It is incontrovertible that certification of submersible vehicles can prove to be a complex process involving collaboration between the submersible vehicle manufacturer, classification entities and societies, regulatory bodies, and national maritime authorities.
by Ruwantissa Abeyratne
“There are disasters that are entirely manmade, but none that are entirely natural”. Rebecca Solnit
On Sunday 18 June of this year Titan, which was about 6.5 metres long (the size of an average minivan), was reported missing by Polar Prince – the ship that carried Titan – one hour and 45 minutes into its dive, while on an a mission to explore the wreckage of the Titanic which sank on April 15, 1912. The submersible had been about four kilometres below the ocean’s surface. Massive multinational searches (by ships of Canada, France and the United States and a ship from the Bahamas) covering around 25,000 square miles were carried out, but it was revealed on Thursday the 22nd June that all five passengers who were in the submersible were dead. When it went missing on Sunday, it was determined that it had 96 hours of emergency Oxygen left. Separate investigations into the tragedy have been initiated by both Transportation Safety Boards of the United States and Canada.
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| Ocean Gate CEO Stockton Rush [Photo: Special Arrangement] |
At the time of writing, there was consensus by the experts concerned in the investigation that the passengers had perished due to a “catastrophic vessel implosion” caused by external pressurisation, which the faulty design of the submersible could not withstand. Contemporaneously, it was revealed that several warnings had been received by OceanGate – the company responsible for Titan – from “leaders in the submersible craft industry.” of the risks that could be caused by such faulty designing. The main concern had been that the standard certification process had not been followed by the company although it had seemingly countered this concern with a statement that the particular model had completed more than 14 expeditions and 200 dives.
James Cameron – the Oscar winning Director of the film “Titanic” – who has himself conducted 30 dives to the sunken ship was struck by the surreal comparison between the Titanic and Titan, where in the former instance the captain of the Titanic had ignored repeated warnings of the impending risk of collision with an iceberg, and in the latter where OceanGate had ignored warnings that design defects might endanger the safety of the submersible and its passengers.
Standard Certification of Submersibles
It is incontrovertible that certification of submersible vehicles can prove to be a complex process involving collaboration between the submersible vehicle manufacturer, classification entities and societies, regulatory bodies, and national maritime authorities. In this context, it is imperative that the key stakeholders and players – mainly owners, operators, and manufacturers of submersible vehicles work closely with regulators to ensure compliance with the applicable standards and regulations for the safe and lawful operation of submersible vehicles/
The design, construction and manufacturing standards of submersibles would primarily involve classification and design standards which could be similar to those applicable to surface vessels, and these specifications may be set either by national authorities and regulatory bodies or international organizations. Some examples that may be cited are American Bureau of Shipping (ABS) or Lloyd’s Register (LR), which may have specific guidelines applicable to submersible vehicles. These standards would ineluctably lead to safety certificates: that submersible vehicles are typically required to obtain which are calculated to demonstrate compliance with safety standards and regulations. These may include certification for structural integrity, pressure vessels, emergency systems, life support systems, electrical installations, and fire safety measures. The certification process may involve inspections, surveys, and testing to ensure compliance with relevant safety codes and guidelines.
Additionally. there would have to be an operational certificate demonstrating that submersibles are fit for their intended purpose and meet specific operational requirements. These certificates may cover aspects such as crew competence and training, operational procedures, navigation and communication systems, and emergency response plans. There is also the preeminent requirement that national and international regulations must be complied with, one example being international regulations and guidelines set by the International Maritime Organization (IMO) for submersible vehicles, including safety, pollution prevention, and operational standards. National authorities may have additional requirements specific to their jurisdiction. In some cases, submersible vehicles may require licensed pilots or operators. These individuals must undergo specialized training and meet specific qualifications and experience criteria to operate the submersible vehicle safely.
Aircraft Certification
There is a key issue that confronts a discussion of the certification of aircraft for airworthiness in that there is no multilateral treaty that directly includes provisions for airworthiness certification. Instead Standards and Recommended Practices are embodied in the Convention on International Civil Aviation (Chicago Convention) in its Annex 8 ( Airworthiness of Aircraft). States, if they are unable to comply with Standards in this Annex can mark differences if they find that it is impossible or impracticable to comply with the Standards. This flexibility is specifically mentioned in the Chicago Convention itself.
Annex 8 requires a Certificate of Airworthiness to be issued by a Contracting State on the basis of satisfactory evidence that the aircraft complies with the design aspects of the appropriate airworthiness requirements. A Contracting State must not issue or render valid a Certificate of Airworthiness for which it intends to claim recognition pursuant to the Convention on International Civil Aviation unless it has satisfactory evidence that the aircraft complies with the applicable Standards of this Annex through compliance with appropriate airworthiness requirements.
A Certificate of Airworthiness must be renewed or must remain valid, subject to the laws of the State of Registry, provided that the State of Registry must require that the continuing airworthiness of the aircraft must be determined by a periodical inspection at appropriate intervals having regard to lapse of time and type of service or, alternatively, by means of a system of inspection, approved by the State, that will produce at least an equivalent result.
When an aircraft possessing a valid Certificate of Airworthiness issued by a Contracting State is entered on the register of another Contracting State, the new State of Registry, when issuing its Certificate of Airworthiness may consider the previous Certificate of Airworthiness as satisfactory evidence, in whole or in part, that the aircraft complies with the applicable Standards of the Annex through compliance with the appropriate airworthiness requirements. The State must implement documented processes and procedures to ensure that personnel and organizations performing an aviation activity meet the established requirements before they are allowed to exercise the privileges of a licence, certificate, authorization and/or approval to conduct the relevant aviation activity.
The Annex begins with an obligatory provision on the State of design of an aircraft by saying that it is required to transmit to every Contracting State which has advised the State of Design that it has entered the aircraft on its register, and to any other Contracting State upon request, any generally applicable information which it has found necessary for the continuing airworthiness of the aircraft, including its engines and propellers when applicable, and for the safe operation of the aircraft, and notification of the suspension or revocation of a Type Certificate . For its part, the State of Registry has to ensure that, when it first enters on its register an aircraft of a particular type for which it is not the State of Design and issues or validates a Certificate of Airworthiness it is required to advise the State of Design that it has entered such an aircraft on its register .
The State of Design has to ensure that, where the State of Manufacture of an aircraft is other than the State of Design, there is an agreement acceptable to both States to ensure that the manufacturing organization cooperates with the organization responsible for the type design in assessing information received on experience with operating the aircraft . The State of Manufacture of an aircraft is obligated to ensure that, where it is not the State of Design, there is an agreement acceptable to both States to ensure that the manufacturing organization cooperates with the organization responsible for the type design in assessing information received on experience with operating the aircraft .
There is also a requirement (not specifically aimed at manufacturers) that compliance with the Standards prescribed as above is required to be established by flight or other tests conducted upon an aeroplane or aeroplanes of the type for which a Certificate of Airworthiness is sought, or by calculations based on such tests, provided that the results obtained by calculations are equal in accuracy to, or conservatively represent, the results of direct testing . The determination of data that would ensure reasonable safety performance of the aircraft are enshrined in the requirement that such data will be determined and scheduled in the flight manual to provide operators with the necessary information for the purpose of determining the total mass of the aeroplane on the basis of the values, peculiar to the proposed flight, of the relevant operational parameters, in order that the flight may be made with reasonable assurance that a safe minimum performance for that flight will be achieved .
Conclusion
At common law, manufacturer’s liability for defective products is grounded in three headings: design defects; manufacturing defects; and marketing defects. The damage caused, be it death or injury would be judicially addressed under products liability (also called strict products liability) or negligence based on fault. Design defects are those that are inherent in the design of the product. Manufacturing defects would arise in the production of the product, for instance in the installation of equipment. A simplistic distinction has been drawn between design defects and manufacturing defects as the former being planned and the latter being unplanned . Marketing defects on the other hand arise when there are inadequate warnings or instructions to the customer.
The judicial preference for Strict products liability over negligence is based in the premise that liability for damage ipso facto which bypasses the lengthy process of establishing negligence based on fault would encourage greater caution and investment in product safety. The proof that a product is defective rests on the plaintiff’s proving, on a preponderance of probability, that there were manufacturing and marketing defects at the time the product in question was released to the market. The plaintiff would, in such a case, show that the standards followed in the process by the manufacturer were questionable. To guard against such contingencies, the manufacturer would have to insure its product.
A manufacturer is treated by the courts as one to whom products liability and negligence apply and principles established are therefore commonly applicable to all manufacturers. Whether it is a design defect or manufacturing defect, courts, particularly in The United States, have been inclined to treat both the same, on the basis that in both instances the product would be equally dangerous and the attendant damage to the consumer (or bystander) would be the same. In the United States, The Second Restatement of the Law of Torts, Section 402 A provides that one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if the seller is engaged in the business of selling such a product. This provision can be applied to the damage caused by a product rendered defective by a manufacturing fault to a design defect, where the manufacturer must bear the cost of compensation, which is usually covered by insurance, placing the ultimate burden is on the insurer. Many States in the United States adhere to the doctrine of strict liability in such cases, where liability accrues irrespective of fault. Strict liability is thus distinguished from fault liability.
In the ultimate analysis, be it the Titan disaster or an aircraft disaster, common law courts ( such as in the United Kingdom, Canda, Australia and the United states to name a few) would inevitably examine whether those responsible for damage acted prudently in accordance standard certification processes, regulations and guidelines. This is a common standard whether it be at maritime law or aviation law.
Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.
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