393SYS
Airport Engineering Practice
Lecture 13
Aviation Law
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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
perspective.
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
activity.
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13 Aviation Law : Regulatory Agencies
We will be using a US perspective on aviation law for two
reasons –
1. 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
industry.
2. 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.
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13 Aviation Law : Regulatory Agencies
FEDERAL ADMINISTRATIVE 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 destruction.
Transportation Security Administration (www.tsa.gov)
Two months after the 911 attacks, the US Congress enacted the
Aviation and Transportation Security Act of 2001 which affected
all modes of transportation.
It created the Transport Security Administration (TSA).
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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 airports.
Congress also empowered the TSA to receive, assess, and
distribute intelligence information related to transport security.
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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
implemented.]
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.
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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 attacks.
DHS now screens foreign students applying to US flight schools
(screening takes only 5 days !).
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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 America’s long held
dominance.
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 America’s place as a global leader in
aviation’s second century.”
One goal of this initiative is to triple the capacity of the US aviation system
over the next 15 to 20 years !
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13 Aviation Law : Regulatory Agencies
Federal Aviation Administration (FAA) (www.faa.gov)
Congress made the FAA the agency primarily responsible for the
regulation of aviation safety in the US.
The FAA’s 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 –
1. strengthen flight deck doors and keep them locked
2. develop guidance for training flight deck and cabin crews to deal
with threats, and
3. explore the use of video monitors in the cabin
4. explore methods for preventing the disabling of the aircraft’s
transponder in flight (as the 911 hijackers had done to make the
tracking of the aircraft more difficult).
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13 Aviation Law : Regulatory Agencies
Federal Aviation Administration (FAA) (www.faa.gov)
The FAA’s activities cover a wide range –
Cartography (aeronautical charts)  Education  Funding
 Investigation
 Operations (i.e. Air Traffic Control, Radio Aids to Navigation)
National Transportation Safety Board (NTSB) (www.ntsb.gov)
An independent agency whose primary responsibility is to –

investigate transportation accidents

determine the probable cause of the accident, and

recommend measures that might prevent similar
accidents in future
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13 Aviation Law : Regulatory Agencies
INTERNATIONAL REGULATION
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, and

Establishment of principles and procedures for the
economic regulation of international civil aviation’s
routes, fares, frequency and capacity.
[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.]
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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.
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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 goal.
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
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law, etc.
13 Aviation Law : Regulatory Agencies
International Air Transport Association (IATA) (www.iata.org)
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 security.
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13 Aviation Law : Liability
LEGAL LIABILITY AND AVIATION LAW
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 agencies.
Civil law may be sub-divided into tort law and contract
law.
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13 Aviation Law : Liability
LAW
Civil
Law
Criminal
Law
Contract
Law
Administrative
Law
Common Law
Law of
Torts
Negligence
Intentional
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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 case.
Torts may be further subdivided into two kinds –

Intentional Torts

Negligence
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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 !
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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 contractor

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
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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 debtcollection situations; e.g.:
→
an airline owes some other company money
→
a gasoline truck is positioned to block the aircraft’s
departure
→
the owner of the airline is physically dragged into the
office of the other company
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13 Aviation Law : Liability
Trespass – intentional invasion of someone else’s 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 someone’s airplane for a joy ride
without their permission.
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13 Aviation Law : Liability
Negligence
Negligence may consist of either an act or an omission.
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 –
1)
A duty to be reasonably careful and
2)
A failure to be reasonably careful,
3)
which is the proximate cause of ..
4)
… injury to another person or their property
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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.
FAILURE TO USE CARE
A jury or a trial judge decides whether you were reasonably careful.
They will rely upon the testimony of aviation expert witnesses.
INJURY
This usually means real physical injury or property damage.
PROXIMATE CAUSE
Your neglect must have actually caused the injury, at least by setting
in motion a sequence of events that would not otherwise have
occurred.
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13 Aviation Law : Liability
Example of Proximate Cause

A single engine aircraft has an engine stoppage.

The aircraft is damaged attempting a forced landing.

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 supply.

The injured passengers sue the pilot for negligence.
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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
proof.
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 !
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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.
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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 manufacturer.
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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 product.
The burden then shifts to the defendant (i.e. “the ball is now in
the defendant’s court”).
The defendant must then present evidence to refute the
plaintiff’s proof and support any legal defenses they are
claiming.
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13 Aviation Law : Liability
The defenses which the defendant might use include –
SUDDEN EMERGENCY
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 pilot’s
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).
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13 Aviation Law : Liability
ASSUMPTION OF RISK
If the injured person can be proved to have –
a)
known and understood the scope, nature, and extent of the
risk involved in a flight and to have
b)
voluntarily and freely chosen to accept that risk,
the assumption of risk doctrine may relieve the defendant of any
legal responsibility.
[See tutorial example (P94)]
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13 Aviation Law : Liability
CONTRIBUTORY NEGLIGENCE
If it can be proved that the plaintiff’s negligence was also a
proximate cause of the accident, this may reduce the extent of
the defendant’s 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
been.
STATUTES of LIMITATION
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 action).
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Litigation Procedures (US)
The first notice you get that you are about to be sued comes in
the form of a Summons and Complaint.
When that is received, it is time to contact your own lawyer
immediately.
Law suits are like ball games – if you don’t 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.
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Discovery includes –

written interogatories (questions to be answered in
writing)

depositions (sworn testimony by prospective witnesses)

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 care.
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13 Aviation Law : Airline Liability
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 –
1)
the responsibility of airlines and the use of airline tariffs
as a risk management tool, and
2)
common mistakes that can deprive an airline of the
protection offered by international.
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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 –
1)
carry for hire …
2)
… at a uniform tariff (price)
3)
… 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.
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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 carriage.
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]
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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 –
1.
Protect international airlines from catastrophic loss in the event of
a crash.
2.
Promote airline safety.
3.
Promote the availability of liability insurance to international
airlines.
4.
Provide uniformity of terms and conditions of transportation by
air, ship, rail, bus, etc.)
5.
Provide a framework of internationally uniform law to govern
international airline crashes.
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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, and

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 -
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13 Aviation Law : Airline Liability
1.
A framework of internationally uniform law was established.
This standardized claims and procedures in the event of
international airline crashes.
These procedures provide internationally uniform answers to
following questions –
a. In what nation’s courts may a lawsuit arising out of the
crash be brought ?
b. What nation’s law governs the crash ?
c. 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 :
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13 Aviation Law : Airline Liability
I.
The nation of domicile of the airline.
II.
The nation in which the airline has its principal place
of business.
III.
The nation in which the ticket was bought from the
airline or travel agent.
IV.
The nation that is the passenger’s 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.
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13 Aviation Law : Airline Liability
2. Uniformity of terms and conditions
The provision of the treaty standardized the documents of
transport –
the passenger’s 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.
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13 Aviation Law : Airline Liability
4. This is the most controversial provision : To –
a. counterbalance strict liability and protect international
airlines from catastrophic loss in the event of a crash, and
b. promote the availability of liability insurance to international
airlines,
… the treaty limited the dollar amount of the airline’s liability for
injury or death of a passenger to US$8,300 and, for the loss or
destruction of cargo, to US$16.50 per kilogram.
Even in 1929, US$8,300 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.
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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 US$75,000.
The Montreal Convention of 1999 – Modernizing Warsaw
In May 1999, 118 nations and 11 international organizations
gathered in Montreal (home of the ICAO).
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.
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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 nations.
A few of the most important changes introduced with the Montreal
Convention include –

first
Airlines are strictly liable for passenger injury or death for the
~ US$140,000 (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 US$6,000 per passenger for passenger delay and
US$1,400 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 details].
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References :
Practical Aviation Law by J. Scott Hamilton, Aviation Supplies &
Academics Inc., 2007, 4th Edition, ISBN 1-56027-632-0, 978-156027-632-6.
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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
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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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