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.

 

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.

Employer’s duty of care for the death of an employee in connection with an aircraft accident

Cassley & Ors v GMP Securities Europe LLP & Ors [2015] EWHC 722 (QB)
High Court, Mr Justice Coulson, 31 March 2015

The Judge concluded that, although the employer, GMP, had failed in their duty to Mr Cassley, if they had done what they should have done, he would still have been on the flight that crashed at Avima on the morning of 19 June 2010. The accident, and the causes of the accident, was not reasonably foreseeable and/or too remote in law. The claimants seek to make GMP liable for the selection of Aero-Service as the carrier for the flight, and the manner in which that flight was executed when GMP was two steps removed from that decision. The manner in which the charter was executed was the responsibility of the pilots.

There is no general liability on a defendant for the action of a third party unless what happened was a “highly likely” consequence of the actions of that third party. That is not this case: the actions of the pilots that caused the accident were not ‘highly likely’. In those circumstances, the duty owed by GMP did not extend to the performance of the carrier once the flight had started: again that is consistent with the judgment of Hamblen J in Dusek. Or to put the same proposition in another way, no risk assessment performed by GMP would have identified the risk of pilot error, which was the primary cause of the accident.

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

UK Court of Appeal Judgment regarding negligent misrepresentation in the sale of an aircraft

Foster & Anor v Action Aviation Ltd & Ors [2014] EWCA Civ 1368
Court of Appeal
Lord Justice Longmore, Lady Justice Gloster, Lord Justice Underhill
23 October 2014

Purchase of aircraft – negligent misrepresentation – fraudulent misrepresentation – whether the aircraft had ever been in an accident – unreportable incidents – difference between purchase price and sale price – beneficial ownership – appeal against trial judge’s finding of fact

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