It has become almost a platitude, at least in the air transport industry, that the pilot is one person who has suffered much from being laid off, whether temporarily or permanently, by many airlines which had to drastically reduce their operations owing to the pandemic.
by Dr. Ruwantissa Abeyratne in Montreal
“Once you have tasted flight, you will forever walk the earth with your eyes turned skywards.” – Leonardo Da Vinci
World Pilots’ Day fell on 26 April 2021 and it has been an annual dedication to pilots since 26 April 2014. This came about as a result of a suggestion in 2013 by Turkey Airline Pilots’ Association which was accepted by the International Federation of Airline Pilots’ Association (IFALPA) - an international not-for-profit organization of national pilots' associations which was founded in April 1948 and is currently headquartered in Montreal. It is reported that at the last count in 2020 IFALPA had in its fold national member associations of pilots in 100 countries which held approximately 100,000 pilots within the Federation.
It has become almost a platitude, at least in the air transport industry, that the pilot is one person who has suffered much from being laid off, whether temporarily or permanently, by many airlines which had to drastically reduce their operations owing to the pandemic. As a result, there have been reports of pilots working as taxi drivers; becoming restauranteurs; running wayside tea kiosks; and taking to various other avocations which are completely at variance with the glamour of piloting an aircraft. Of course, these professionals may be called back eventually when air transport gradually opens out again, but the snag seems to be that piloting an aircraft is not the same as riding a bicycle, or that matter driving a bus where one can take off where one left off a couple of years earlier. It is a profession that has to be constantly practiced and kept up to date with latest developments like any other profession such as medicine, law, accountancy, architecture, or engineering.
One reads disturbing news nowadays of near misses in air transport. For instance, The Los Angeles Times of 29 January 2021 reported aviation experts and airline representatives acknowledging that “when pilots are inactive for several months, their skills and proficiency deteriorate. Among the most common errors are coming in too fast or too high during a landing or forgetting to get clearance from the air traffic control tower before descending to a lower altitude”. The newspaper went on to quote Richard G. McSpadden Jr., Senior Vice President at the Aircraft Owners and Pilots Association’s Air Safety Institute as having said: “[T]he key to flying safely is frequency, … you are not as sharp if you haven’t flown for a while.” Simple errors of forgetfulness and rusty professionalism cited have been a pilot forgetting to disengage the parking brake, and damaging a part of a towing vehicle that was trying to pull the plane to the runway while preparations were under way to pull a passenger jet away from an airport gate; uncharacteristic difficulty in landing a passenger jet on a windy day; and forgetfulness of the pilot in “turning on the anti-icing mechanism that ensures the altitude and airspeed sensors on the outside of the plane are not blocked by ice”. Fortunately, none of these incidents graduated to becoming a serious accident that could have jeopardized the safety of the passengers within.
Law and regulation on this point, particularly in the context of international air transport, is stringent, which brings to bear the compelling reality that merely opening out air transport, and putting pilots who have been forced to idle, back into the flight deck is as simple as it sounds. Article 32 of the Convention on International Civil Aviation (Chicago Convention) requires that “[T]he pilot of every aircraft and the other members of the operating crew of every aircraft engaged in international navigation shall be provided with certificates of competency and licenses issued or rendered valid by the State in which the aircraft is registered. Each contracting State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licenses granted to any of its nationals by another contracting State”. Article 29 of the Convention requires that the flight crew members carry their appropriate licenses on board every aircraft engaged in international air navigation.
Annex 1 to the Chicago Convention (Personnel Licensing) requires that a Contracting State, having issued a licence, is required to ensure that the privileges granted by that licence, or by related ratings, are not exercised unless the holder maintains competency and meets the requirements for recent experience established by that State. Appendix 6 to Annex 6 to the Chicago Convention (Operation of Aircraft) contains an air operator Certificate (AOC) template which requires information pertaining to a particular aircraft model and for each aircraft model in the operator’s fleet, identified by aircraft make, model and series, a list of authorizations, conditions, and limitations. Included as requirements in the Template are issuing aeronautical authorities contact details, operator name and AOC number, date of issue and signature of the aeronautical authorities representative, aircraft model, types and area of operations, special limitations and authorizations.
Licensing is a serious issue for countries, which issue these documents through their aeronautical authorities; airlines which allow pilots to operate their aircraft; and the pilots themselves, leaving all exposed if certificates of competence are not kept updated and current. The State of operation is primarily responsible under the Chicago Convention to ensure that the aircraft contains certain documents which inter alia include proper documents of competence of crew. Here, both the State of the operator and airline are responsible, and the State is ultimately accountable under treaty law.
There are three Annexes to the Chicago Convention i.e. Annex 1 (Personnel Licensing); Annex 6 Operation of Aircraft) and Annex 8 (Airworthiness). For starters, Annex 1 provides that a Contracting State, having issued a pilot license, cannot permit the holder thereof to carry out flight instruction required for the issue of a pilot licence or rating, unless such holder has received proper authorization from such Contracting State. Proper authorization is deemed to comprise: a flight instructor rating on the holder’s licence; or the authority to act as an agent of an approved organization authorized by the Licensing Authority to carry out flight instruction; or a specific authorization granted by the Contracting State which issued the license. Tied to this is a provision which requires that the person under training is deemed to have met the knowledge requirements for the issue of a commercial pilot licence as appropriate to the category of aircraft included in the licence., by, inter alia demonstrating a level of knowledge appropriate to the privileges granted to the holder of a flight instructor rating. For this the instructor has to be properly qualified. This provision exposes the pilot under review as well to an inadequate and imperfect review which runs the risk of being voidable.
Furthermore, Annex 6 (Part 1), requires the operator to establish and maintain a ground and flight training program, approved by the State of the operator, which ensures that all flight crew members are adequately trained to perform their assigned duties. There is also a provision that effectively precludes the pilot-in-command from operating a flight if any flight crew member is incapacitated from performing duties by any cause such as injury, sickness, fatigue, the effects of any psychoactive substance; and will not be continued beyond the nearest suitable aerodrome when flight crew members’ capacity to perform functions is significantly reduced by impairment of faculties from causes such as fatigue, sickness or lack of oxygen.
Finally, the pilot himself has to understand that at least at common law, any hint of negligence on the part of the pilot, whether resulting in an incident or an accident, ascribes to the pilot the highest standard of gross negligence, which is ascribed to other categories of persons such as surgeons, bus drivers and ships’ captains who take charge of persons whose safety they claim they can assure by dint of the special competence they profess to have.
Dr. Abeyratne is former Senior Legal Counsel at the International Civil Aviation Organization and currently teaches aviation law and policy at McGill University. He is also a Senior Associate at Aviation Strategies International.
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