The absolute responsibility cast upon the pilot inevitably carries with it absolute and final authority from take off to landing.
by Ruwantissa Abeyratne
“Pilots are not born; they are forged through dedication, passion, and relentless pursuit of their dreams.”
World Pilots Day falls each year on 26th April. This is the day we remember in particular that these are the individuals who enable us to witness and experience the delight and wonder of the four corners of the world. They are in command from the moment of truth when we defy the force of gravity and lift off into the heavens, to safely depositing us back on earth at our destination.
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| [ Photo: Oskar Kadaksoo/ Unsplash] |
To any of us travelling by air, I am sure it is an inspiration, just prior to boarding the aircraft, to watch the confident pilots at the gate dressed impressively in their uniforms smiling and chatting with the gate staff before they precede us to the aircraft. Passengers waiting to board intuitively know that they are no pushovers, but highly trained professionals who have undergone thousands of flying hours and rigorous training. Not only do they exude confidence but they also display a certain glamour that make us passengers feel ordinary.
An Endangered Species?
With the growing demand for air transport the exponential demand for airline pilots is increasing. In 2019 Boeing issued an official statement that demand for air travel was growing so rapidly that 800,000 new pilots were expected to be needed over the next 20 years. According to this forecast the biggest need was in the Asia-Pacific region, where an improving economy in China has resulted in more people booking flights. Furthermore, Boeing stated that more people were are flying in the U.S. albeit at the same time, experienced pilots were reaching the mandatory retirement age of 65 years. Even before COVID-19 struck the world, there was an acute shortage of pilots looming over the horizon.
As early as 2014 a commentator wrote in the context of the United States: “Over the next 20 years, the United States airline industry is expected to hire in excess of 95,000 pilots. This hiring should be the result of new aircraft growth, pilot retirements, and pilot attrition from the industry for reasons other than retirement. In addition, government regulations may also cause an increase in the number of new pilots required”. It must be noted that the mandatory retirement age for pilots in the United States, is 65, “while at the same time, the barriers to entry to earning an FAA airline transport pilot (ATP) certificate have arguably never been higher, with training costs increasing and new minimum-hour requirements taking effect in 2013” .
How Does One Become a Pilot?
Like in any other important profession such as medical, legal, accounting et. al, a pilot has to be properly licensed. A commercial pilot’s license affords the pilot to transport passengers and cargo by air for remuneration which a private pilot’s license does not grant. Eligibility requirements for airline pilots are both standardized and harmonized globally by the Convention on International Civil Aviation (Chicago Convention). Article 29 of the Convention obligates flight crew members to carry their appropriate licenses on board the aircraft they operate. Pilots have to be proficient in the language requirements for the operation of aircraft as well as being medically fit and certified before entering the flight deck.
Compliance and Discretion
For us to travel safely in the air, pilots are required to adhere strictly to two critical words: standardization; and harmonization. Standardization simply means compliance and harmonization means global consistency. This means, similar to doctors (surgeons included), lawyers, accountants and the like, pilots must strictly follow the rule book. Where harmonization is concerned, there could be a slight difference as pilots are subject to globally agreed upon rules, irrespective of territorial or jurisdictional differences.
Within this broad scope the pilot has to perform several ineluctable functions including but not limited to: creating a flight plan, considering aircraft performance, altitude and weather conditions; checking the aircraft before every flight (engines, radars, navigation systems, etc); ensuring cargo weight doesn’t exceed aircraft limits; communicating with air traffic control to ensure safe takeoff and landing; ensuring the aircraft has adequate fuel supplies; monitoring cockpit instruments like altimeters and speed indicators and report any malfunctions; checking the airplane’s position, weather conditions and air traffic regularly during the flight and determining change of path when needed; working closely with flight attendants to ensure all passengers follow safety rules while being onboard; and filling out reports about the flight and the status of the aircraft after landing
The licensing State must not permit the holder of a license to exercise privileges other than those granted by that license. The preeminent privilege for a commercial pilot is the ability to function as pilot in command after a certain period of flying experience. Within the scope of this privilege there is considerable discretion given to the pilot’s judgment. Under Article 6 of the Tokyo Convention of 1963 the pilot when he/she is aircraft commander may, when he/she has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act contemplated in the treaty impose upon such person reasonable measures including restraint which are necessary: (a) to protect the safety of the aircraft, or of persons or property therein; or (b) to maintain good order and discipline on board; or (c) to enable him to deliver such person to competent authorities or to disembark The aircraft commander may require or authorize the assistance of other crew members and may request or authorize, but not require, the assistance of passengers to restrain any person whom he is entitled to restrain. Any crew member or passenger may also take reasonable preventive measures without such authorization when he has reasonable grounds to believe that such action is immediately necessary to protect the safety of the aircraft, or of persons or property therein.
Articles 8, 9 and 10 of the Tokyo Convention grant further privileges to the pilot in command in that The aircraft commander may, in so far as it is necessary for the purpose of Article 6, disembark in the territory of any State in which the aircraft lands any person who he has reasonable grounds to believe has committed, or is about to commit, on board the aircraft an act contemplated in Article 1, paragraph 1(b). The aircraft commander is required to report to the authorities of the State in which he disembarks any person pursuant to Article 9, the fact of, and the reasons for, such disembarkation. Article 9 provides that the aircraft commander may deliver to the competent authorities of any Contracting State in the territory of which the aircraft lands any person who he has reasonable grounds to believe has committed on board the aircraft an act which, in his opinion, is a serious offence according to the penal law of the State of registration of the aircraft.
The aircraft commander must, as soon as practicable and if possible before landing in the territory of a Contracting State with a person on board whom the aircraft commander intends to deliver in accordance with the preceding paragraph, notify the authorities of such State of his intention to deliver such person and the reasons therefor. Furthermore, the aircraft commander is required to furnish the authorities to whom any suspected offender is delivered in accordance with the provisions of this Article with evidence and information which, under the law of the State of registration of the aircraft, are lawfully in his possession. For actions taken in accordance with the Tokyo Convention, neither the aircraft commander, any other member of the crew, any passenger, the owner or operator of the aircraft, nor the person on whose behalf the flight was performed should be held responsible in any proceeding on account of the treatment undergone by the person against whom the actions were taken.
Medical fitness
Procedures and requirements for the assessment of medical fitness are contained in the Manual of Civil Aviation Medicine (Doc 8984). IATA in its guidelines for flight crew requires the following: “the absence of any medical condition or any suspected medical condition that may lead to any form of acute functional incapacity; the absence of any existing or former medical condition – acute, intermittent or chronic – that leads or may lead to any form of functional incapacity; the absence of any use of medication or substances which may impair functional capacity; minimal requirements to the necessary functions such as vision and hearing” .
In order to satisfy the licensing requirements of medical fitness for the issue of various types of licenses, the applicant must meet certain appropriate medical requirements which are specified as three classes of Medical Assessment: Third Class: This is the most basic of the medical exams. It is required for those attempting to earn a student pilot license, recreational pilot license, and private pilot license.; Second Class: This first class medical certificate is required in order to earn a airline transport pilot certificate.
The applicant must not suffer from any disease or disability which could render that applicant likely to become suddenly unable either to operate an aircraft safely or to perform assigned duties safely. Furthermore, the applicant must have no established medical history or clinical diagnosis of: a) an organic mental disorder; b) a mental or behavioral disorder due to psychoactive substance use; this includes dependence syndrome induced by alcohol or other psychoactive substances; c) schizophrenia or a schizotypal or delusional disorder; d) one is required for anyone attempting to earn their commercial pilot license; First Class: A mood (affective) disorder; e) a neurotic, stress-related or somatoform disorder; f) a behavioral syndrome associated with physiological disturbances or physical factors; g) a disorder of adult personality or behavior, particularly if manifested by repeated overt acts; h) mental retardation; i) a disorder of psychological development; j) a behavioral or emotional disorder, with onset in childhood or adolescence; or k) a mental disorder not otherwise specified; such as might render the applicant unable to safely exercise the privileges of the license applied for or held.
Liability and Responsibility
According to accepted principles of law as laid down by international convention, it is incontrovertible that the final responsibility for the safe operation of an aircraft lies with the pilot. The Chicago Convention provides that the pilot-in-command must be responsible for the operation and safety of the aircraft and for the safety of all persons on board, during flight time.
This presumption of responsibility has influenced most States which have signed or ratified the Convention and is reflected clearly in their air navigation laws. These laws have been have been observed to list requirements which any pilot with a sense of good airmanship would naturally comply with. Failure to comply with such regulations has been clearly interpreted to be bad airmanship which renders the pilot liable for prosecution on a criminal charge. In any event, the fundamental postulate which imposes prima facie responsibility on the pilot has been accepted as a general principle of liability of the pilot which sets the base for determining his legal status and responsibility.
The legal responsibility placed on the commander of the aircraft is therefore inextricably linked with the expectation of good airmanship. Airmanship has been regarded as an indefinable quality and has been used to describe the intuitive faculty of the pilot where he concerns himself with what is right or wrong in the operation of an aircraft which is acquired by sustained experience in flying. Whilst it is:
the proper conduct of the normal flight to avoid creating hazard, it is also the ability to overcome potential hazard where failure has occurred. With procedures laid down, drills to cover eventualities and the installation of duplicated equipment it is not surprising that crew error is seen as an element in so many accidents.
The above analysis seems to suggest that the pilot should be held absolutely responsible for the safety of his flight not only as he lays claim to special expertise but also as he has been given the benefit of sophisticated duplicate equipment which makes his job easier. Thus, the stringent legal responsibility placed upon the pilot is seen to be further justified.
The absolute responsibility cast upon the pilot inevitably carries with it absolute and final authority from take off to landing. The status of the pilot therefore entails far reaching consequences making an instance of his negligent act open to be interpreted as a dangerous and unlawful act which could justify a charge of manslaughter in the least. Criminality of the act of the pilot lies quite independently of the incontrovertible liability in negligence which would follow from such act.
Conclusion
The above notwithstanding, there are instances where standardization and harmonization cease to apply, and that is when the safety of those on board become the most critical factor. On January 15, 2009, US Airways Flight 1549, a regularly scheduled service from New York City (LaGuardia Airport) to Charlotte and Seattle in the United States, encountered a significant incident. The Airbus A320 aircraft, which was operating the flight, collided with a flock of birds shortly after takeoff from LaGuardia, resulting in a complete loss of engine power. Facing a critical situation due to their proximity to available airports and the aircraft’s low altitude, pilots Chesley “Sully” Sullenberger and Jeffrey Skiles made the decision, despite the numerical protocols they had to follow in the “rule book” to skillfully glide the plane for an emergency landing in the Hudson River near Midtown Manhattan.
Captain “Sully” will go down in the annals of commercial aviation as a hero whose spontaneous wisdom and professional competence saved all those on board. This was a quintessential example of the emergency mantra of aviation which is known as ANC (aviate, navigate, and communicate) as well as the ultimate responsibility of an aircraft commander to secure the safety of passengers on board which was exemplified by Captain Sully who walked up and down, twice, alone in a sinking aircraft to make sure there was no one left behind after all passengers had sought the solace of the two aircraft wings that served as a platform on the frigid Hudson river until helped arrived. Captain Sully has left the pilots of today and the future with a noble legacy when he said: “ Each generation of pilots hopes that they will leave their profession better off than they found it”
This fills us with hope and inspiration.
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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