A McDonnell Douglas DC-10-30 aircraft (Registration Mark 2K-NZP), owned and operated by Air New Zealand, Ltd., as non-scheduled air transport flight TE-901 from Auckland, New Zealand to Christchurch, New Zealand, over Antarctica, collided with Mount Erebus, Antarctica, on November 28, 1979, killing all 257 persons aboard. The accident has caused widespread attention in that, up to this day, controversies and debates remain over the true cause of the accident, and in the amount of responsibility and accountability the airline and its crew should assume.
Public opinion also remains polarized.
The accident report compiled by Ron Chippindale, the chief inspector of air accidents, attributed blame to the decision of Captain Jim Collins to descend below the customary minimum altitude level, and continue at that height when the crew was unsure of the plane’s position. The aircraft altitude was 445 meters (1465ft), way below the customary minimum prohibited descent below 1830 meters even under good weather conditions. The flight plan led Collins to believe that the plane was over flat ground, and previous Flight 901 pilots regularly flew low over the area to give passengers a better view.
The New Zealand Government also conducted a one-man Royal Commission of Inquiry into the accident. On April 27, 1981, Justice Peter Mahon cleared the crew of blame for the disaster. According to Justice Mahon, the cause of the crash was the interaction a series of entries of co-ordinates into the plane’s navigation computer, including an erroneous entry from years earlier, its correction on the morning of the crash and entries of the flight plan.
The result was that the pilots thought they were flying over low flat ground when they were in fact flying directly into the mountain; there was a whiteout at the time.
No one’s action was the cause if the crash; it was the cumulative result of the series of actions. Justice Mahon also found that the radio communications center at McMurdo Station had authorized Collins to descend to 450 meters. Controversially, Justice Mahon accused Air New Zealand executives of cover-up, disposal of evidence and subterfuge, famously using the phrase “orchestrated litany of lies”. However, the Privy Council consequently found that Justice Mahon, as Royal Commissioner, had acted in excess of his jurisdiction and contrary to natural justice regarding those allegations.
In their judgment, delivered on 20 October 1983, the five Law Lords of the Privy Council dismissed the Commissioners appeal and upheld the decision of the Court of Appeal decision, which set aside the costs order against the Airline, on the grounds that Mahon had committed clear breaches of natural justice. On the basis that the requirements for the crime of criminally negligent killing could be made out, were the required actions and mental state to have been those of a human being, the accident cannot be blamed to the pilots and crew of Flight 901.
According to the Section 23 of the Criminal Code: “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. It can be recalled that the crash was caused by interaction a series of entries of co-ordinates into the plane’s navigation computer without the knowing of the pilots. Clearly, the pilots and the crew were not accountable for the disaster.
However, Air New Zealand is still criminally and morally responsible for the loss of lives of the Flight 901 passengers. At the time of the crash, the Civil Aviation (Carriers’ Liability) Act 1959 was available to impose liability on corporations. The Act was enacted to implement the Warsaw Convention in Australian law. Basically, the Warsaw Convention imposes strict liability on international air carriers in respect of death or personal injury to passengers, destruction or loss of or damage to registered baggage or cargo. Liability under the Warsaw Convention for personal injury or death ranges to from 125,000 to 250,000 francs.
If the Warsaw Convention cannot be applied, liability may still be imposed under Australian law. Part IV of the Carriers’ Liability Act 1959 applies to air carriage between Australian States; to from or in an Australian Territory; or between Australia and another country. For such air carriage, liability for death or personal injury is currently capped at $500,000. Moreover, the catastrophic crash of Air New Zealand flight 901 into Mt. Erebus provides an interesting case in examining the idea of corporate moral responsibility.
A principle of accountability that has Aristotelian roots and is significantly different from the usual strict intentional action principles maintains that a person can be held morally accountable for previous non-intentional behavior that has harmful effects if the person does not take corrective measures to adjust his ways of behavior so as not to produce repetitions. In the case of Flight 901, the pilots and the crew were not morally accountable since they were not informed about the series of corrections that caused the crash. They could have taken corrective measures had they known these changes.