ESTONIA SEMINAR

Stockholm

20 September 2004

Mr Pieter van Vollenhoven

Chairman of the Dutch Transport Safety Board (DTSB)

Chairman Emeritus of the International Transport Safety Association (ITSA)

(Founding) Board Member of the European Transport Safety Council

Member of the Group of Experts on Accident Investigation in the Transport Sector (European Commission)

Mr Chairman, ladies and gentlemen,

First, Mr Chairman, let me thank you very much for inviting me here today. Even though the reason for this symposium is extremely sad.

Today we commemorate a terrible disaster. Ten years ago, on 28 September 1994, the ro-ro passenger ferry Estonia sank in the northern Baltic sea.

This disaster and its impact are still fresh in many people’s minds.

Ladies and gentlemen, I have been asked to say a few words about the subject of independent investigations into the causes of accidents and incidents. Or to be more precise to speak about the difference between an accident investigation and an independent accident investigation.

This is a subject close to my heart, one for which I have fought for many years both at home and abroad. Under the motto: “independent accident investigation: every citizen’s right, society’s duty”.

In the Netherlands, I won the first battle of my campaign when the Dutch Transport Safety Board was established in 1999. It was in charge of conducting independent investigations into the causes of accidents in all transport sectors, including the pipelines.
In 2005, after a campaign which lasted nearly 22 years, the Netherlands will have a Safety Investigation Board which is responsible for independent investigations in all sectors, including the armed forces.

Internationally, I have conducted my campaign as Chairman, now Chairman Emeritus, of the International Transport Safety Association (ITSA).

ITSA is an umbrella organisation which includes all the multimodal and a few sectoral independent investigation boards in the world.

In 1993 I established the ITSA with the support of the American National Transportation Safety Board (NTSB), the Canadian Transportation Safety Board and your Swedish Statens Haverikommission, the Swedish Board of Accident Investigation.

ITSA contributed to the European Commission’s decision of 11 June 2003 to appoint a group of experts to advise the Commission on a strategy for dealing with accidents in the transport sector. The group started its work on 14 July 2004.


Mr Chairman, ladies and gentlemen,

I can well imagine that you’re wondering whether it is really necessary to draw your attention to independent investigations here in Sweden.

After all, as early as 1978, Sweden decided that the Statens Haverikommission would carry out an independent investigation into all the aircraft accidents.
And on 1 July 1990 its remit was expanded to include accidents in all sectors.

In short, when you speak about independent investigations in general, Sweden is the world’s number one pioneer because of its important and unique decision to declare independent investigations applicable to all sectors as early as 1990.

You can imagine that I was somewhat reluctant to accept your invitation.

The reason I did agree to address you here is that sometimes you need an outsider to explain again why it was – and still is – so significant that Sweden declared independent investigations applicable to all sectors.

The other reason for my coming here is to state once again how very much I regret that the independent Swedish and Finnish accident investigation boards agreed to take part in the Joint Accident Investigation Commission of Estonia, Finland and Sweden. That Commission was set up on the basis of a decision by the prime ministers of the three countries. I strongly believe however that both the Statens Haverikommission and the Finnish investigation board should have turned down the request to take part. Because by accepting it, both independent investigation boards became involved in an accident investigation and not an independent accident investigation. This may seriously damage their reputation as independent investigation organisations with all sorts of consequences.


Mr chairman, ladies and gentlemen,

a. First I should first like to explain the value of independent investigations and why it is worthwhile to campaign for them.

b. Then I will look at "why" it takes so long to realise them.

c. Finally, I should like to explain why the Statens Haverikommission and the Finnish Investigation Board should not have taken part in the investigation and how they should approach such issues in the future.

A. Why is it worthwhile to campaign for independent investigations?

Because independent investigations are the only type of investigation intended to find out the whole truth about what happened. No other investigation serves that purpose, because they pursue other interests. And that includes criminal inquiries and investigations under civil law.

The purpose of a criminal inquiry is to find out who was to blame. Not to reveal the whole truth and possible suspects have the right to remain silent. Nobody has to incriminate his or her self.

And

Civil law investigations are restricted to the matters the parties bring before the court.

Over time parties involved - in disasters and accidents - began to realise that a criminal law inquiry and a civil law-suit were not the right instruments to find out just exactly what happened.

If lessons were to be learned for the future, and steps were to be taken to prevent the same thing from happening again, it was absolutely essential to find out what had gone wrong and what had led to the disaster or accident.

Another type of investigation was needed an investigation what we now call an in-depth investigation.

It was a method that first gained international acceptance in the aviation sector. If a
plane crashes, and a crime is not suspected, the criminal justice authorities will not launch an inquiry and certainly not if the crew and all the passengers have lost their lives. But aircraft builders and pilots want to know exactly what happened, as do the families of the victims. This new different type of in-depth investigation was introduced in 1951, when annex 13 was adopted to the Chicago convention of 1944. You may consider the Chicago convention as the constitution of the International Civil Aviation World.

Annex 13 provides that the investigation into the cause of an aviation accident should be carried out separately from the criminal inquiry to blame. The sole objective of the investigation is the prevention of accidents.

These investigations were not independent, They were called independent, but the term was used to show that they were separate form the criminal inquriy.

The investigations were usually carried out by Government agencies or inspectors.

After the industrialisation safety and security became a task of the
Governments. So safety and Government became synonymous.
Everyone accepted for that reason that Government agencies investigated the
accidents.

In some cases – if the public wanted an independent investigation – the Government appointed a special investigation committee.
Such a committee was usually chaired by an independent person (usually a judge). But the investigation was carried out by government agencies and inspectors.
After all, they were the only ones with the necessary expertise everyone thought.

It was not until much later that the public began to question the value of such investigations.

After all, the Governments hold a monopoly on safety. It drafts regulations and monitors compliance with them.

In other words one could say: “Here the butcher is putting a seal of quality on his own meat!”
Many conflicting interests play a part in an investigation and in many cases the parties involved – including the Government – stand to gain if the true causes of an accident are never revealed.

The American Congress was the first authority in the world, who was convinced that no federal agency can properly perform an investigation unless it is totally separate and independent from any other department, bureau, commission or agency.
The Congress realised that inspectors of an agency can’t be critical or adverse to it’s own officials.

Based on the experiences of the investigations in the aviation sector the American Congress created in 1967 the National Transportation Safety Board.
The N.T.S.B. was set up as a permanent autonomous investigation organisation with its own investigators. For the first time the investigations became really independent.
It was a unique decision!
Not only the establishment of a separate investigation body, but also not to limit the N.T.S.B.’s remit to aviation accidents but to make it responsible for all transport sectors, including road transport and pipelines.

In doing so – one investigation board for all the modes - congress aimed to put safety firmly in the spotlight and whished to avoid any conflicts of interest emerging in the course of an investigation.
A sector – by – sector approach would have made this far more difficult.

The American experience has left a very strong mark on the further developments in
the field of independent investigations.


- First of all: The International Civil Aviation Organisation ICAO
required independent investigations in the civil aviation sector in 1981.

And

In 1994, the European Union issued a directive requiring independent investigations in the aviation sector, specifying that they should be carried out by a permanent, independent organisation.

- Secondly: Sweden, Finland, Australia, New Zealand, Canada and the Netherlands
have set up multimodal independent investigations boards based on the
experiences of the N.T.S.B.
(Japan and Norway are starting up and in the U.K. the sectoral boards work together
in a federation)


Mr Chairman, ladies and gentlemen.

Why is it worthwhile to campaign so long for independent investigations?
Because we live in a very complicated society.

If a serious disaster or accident occurs the people – in my opinion – have the right to know the truth. Give the society an insight into what exactly happened and why.

Only independent investigations – anchored in law to deal with matters such as:
- the independence of the organisation;
- the powers and competence of the investigators;
- the procedure of the report;
- the procedure of the recommendations can
give society an insight into what exactly happened.

* Such insight is important for the victims to help them to cope with their grief.

The investigations cannot bring back their loved ones, but victims often express
the view that “the same thing should not happen to other people”.

* Such insight is also of considerable importance to improve safety.

* Such insight is an aid in safeguarding our democracy, since they make our
actions transparent.
Important in particular if we live in a society witch prides itself
on its democracy.

For all this reasons I am proud that Sweden established in 1990 a Swedish independent accident investigation board.
But I regret that independent investigations are only internationally accepted in the aviation sector and that only 9 countries in the world established independent multimodal investigation Boards.

So not everybody is waiting to hear the truth!!!

B. The next question is:
“Why does it take so long to realise independent investigations?”

My experience is that Governments in general are very reluctant to hand
over the responsibility for investigations to an independent and separate agency.

Not only do they lose their influence on the investigation, but also they see such a
move as a vote of non-confidence in their own civil servants.

World wide we see, that usually parliament puts pressure on the
government to set up an independent board after a published report
gave rise to controversy.

Once the Government has accepted the idea of an independent
investigation board, the next question is: should there be a board for each
sector, or one investigation board for all the modes?

Now we are confronted with another problem. Compartimentalisation.
Individual sectors are so used to operating within their own little world they do not want
to work together.

Even if confronted with the experience of the National Transportation Safety Board that:

- every investigation is the same, whatever the accident;

- problems with safety are identical in every sector;

- recommendations issued on a bigger scale have more authority;

- a multi-modal safety board will ensure far more attention for safety

than many individual, safety board;

The different sectors ask:

“What does aviation have to do with shipping or the railways?”
(and vice versa). Since the sectors cannot reach agreement, it is easy
for the Government to do nothing at all.
Reluctance and fear on the part of government, combined with the fight
between the various modes, is the reason why it takes so long to establish
independent investigation Boards.


Mr Chairman, ladies and gentleman,

C) Now I turn the spotlight on the Joint Accident Investigation Commission of Estonia,

Finland and Sweden.

As I already mentioned the maritime world – perhaps due to the acceptance of cheap flag states – never accepted independent investigations comparable with the aviation sector.

You only find an independent marine accident investigation if one of the existing
Transport Safety Boards is in charge.

Under IMO (International Maritime Organisation) conventions each flag State has a
duty to conduct an investigation into any causality occurring to any of its ships.

The conventions state only that: "Ideally marine casualty investigation should be separate from, and independent of, any other form of investigation.

In short, in the world of shipping we return to the old form of investigations, where conflicts of interest can emerge during the course of an investigation.

The government of the flag State – in this case Estonia – appoints an investigation commission and government related agencies or persons are in charge of the investigation.

The Joint Investigation Commission was based in accordance with a decision by the Prime Ministers of the three countries.

IMO conventions, however, recognise that each State has a right to investigate the cause of a casualty. Within the territorial sea or internal waters of a State – if it affect the coastal State.

The Joint Investigation Commission was chaired by a person of the flag State. In the

first instance this was the Minister of Transport and Communication of Estonia.

It was clear form the beginning that certain factors threatened to undermine the joint accident investigation. Not only were there no statutory guidelines for cooperation, but also differences existed between the members of the investigation commission. The members from Sweden and Finland had much in common due to the existing independent investigation boards, but Estonia did not have such a body nor such legislation.

In short, there was a very considerable risk, in this investigation, that the Statens Haverikommission and the Finnish Accident Investigation Board would be unable to apply the same standards that they would normally apply to their own independent investigations.

This compromised independence of both boards straight away, and undermined the reputation build up over many years. This is why I would have strongly advised against taking part in the investigation. Or stopping as soon as its quality could no longer be guaranteed according to your standards. The impossibility of conducting a high quality investigation becomes immediately apparent in such a major disaster, in such an expensive investigation. Especially if there are no arrangements for the allocation of the costs among the three countries.

If an investigation is not independent, it is very likely that questions will remain
– right or wrong – about its value. We have seen this happen many times in the past and also in the case of the Estonia, with the discussion about its seaworthiness and the debate that original documents were changed.

The maritime accidents in Europe, the accident with the Harold of Free Enterprise, the
Prestige and especially the disaster with the Estonia must be for all of us and certainly
for the European Union a convincing reason to require independent investigations in
the marine sector as a matter of urgency.

In my view the Council Directive (94/56) of November 1994 establishing the fundamental principles governing the independent investigation of civil aviation accidents and incidents, should immediately be extended to the marine sector as well to the road, rail and pipelines sectors.
The ski-train accident in Kaprun in Austria and the recent gas explosion in Belgium are reasons enough to force us to introduce investigation to find out what has gone wrong and what had led to the disaster.

As a member of the Group of Experts formed to advise the Commission on a strategy to deal with accidents in the transport sector, I will submit a proposal to this effect.

In advance of a European agreement, I am hopeful that Sweden will take the initiative to reach an agreement with other northern European countries to introduce independent investigations into shipping accidents.

Should other countries fail to respond to such a request from Sweden, we would know
immediately what to expect in the future in this area.






Mr Chairman, ladies and gentlemen,

The subject of safety is under great pressure, due to the recession, fragmented government agencies and due to the focus on more personal responsibility for safety.

In that light, independent investigations may prove to be a great significance to society and an aid in safe guarding our democracy.

I hope, that the European Union subscribe to my motto: “Independent accident investigation: every citizens right, society’s duty!”

And I hope Sweden takes the initiative to realize independent marine investigations in the Northern European countries.

Thank you.