Air traffic controllers cannot shift liability to the State on the basis of State responsibility to provide air traffic services, which is a responsibility recognized by the Chicago Convention.
by Ruwantissa Abeyratne
The International Day of the Air Traffic Controller is celebrated on October 20th each year. This day marks the anniversary of IFATCA (International Federation of Air Traffic Controllers’ Associations), which was founded on the 20th October 1961.
The air navigation system comprises the aggregate of organizations, people, infrastructure, equipment, procedures, rules, and information used to provide the airspace users with air navigation services including air traffic services. “Air traffic service” is a generic term meaning variously, flight information service, alerting service, air traffic advisory service, and air traffic control service. Air traffic control services comprise three services: area control service, which provides air traffic control services for controlled flights; approach control service which guides aircraft approaching a State’s territory and aerodrome control service, which relates to the provision of air traffic control services for aerodrome traffic
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| Los Angeles international airport in United States [ Photo: Unsplash/ Beckett P] |
In the earliest days of aviation, so few aircraft were in the skies that there was little need for ground-based control of aircraft. In Europe, though, aircraft were often flown in different countries, and it soon became apparent that some kind of standard rules were needed. In 1919, the International Commission for Air Navigation (ICAN) was created to develop “General Rules for Air Traffic.” Its rules and procedures were applied in most countries where aircraft operated.
Air Traffic Controller’s Duties
To many of those uninitiated to this valuable and critically important profession, it sounds as though anyone can direct a plane. In fact, it is just the opposite. It is both an arduous and precision-oriented job which cannot be done just by anyone. It requires specially trained professionals who have to be alert every minute during which they are on duty at the control tower. Globally, air traffic control services offer information relayed by people by means of radio communication involving extremely short time periods and using a standard set of terminology in the English language, even in regions of the world where English is not the first language.
The Global Air Navigation Plan of the International Civil Aviation Organization (ICAO) says: “ “The air traffic controller’s job consists of complex tasks demanding a high degree of skill and active application of unique cognitive abilities such as spatial perception, information processing, reasoning and decision making. The controller must know where all the aircraft under his/her responsibility are and determine how and when to take action to ensure that they remain separated from each other, while also seeing to their requests and needs for descent, climb, take off, departure etc”.
There are no international rules governing the liability of the air traffic controller. However, there are various international guidelines that would give individual States both an impetus and direction to enact their own internal laws in this regard. Article 28 of the Chicago Convention provides an overarching requirement that obligates contracting States to provide in their territories airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices established from time to time pursuant to the Convention. The “other air navigation facilities” referred to in article 28 of the Chicago Convention include Air Traffic Services, which is a combination of services provided to support the safe and expeditious flow of air traffic.
ICAO has established Standards and Recommended Practices for licensing of air traffic controllers. Part of this licensing process recognizes that there are prescribed ICAO language proficiency requirements based on a proficiency rating scale identifying Holistic Descriptors. These descriptors in turn require the air traffic controller, as a proficient speaker, to communicate effectively in voice only (telephone/radiotelephone) and in face to face situations; communicate on common, concrete and work related topics with accuracy and clarity; use appropriate communicative strategies to exchange messages and to recognize and resolve misunderstandings in a general and work related context; handle successfully and with relative ease the linguistic challenges presented by a complication or unexpected turn of events that occurs within the context of a routine work situation or communicative task with which the air traffic controller is otherwise familiar; and use a dialect or accent which is intelligible to the aeronautical community.
Responsibility and Liability
The provision of air traffic control services is the responsibility of the State, but it can delegate this responsibility to private entities. which does not derogate the accountability of the State for damage caused by such entities.
In August 2006, a Swiss court indicted eight employees of the Swiss air traffic control authority, Skyguide, for their involvement in the plane crash which occurred in 2002 in Ueberlingen.. The Skyguide staff were charged with negligent manslaughter for their role in the air crash in which 71 people died when two jets collided over Swiss-controlled airspace in southern Germany. The defendants were accused of organizational shortcomings that led to a single air traffic controller being left in charge of the area where the crash occurred on July 1, 2002, and with providing insufficient information to him about technical work in progress that decisively affected the communications and radar systems. In their report, German investigators stated that Skyguide’s main control tower radar had been switched off and the main telephone line was down.
In a parallel development, a German court ruled that Germany wrongly subcontracted its airspace control to Skyguide and was partly liable for the damage caused. The ruling was in response to a civil lawsuit filed by the Russian airline company that owned the passenger jet. However, common law courts, particularly in the United States, have not strictly adhered to this overarching concept. In a world of congested airways, the additional problem of faulty communication between the players involved, particularly the air traffic controller and the technical crew of an aircraft in flight, does not help.
Liability issues of an air traffic controller are intrinsically linked to the controller’s relationship with the pilot with whom the former communicates. This relationship, between the controller and the pilot, has been called the “continuum of dependence”. It has been generally recognized that the fundamental principle of liability is based on whether the pilot was flying under Visual Flight Rules (VFR) which gives the pilot absolute freedom to manoeuvre his aircraft, or Instrument Flight Rules (IFR) when visibility could be nil. In the former instance, the air traffic controller would not be generally held liable for a midair collision as the pilot has full visibility. This is based on the pilot’s responsibility to “see and be seen”.
There is no doubt that liability of the air traffic controller is an expanding concept and the continuum of dependence is no longer an absolute concept. Courts are showing a greater willingness to ascribe to the controller liability for negligent performance of duty, irrespective of whether such duty is incorporated or inscribed in the Air Traffic Control Procedures Manual and the extent to which the pilot is required to adhere to instructions therein. In the 1975 US case of Baker v. United States, the Court held that the manual cannot be considered as “the Bible” of air traffic control or a set of regulations having the force of law.
Air traffic controllers cannot shift liability to the State on the basis of State responsibility to provide air traffic services, which is a responsibility recognized by the Chicago Convention. A case in point, was in Eastern Airlines v. Union Trust Co. which established the rule that air traffic controllers had no discretion to be negligent in their work and that they could not shelter themselves behind the fact that they worked for an instrumentality of State in matters pertaining to their individual liability which clearly established liability criteria regarding the provision of air navigation services in the United States
Conclusion
ICAO has called on States to make improvements to the air traffic management system through supporting software that could assist the controller with conflict prediction, detection, advisory and resolution.1ICAO’s focus of concentration is on a unified strategy which establishes a mechanism integrating the efforts to increase transparency and disclosure of safety related information. Although the unified strategy extends to encompass all areas of safety of flight including airworthiness, it is incontrovertible that the overall philosophy of the strategy will apply to the provision of air navigation services as well.
One of the most fundamental aims of ICAO is to ensure the safe and orderly development of international civil aviation. To this end, and as part of its unified strategy, ICAO suggested the establishment of regional safety oversight organizations along the lines of European Aviation Safety Agency (EASA) of Europe. Responsibility of the State to ensure the provision of air navigation services is immutable, and as stated earlier, there is no legal impediment to a State handing over the physical task of provision of services to a private entity while retaining its oversight role. Within the overarching umbrella of State responsibility, there are various models of air navigation service providers.
Accordingly, in the present context, it is common to see a State largely in a supervisory role retaining its ownership of air space, drafting national legislation; determining governance over air navigation service providers; continuing to hold responsibility for certification and designation of service providers a well as setting regulations, while the service provider provides a public function in managing airspace with the broad spectrum of safety and efficiency.
Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.
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