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393SYS Airport Engineering Practice Lecture 13 Aviation Law


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Title: 393SYS Airport Engineering Practice Lecture 13 Aviation Law

393SYS Airport Engineering Practice Lecture
13 Aviation Law
13 Aviation Law Regulatory Agencies
  • Introduction
  • Hardly any aspect of the aviation industry today
    is unaffected by regulations.
  • We will consider first some of the
    administrative agencies most directly involved
    in the aviation industry using a United States
  • The idea is to distinguish them from each other
    according to their role.
  • The ease with which civil aircraft cross
    national boarders have made the regulation and
    development of civil aviation a subject of
    continuing international concern.
  • Regulation of the aviation industry has
    undergone significant changes since the 911
    terrorist attack and subsequent terrorist

13 Aviation Law Regulatory Agencies
  • We will be using a US perspective on aviation
    law for two reasons
  • The US aviation industry is still, at present,
    the largest, most developed aviation industry in
    existence today, and US aviation law has a
    significant impact on the global aviation
  • Aviation law in the region local to Hong Kong
    includes several different legal jurisdictions -
    Hong Kong, Macao and China and is therefore
    quite complex. This situation is made even more
    complex because of the colonial histories of both
    Hong Kong and Macao.

13 Aviation Law Regulatory Agencies
  • The terrorist attacks of September 11, 2001
    resulted in the most sweeping reorganization of
    the US federal government in more than 50 years.
  • The terrorist attacks demonstrated that civil
    airliners could be used a weapons of mass
  • Transportation Security Administration
  • Two months after the 911 attacks, the US
    Congress enacted the Aviation and Transportation
    Security Act of 2001 which affected all modes of
  • It created the Transport Security Administration

13 Aviation Law Regulatory Agencies
  • Previously, operators of airports were
    responsible for airport security.
  • They relied on contractors with some oversight
    from the FAA.
  • The new law brought the responsibility for
    day-today screening of airline passengers,
    baggage, and cargo under the new TSA.
  • The TSA then went about hiring and training
    security personnel.
  • Most of the new federal screeners were the same
    people previously employed by the contractors !
  • The TSA also took over responsibility for
    inspecting and testing security measures at
  • Congress also empowered the TSA to receive,
    assess, and distribute intelligence information
    related to transport security.

13 Aviation Law Regulatory Agencies
  • Transportation Security Oversight Board (TSOB)
  • Initial investigations into the terrorist
    attacks revealed that various federal law
    enforcement agencies had clues regarding the
    possibility of an attack.
  • If these different agencies had shared this
    information, the plan for the attack might have
    become apparent in time to prevent it happening.
  • Note that this is possible with proper
    coordination - in the UK, the plan to use liquid
    explosives to destroy multiple aircraft over the
    Atlantic ocean was discovered before it could be
  • The TSOB is a high level panel composed of the
    Secretaries of Homeland Security,
    Transportation, Defence, the Treasury, the
    Attorney General, the Director of the CIA - they
    are responsible for assuring the coordination
    and sharing of intelligence.

13 Aviation Law Regulatory Agencies
  • Department of Homeland Security (www.dhs.gov)
  • Next, Congress created the new Department of
    Homeland Security (DHS).
  • 24 agencies were brought under the DHS to
    protect the nation from further terrorist
  • DHS now screens foreign students applying to US
    flight schools (screening takes only 5 days !).

13 Aviation Law Regulatory Agencies
  • Department of Transportation (DOT) (www.dot.gov)
  • The DOT has jurisdiction over various aspects of
    transportation, including
  • The Federal Aviation Administration
  • The Federal Highway Administration
  • National Highway Traffic Safety Administration
  • Urban Mass Transport Association
  • Maritime Administration
  • The Head of DOR recently expressed concern that
    global progress in aviation and the aerospace
    industry challenge Americas long held
  • To counter this threat, he announced a
    government initiative to design the Next
    Generation Air Transportation System a
    cleaner, quieter system based on 21st Century
    technology that will offer seamless security and
    added capacity to releave the congestion and
    secure Americas place as a global leader in
    aviations second century.
  • One goal of this initiative is to triple the
    capacity of the US aviation system over the next
    15 to 20 years !

13 Aviation Law Regulatory Agencies
  • Federal Aviation Administration (FAA)
  • Congress made the FAA the agency primarily
    responsible for the regulation of aviation
    safety in the US.
  • The FAAs activities cover a wide range
  • Regulation ? Certification ? Registration
  • ? Security
  • Airport security has been transferred to the TSA
    but FAA ordered to improve flight deck security
    by requiring airlines to
  • strengthen flight deck doors and keep them locked
  • develop guidance for training flight deck and
    cabin crews to deal with threats, and
  • explore the use of video monitors in the cabin
  • explore methods for preventing the disabling of
    the aircrafts transponder in flight (as the 911
    hijackers had done to make the tracking of the
    aircraft more difficult).

13 Aviation Law Regulatory Agencies
  • Federal Aviation Administration (FAA)
  • The FAAs activities cover a wide range
  • Cartography (aeronautical charts) ? Education ?
  • ? Investigation
  • ? Operations (i.e. Air Traffic Control, Radio
    Aids to Navigation)
  • National Transportation Safety Board (NTSB)
  • An independent agency whose primary
    responsibility is to
  • investigate transportation accidents
  • determine the probable cause of the accident,
  • recommend measures that might prevent similar
    accidents in future

13 Aviation Law Regulatory Agencies
  • International Civil Aviation Organization
  • The ICAO is an agency of the United Nations.
  • Formed in 1944 at the Chicago Conference which
    had two specific goals
  • Establishment of international technical
    standards for aircraft airworthiness
    certification, flight crew certification,
    communications, and radio aids to navigation,
  • Establishment of principles and procedures for
    the economic regulation of international civil
    aviations routes, fares, frequency and
  • Note Although this was originally a goal of
    the ICAO, it failed to achieve this goal. The
    airlines formed their own trade association
    IATA to address these issues.

13 Aviation Law Regulatory Agencies
The delegates philosophy was expressed in the
preamble to the resulting treaty the Convention
on International Civil Aviation WHEREAS the
development of international civil aviation can
greatly help to create and preserve friendship
and understanding among the nations and peoples
of the world, yet its abuse can become a threat
to the general security and WHEREAS it is
desirable to avoid friction and to promote that
cooperation between nations and peoples upon
which the peace of the world depends THEREFORE,
the undersigned governments having agreed on
certain principles and arrangements in order that
international civil aviation may be developed in
a safe and orderly manner and that international
air transport services may be established on the
basis of equal opportunity and operated soundly
and economically Have accordingly concluded this
Convention to that end.
13 Aviation Law Regulatory Agencies
  • Today, at least 185 nations have signed the
    Convention on International Civil Aviation.
  • The ICAO has therefore succeeded with its first
  • With regard to the second goal, there was at
    least some progress at the 1944 congress, the
    United States proposed what was basically a
    global free market for airlines.
  • The problem was that the United States was on
    the verge of being in a position to monopolize
    the international airline industry.
  • Consequently, other countries in the world
    wanted to protect their own markets rather than
    expose them to free-market competition.
  • Since then, the ICAO has helped with the
    movement towards Open Skies and is gradually
    moving to the even more liberal Clear Skies
    which will relax controls on airline ownership.
  • The ICAO also has a central role in establishing
    internationally agreed standards with regard to
    airline operations, safety, crew training,
    aviation law, etc.

13 Aviation Law Regulatory Agencies
  • International Air Transport Association (IATA)
  • IATA operated initially as a cartel to divide up
    markets for international air transportation,
    and to fix prices on international air routes.
  • However, these activities came into conflict
    with US anti-trust laws so IATA, eventually, had
    to abandon that function.
  • Today, IATAs most important function is often
    seen to be its function as a clearinghouse for
    settling inter-airline revenue transactions
    between member airlines.
  • Without this clearinghouse function, arranging
    travel requiring a change of airlines would be
    an unbelievably complicated nightmare,
    particularly because of currency differences and
    fluctuating exchange rates.
  • IATA also works closely with ICAO on technical
    issues involving airline operations, safety and

13 Aviation Law Liability
  • Basic Principles of Liability
  • The law is generally subdivided into
    administrative, civil, criminal, and common law.
  • In the preceding slides, we have been looking at
    the main agencies of administrative regulation
    laws and rules made by administrative
  • Civil law may be sub-divided into tort law and
    contract law.

13 Aviation Law Liability
13 Aviation Law Liability
  • Tort Law
  • A tort is an act or omission that causes injury
    to another person by breach of a legal duty not
    arising out of a contract, and subjects the
    actor to liability for damages.
  • When ever you read a news headline like Jury
    awards 480 million to 3 hurt in plane crash,
    you are almost certainly reading about a tort
  • Torts may be further subdivided into two kinds
  • Intentional Torts
  • Negligence

13 Aviation Law Liability
  • Intentional Torts
  • Intentional torts are all acts.
  • Some intentional torts can also be crimes and
    may also be violations of Federal Aviation
    Regulations (FARs).
  • In such cases, the wrongdoer may not only be
    subject to a fine or imprisonment (criminal
    action) but can also be
  • ordered to pay compensation to the victim (civil
    tort action), and
  • subject to certificate suspension by the FAA
  • all for the same thing !

13 Aviation Law Liability
  • For example
  • criminal charges including 110 counts of murder
    and 110 counts of manslaughter (one for each
    person killed in an aircraft crash) were filed
    against SabreTech Inc., an airline maintenance
  • extensive civil litigation followed
  • FAA action was taken against the company
  • a federal grand jury charged SabreTech with
    several criminal violations of the Hazardous
    Materials Transportation Act

13 Aviation Law Liability
  • Some other types of intentional torts that may
    arise in aviation
  • Battery harmful or offensive contact with
    another person.
  • Assault attempted battery that missed.
  • False Imprisonment
  • intentionally confining, restraining, or
    detaining another person against their will
  • occurs most often in the aviation industry in
    debt- collection situations e.g.
  • an airline owes some other company money
  • a gasoline truck is positioned to block the
    aircrafts departure
  • the owner of the airline is physically dragged
    into the office of the other company

13 Aviation Law Liability
Trespass intentional invasion of someone elses
land. Occurs when aircraft land in off-airport
locations or at airports that are not open to the
public - without prior permission. Conversion
this is like trespass but it applies to personal
property other than land e.g. if you took
someones airplane for a joy ride without their
13 Aviation Law Liability
  • Negligence
  • Negligence may consist of either an act or an
  • Negligence is the most common form of tort
    involved in aircraft accident litigation.
  • Negligence can be summarized simply as you are
    responsible for the consequences of your actions
  • Negligence means failing to do an act that a
    reasonably careful person would do to protect
    others from harm, or doing an act that a
    reasonably careful person would not do under the
    same or similar circumstances.
  • The four elements of a negligence case are
  • A duty to be reasonably careful and
  • A failure to be reasonably careful,
  • which is the proximate cause of ..
  • injury to another person or their property

13 Aviation Law Liability
  • DUTY
  • An obligation to be reasonably careful to avoid
    harming others.
  • This extends to anyone who might foreseably be
    injured by your neglect.
  • A jury or a trial judge decides whether you were
    reasonably careful.
  • They will rely upon the testimony of aviation
    expert witnesses.
  • This usually means real physical injury or
    property damage.
  • Your neglect must have actually caused the
    injury, at least by setting in motion a sequence
    of events that would not otherwise have occurred.

13 Aviation Law Liability
  • Example of Proximate Cause
  • A single engine aircraft has an engine stoppage.
  • The aircraft is damaged attempting a forced
  • The occupants are seriously injured.
  • An accident investigator finds out the time the
    aircraft took off, the fuel capacity of the
    aircraft and the rate of fuel consumption.
  • The investigator suspects the aircraft ran out
    of fuel.
  • The investigator checks for any remaining fuel
    at the scene of the accident and finds none.
  • Later, the investigator testifies to the NTSB.
  • The NTSB determines the probable cause of the
    accident to be inadequate pre-flight planning by
    the pilot and failure to monitor his fuel
  • The injured passengers sue the pilot for

13 Aviation Law Liability
  • Proof of Negligence
  • The procedure at a trial is that the plaintiff
    (the person who claims to be injured) must first
    present evidence to prove each of the four
    elements of negligence to satisfy the burden of
  • Negligence Per Se (means negligence as such)
  • Where the plaintiff can prove that the accident
    resulted from a violation of an FAR intended to
    prevent such accidents, the FAR violation also
    constitutes civil negligence as a matter of law.
  • This is called negligence per se.
  • Losing, or failing to defend, an FAA enforcement
    case arising out of an accident may also cause
    you to lose the civil suit !

13 Aviation Law Liability
  • Strict Liability
  • A person (or business) selling any product
    (including an aircraft or aircraft component)
    delivered in a defective condition unreasonably
    dangerous to the purchaser or an anticipated
    user, is strictly liable.
  • In such a case, negligence need not be proved
    and the seller is liable for resulting injury to
    users and others even if the seller exercised
    all possible care in the manufacture, inspection,
    and sale of the product, and even if the seller
    had no contact with the injured person.
  • The courts believe that the best way to make
    businesses exercise every possible effort to
    ensure safe products is to make them pay every
    time someone is injured by an unsafe product.

13 Aviation Law Liability
  • This form of liability previously brought the
    light aircraft industry in the US to a halt
    because it was too easy to blame light aircraft
    crashes on a defective product.
  • As a result, a new industry arose producing kit
    aircraft 51 of the construction was competed
    by home builders the home builders were then
    \considered to be responsible for the condition
    of the product rather than some aircraft

13 Aviation Law Liability
  • Defenses
  • Assume the plaintiff has carried the burden of
    proving negligence at a trial.
  • They may have done this by
  • Proof of the four basic elements (slide 22), or
  • Proving negligence per se, or
  • Proving strict liability for a defective
  • The burden then shifts to the defendant (i.e.
    the ball is now in the defendants court).
  • The defendant must then present evidence to
    refute the plaintiffs proof and support any
    legal defenses they are claiming.

13 Aviation Law Liability
  • The defenses which the defendant might use
  • e.g. the engine of a single-engine aircraft
    quits after take-off at 50 feet over a lake at
    the end of the runway.
  • The judge or jury could take into account the
    sudden emergency in deciding on the
    reasonableness or the pilots actions.
  • This only applies, however, if the no negligence
    was involved e.g. as might be the case if the
    engine stopped because the pilot did not do a
    proper pre-flight inspection (includes checking
    fuel levels).

13 Aviation Law Liability
  • If the injured person can be proved to have
  • known and understood the scope, nature, and
    extent of the risk involved in a flight and to
  • voluntarily and freely chosen to accept that
  • the assumption of risk doctrine may relieve the
    defendant of any legal responsibility.
  • See tutorial example (P94)

13 Aviation Law Liability
  • If it can be proved that the plaintiffs
    negligence was also a proximate cause of the
    accident, this may reduce the extent of the
    defendants liability, or relieve the defendant
    of all liability.
  • This varies according to the jurisdiction.
  • For example, in some places, if the accident was
    even slightly the fault of the person injured,
    that person is not entitled to any compensation,
    no matter how negligent someone else may have
  • Statutes of limitation impose time limits on how
    long a person has after an injury to file a suit
    (or be forever barred from bringing legal

13 Aviation Law Liability
  • Litigation Procedures (US)
  • The first notice you get that you are about to
    be sued comes in the form of a Summons and
  • When that is received, it is time to contact
    your own lawyer immediately.
  • Law suits are like ball games if you dont
    show up on time, you lose by default.
  • Your lawyer will typically have something like
    20 days to file a (well-considered) Answer with
    the court.
  • Before the trial, your lawyer will have the
    opportunity to find out what the other sides
    case is all about through discovery.

13 Aviation Law Liability
  • Discovery includes
  • written interogatories (questions to be answered
    in writing)
  • depositions (sworn testimony by prospective
  • examination of documents and other physical
    evidence (by a motion to produce)
  • Discovery, and litigation in general, is often
    very expensive.
  • For this reason, many people and business are
    now turning to alternative methods of dispute
    resolution such as arbitration and mediation.
  • The best way to prevent litigation, however, is
    through prevention strict adherence to the
    FARs, rigorous training programmes, thorough
    inspection and maintenance, and a culture of

13 Aviation Law Airline Liability
  • The legal relationship between airlines and
    international passengers is governed by a
    special body of law.
  • For many years, airline liability to
    international passengers was defined in an
    agreement known as the Warsaw Convention.
  • However, this body of law now includes a new
    international treaty known as the Montreal
    Convention which is rapidly updating the old
    Warsaw Convention.
  • These conventions relate to
  • the responsibility of airlines and the use of
    airline tariffs as a risk management tool, and
  • common mistakes that can deprive an airline of
    the protection offered by international.

13 Aviation Law Airline Liability
  • Airline Liability to Domestic Passengers
  • When a domestic passenger is injured, the first
    question that must be addressed is whether the
    airline was acting as a common carrier.
  • An operator is considered a common carrier if it
    offers to the public a service in which it will
  • carry for hire
  • at a uniform tariff (price)
  • all persons
  • applying (or cargo), as long as there remains
    unused capacity in the aircraft.
  • These characteristics distinguish common carrier
    operations from private or contract flying.

13 Aviation Law Airline Liability
  • For the purposes of distinguishing between
    common carriage and contract carriage, the
    important question is whether the price paid for
    the ticket, for a given class of travel, is a
    standard price or a negotiated price.
  • For example, if a passenger paid a listed
    airline fare of, say, 4,000, then that would be
    a common carrier transaction.
  • On the other hand, if the passenger was a member
    of a sports team which had negotiated a special
    price as a group, then that would be contract
  • The reason this is important is that, under
    common law, common carriers have been required
    to exercise the greatest degree of human care
    and foresight possible to ensure passenger
    safety i.e. there exists a greater obligation
    than with contract carriage ! Tutorial P150

13 Aviation Law Airline Liability
  • Liability for International Passengers
  • The legal relationship between airlines and
    international passengers began with an
    international treaty generally known as the
    Warsaw Convention which was agreed in 1929 (!).
  • The main objective of this treaty was to protect
    and promote the infant airline industry that
    existed in 1929
  • Protect international airlines from catastrophic
    loss in the event of a crash.
  • Promote airline safety.
  • Promote the availability of liability insurance
    to international airlines.
  • Provide uniformity of terms and conditions of
    transportation by air, ship, rail, bus, etc.)
  • Provide a framework of internationally uniform
    law to govern international airline crashes.

13 Aviation Law Airline Liability
  • The problem is that some of these objectives
    work against each other.
  • For example, strict liability is applied against
    manufacturers of defective products to promote
    safety by making the airline strictly liable if
    a passenger is injured.
  • But this conflicts with
  • the objective of protecting international
    airlines from potentially catastrophic losses,
  • promoting the availability of liability
    insurance (because, with insurance, airlines are
    protected from heavy fines, etc.)
  • In practice, a compromise was reached between
    the competing interests of the passengers and
    the airlines -

13 Aviation Law Airline Liability
  • A framework of internationally uniform law was
  • This standardized claims and procedures in the
    event of international airline crashes.
  • These procedures provide internationally uniform
    answers to following questions
  • In what nations courts may a lawsuit arising out
    of the crash be brought ?
  • What nations law governs the crash ?
  • When must the lawsuit be filed or forever barred
  • The treaty allowed an international passenger to
    choose between four possible nations in which to
    bring a lawsuit for injury

13 Aviation Law Airline Liability
  • The nation of domicile of the airline.
  • The nation in which the airline has its
    principal place of business.
  • The nation in which the ticket was bought from
    the airline or travel agent.
  • The nation that is the passengers destination.
  • The treaty contains a globally applicable
    statute of limitations which provides that a
    lawsuit must be brought, if at all, within two
    years from the date of the conclusion of the
    passengers trip, or its intended conclusion.

13 Aviation Law Airline Liability
  • Uniformity of terms and conditions
  • The provision of the treaty standardized the
    documents of transport
  • the passengers ticket and,
  • for cargo, the air waybill
  • in formats and contents similar to those
    already in widespread use for transportation by
    ship, truck and rail.
  • 3. In an effort to promote safety, the treaty
    imposes strict liability on international
    airlines for passenger injury or death, and
    substantially limits defences that would
    otherwise be available to international airlines
    under the common law against claims for the loss
    or destruction of cargo.

13 Aviation Law Airline Liability
  • This is the most controversial provision To
  • counterbalance strict liability and protect
    international airlines from catastrophic loss in
    the event of a crash, and
  • promote the availability of liability insurance
    to international airlines,
  • the treaty limited the dollar amount of the
    airlines liability for injury or death of a
    passenger to US8,300 and, for the loss or
    destruction of cargo, to US16.50 per kilogram.
  • Even in 1929, US8,300 was a shockingly cheap
    price for killing someone.
  • Years of strong opposition followed in the
    United States.
  • By 1965 the United States declared its intention
    to withdraw from the Warsaw Convention.

13 Aviation Law Airline Liability
  • International airlines serving the United States
    would have to sign a contract with the US
    government raising the limits of liability for
    injury or death to US75,000.
  • The Montreal Convention of 1999 Modernizing
  • In May 1999, 118 nations and 11 international
    organizations gathered in Montreal (home of the
  • After three weeks of discussion a new treaty
    emerged A Convention for the Unification of
    Certain Rules for International Carriage by Air
    generally referred to as the Montreal
    Convention of 1999.
  • According to the provisions of this treaty, it
    would not take effect until 30 nations had
    ratified it. ratify means to confirm
  • This finally occurred in September of 2003.

13 Aviation Law Airline Liability
  • The United states was the 30th ratifying nation.
  • As in the past, many nations waited for
    ratification by the United States before making
    a ratification decision.
  • Now that the US has ratified the treaty,
    ratifications are flowing quickly from other
  • A few of the most important changes introduced
    with the Montreal Convention include
  • Airlines are strictly liable for passenger
    injury or death for the first US140,000 (this
    value is continuously adjusted for inflation).
  • There is no limit on damages beyond this amount
    unless the airline can prove itself free from
    any fault causing the accident.
  • Airlines are liable for delaying passengers and
    their baggage, to a limit of about US6,000 per
    passenger for passenger delay and US1,400 per
    passenger for luggage delay. These limits may be
    exceeded if the passenger proves the delay was
    the airlines fault. See reference text for more

13 Aviation Law Airline Liability
References Practical Aviation Law by J. Scott
Hamilton, Aviation Supplies Academics Inc.,
2007, 4th Edition, ISBN 1-56027-632-0,
13 Summary
Introduction Federal Administrative
Agencies Transportation Security Administration
(TSA) Transportation Security Oversight Board
(TSOB) Department of Homeland Security
(DHS) Department of Transportation
(DOT) Federal Aviation Administration
(FAA) National Transportation Safety Board
(NTSB) International Regulation International
Civil Aviation Organization (ICAO) International
Air Transport Association (IATA) Legal Liability
and Aviation Law Basic Principles of
Liability Litigation Procedures (US) Airline
Liabilty Domestic Passengers ? International
Passengers ? The Montreal Convention of 1999
13 What you need to know for the exam
  • Could you briefly identify the purpose of the
    TSA, TSOB, NTSB or FAA ?
  • In legal terms, what do negligence,
    negligence per se, strict liability and
    proximate cause mean ?
  • What are the three means by which a plaintiff
    can prove negligence at a trial ?
  • What do the terms Assumption of Risk,
    Contributory Negligence and Statutes of
    Limitation mean ?
  • What liabilities do airlines have to domestic
    passengers with regard to the terms common
    carrier and contract carriage ?
  • Which two provisions of the Warsaw Convention
    conflict with the application of strict
    liability ?
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