2ier2018 Plots or Contolers: Who's Liable Inthe Free Fight Environment? -Avionies = — Cost & Space Saving IFEC &PED Power Solutions Cope REE NES [XTM Modernization (/category/ztm-madernization), Business & GA (/category/business-ga), Commercial (/eategory/commercial) Pilots or Controllers: Who’s Liable in the Free Flight Environment? ‘By Francis Schubert | February 1,2002 fvminan Free Flignt will not worsen the legal position ofthe pilot nar relieve air traffic controllers of al ibility. Rather, this emerging era of fights likely to introduce new areas of application for existing lability principles. How can this be? Safe navigation requires, among other things, tools and procedures that will minimize the risk of collisions between aircraft. Inthe early days of aviation, plots took this responsibilty entirely on their own shoulders by looking out ther airplanes’ windscreens. However, a8 traffic and aircraft became able to fly in poor visibility conditions, alternative means of safe navigation had to be found, That assistance eventually came inthe form of 2 ground-based system comprising technical navigation aids and air traffic services (ATS) facilities. Asa result, the trafic separation function now is largely performed by ai traffic contro (ATC) operators fr all instrument flight rules (WR) navigation eased ATC’ ‘Positive Control Introducing a NEW way to read your Mwionics digital edition ATC also offers assistance to controled visual flight rules (VER lights. t keeps predetermined distances between controlled sirraft to avoid collisions or to provide flight erews with the information they need to prevent collisions themselves, The system works ona ‘positive cantcol” ‘concept, under which pilots must follow clearances issued by ATC, whether they are operating by IFRor VER. Pilots receive instructions from ATC a8 to which route to follow within a fixed airway structure or network of flight paths connecting the main airports, Shortcuts are not taken through these light paths for fear of encountering other craft, iy sticking to predefined flight paths, however, ATCis unable to make use of the ful airspace capacity. The corridor system of flight channels all traffic through limited airspace sectors, thus imposing longer fight distances than could ideally be flown with direct routings Air traffic controlers also must limit the number of flights within a path as a safety precaution, The result? An airspace capacity shortage that has become Rater CNS/ATM. ‘The Free Flight concept is expected to help ease the shortage, Formally known as communications, navigation, survellance/air traffic ‘management (CNS/ATM), the new system of fight control will combine emerging data link and satelite technologies with existing safety precautions to allow pilots co determine their oven fight paths. Free Might nonetheless poses significant lability questions, as it would shift some of the separation tasks presently performed by ATC onto pits p:twww-aviationloday com!2002/02/0tplts-o-cantrollerswhos-lablesr-the-fee-fight-envicrment! 62ier2018 Plots or Contolers: Who's Liable Inthe Free Fight Environment? -Avionies select a path and speed in real time. Air trafic restrictions are only imposed to ensure separation to preclude exceeding a prevent unauthorized Might through special use airspace (SUA), and to ensure safety of flight. Restrictions are li correct the identified problem? ort capacity, to edi extent and duration to Free Flight is largely a US. concept. However, Europe is developing its comparable Free Rowing concept, which takes into account the problems posed by the continents traffic density and flow structures. While aircraft in Europe willbe virally fee to fly unconstrained within Pree Flight airspace, pilots operating in the Free Routing system will main constrained by the terms ofthe ATC clearance, except in planning the route and akitude they wish to follow. Under both the U'S. and European systems, ATC’s role would be diminished and controller intervention would take place only when the planned route of one aircraft conflicts withthe path of another. But contrary to naysayers, nether the U.S. concept nor the European concept will relieve controllers of al liability because ATC always wil be the ruling entity in separation arbitration, says RTCA Task Force 3, That means Free Flight will nt become a substitute for ATC, but rather will broaden the range of means used to support the pilot in the safe conduct ofa fight. Roles and Procedures Needed ‘hile the tability rules of ar navigation thus will remain centered on the pot, ATC still will be liable for any failure in providing separation among aircraft for specific flight patterns, This would seem to make the most significant task ahead the definition of new operating rules and procedures forthe specific areas where Pree Flight will be introduced since lability follows statutory authority “True, the introduction of sophisticated new light control and safety technologies and the gradual implementation of Free Fight will bring changes in the respective duties of air traffic controllers and pilots, In those parts of the airspace where these solutions are used, pilots wil take ‘upon themselves a number of the tasks related to trafic separation that are now performed by ATC, ir taffic controllers will end up stepping back from direct traffic control to assume more of a monitoring role. They will supervise automated equipment and interfere with a pilots decision only when a sufety conflict arises or when onboard equipment fils, Air trafic controllers therefore undoubtedly will remain liable for their actions in the event of an accident. “Thats because the notion of lability itself closely connected to the concept of duties or responsibilities, and legal liabilities follow statutory responsibilities. Inthe case of pilots, that statutory responsibilty has been defined by the courts in terms of traf separation. Plots are responsible for operating their aircraft in such a way a8 o avoig collision hazards. The ‘pllot-in-command” principle ofthe Chicago Convention holds that a plot cannot be held legally lable for any damage done to an sireraft unless it was caused by a breach ofthat statutory duty Both Can Be Liable At the same time, the allocation of lability in the ATC context is nota binary concept. In other words, the pilot's liability would not exclude the liability ofthe air traffie controller or vice versa. “We have previously rejected the position that a plot's negligence in performing his duties most, as a matter of law, free the air trafic controller from lability? wrote the majority in Rodriquez vs. United States (US. Court of Appeal, 3rd Circuit. [At the same time, the International Civil Aviation Organization (ICAO) says ATC cannot substitute forthe plot's own duty regarding the safety of his aircraft. “the pilot has @ continuing duty tobe aware of dangers which are discernible with his own eyes and instruments’ agreed the Sth Circuit US. Court of Appeals in United States vs. Schultetus, “There have been instances where the courts have applied the pilot-in-command concept to absolve ATC of lability when the air raffle controllers could have prevented an accident. For some, this makes application of th pilot-in-command concept in tort litigation inimical, or harmful in effect to safety. thers doubt thatthe "se and avoid” principle and the pilot-in-command rule adequately reflect the distribution of responsibilities in a Free Flight environment However, recent court decisions such as Colorado Flying Academy, ies, United States, Remo vs. US. Federal Aviation Administration, and Neff ‘bs, United States have found that both the pilot and the controller are decisive players in aviation safety. These decisions also have allocated liability based on the notion of ‘reciprocal or “concurrent” duties. In short even in a Free Fight environment, ai trafic controllers and pilots can expect to share liability in proportion to their culpability or {volvement in the aceurrence of the accident. A close read of the court eases indicates that its nat so much the formal fight rule used that will govern liability, but the actual visual conditions prevaling atthe time of an accident. Ifthe visibility conditions and other relevant operational factors do not prevent the pilot from visually identifying the risk of an accident, then the pilot surely willbe blamed, at least in part, for the ‘occurrence of a mishap. ‘The Workload Factor [tthe same time, the 1955 case, Baste Air Lines vs, Union Trust Co, is among those that show that blame will fll on ATC ithe pilot is found to have had no practical means of identifying the risk of collision, This conclusion takes on particular significance in today’s congested fight environment. A pilot's abilty to avoid collisions by visual separation alone in busy controlled airspace is extremely limited. Therefore, the criteria p:twww-aviationloday com!2002/02/0tplts-o-cantrollerswhos-lablesr-the-fee-fight-envicrment! 2162ier2018 Plots or Contolers: Who's Liable Inthe Free Flight Environment? -Avionies should expect the same leve of vsusl separation or visual situational awareness from a pilot in today’s extremely complex flight environment as was required inthe past though pilots are required to "see and avoid and to be vigilant and critical toward ATC instructions, their ability to reasonably anticipate danger is decreasing as ar traffic increases, They therefore are entitle to rely more and more on ATC ‘he pilot and controler appear certain to remain partoers in safe Might. t's reasonable to assume then thatthe courts will rely on lability principles already in place for cases involving accidents in Free Flight airspace. The final authority ofthe pilot in command wil remain, and judges will assess the behavior ofthe fligat crew and the effective means available to them to enti risk of colision. At the same time, technologies will emerge to expand the range of navigational aids thata pilot can use in assessing danger. These tools probably will take the form of airborne separation assistance systems, enabling plots to select the most appropriate measures to avoid collisions. ATC and traffic data derived from onboard equipment wil allow pilots to "see" other aircraft, even ia IFR conditions, strengthening the "see and avoid” principle behind flight, However, ATC wil remain the ruling entity in separation arbitration, Free Flight thus wil not weaken the legal position of the plot, but rather ‘consolidate the principle ofthe final authority ofthe plot in command while maintaining ATC’s responsibility for separation arbitration, About the Author Prancis Schubert is the corporate secretary for Skyguide, Swiss Air Navigation Services Lt, in Geneva, Switzerland, and an adjunct professor at the Insitute of Air Space Law at McGill University, in Montreal, Canada, He also is chairman of the Legal & Policy Working Group ofthe Civil {Ar Navigation Services Organization (CANSO). After holding several air trafic contrl positions in the 1980s, Schubert earned his PhD. in international aviation law from the University of Geneva anda Diploma in Higher Studies in intern published several articles on the legal aspects of ai traffic management (ATM) and on the legal lability of controllers, Schubert's expertise in aviation law bas been employed by Eurocontrol, the International Civil Aviation Organization ((CAO),the European Commission, and the European Civil Aviation Conference (ECAC), ional relations from the Graduate Institute for International Studies, in Geneva, He has Receive the latest avionics news right to your inbox SIGN UP Vv More On This Topic ‘Airbus Testing Unmanned Package Delivery in Singapore ‘Cobham to Sell Avionics Test Division to VIAVI (btp:/wwwaviationtoday.com/2018/02 /07/sirbus-testing- (ati //www.aviationtoday.com/2018 /02/07/eobbs uunmanned-package-delivery-singapore/) avlonies-test-divsion-viavi/) p:twww-aviationloday com!2002/02/0tplts-o-cantrollerswhos-lablesr-the-fee-fight-envicrment! a62ier2018 Plots or Contolers: Who's Liable Inthe Free Flight Environment? -Avionies ‘Airbus Vahana Unmanned Electric Vehicle Takes Fst Flight (itp: /www.avitiontoday.com/2018/02/02/airbus-vahana~ ‘unmanned electric-vehicle-takes-first-flight/) Airbus Poised for Dominance in Asia-Pacific off Strong 2017 (oxtp://wwwaviationtoday.com/2018/02/07/airbus-poised- dominance-asia-pacific-off-strong.2017/) ® Login Comments Aviation Today Recommend Eb Shere sory @ star tne discussion oo wt consi ur wm orsaus Berrie Os Also On Avionics Poliey Controlled Radio: Making Room inthe Spectrum {http://wwwwaviationtaday.com//2005/03/01/policy-controlled- radio-making-room-in-the-spectrusm/) Commercial: Technology Lightens Aviation’ Footprint (tp: // www aviationtoday.com/2007/12/01/commercial~ technology-lightens-avialions-footprint/) p:twww-aviationloday com!2002/02/0tplts-o-cantrollerswhos-lablesr-the-fee-fight-envicrment! ais2ier2018 Plots or Contolers: Who's Liable Inthe Free Fight Environment? -Avionies IFT Awarded Swedish ATC Contract Astronics Unveils Nine-Cepability Radio Test System tp: / wwwaviationtoday.com/2008/06/26/tt-awarded-swedish~ (http: //www.aviationtoday com /2016/04/28/astronics-unvells-nine~ ate-contraet/) ‘capabilty-radio-test-system/) ON eee ce) Nate Annunciators (hutp://wwwavitiontoday.com/) p:twww-aviationloday com!2002/02/0tplts-o-cantrollerswhos-lablesr-the-fee-fight-envicrment! sis2ier2018 Plots or Contolers: Who's Liable Inthe Free Fight Environment? -Avionies f v in & (ntips://wwwefacebookcom/av (https //twittercom/avionicsm —_(attps://wwwelinkedin.com/co _ (https://www-youtube-com/cha ‘oniesmagazine/) a) -mpany/avionies-maguzine) ‘nnel /UCVPZSWIx- SIErIWe2RBleOQ) Quick Links Commercial (nts//www aviationtaday.com/category/commerca/) Business & GA (http://www aiationtoday.com/category/business-ge/) Miltary (ntp:/wwwavationtoday com/category/miitary/) (ENS {http /wmaavationtoday com/category/cns/) [ATM Modernization (ntt://www avationtaday.com/category/atm-modernzation/) Connectivity (http://www aviationtoday.com/category/connectivity/) Advertise /advertising/) ‘Webinars (htp://aww avlationtoday com/wedinars/) ‘ideo Insight (http:/yw.aviationtoday.com/video.advertsers/) Subscribe to Avionics 'subscrite/) Contact Us (/eontactus/) Job Center (http: /jobs aviationtoday com) Sissel p:twww-aviationloday com!2002/02/0pts-or-cantrollers whos-lablesr-the-fee-fight-envirment! as