We’ve learned that multiple Boeing aircraft, extending beyond the Alaska Airlines Flight 1282 incident, experienced issues with “plugged” exit panels and loose bolts. Additionally, other Boeing 737 Max 9 planes in service reported “loose hardware”. This raises the question – were these failures criminal?
A quarter of a century ago, I formed part of a federal prosecutor team that led to the conviction of a significant airline organization for improperly shipping hazardous materials on passenger planes. The background to this conviction stemmed from an incident where passengers fell ill from hazardous material fumes in the plane’s cargo hold. A similar case two years prior, the 1996 ValuJet Flight 592 tragedy, also pointed towards irregular handling of hazardous materials which resulted in 110 fatalities. Despite the chilling mirror between the instances, the subsequent criminal prosecution faced opposition from both industry and federal regulators, with concerns regarding the appropriateness of the criminal prosecution for what was considered a regulatory mishap.
Such disputes led to several key questions – what was the knowledge spectrum and the timeline associated with these mishaps? What was the root cause of the problem? And most importantly, what could be the solution?
When tackling these questions, it is paramount to not narrowly define the “what” of things. Statements may attempt to shift the responsibility, saying it was a manufacturing defect or a failure in oversight by a contractor. But identifying the root cause requires us to consider all possible proximate causes, past shortcomings, and near-miss incidents. Often, what is described as a “root cause” such as a “manufacturing defect” or a “need for better training” are not root causes at all.
All causal factors like failing to securely tighten the bolts, adequate inspection of work, or proper supervision of contractors are symptoms. The risk of not reaching beyond symptoms to their origins remains clear – the root cause may materialise in another form, possibly leading to a disaster instead of a near miss.
A fundamental component of root cause analysis necessitates a reliable assessment of the underlying culture of the organizations involved – Boeing, the contractors, and the airline. Culture, often overlooked, is widely understood as the source of recurrent failures, including those spanning different regulatory areas within the same entity.
That brings us to the third question – what is the solution? Without thoroughly understanding the root causes, including the nuances of the business culture involved, conceptualizing a solution becomes a mere guessing game. All stakeholders, therefore, should support comprehensive inquiries and consider a broad spectrum of solutions.
Whether this includes criminal liability, changes in corporate governance or leadership, or introducing remedies like independent monitors or external oversight, are questions that need a true root cause analysis. Simultaneously, safety regulators must evaluate their efficacy, often a task undertaken by inspectors general.
Twenty-five years ago, we inferred that both the airline and the safety regulators had been inadequate, prompting the use of criminal enforcement. Since that single prosecution, no similar incidents of hazardous waste shipments causing harm on US commercial passenger flights have surfaced. But, I cannot affirm with certainty that our criminal prosecution addressed the root causes of the underlying compliance and safety failures spurring our case.
In today’s landscape, there is a clearer path to finding root causes, implementing suitable remedies, and ensuring oversight. I sincerely hope that all parties involved will walk this path.
This article has been informed by Steve Solow’s piece on Bloomberg. Solow is an attorney at Baker Botts and a former state and federal prosecutor. He was the chief of the DOJ Environmental Crimes Section and has served as a court-appointed monitor.