Liability Aspects of Autonomous Aircraft

1
Liability Aspects of Autonomous Aircraft

• ASAS-TN SEMINAR
• 13 October 2004
• Francis SCHUBERT
• corporate secretary skyguide

2
The Limits of Positive Air Traffic Control

• "Pilots are required to follow clearances issued
  by ATC whether there are operating under visual
  or instrument flight rules."
• K. McChesney Goodman S. Davis, "Free Flight
  the Pilot-in-Command Concept - A Recipe for
  Disaster?", JALC, vol. 62/3, 1997
• "The techniques used guarantee the safety of only
  a limited number of aircraft in any given space,
  sometimes with fairly rough and ready methods.
  Airspace thus has limited capacity which, to
  maintain the optimum level of safety, requires
  the organisation of queues on the ground or the
  diversion of traffic, and delays are created".
• Commission of the European Communities,
  Communication from the Commission to the Council
  and the European Parliament, "The creation of the
  single European sky", COM (1999)yyy final,
  29.11.1999, p. 2.

3
The promises of CNS/ATM

• Datalinks will enable the exchange of
  sophisticated data, in particular between
  aircraft which should help aircrew to capture an
  enhanced traffic situation awareness.
• Satellite CNS applications offer a global
  coverage and provide aircraft with reliable and
  accurate position information. Airspace users
  will be able to fly preferred flight paths
  independently from the availability of ground
  infrastructure and airways network.
• Free Flight
• "A safe and efficient flight operating capability
  under instrument flight rules (IFR) in which the
  operators have the freedom to select a path and
  speed and real time ... Restrictions are limited
  in extent and duration to correct the identified
  problem. Any activity which removes restrictions
  represents a move towards free flight."
• Final report of RTCA Task Force 3 Free Flight
  Implementation, 25 (RTCA, Inc. ed., Washington,
  1995) at 7

4
Legal implications of Airborne Separation
Assurance Systems (ASAS)

• ASAS as a technological revolution
• ASAS as an operational revolution
• ASAS as a legal revolution?
• "Possibly, lawsuit may have a chilling effect on
  the desire for free flight".
• Allison K. LAWTER, "Free Flight or Free Fall",
  JALC, vol. 62, February-March 1997, No 3
• The need to return to basics
• The distribution of liability between the pilot
  and the air traffic controller

5
Basic principles for traffic separation

• The "Pilot-in-command" principle
• "The pilot-in-command of an aircraft shall have
  final authority as to the disposition of the
  aircraft while in command".
• ICAO Annexe 2, 2.4.
• "The pilot-in-command shall be responsible for
  the operation and safety of the aeroplane and for
  the safety of all persons on board during flight
  time"
• ICAO Annexe 6, part. I, chapt.3, para. 3.2 ,
• The "see and avoid" rule
• "pilots are required by regulation and common
  sense to maintain a sharp lookout so as to see
  and avoid other aircraft."
• PanAm v. Port Authority, 787 F.Supp. 312
  (E.D.N.Y. 1992) at 318.
• According to ICAO, "an aircraft shall not be
  operated in such proximity to other aircraft as
  to create a collision hazard"
• ICAO Annex 2, 3.2.1 "Proximity".

6
ATC instructions vs. the Pilot-in-Command
principle

• "...a clearance issued by a tower (such as
  "cleared to land") either by radio or visual
  signal is permissive in nature and does not
  relieve the pilot from exercising a reasonable
  degree of caution in executing the provisions of
  the clearance."
• United States v. Schultetus (1960) 277 F 2d 322
• "the pilot, after his clearance has been given...
  remains primarily responsible for the movement of
  his aircraft..." The pilot is "...required to
  follow his clearance, not blindly, but
  correlative with his duty to exercise care for
  his own safety...."
• Hartz v. United States, 387 F 2d 870 (1968)
• "Flight crew members have a continuing duty to be
  aware of dangers which they can perceive with
  their own eyes."
• Thinguldstad v. United States, 343 F.Supp. 551,
  558 (S.D.Ohio 1972)
• "Pilots cannot fail to use their own eyes and
  ears to be aware from danger."
• Pan Am v. Port Authority, 787 F.Supp, 312
  (E.D.N.Y, 1992)

7
The pilot-ATC relationship
Binding
8
An immunity for ATC?

• "In particular, some courts have applied the
  Pilot-in-command concept to absolve ATC of
  liability in cases in which ATC could have
  prevented an accident by using due care".
• "Controllers were absolved of liability simply
  because the pilot did not follow the regulations,
  even in cases where prompt attention and warning
  by ATC might have prevented the accident."
• "This view might have been realistic when Orville
  and Wilbur first flew at Kitty Hawk, but in
  today's environment it is simply not logical."
• "A fair distribution of liabilities between air
  traffic controllers and pilots "will require
  that courts abandon the Pilot-in-command concept
  in tort litigation."
• K. McChesney Goodman S. Davis, "Free Flight
  the Pilot-in-Command Concept - A Recipe for
  Disaster?"

9
Aircraft Separation
Pilot
10
ASAS and the Pilot-in-command principle

• "The rule makes sense since the pilot, not Air
  Traffic Control, is actually in the cockpit and
  is therefore in the best position to judge the
  correct course of action with respect to that
  aircraft. Applying this line of reasoning to the
  impending Free Flight era, it could be argued
  then, that ultimate responsibility will remain
  with the pilot."
• Allison K. LAWTER, "Free Flight or Free Fall?"
• How new is really the Free Flight concept?
• VFR separation rules
• Visual approaches
• Visual separations
• VMC climbs maintaining own separation
• "With Free Flight's technology, pilots will be
  able to "see" other aircraft, even in IFR
  conditions".
• K. McChesney Goodman S. Davis, "Free Flight
  the Pilot-in-Command Concept - A Recipe for
  Disaster?"

11
Aircraft Separation
Pilot
12
Conclusions

• No change in the fundamental liability principles
• "While technology has improved the Air Traffic
  Control system and made it more efficient, it has
  not changed the Pilot-in-command concept.
  Therefore, improved technology should not shift
  to air traffic controllers the pilot's burden to
  fly safely, nor should it cause Air Traffic
  Control to question a pilot's ability to use and
  rely on the cockpit's instrumentation".
• Allison K. LAWTER, "Free Flight or Free Fall?"
• Changes in the way theses principles are applied
• "It is likely that Free Flight will have little
  effect on the distribution of liability between
  ATS providers and pilots from a liability
  perspective, the shift in responsibility is more
  a matter of degree than a fundamental change."
• B. Elder, "Free Flight The Future of Air
  Transportation Entering the 21st Century"
• It is not the "see and avoid" rule or the
  "pilot-in-command" principle which should be
  questioned, but the criteria against which the
  pilots "reasonable behaviour" is to be assessed.

13
Conclusions

• Change in the nature of aviation liability
• Significant shift from human error liability to
  product or technical failure liability
• Possible misuse of legal arguments to disguise
  other factors
• Safety concerns
• Human factors
• "Pilots claim they do not want primary
  responsibility for maintaining separation and
  controllers do not seem to want to relinquish the
  responsibility."
• Allison K. LAWTER, "Free Flight or Free Fall"
• Political factors
• "The task of implementing Free Flight, however,
  will probably prove to be more difficult
  politically than technically".
• Allison K. LAWTER, "Free Flight or Free Fall"