Author: ASSI Statement | Date: 19 May 2015
Firstly, ASSI is fully designated by the Governor to carry out the aviation regulation functions of the Governor under the Air Navigation (Overseas Territory) Order on his behalf. ASSI does this independently of the Governor. The Governor therefore does not, in practice or legally, regulate civil aviation in the Territory whilst the designation is in force except for certain, limited matters where he retains jurisdiction, such as hearing reviews.
Secondly, the power to exempt from certain provisions of the Order lies fully with ASSI as the Governor’s designated regulator. This power is to allow for flexibility where it would be impossible otherwise to meet a requirement. Exemptions are only granted in exceptional circumstances and only on the basis of an acceptable safety case. No exemptions have ever been granted relating to the requirement to submit Mandatory Occurrence Reports (MORs).
Thirdly, an MOR was submitted to ASSI relating to the in-flight engine failure incident in 2010. An investigation of causal factors was carried out and rectification action was undertaken. This incident did not involve the crashed aircraft, VP-MON.
It is internationally accepted that MORs are not published unless information which identifies the operator can be redacted from the report; this is challenging in very small jurisdictions where anonymity is difficult to achieve. The MORs are not published in order to encourage open reporting. The International Civil Aviation Organisation (ICAO) encourages all safety regulators to promote open reporting of incidents so that root causes can be identified and lessons learned.
Finally, in response to various reports from members of the public that had been forwarded to it, and in order to try to establish if there were any grounds for concern, ASSI (via the offices of Mr Nelhams, who is a retired British policeman) conducted a thorough investigation into the allegations against FlyMontserrat which resulted in an action plan which the airline is currently enacting, overseen by ASSI. The individuals who provided statements to ASSI’s investigator did so in the knowledge that they could be disclosed and they signed their statements to this effect. In the context of the actions currently being undertaken by the company, ASSI has no safety concerns with regard to FlyMontserrat. If it did, it would take the necessary action to address those.
Unless there are significant new developments on the issue ASSI will not be issuing any further statement.
MNI Alive Response to ASSI Press Statement of May 19, 2015:
2010 In-Flight Engine Failure
In its Press Release, ASSI stated that a Mandatory Incident Report (MOR) had been created for the "in-flight engine failure of 2010." We assume this statement reflects the November 17th incident reported by MNI Alive, unless of course, there was another.
In the incident we reported, the 2 American passengers who agreed to be named, Tom and Mary Ann Walker, confirmed in an interview and in an e-mail dated February 12, 2015, that the incident occurred late in the afternoon of November 17th, and that they, their 2 dogs and the pilot of the aborted flight, left the aircraft in Antigua and boarded another Fly Montserrat aircraft, arriving in Montserrat shortly before dusk.
Additionally, we have confirmed the identity of the 2 Fly Montserrat aircraft that returned to Montserrat that evening. The only Fly Montserrat aircraft that remained on the ground in Antigua that night, November 17th, 2010, the date and the place of the incident, was VP-MON. Both Antigua and Montserrat tower staff have these records.
If ASSI is stating the MOR referred to was not VP-MON, there was a second in-flight failure in 2010.
Role of the Governor
In our published articles on this topic, we have directly quoted the powers and responsibilities of the Governor under both the Air Navigation (Overseas Territory) 2007 Act and The Civil Aviation (Investigation of Air Accidents And Incidents) Regulations (S.R.O. 72/2007) of Montserrat. Any power to alter reports (Montserrat Act) or exempt from requirements Air Navigation (Overseas Territories) Act have been simply reported to the public.
In a February 2, 2014 e-mail message from Governor Davis, he stated , "I am extremely cognisant of my responsibilities for airline safety in Montserrat. I discharge those duties in close consultation with ASSI who are tasked to bring any safety concerns immediately to my attention... In all of 2013, they [ASSI] have not alerted me to a safety finding on which action needed to be taken."
We thank ASSI for providing additional information to the Governor's e-mail above. As stated in the Air Navigation (Overseas Territories) Order, the Governor is the "competent authority", and:
153.—(1) Subject to paragraphs (3) and (4), the Governor, acting in his discretion, may designate a person to carry out those functions of the Governor under this Order that are specified in the designation, subject to such conditions as he sees fit. (2) Subject to paragraph (3), the Governor may revoke or vary a designation made under paragraph (1)...(4) The Governor may not include in any designation made under paragraph (1) the functions of the Governor (a) to make rules, orders or regulations or give instructions under this Order..."
At some point, the Governor has designated ASSI to monitor/regulate, while leaving the rules, orders and regulations to the Governor's discretion. No indication of when this designation was given. This designation does not affect powers conferred under the Montserrat Act.
Mandatory Occurrence Reports
MNI Alive relayed information learned through statements of Air Traffic Controllers regarding repeated occurrences of engine failure of VP-MON prior to the fatal crash of 2012. ASSI is not refuting these statements, but states such MOR would not be released in a small market like Montserrat due to the inability to guarantee the anonymity of the airline.
This is a quite a different statement than ASSI and the Governor were not made aware of repeated engine failures of VP-MON for months prior to the fatal crash.
Our initial questions in this regard were:
Did the airline continued to allow inexperienced pilots to fly the unmodified VP-MON prior to the crash?
Does the British Government value a corporate individual's reputation over the safety of citizens and foreign passengers?
If the British Government can alter and suppress information, should it have ordered the airline to invest in the modification needed to avoid the likelihood of fatalities, particularly in light of the multiple MOR regarding repeated engine failures of VP-MON?
These remain valid and extremely important concerns. ASSI has confirmed MOR would not be released in such a small market due to anonymity. Authorities seem reluctant to answer any of these questions directly.
Confidentiality of Whistle-Blowers
Copying from ASSI notes from a conference call of February 7, 2014, the CEO "explained that in whistle-blowing cases we will always endeavour to respect the confidentiality of the whistle-blower. Likewise, it is incumbent upon us to also respect the confidentiality of any parties subject to whistle-blowing. So while we will feedback to you on the progress of our investigations, we will not be able to give you specific details... .The COO re-confirmed that we would endeavour to protect the identity of anyone who came forward to talk to us on safety matters."
Additionally, prior to the investigator, Des Nelhams, taking written statements from whistle-blowers, he explained that the reports would only be made available to the airline should ASSI/CAA initiate formal legal proceedings against the airline. This seemed reasonable to the whistle-blowers as the airline could not prepare nor defend itself in court without the British Government (the regulator) providing copies of the evidence.
All participating whistle-blowers operated under this knowledge, namely, that if a government agency lays charges, the agency would be fairly confident of a conviction or they obviously, would not proceed. Under these terms only, were whistle-blowers contemplating that their statements would be given to the airline or made available through communications through the Governor's Office.
In an e-mail to the ASSI CEO and the Governor, the citizens' group that first brought safety issues to the fore stated: "On Saturday June 7th , Governor Davis informed me there was "no evidence that would stand up in court", referring to the Civil Aviation Authority's ongoing investigation into issues affecting passenger safety here on Montserrat."
As such, the release by ASSI or the Governor of the whistle-blower statements was a complete violation of the intent and spirit of the whistle-blowing provisions and certainly did not meet the expectations provided to the whistle-blowers.
In this regard, both ASSI and the Governor have put back the cause of responsible citizens, pilots and passengers from reporting legitimate safety concerns at any point in the future, particularly in light of actions taken by airline management to destroy pilots' future employment prospects. This is a clear failure for the cause of improving air passenger safety.
Continuing Grounds for Concern
The details contained within MNI Alive's "Fly Montserrat and The Governor: Business as Usual After The Fatal Crash" regarding the airline's efforts to hide mechanical defects and of the latest actions at destroying pilots' careers, were reported to ASSI in February 2015, after the recent "management changes" at the airline.
However, in the closing statements of its Press Release of May 19, 2015, the organization announces "ASSI has no safety concerns with regard to FlyMontserrat".
This statement, in and of itself, is surely a concern to all Montserratians.