JUDICIARY HAMPERS B767 ENGINE FIRE INVESTIGATIONS

C O N F I D E N T I A L ROME 003060

SIPDIS


DOJ - OFFICE OF INTERNATIONAL AFFAIRS, CRIMINAL DIVISION
BRUSSELS FOR FAA PAUL FELDMAN
MONTREAL PLEASE PASS TO USMISSION ICAO
HOMELAND SECURITY FOR TSCC AND INTERNATIONAL AFFAIRS
STATE FOR L/EB; EB/TRA/DAS BYERLY; EUR/WE, EUR/ERA
FAA FOR API-1, AAI-1, AIA-1
NTSB FOR ROBERT MACINTOSH

E.O. 12958: DECL: 07/29/2014
TAGS: EAIR PGOV IT ICAO AVIATION
SUBJECT: JUDICIARY HAMPERS B767 ENGINE FIRE INVESTIGATIONS

Classified By: AMBASSADOR MEL SEMBLER FOR REASONS 1.5 (B) AND (D)

1.(U) This is an action request. Please see paragraph 22.

Summary
--------------


2. (C) Summary: Over the last year, Italian magistrates have
impeded U.S. FAA and NTSB investigators in fully
participating in accident investigations, as called for by
ICAO Treaty Annex 13. Most recently, U.S. investigators have
had difficulty obtaining access to two B767s involved in
separate engine fire incidents July 16 and July 28 at Rome's
Fiumicino Airport. While the Italian Air Safety Board (ANSV)
is the designated entity responsible for investigating civil
aviation accidents, Italian magistrates have ultimate
responsibility and autonomy over most aircraft accident
investigations. The Italian government has no authority over
any magistrate. Often these magistrates, required under
Italian law to investigate the possibility of criminal
sabotage or negligence, restrict access to aircraft in the
name of protecting evidence. In the case of the two B767s,
FAA and NTSB investigators eventually were allowed to examine
key parts of the planes only after we met with magistrates to
explain Italy's obligations under ICAO. Under Secretary
Gianni Letta, advisor to Prime Minister Berlusconi, has told
the Ambassador he is sympathetic and has offered to help
lobby the magistrates to move the investigation forward.
While post is optimistic the problems surrounding the July
incidents can be resolved, in the long term, high-level USG
intervention may be necessary to encourage Italy to adopt
investigation procedures more in line with the ICAO Treaty.
End Summary.

Introduction
--------------


3. (C) Under Annex 13, U.S. representatives can participate
in the investigation of aircraft incidents involving, among
other things, aircraft designed or manufactured in the U.S.
In three recent investigations, Italian magistrates have
impeded U.S. aviation accident investigators from the Federal
Aviation Administration (FAA) and the National Transportation
Safety Board (NTSB),as well as U.S. company technical
advisors, from having access to an aircraft accident
investigation.

First Event - Milan
--------------


4. (SBU) On June 1, 2003, a Learjet B45 suffered a bird
strike at Milan Linate Airport. The jet engine stalled; and
the plane hit the airport terminal and killed the pilot and
all aboard.


5. (C) The Italian Air Safety Board (ANSV) asked its U.S.
counterpart, the National Transportation Safety Board (NTSB),
to assist with the investigation, under the provisions of
Annex 13 of the ICAO Treaty. An FAA/NTSB team of
investigators was immediately sent to Milan. However, Italian
magistrate Grazia Pradella, conducting a criminal
investigation of the event, refused to permit U.S.
investigators to participate fully. As a result, there was a
significant delay in completing the U.S. team's
investigation; and some information was never provided.

Second Event, Rome: Blue Panorama B767 Engine Fire
-------------- --------------


6. (C) On July 16, 2004, a Boeing 767-3G5, registered in
Ireland as EI-CXO and operated by (Italian) Blue Panorama
Airlines as flight 1504, experienced a fire in the right
engine (a Pratt & Whitney PW4062) during takeoff from Rome's
Fiumicino Airport on a flight to Havana, Cuba. The pilots
returned to the airport to make an emergency landing, stopped

on the runway, and ordered an evacuation. Of the two pilots,
eight flight attendants and 277 passengers, there were 53
injuries.


7. (C) The ANSV asked the U.S. NTSB to assist with the
investigation, under the provisions of ICAO's Annex 13. The
FAA/NTSB team arrived on July 19; and investigators from
Boeing, Pratt & Whitney, and Delta arrived on July 20.


8. (C) An Italian magistrate, Dr. Pantaleo Polifemi, had been
conducting a criminal investigation into the accident. He
refused to allow U.S. investigators to examine the aircraft
for one week - allegedly until he had hired his own technical
expert. It was not until July 26 that he finally allowed the
FAA and NTSB investigators, along with advisors from Boeing,
Pratt & Whitney and Delta, to examine the plane. However,
when after only a few hours, investigators found a tube with
a fuel leak, the police present at the scene refused to allow
any further work. The tube was sealed into an evidence
container, the engine was removed from the plane and covered,
and the U.S. investigators were asked to leave. The ANSV
investigators were similarly denied access to the aircraft.
U.S. investigators were told that the magistrate might permit
further examination of the engine in September (after the
August vacation period). U.S. investigators were also not
allowed to take the tube or any other samples for further
analysis at the NTSB lab. U.S. investigators were also not
allowed access to any pilot or witness statements, or to the
pilots or witnesses themselves.

Third Event, Rome: East African Airways B767 Engine Fire
-------------- --------------


9. (C) On July 28, an East African Airways Corporation Boeing
767 experienced an engine fire after takeoff from Fiumicino.
The flight returned to the airport, and made an emergency
landing. Embassy FAA representative quickly contacted the
ANSV to request U.S. participation in this investigation and
asked to meet with the magistrate investigating the incident
to request full participation by U.S. investigators.

Meeting with Magistrates
--------------


10. (C) On July 29, 2004, Embassy representatives met with
Italian prosecutors/magistrates. Italian participants
included: Consolato Labate (Chief Prosecutor for
Civitavecchia),Pantaleo Polifemo (the magistrate in charge
of investigating the July 16 incident),Maria Bianca
Contronei (the magistrate in charge of the July 28 incident),
and Vincenzo Pennetta (ANSV investigator in charge of the
July 16 and July 28 incidents). Labate explained that any
incident at Fiumicino Airport might result in criminal
charges. Thus, one of his magistrates would head any
investigation involving Fiumicino. He expressed
understanding of the role of U.S. investigators, but stated
that, under Italian law, the magistrate appoints a technical
advisor to lead the investigation. Italian investigative
entities, including ANSV, are thus under the control of the
magistrate. The U.S. investigators were welcome to be
present for all stages of the investigation, and to receive
copies of documentation and data. However, they could do
nothing without the consent of the magistrate's technical
advisor.


11. (C) Embassy officials gave the magistrates a copy of
Annex 13, and explained that the U.S. view of full
participation was different than the observer status the
magistrates were offering. We explained the crucial
importance of a swift, complete investigation to determine
the cause of each incident, to permit the NTSB to make
recommendations regarding aircraft now flying. Particularly
now, with two fires in 767 engines at Fiumicino in two weeks,
it was urgent to complete both investigations promptly and
completely.


12. (C) The magistrates responded that they also needed to
preserve evidence. Thus, while repeatable tests and
examinations could move forward, non-repeatable tests and
examinations requiring changes to the engine could not be
permitted. The magistrates offered full cooperation and
suggested that, if problems recurred, U.S. investigators
contact the lead magistrate directly.

Improved Cooperation, But Questions Remain
--------------


13. (C) The FAA and NTSB experienced a clear improvement in
cooperation after the Embassy meeting with the magistrates.
On July 30, an FAA/NTSB team was allowed to examine the tube
suspected of causing the July 16 Blue Panorama engine fire.
The July 16 engine itself, however, remained off-limits to
U.S. investigators. Also on July 30, the FAA/NTSB team was
given complete access to the East African Airways B767
(including the relevant engine) involved in the July 28
incident. Preliminary inspections revealed what appeared to
be a broken oil line at the base of the engine, and the oil
line did not appear to fit correctly. The U.S. team also was
able to examine data from the plane's flight data recorder,
which indicated excessive engine vibration at takeoff and
incorrect oil pressure. The recorder also indicated excessive
engine vibration during the period before takeoff when
mechanics were servicing the engine.


14. (C) FAA and NTSB representatives have urged that the fuel
tube from the July 16 Blue Panorama incident be examined in a
U.S. laboratory to determine the cause of the perforation.
The magistrate's technical expert, however, has insisted that
the analysis be conducted by an Italian lab. (Note: While
different magistrates are in charge of the investigations of
the July 16 and July 28 incidents, the same technical expert
has been hired to assist with both. End note.) In a follow-up
conversation August 3 with Magistrate Polifemo, Embassy DOJ
Attache conveyed our offer to have the fuel line sent to the
United States for analysis, and also requested that the
magistrates allow the engines involved in both incidents to
be sent to a Pratt & Whitney facility in the United States
for complete break-down inspections (a standard practice
following incidents of engine failure). Polifemo responded
that the magistracy had found an Italian lab, operated by
aeronautical firm Agusta, that is scheduled to analyze the
fuel line, though not for another two weeks, or so. Polifemo
also confirmed that the engine involved in the July 28
incident would need to be dismantled and inspected, but there
was no decision on dismantling the engine from the July 16
incident yet.


15. (C) Note: Though the investigation is only in the
preliminary stages, there is so far no evidence that these
two engine fires were related. There are preliminary
indications that the July 16 incident was caused by a
perforated fuel line, and that the July 28 fire resulted from
an oil leak caused by a malfunctioning bearing. The
maintenance work conducted on the two B767s just prior to the
fires was done by separate companies. End note.

Key Berlusconi Advisor Offers Assistance
--------------


16. (C) The Ambassador met August 6 with Gianni Letta, Under
Secretary to the Prime Minister, who was familiar with the

SIPDIS
situation. Letta offered that if the NTSB team could return
as soon as possible, he could commit to having the NTSB and
U.S. firm representatives observe and photograph a break-down
of the engines that would take place in Italy. In Letta's
view, this approach would respect the magistrates' interest
in preserving possible evidence, while ensuring the U.S. side
obtained the necessary information to determine the exact
cause of the fires. (Note: As a government official, Letta
theoretically should not have any influence over how the

magistrates handle the question of the engine disassembly.
In practice, however, Letta appears to have some ability to
lobby the magistrates overseeing the B767 fires. End note.)


17. (C) As of this writing, Post FAA representative was
conferring with the NTSB on Letta's proposal. The NTSB and
FAA will continue discussions with their Italian counterparts
on exactly where and how the engines will be disassembled and
the role U.S. investigators can play.

Background: Judiciary's Role in Civil Air Investigations
-------------- --------------


18. (SBU) By law, Italy's magistracy is completely
independent from the Italian government. The judiciary is
largely self-governing, with oversight by the Supreme Council
of the Magistracy (CSM),two-thirds of whose members are
elected by the magistrates themselves, with one-third
appointed by Parliament. The President of the Republic
(Carlo Azeglio Ciampi) is the honorary Chair of the CSM.
Mission representatives have, in some cases, excellent
relationships with individual magistrates. Other judges are
unwilling to engage.


19. (U) Under Italian law, magistrates are required to
investigate any aircraft accident/incident where there is a
possibility of a crime, including criminal negligence. The
standard for criminal negligence in Italy is much lower than
in the United States; so, in practice, magistrates oversee
many civil aviation investigations. This peculiarity of
Italian law, however, appears to be in conflict with the
ICAO, which states that a country's NTSB-equivalent should
have authority over accident investigations.

Comment and Action Request
--------------


20. (C) Embassy Rome believes it essential that aircraft
accident and incident investigations be conducted in accord
with ICAO Annex 13, including full participation by U.S.
authorities. We are very concerned that Italian magistrates'
right to lead and control aircraft accident and incident
investigations will result in further difficulties of the
kind surrounding the B767 engine fires. Moreover, we are
concerned that the magistrates' technical advisors and ANSV
may move extremely slowly and -- more importantly -- be
unable to carry out technically competent investigations that
result in valid determination of the cause of such incidents.


21. (C) We intend to work closely with the Civitavecchia
magistrates to gain the fullest possible access and press for
complete, in-depth investigations to determine the real
causes of the July 16 and July 28 incidents. We are
encouraged by the cooperation that the magistrates eventually
provided to us, but concerned that such cooperation was
obtained only after pressing the magistrates, and that we
lost valuable time.


22. (C) Action Requested: Embassy believes a systemic
approach to the overall long-term problem of working with
Italian magistrates on aircraft accident/incident
investigations is needed. We request that a diplomatic note
be drafted for the Italian MFA pointing out Italian
government responsibilities under ICAO Annex 13 and asking
for assurances that future aircraft accident and incident
investigations will include full and prompt access by USG
authorities and company representatives of the aircraft and
engines involved, and full participation in any
investigation. End action requested.

ICAO Annex 13
--------------


23. (U) Annex 13 (Aircraft Accident and Incident
Investigation) to the Convention on International Civil


Aviation has been signed and ratified by both the U.S. and
Italy.

Key provisions of Annex 13:

5.4 The accident investigation authority shall have
independence in the conduct of the investigation and have
unrestricted authority over its conduct, consistent with the
provisions of this Annex.

5.4.1. Recommendation - Any judicial or administrative
proceeding to apportion blame or liability should be separate
from any investigation conducted under the provisions of this
Annex.

5.5 The State conducting the investigation shall designate
the investigator-in-charge of the investigation and shall
initiate the investigation immediately.

5.6 The investigator-in-charge shall have unhampered access
to the wreckage and all relevant material, including flight
recorders and ATS records, and shall have unrestricted
control over it to ensure that a detailed examination can be
made without delay by authorized personnel participating in
the investigation.

5.10 The State conducting the investigation shall recognize
the need for coordination between the investigator in charge
and judicial authorities. Particular attention shall be
given to evidence which requires prompt recording and
analysis for the investigation to be successful, such as the
examination and identification of victims and read-outs of
flight recorder recordings.

--Note. 2. Possible conflicts between investigating and
judicial authorities regarding custody of flight recorders
and their recordings may be resolved by an official of the
judicial authority carrying the recordings to the place of
reading and thus maintaining custody.

5.18 The State of Registry, the State of the Operator, the
State of Design and the State of Manufacture shall each be
entitled to appoint an accredited representative to
participate in the investigation.

5.20 The State of Design and the State of Manufacture shall
be entitled to appoint one or more advisors, proposed by the
organizations responsible for the type design and the final
assembly of the aircraft, to assist their accredited
representatives.

5.24 A State entitled to appoint an accredited representative
shall also be entitled to appoint one or more advisors to
assist the accredited representative in the investigation.

5.24.1 Advisors assisting accredited representatives shall be
permitted, under the accredited representative's supervision,
to participate in the investigation to the extent necessary
to enable the accredited representatives to make their
participation effective.

5.25 Participation in the investigation shall confer
entitlement to participate in all aspects of the
investigation, under the control of the
investigator-in-charge, in particular to: (a) visit the
scene of the accident; (b) examine the wreckage; (c) obtain
witness information and suggest areas of questioning; (d)
have full access to all relevant evidence as soon as
possible; (e) receive copies of all pertinent documents; (f)
participate in read-outs of recorded media; (g) participate
in off-scene investigative activities such as component
examinations, technical briefings, tests and simulations; (h)
participate in investigation progress meetings including
deliberations related to analysis, findings, causes and
safety recommendations; and (i) make submissions in respect

of the various elements of the investigation.

End text of key provisions of Annex 13.

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2004ROME03060 - Classification: CONFIDENTIAL