US embassy cable - 04ROME3060

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. 
 
Visit Rome's Classified Website: 
http://www.state.sgov.gov/p/eur/rome/index.cf m 
 
SEMBLER 
 
 
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	2004ROME03060 - Classification: CONFIDENTIAL