Asia Pacific Aviation Liability Event – February 2016

Comment by Joseph Wheeler, IALPG:
Asia Pacific Aviation Liability

Joseph has kindly allowed his review of the recent Asia Pacific Aviation Liability event in February 2016 to be reproduced here.

This inaugural event, jointly organised by IALPG and Aeropodium and hosted by Maurice Blackburn Lawyers in Sydney, provided a forum for the exchange of ideas, analysis of novel issues going forward, and for all attendees to get an appreciation of how and why aviation liability in respect of particularly recreational remotely piloted aircraft, is something that requires both policymaker, and community attention in Australia and further afield through Asia Pacific.

The myriad issues which emerge given the easy misuse and dangerous applications of remotely piloted aircraft are readily moderated by the fact that Australian safety regulators, and now more recently, many other states, are recognising the real level of risk carried by quickly developing technology.

Unlike model and radio controlled aircraft, which are notoriously difficult to learn how to fly, and have a well-established, historically responsible, and organised community of participants, remotely piloted recreational and aircraft come straight out of the box with exceptionally good stability controls, a variety of privacy-challenging features, and are thus affordable and accessible to those with diminished responsibility, children, and those who would purposefully (and successfully) use them for malicious or criminal purposes.

The seminar heard about recent statistics which put laser attacks on pilots as the number two cause for pilot incapacitation events in Australia in respect of high-capacity air transport operations. It is only with comprehensive federal, state and local level policy consideration that these fun but potentially dangerous aircraft will not join that list.

Presentations by Michael Nas, and Aidan Bruford, presented some surprising, but perhaps sobering realities in respect of drone misuse, and their frailties. For example Mr Nas presented statistics recently taken from the United States, that suggested the majority of incidents which could cause injury with drones happened above 400 feet above ground level. Four hundred feet is the regulated ceiling of unmanned aerial vehicles under Australia’s current regulations. It is the same case in the United States.

Furthermore, Mr Bruford from the Department of Infrastructure and Regional Development showed a YouTube video wherein a teenage boy demonstrated how he could use his iPad to assume third-party control of an operational drone, and disable it. The liability consequences of these matters are frightening, and laws which purport to restrict flight to certain altitudes, away from crowds, or even prevent flight in public spaces can only prevent misuse in a fraction of potential instances.

What is needed is more pervasive control and education, together with a different attitude towards remotely piloted aircraft from a variety of perspectives. For example, laser pointers are restricted imports in Australia, depending on their power. This recognition of their ability to be used as weapons, and the fact that much of the more “dangerous” hardware is available off the shelf as an import from other nations, goes some way to mitigating the risks of non–hobbyists taking to the skies with aircraft more powerful than their capability or responsibility level.

Additionally, the airworthiness standards issue in relation to these aircraft is a difficult, though not insurmountable challenge. In the defence realm, Wing Commander Andrew Bannister discussed how a risk framework was developed in order to inform various aspects of airworthiness. It is this outcome-oriented approach which may well be a key, if not the key, to ensuring the enormous diversity of remotely piloted aircraft are able to conform to a suitably reliable standard of airworthiness.

The problems of evidence in respect of drones that crash, causing injury or death, and the question of identifying the operator for the purposes of Australian compensation legislation for damage by aircraft are also difficult but not impossible to resolve. The FAA registration system, although arguably only regulating the already-compliant, demonstrates how operators themselves can and should be monitored by the overarching national airspace regulator, at least for the purpose of disseminating information/education material, and advice or counselling.

In fact, as CASA has a legislated mandate to foster education about the safe use of aviation, not just within the aviation industry, but within the community as a whole, it is uncertain why a registration system is not more broadly lauded locally as a good step forward. Certainly, as raised in the context of the seminar this week, the Australian government’s red tape reduction policy applies to even this area, such that more prescriptive regulation will only be considered if absolutely necessary. That is admirable, and forces Australians and the world to look outside black letter law to other ways of modifying and controlling behaviours which present a danger in the air and on the ground.

The seminar was a small step forward to making the conversation in respect of controlling the negative consequences of recreational remotely piloted aircraft use better appreciated for why it is important. This is certainly not, given our “corporate knowledge” of the adverse consequences of aviation such as fatal accidents, a discussion we should be having in the aftermath of a preventable disaster.

Our day to day focus, and certainly the focus of IALPG, is on aviation law, but to us that term is inextricably linked with social justice and aviation safety as an exercise in prevention rather than just cure.

I would like to thank all our speakers and sponsors for making the event a reality, and contributing to a valuable, enthusiastic, and eye-opening day of aviation law and policy discussion.

Joseph Wheeler is Principal of the International Aerospace Law & Policy Group (IALPG)

The original article can be found here.


Royal Aeronautical Society Beaumont Named Lecture 2016

Beaumont Named Lecture 2016
Thursday, 21 April 2016

Royal Aeronautical Society
No.4 Hamilton Place, London, W1J 7BQ

The Air Law Group will be holding the Beaumont Named Lecture on 21st April 2016 and will be presented by Rick Ward, Senior Vice President – Legal, Emirates. More details to follow shortly.

This Named Lecture honours Major Kenneth Beaumont CBE, DSO, MA (Oxon), AFRAeS. Beaumont was the UK’s most prominent name in air law in his age, after starting as technical advisor to Imperial Airways in the mid-1920s. For many years his firm, Beaumont and Son, was one of the leading aviation practices in the world. He was also a founding editor of Shawcross and Beaumont on Air Law, which was first published in 1945 and remains the leading textbook to this day.

This lecture is kindly sponsored by Clyde & Co LLP.

Further info and registration details here.

New 2016 edition of Air & Space Law out now!

The first instalment of Air & Space Law for 2016 is now available. Articles include:

Tom van der Wijngaart, ‘Case Note: van der Lans v. KLM and ‘Extraordinary Circumstances’’ (2016) Air & Space Law, Vol. 41(1), 59–62

Mark Bisset, ‘Ratification of the Cape Town Convention by the United Kingdom’ (2016) Air & Space Law, Vol. 41(1), 49–58

René Lefeber, ‘Relaunching the Moon Agreement’ (2016) Air & Space Law, Vol. 41(1), 41–48

Ruwantissa Abeyratne, ‘Aviation Cyber Security: A Constructive Look at the Work of ICAO’ (2016) Air & Space Law, Vol. 41(1), 25–39

Olena Bokareva, ‘Air Passengers’ Rights in the EU: International Uniformity versus Regional Harmonization’ (2016) Air & Space Law, Vol. 41(1), 3–24

For additional articles on or relating to avitation law, see our Articles page.


Don’t miss The Royal Aeronautical Society’s Air Law Summer Reception and Lecture 2016

Royal Aeronautical Society

Air Law Summer Reception and Lecture

28 June 2016, London

The Air Law Group will be holding their annual Summer Reception on 28th June 2016. This is an opportunity to network with others interested in Air Law in an informal setting whilst enjoying refreshments and canapés. The Summer Reception costs £35+VAT and will be proceeded by the Air Law Group’s Summer Lecture (details TBC) which is free to attend. To buy your ticket for the Summer Reception please visit:


Join us in London at Competition Law Challenges in the Transport Sector and SAVE 20 percent from the delegate fee!


27-28 January 2016, Grange City Hotel, London

This separately bookable, two day conference will provide insightful update on the latest developments and detailed analysis of current competition law challenges in the transport sector, focusing on the aviation and shipping industries.

Attend this conference to:

  • Hear directly from the Commission on their priorities
  • Analyse the latest developments in alliances, cooperation and joint ventures in the aviation sector
  • Discuss practical issues in ticket distribution, online booking and pricing
  • Review current merger activity including FedEx/TNT and Aer Lingus/Ryanair merger
  • Compare current challenges in the aviation and shipping sectors and debate why the Commission treats them differently
  • Consider the impact of competition law and state aid on ports
  • Gain an update on recent case law including: Air Cargo, RoRo, the price signalling investigation and others
  • Debate key developments with fellow in-house lawyers and regulators.

Don’t miss out on your exclusive 20% AviationLaw.EU discount – quote VIP code FKW82597ALL when registering.

For more information and to register please visit

Air & Space Law 2015 – Volume 40(6) now available

The following articles are contained in the final instalment for 2015:

Wybo P. Heere, ‘Book Review: Wybo P. Heere on Michael W. Pearson & Daniel S. Riley: Foundations of Aviation Law’ (2015) Air & Space Law, Vol. 40(6), 461–462

Tanja Masson-Zwaan, ‘UN’s Aviation and Space Bodies Meet in Montreal to Discuss Future Activities at the Intersection of Commercial Air and Space Travel’ (2015) Air & Space Law, Vol. 40(6), 455–460

George N. Tompkins, Jr., ‘EU Passenger Rights Regulation 261/2004 and United States Courts’ (2015) Air & Space Law, Vol. 40(6), 451–453

Geoffrey Deasy, ‘EU Competition Law Developments in the Aviation Sector: January to June 2015’ (2015) Air & Space Law, Vol. 40(6), 429–450

Morten L. Jakobsen and Morten Midtgaard Pedersen, ‘The Danish Aircraft Engine Dispute: The Sequel’ (2015) Air & Space Law, Vol. 40(6), 421–427

Myongil Kang, ‘Refining Aviation Sanctions from an Air Law Perspective’ (2015) Air & Space Law, Vol. 40(6), 397–420

Matthias Reuleaux and Morten L. Jakobsen,’The De-registration of Aircraft as a Default Remedy in Aircraft Leasing and Financing Transactions’ (2015) Air & Space Law, Vol. 40(6), 377–395

Peter van Fenema, ‘New Members of the Board, Farewell to Wybo Heere, 40 years anniversary ASL’ (2015) Air & Space Law, Vol. 40(6), 371–375

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

High court case on charges for maintenance services for aircraft

Corporate Oil and Gas Ltd v Marshall Aviation Services Ltd [2015] EWHC 3447 (Comm)

High Court (QBD)
Mr Justice Knowles CBE
27 November 2015

The Defendant provided aircraft maintenance and repair services. The Claimant was the owner of a business jet aircraft of the BAe125/800A model (“the Aircraft”). When the Claimant purchased the Aircraft it was already about 20 years old. On 4 May 2009, the Claimant delivered the Aircraft to the Defendant in order that work could be done to it.

This dispute concerned whether the Defendant had met its responsibilities while the Aircraft was with it, and whether the Claimant owed substantial further sums for work done. Before the proceedings, the Defendant asserted a lien to justify retaining possession of the Aircraft whilst (on the Defendant’s case) the Claimant did not pay what was due. The Claimant has now said it does not want the Aircraft back.

On the facts of the case, the Court held that there was no error in the Defendant’s assertion of a lien until its charges were agreed and paid. The Claimant had no claim in damages for conversion.

For further UK case law, see our United Kingdom – Cases page.

Damages for delay under the Montreal Convention and EC Regulation 261/2004

Dunbar v easyJet [2015] ScotSC 70

Sheriffdom of North Strathclyde at Paisley
Sheriff Livingston
4 November 2015

This was a claim brought by Ms Dunbar against easyJet in respect of a flight from Glasgow to Malaga on 28th July 2014. Ms Dunbar’s flight was delayed by over 6 hours invoking EC Regulation 261/2004 entitling passengers to compensation for any delay exceeding three hours unless there are both extraordinary circumstances and the delay could not have been avoided even if all reasonable measures had been taken. On the basis of the flight distance, the compensation payable was €400.

The onus was on the easyJet to show that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The Sheriff held that the underlying delay was caused by extraordinary circumstances in that the aircraft in question could not leave Gatwick. This was because of an air traffic control decision which itself seems to have been predicated upon a number of factors. It is clear from Recital 15 of the Regulation referring as it does to “the impact of an air traffic management decision” that it is not for the court to look behind whether that decision was correct or not. The fact the decision is made leading to a delay or cancellation is self-evidently “extraordinary circumstances”.

However, the sheriff concluded, “while the original delay between Gatwick and Bologna was caused by extraordinary circumstances and that by the time of the Pursuer’s flight was due to depart the extraordinary circumstances continued to exist I am not satisfied that the Defender took all reasonable measures to avoid the delay meaning the limit or exclusion of liability set out in Recitals 14 and 15 is not invoked due to deemed extraordinary circumstances not existing”.

For further UK case law, see our United Kingdom – Cases page.

Alleged cartel activity: air cargo & freight services

Air Canada & Ors v Emerald Supplies Limited & Ors [2015] EWCA Civ 1024
Court of Appeal (Civil Division)
Lord Justice elias, Lady Justice Gloster, Sir Bernard Rix
14 October 2015

Appeals against certain case management and other orders made by Peter Smith J in proceedings brought by some 565 claimant companies against British Airways plc, arising out of an alleged unlawful cartel said to have operated worldwide between 1999 and 2007. The claimants are shippers of air freight who purchased air freight services in various territories worldwide, in virtually all cases acquiring those services indirectly through freight forwarders who contracted directly with the airline concerned. The object of the cartel, it is alleged, was to co-ordinate and fix prices for air cargo services, especially with respect to fuel and security surcharges, thereby distorting competition and inflating prices for those acquiring the services.

For further UK case law, see our United Kingdom – Cases page.


Comment by Joseph Wheeler, IALPG: MH17 Annex 13 Report released by Dutch Safety Board

Joseph Wheeler is Principal of the International Aerospace Law & Policy Group (IALPG)

The original article can be found here:

13 October 2015: MH17 Annex 13 Report released by Dutch Safety Board

If anyone had any doubt that this much anticipated report would serve as a quasi-criminal dossier then the Dutch Safety Board (DSB) made it abundantly clear that it would not be, starting with the title it gave the MH17 report: “MH17 Crash”. There could be no doubt that this was an air safety investigation report with this controversial and somewhat offensive, in my view, characterisation of the events which unfolded over Ukraine on 17 July 2014.

In short, the report of 13 October 2015 is concerned with why the plane left controlled flight and struck the ground resulting in the death of all occupants – not exactly with who caused a weapon to be fired to accomplish that – just how, and considered reasons as to why that chain of events was permitted to happen.

Analysis in reports such as this, aligned with and facilitated by Annex 13 to the Chicago Convention is limited to examining contributing causes of the accident from an air safety perspective. Thus, those causes typically line up with suitable recommendations to prevent such incidents happening again in future rather than ascribing legal blame

Therefore, it is no surprise that the DSB report focuses on why MH17 should not have been allowed to fly through airspace which could have been closed to civil air traffic altogether, and arguably should have been so prohibited, rather than the much anticipated question of who or which entity caused the weapon to be fired on the aircraft at all. The report considers three simulations done (by Ukraine, Russia and the Dutch) to determine the likely area within which the BUK missile was fired at the aircraft, but falls short of ascribing responsibility to any particular country, group or individual for “pulling the trigger”.

The weapon of destruction

The DSB report confirms the West’s curiosity about the kind of projectile used to down the aircraft – a BUK missile is convincingly demonstrated to have been the fatal medium of destruction (with a warhead described as 9M314M). It is considered to have detonated to the front left (high) side of the cockpit sending hundreds of projectile bow tie and other oddly shaped shrapnel fragments into the skin of the aircraft primarily into the cockpit, killing the flight crew and causing the cockpit to break apart from the aircraft, leading to sudden depressurisation and the mercifully reasonably quick deaths of the occupants. The “crash” was characterised as unsurvivable.

The vexing question of conflict zones

A major theme of the report which is gratifying to have been examined in such detail is the question of civil aviation flight over armed conflict zones. In short, the DSB concluded that almost all operators flew over the dangerous part of Eastern Ukraine without sufficient consideration of the risks involved, and notwithstanding the NOTAMs issued by Ukraine restricting all traffic to increasingly higher altitudes.

Almost all operators flew over the combat zone with no thought that civil aviation was at risk. From 14-17 July 61 operators from 32 states flew above the area and on the day of the “crash” 160 flights operated above until airspace was closed following the tragedy. All operators undeniably considered civil aviation at cruise altitudes in this area were safe from risk.

Sixteen aircraft were shot down in the month before MH17, and Ukraine did not close their airspace when it was responsible for doing so given that there was evidently, in the eyes of the DSB, sufficient risk to justify such an exercise of the state’s sovereign (and thus unshared) power to do so.

The DSB continued that the risk to civil aviation was not adequately identified by ICAO or Ukraine or anyone else.

The clear recommendations about this by the DSB is that states involved in conflict need to put more effort into notifying airspace others about the risk of danger in certain locations; also, operators should be more transparent about the routes they take and the DSB would seek to see changes to regulations internationally to recognise how matters may be improved.

The launch location of the missile

This was considered by the Board and narrowed down to a small area in the east of Ukraine. Shared data with the international team and its own simulations ran by the Dutch and Russians indicate a converging and comparable area thought to have been where the missile was fired from – however, additional forensic work is required to determine launch area and that is for the criminal investigation, being outside the scope of the Annex 13 safety investigation.

Recommendations to ICAO

Overall the report is consistent with a safety investigation in that the DSB really had no choice but to focus on those contributing causes to the “accident” which lend themselves to recommendations to ICAO – ie Ukraine should have done more to control the risks of flying by in its airspace by way of NOTAM which identified the risks and/or closing the airspace altogether, and operators need to be more rigorous with their own risk assessments of where to fly. The airspace remained open for unclear reasons, potentially financial. It was not possible to make recommendations in relation to armed conflicts per se and hence there are no recommendations with respect to the pursuit of or use of weapons within armed conflicts.

The criminal report will take up the matter of the entity which pulled the trigger – that was outside the scope of this investigation.

The three recommendations thus are:

Level 1 – Airspace management in conflict zones

Given that the principle of sovereignty determines that each state is responsible for its own airspace, the DSB recommends thought be given to how better enticements can be given to states to manage their airspace more carefully, coincidental with greater international regulation of airspace by amending the Chicago Convention and its underlying standards and recommended practices to clarify when airspace should be closed.

The flipside to this recommendation betrays a reason why the characterisation of the non closure of Ukrainian airspace on or before 17 July 2014 is not convincing – Art 9 of the Convention permits states to prohibit access to their airspace for reasons of military necessity or public safety (uniformly to aircraft of all states), but, importantly, “[s]uch prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation”. That is an important qualifier and arguably one which makes the actions of Ukraine (legally) reasonable in the circumstances (ie, closing certain altitudes off from civil air traffic, rather than its entire airspace).

In addition, the DSB presents an analysis of the airspace closures or restrictions in other conflict zones around the world demonstrating that airspace restrictions are the usual international practice. This is a finding which suggests against any conclusive indication of airspace closure by Ukraine being the “silver bullet” indirectly suggested by the DSB to have been something which would have prevented the attack, or at least something which was solely to blame.

In a somewhat simplistic characterisation of what may be achievable on this front through and within ICAO internationally the DSB calls for amendments to the Chicago Convention. While it is the case that amendments have been made to the Convention previously (including in relation to the shooting down of civil aircraft with the addition of Article 3 bis, more on which is below) such amendments take a significant amount of time (up to a decade or more). Also, any system which devolves control of sovereign airspace to an external body (even the international civil aviation regulator, ICAO) would necessitate some sharing or informed sharing of sovereignty by states with another actor(s) by virtue of legislating a responsibility to give out sensitive information to other states which the relevant state may or may not even have.

Background on legal concept of sovereignty in international air law

The concept of sovereignty underpins international civil aviation and has since the inception of the Chicago Convention in 1944 and the creation of ICAO at the same time. Article 1 of the Convention states:

The contracting states recognise that every State has complete and exclusive sovereignty over the airspace above its territory.

It is such an important concept that even in areas such as the economic and practical exchange of “rights to fly” by and for airlines between countries, there has been no concluded multilateral solution for these non-controversial, though valuable, rights to be exchanged. It is at best wishful thinking to think that a multilateral solution could be found under the auspices of ICAO for multilateral ceding of sovereignty by all states to ICAO to in some way proactively manage airspace for the purpose of preventing civil flights traversing conflict zones. Even the concept of using ICAO as a clearing house for information from states about conflicts (already being trialled in its Conflict Zone Information Repository website since April 2015) is of limited practical usage.

By way of background Art 3 bis came to pass on 10 May 1984, when ICAO adopted a legal instrument which purported to regulate the law in this area (the Protocol relating to an Amendment to the Convention on International Civil Aviation [Article 3bis]). It entered force on 1 October 1998. This action followed the events of the early 1980s in which unintentional straying into national airspace by certain civilian airliners resulted in military force being used against them (eg, the downing of Korean Air Lines Flight 007 “KE007”). ICAO nations took action to codify the customary international law which already prohibited such uses of force except in exceptional circumstances.

The new protocol was based on a provision in the United Nations Charter and customary principles which prohibit “recourse to the use of force in international relations between States”. In summary, Article 3bis is declaratory in nature and codifies the:

  • obligation of States to refrain from resorting to the use of weapons against civil aircraft in flight;
  • obligation, in the case of interception, not to endanger the lives of persons on board and the safety of aircraft; and
  • right of States to require landing of aircraft in their airspace (without authority) at a designated airport, if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Convention.

The shooting down of flight MH17, whether by surface to air missile, and no matter by whom, constitutes a breach of Article 3bis if it was performed by a State actor.

Level 2: Risk assessment

The second recommendation concerns the view of air operators (airlines) and recognises, quite fairly that these should not take it for granted that “open” airspace is “safe”. Improving airlines’ access to information is needed, and yet is also fraught with difficulty given the sensitivity of military information in many cases. As well as availability of threat information the DSB also recommends ICAO and IATA take steps to facilitate better airline risk assessments of where they should fly – by encouraging states to make information they have available in a timely way, and for IATA, to make their own audits include an assessment of an airline’s risk assessment protocols.

The recommendations about sharing information on a platform which promotes exchange of good practice about such risk assessments is in principal positive, as is the Conflict Zone Information Repository website already in place. The practical issue with such mechanisms is take up across the globe and reliability of the information. In my view there is no substitute for an airline’s own assessment informed by whatever it deems necessary to make its decision on where to fly, using especially public information which is clear and widely available and telling about the risks to aviation including to Malaysia Airlines which cannot argue it was unaware of the downing of aircraft in Ukraine in the week and months prior to MH17 traversing that airspace.

ICAO promulgated its first new Annex to the Chicago Convention in late 2013 (on safety risk management – putting together provisions from other annexes about safety risk assessment as a concept and practical tool). It is arguably already incumbent on airlines to be overseen by their states of registry in terms of risk assessments and to include whatever factors are relevant to determining where and when each flight should plan its route.

Level 3: Operator accountability

This particular recommendation perhaps holds the most promise because it focuses more on the practical rationales for commercial aviation rather than regulation which impact on how disparate and sensitive information is shared amongst perhaps conflicting governments and competing private entities (airlines).

The one thing which will prevent airlines flying through combat zones and taking unnecessary or marginal risks is commercial imperative.

If, as the DSB recommends, IATA encourages airlines to be publicly accountable for the routes it chooses then potential passengers will be able to safeguard their own decisions on where to fly by deciding with whom they will fly. This would inevitably mean that riskier carriers would be pushed out of the aviation market, leaving a positive and lasting impact on air safety than legal or regulatory change alone could never achieve.

Conclusions for liability?

The liability of the airline involved in this case is uncontroversial and has been the subject of previous comment. International law dictates the liability of the carrier as strict in relation to compensating families for the loss of their loved ones. The calculation of damages is a complex question and one which cannot be discussed in detail now as the process is ongoing for passengers’ families.

However, the liability of the entity (or entities, be they states or otherwise) which contributed to the destruction of the aircraft is certainly still an issue at large. The DSB report would tend to suggest some responsibility lies with Ukraine but my view would be that that assertion is overly simplistic and denies the reality of the practical context in which aviation decisions are made to control airspace.

It may seem like an example from left field but the world will recall the debacle which resulted from closures of airspace following the Icelandic volcano eruption in 2010. The solution of that dilemma for the future was the creation of operator guidelines for risk assessment leaving the ultimate decision on where and when operators would fly or risk flying near to volcanic ash to airlines themselves – it was a commercial reality that regulation at international level was resisted in favour of an industry solution that left something which could so affect the primary driver of airlines (profitability) in their own hands.

Thus, it is suggested that the third recommendation by the DSB will be the one which prompts airlines to make their risk assessments more carefully than any changes to international standards and recommended practices through ICAO rule changes. Passengers vote with their airfares – and those which take ostensibly dangerous risks with passenger lives will fail to flourish post MH17.