as well as four people on the ground.

Most of the passengers were German tourists heading to New York to join a luxury cruise to the
Caribbean. Nine French crew members also died.

1.2. The cause of the crash

According to the official accident report (see below, the BEA

report), a DC- 10 run by Continental Airlines (AITA code: CO)
had taken off five minutes before the Concorde departed,
from the same runway, and lost a titanium alloy strip (part of
the engine cowl, identified as a wear strip) that was about 43
cm long, and 1.4 mm thick. During the Concorde's take off
run, it ran over this piece of debris, cutting a tyre and sending a large chunk of tyre debris into the
underside of the aircraft's wing at an estimated speed of 140 metres per second. A large plume of
flame developed. Air traffic controller noticed the flames before the Concorde was airborne, however
with only 2 km of runway remaining and travelling at a speed of 328 km/h, its only option was to take
off. The Concorde would have needed at least 3 km of runway to abort safely.

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 Legal Environments & Business Decision Making AIR FRANCE (Case Study #3) 2023
Teaching team: O. Beddeleem, E. Monteny, A. C. Witt

The crew tried to divert to nearby Le Bourget Airport, but accident investigators stated that a safe
landing, given the aircraft's flight path, would have been highly unlikely.

French BEA report (Bureau d'enquêtes et d'analyses pour la sécurité de l'aviation civile):
English version: http://lessonslearned.faa.gov/AirFrance4590/Concorde_Accident_Report.pdf
French version: https://www.bea.aero/docspa/2000/f-sc000725/htm/f-sc000725.html

1.3. Investigations and procedures

March 2008: A deputy prosecutor in Pontoise, outside Paris, asked

judges to bring manslaughter charges against Continental Airlines
(CO) and two of its employees: John Taylor, the mechanic who
replaced the wear strip on the DC-10, and his manager Stanley Ford,
alleging negligence in the way the repair was carried out. Continental
denied the charges and claimed in court that the Concorde was
already on fire when its wheels hit the titanium strip, and that around 20 witnesses had confirmed that
the plane seemed to be on fire immediately after it began its take-off roll. At the same time, charges
were made against Henri Perrier, head of the Concorde program at Aérospatiale (merged into EADS
on July 2000), Jacques Hérubel, Concorde's chief engineer, and Claude Frantzen, head of DGAC, the
French airline regulator. It was alleged that they knew that the plane's fuel tanks could be susceptible
to damage from foreign objects, but nonetheless allowed it to fly.

December 6, 2010: Continental Airlines and its mechanic John Taylor were found guilty of involuntary
manslaughter by the Criminal Court of Pontoise. The court concluded that there was an “incontestable
link” between the safety failures of CO and the fire that brought down the aircraft. The mechanic had
been especially faulted for using titanium, rather than a softer metal like aluminium. He was also
accused of improperly attaching the strip to the aircraft, resulting in its falling onto the runway.

Continental Airlines was given a €200,000 fine and was ordered to pay Air France just over €1 million
for damaging its reputation. CO employee John Taylor was fined €2,000 and given a 15‐month
suspended jail sentence. The court ruled also that EADS bore some liability for the accident because
Aerospatiale ignored as many as 70 warnings over burst tires and potential consequences for
weaknesses in the aircraft’s fuel tank. It should pay 30% of any damages to victims' families. CO and
Taylor had to carry 70% of the damages. However, Taylor’s manager and the three former French
aviation officials have been acquitted.

After this judgment, CO said in a statement: “We strongly disagree with the court’s verdict regarding
Continental Airlines and John Taylor”, adding it will “of course appeal this absurd” finding. “Portraying
the metal strip as the cause of the accident and Continental and one of its employees as the sole guilty
parties shows the determination of the French authorities to shift attention and blame away from Air
France”.

November 29, 2012: Continental Airlines was cleared of criminal blame. The appeals court in Versailles
overturned the verdict against Continental, absolving it of criminal responsibility. The court confirmed
that the crash was caused by a metal strip that fell from a Continental DC-10 aircraft onto the runway
just before the Concorde took off. It also found that Continental welder John Taylor had flouted
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 Legal Environments & Business Decision Making AIR FRANCE (Case Study #3) 2023
Teaching team: O. Beddeleem, E. Monteny, A. C. Witt

industry norms and used titanium to forge the piece, which shredded the Concorde’s tyre, causing bits
of rubber to damage the plane’s propulsion system and spark the fatal fire. Nevertheless, it ruled that
this was not criminal, as neither Taylor nor Continental could have predicted the devastating result. It
overturned his 15-month suspended prison sentence.

The court, however, upheld a ruling that the US airline bore civil responsibility for the accident and
should pay Air France €1 million for the damage done to its reputation by the disaster.

This verdict put an end to the Concorde affair. The president of the Flight Safety Foundation in Virginia
said he welcomed the decision because it “reminds us that human error, regardless of the tragic
outcome, is different from a crime”. On the other hand, the head of the victim’s association said the
verdict had merely left families with more questions than answers, and a sense of helplessness and
powerlessness.

2. The flight attendant death

2.1. The accident

On February 1, 2005, Air France flight 748 from Biarritz

made an emergency landing on the tarmac. A passenger
was seriously ill and in urgent need of medical care. The
other 97 passengers left the plane from the rear door with
a self-propelled stair. After the operation had been
carried out, a flight attendant requested to close the door
since it was cold and air was rushing into the plane. The
ramp agent abruptly removed the stair while the hostess was still on it. The young woman tried to get
into the plane but she fell from a height of 3.5 meters. She died the next day.

2.2. Investigations and procedures

Air France alleged that the ramp agent was the sole responsible for the accident. The agent admitted
that he had not looked at the stair before removing it but affirmed that he had been authorized to
remove it by a colleague of the victim. The latter, however, stated that she had not given such
authorization.

On November 29, 2009, the criminal court of Créteil (Val-de-Marne) gave the ramp agent a one year
suspended jail sentence for negligence and non-compliance with an internal safety procedure. On the
contrary, the court cleared Air France, tried for manslaughter, of criminal responsibility. In reality,
there was no sufficient causal link between the absence of clear and precise rules of attribution of
competence and the accident.

However, with regard to liability for damages, Air France was found vicariously liable for the negligence
of its employee and ordered to pay, with the ramp agent, 75,000 euros to the victim's family for
damages.

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 Legal Environments & Business Decision Making AIR FRANCE (Case Study #3) 2023
Teaching team: O. Beddeleem, E. Monteny, A. C. Witt

Questions

1. Continental Airlines was cleared of criminal blame but still bore civil liability. What is the
difference between criminal liability and civil liability? Why could the same party be cleared of one
type of liability while still bearing another type of liability?

2. The accident was caused by the mechanic’s error. Then why was Continental Airlines as a
company held liable?

3. The Court ruled that “EADS bore some liability for the accident”. What type of liability does
EADS have?

4. Continental Airlines was ordered to pay Air France just over €1 million for damaging its
reputation, whereas the latter paid more than €120 million to the victim’s families. Why did Air
France have to pay compensation to the victim’s families?

5. What is vicarious liability? Why is Air France held liable for the death of the crew member in the
second case but not for the death of the passengers and other victims in the first case?

Bonus question to question 5: in the second case, who will eventually pay the damages?
Air France or the employee?

6. Do you think that Air France could be held liable toward shareholders or stockholders in the
first or in the second case?