Submissions to Australia’s Aviation Safety Regulation Review

The Australian Lawyers Alliance and the Aviation Law Department of Shine Lawyers have each made submissions to Australia’s Aviation Safety Regulation Review.

The Australian Lawyers Alliance recommended that the Panel should advise Government that:

1. Guidance material on CASA’s enforcement policy which guides CASA decision makers should be legally binding and itself enforceable under an Ombudsman-type arrangement akin to the Aircraft Noise Ombudsman.
2. Strict adherence to AAT expert evidence guidelines and procedural rules be demanded of all litigants in aviation administrative matters (both CASA and represented applicants).
3. Australia’s fatigue risk management system rules should be further developed by CASA in light of the merits of the US FAA approach which came into effect on 14 January 2014.
4. Australian aviation drug and alcohol management (DAMP) policy should be clarified by adding an “Objects” section to either Part 99 of the Civil Aviation Safety Regulations 1998 (Cth), or Part IV of the Civil Aviation Act 1988 (Cth), to reflect Parliament’s intention that DAMP rules operate to minimise harm in aviation, not punish.
5. In light of the Pel-Air and Transair air disasters, Australia should update its State Safety Program in recognition and reflection of Australia’s adherence to safety management standards set out in Annex 19 to the Chicago Convention which entered force on 14 November 2013, to assure the public of confidence in future regulator oversight and surveillance of operators.
6. CASA should undertake as a priority, a review of the need for regulations on cockpit automation and adapt and implement relevant recommendations of the FAA in its comprehensive September 2013 report on this subject including, in particular, a proposed requirement for Australian AOC holders to create explicit flight path management policies.

Shine Lawyers recommended to the ASRR Panel that it should advise the Government to:

1. Extend the concession Commonwealth employees travelling on Commonwealth business enjoy under Part III of the Air Accidents (Commonwealth Government Liability) Act 1963 (Cth) (AACL Act) to all Australians, or repeal Part III of the AACL Act; or
2. Review the AACL Act’s consistency with the policy behind the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL Act), and update the AACL Act to reflect its original intent as expressed by Parliament in 1963; and
3. Remove all references to the term “personal injury” in s.12 of the AACL Act (or return that term to the wording of the CACL Act for consistency); and
4. Legislate for the imposition of adherence to the IATA (or some other suitable) intercarrier agreement as a condition for non-Australian airlines which service Australia (as recommended at Preliminary Finding 4 of the 2009 DOIRD Discussion Paper).

To read the submissions in full, visit the Aviation Law Blog page.

AAT Restores Right to Fly for Pilot

New Aviation Law Blog post:

AAT restores right to fly for pilot who was victim of assault
Joseph Wheeler

The Administrative Appeals Tribunal (AAT) recently set aside the decision of the Civil Aviation Safety Authority (CASA) to cancel the medical certificates of a Queensland commercial pilot who had suffered a fractured skull, when he was assaulted while out with friends in March 2013: Daniel Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013).

To continue reading, see the Aviation Law Blog page.

2014: Volume 39(1) of Air & Space Law is now available

The first issue of Volume 39 contains the following articles:

George N. Tompkins, ‘Summary of MC99 Judicial Updates 2013′ (2014) Air & Space Law, Vol. 39(1), 91–101

Chloe A.S. Challinor, ‘The Decision of the English High Court in Rogers & Anor v. Hoyle: Clipping the Wings of the Principles of Air Accident Investigation’ (2014) Air & Space Law, Vol. 39(1), 83–89

Jeremias Prassl, ‘Reforming Air Passenger Rights in the European Union’ (2014) Air & Space Law, Vol. 39(1), 59–81

Ruwantissa Abeyratne, ‘A Protocol to Amend the Tokyo Convention of 1963: Some Unanswered Questions’ (2014) Air & Space Law, Vol. 39(1), 47–58

Ludwig Weber & Artur Eberg, ‘The Cape Town Convention and Its Implementation in Russia and the Commonwealth of Independent States (CIS)’ (2014) Air & Space Law, Vol. 39(1), 1–45

For further articles on or related to aviation law, see our Articles page.

20% discount for Competition Law in the Aviation Sector conference 2014

Competition Law in the Aviation Sector conference 2014
4th February 2014
Radisson Blu Royal, Brussels

**20% saving with this listing

Need the latest legal and competition updates for the aviation industry? How about expert analysis of the latest cases, mergers and alliances – do you know the impact on your business?

Join us at this IBC Legal conference for guidance on the crucial developments – highlights for the 2014 event include: the latest merger decisions and pending cases; international alliances; open skies; route by route analysis; follow-on damages and State aid issues.

See the Full agenda and 11 Speakers

Cousins v Nimvale Pty Ltd [2013] WADC 175

Cousins v Nimvale Pty Ltd [2013] WADC 175
District Court of Western Australia, 19 November 2013

The Court confirmed that in a claim for damages made by the dependent of a victim of a domestic air crash under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“CACL”), as that Act was applied under the Civil Aviation (Carriers’ Liability) Act 1961 (WA), a dependent may concurrently make a claim for nervous shock against the aircraft operator for a breach of a common law duty of care.

In this accident a Robinson “R44” helicopter crashed north east of the Purnululu Aircraft Landing Area in Western Australia on 14 September 2008 when the pilot deviated from the usual scenic flight track. The pilot attempted to hover low to the terrain and either did not have available, or did not apply, the level of power needed to sustain the hover. The aircraft developed an uncommanded descent and collided with the ground, fatally injuring the pilot and three passengers. This case involves the claims made by the parents of two of the young women who were tragically killed in the crash.

Claims made under CACL are statutory claims, rather than claims made in negligence. The CACL is the Australian statute which imports the Montreal Convention into Australian law (the relevant law for international air crash compensation in certain cases). However, Part IV of that Act applies to intrastate commercial aviation, like the helicopter operation in this case, and applies a similar strict liability regime to compensate passengers and their dependents. Part IV is also expressed, like the Conventions, to apply to be the exclusive legal source of claims for damages for the death of passengers.

The question for the Court in Cousins was whether the restriction or “exclusivity” principles under the CACL Act, which arises by virtue of a similar exclusivity of legal action in the Conventions, serves to prevent a dependent of a deceased passenger from bringing legal action against the air operator for nervous shock arising from witnessing or learning of the accident which killed the deceased, in the same case as a CACL “dependency” claim. This question involved an analysis of foreign court judgments which hold that claims made under the Convention for death or bodily injury are the exclusive source of rights where the Conventions apply.

In short, a concurrent claim for nervous shock may be brought by the dependent as the CACL Act is the exclusive source of legal remedies for passengers, and those who survive them in relation to liability for the death of the passenger. The CACL Act does not serve to prevent claims by the dependent not “imposed … on a carrier in respect of the death of a passenger” (s 35 of the CACL Act). A claim for pure nervous shock by a witness to a crash is a separate claim by a non-passenger founded in the law of negligence and based on a separate common law duty of care owed by an air operator to non-passengers in circumstances such as those presented in this case.

The conclusion of the Court in Cousins is not controversial, but further serves to clarify and strengthen the rights of the dependents and surviving family members of those tragically lost in air accidents in Australia.

For further Australian case law, see our Australia – Cases page.

Who owns the airspace? The new Chinese “ADIZ” and what it means

New Aviation Law Blog post:

Who owns the airspace? The new Chinese “ADIZ” and what it means
Joseph Wheeler

The recent imposition of an “air defence identification zone” (ADIZ) by China over an area of the East China Sea has prompted international alarm and confusion. ADIZs are plentiful the world over even though they’re not strictly expected or founded in international air law or the law of the sea. However, the Chinese ADIZ is slightly different in that it purports to apply to all aircraft in its vicinity, rather than just those intending to fly into Chinese territorial airspace. It is, arguably, being used to extend the character of territorial sovereignty to a disputed chain of islands which is disputed with Japan – a country which also covers the islands with a (traditional) ADIZ – rather than serve as an early warning system for legitimate defence purposes.

This has prompted the linked article which sets out some of the potential dangers to civilian aviation of such classes of airspace in times of political tension and unrest, and describes cases which have, through a combination of confusion, tensions, and innocent mix-up, resulted in military force being used against airliners, killing innocent passengers and crew members. The article also seeks to contextualise the position of ADIZs more broadly in international law and examines dispute resolutions mechanisms which could be brought to bear by members of the International Civil Aviation Organisation under the International Convention on Civil Aviation (Chicago Convention) in addition to diplomacy.

The article is not intended to advance any particular political view and is merely presented to recall for all involved the lessons which have been learned in the last few decades in relation to disputed or specially demarcated areas of airspace.

To continue reading, see the Aviation Law Blog page.

New Aviation Law Blog Post: Sopwith Named Lecture at the Royal Aeronautical Society

New Aviation Law Blog post:

Sopwith Named Lecture at the Royal Aeronautical Society
Arpad Szakal

On 17 July 2013 the Royal Aeronautical Society held its annual Sopwith Named Lecture. Mr Craig Kreeger, CEO, Virgin Atlantic delivered this occasional lecture which was established in 1990 to honour Sir Thomas Sopwith CBE, Hon FRAeS. Mr Kreeger explained the current activities planned by Virgin Atlantic Airways and discussed some of the future opportunities and challenges he and his airline are facing. Arpad has kindly provided a short summary of the Lecture.
Sopwith Named Lecture

Upcoming Events of Interest

3rd Annual Offshore Aircraft Registration Conference
12-13 December 2013
Oranjestad, Aruba

The 3rd Annual Offshore Aircraft Registration Conference will explore a variety of issues such as registering an aircraft offshore, legal issues, the process of registering an aircraft and requirements, protection of third party interests, aircraft surveys inspection of maintenance facilities, air safety regulatory issues as well as the pre-purchase insepction process.

Kennedys Aviation Seminar
16 January 2014
Dublin, Ireland

Kennedys are organising an Aviation Seminar which will take place on 16 January 2014 in Dublin, Ireland. This is the first of a series of aviation seminars presented by the international law firm Kennedys. The discussions will include the themes of aircraft finance, operational and finance leases, maintenance contracts, insurance and finance, security registration and the Cape Town Convention, emergency response planning and negligent entrustment.

If you would like to advertise your event on the website, email

New Aviation Law Blog Post: Recent Lectures at the Royal Aeronautical Society

New blog post:

Summaries of Recent Lectures at the Royal Aeronautical Society
Arpad Szakal

On 6 November 2013, one of our national editors, Arpad Szakal, attended a lecture by Richard Deakin, CEO of NATS. The lecture was held at the Royal Aeronautical Society in honour of Lord Brabazon of Tara. The main theme of Richard’s talk was the Single European Sky initiative.

On 24 July 2013, Arpad attended another lecture at the Royal Aeronautical Society, this time in honour of Major Kenneth Beaumont. The lecture was given by Tony Tyler, Director General and CEO of IATA. Tony highlighted some of the challenges facing the aviation industry and also discussed regulations dealing with passenger rights.

Arpad has kindly prepared a short summary of both events. To read the summaries, see the Aviation Law Blog page.

New Aviation Law Blog Post: ETS Clocks Go Back

New blog post:

ETS Clocks Go Back
Arpad Szakal

A deal may have been struck on combating aviation emissions at ICAO’s general assembly in Montreal, but the issue remains divisive. A number of airline bodies have expressed concerns at Europe’s possible reimposition of its controversial Emissions Trading System on airlines operating outside the European Union.

To continue reading, see the Aviation Law Blog page.