Legal Liability of the Air Traffic Controller

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Legal Liability of the Air Traffic Controller

20TH ANNUAL CONFERENCE, Cairo, Egypt, 02-06 May 1981

WP No. 79

Legal Liability of the Air Traffic Controller

Introduction

The legal liability of the air traffic controller has been and continues to be of the main items on the agenda of SC7, from its inception in 1972. This item has always been the concern of the controllers nationally, as well as internationally, for, despite assurances being expressed by the employers, air traffic controllers have found themselves before their national courts for civil damages or as criminal offenders. Truly, employers have relieved the controller, in most cases, of any financial burdens as a result of liabilities that come within the framework of the principle of “Employer Liability”. How far, however, this may reflect the absolute truth is hard to say because of the fact that SC7 is not and has not been in an absolute position to search for all legal cases without the assistance of the individual Member-Associations themselves going through their national records.

Discussion

Past years have seen some of IFATCA’s efforts materializing as far as the presentation of controllers’ problems are concerned. International recognition of these has come from the International Labour Office through the Meeting of Experts on Problems Concerning the Air Traffic Controller, which was held at the Office HQ in Geneva, in May 1979.

This forum may be considered as the beginning of an effort to bring to the world, and world recognition of, the problems that controllers are confronted with. Legal liability was extensively considered at this meeting, and a considerable portion of the recommendations was taken by the Legal Liability problems. SC7 has kept a watch on ICAO’s position on the problem, unfortunately to be informed recently that this Organisation has not given its due consideration, possibly because IFATCA has not been represented at any of the Organisation’s Legal Commission’s meetings or perhaps that ICAO has never considered this as an urgent problem. SC7 is of the impression that the former reason may be the cause, considering the fact that the ILO, through the Experts resolution, notified ICAO of the recommendations of the Experts.

Truly, the pilots have reached, through their mother Organisation IFALPA, full observer status at ICAO. Would this fact be ground enough to assume that the pilots are heeded by ICAO more than controllers are? Is the excuse that controllers are in most cases government employees, ground enough to exclude them from the same privilege? It is the general feeling that controllers do not enjoy more privileges than pilots; on the contrary, in most cases they are nowhere near pilots with regard to remuneration and status, simply because they happen to be government employees and status is scaled within the limits of the general civil service structure. Admittedly, pilots may be more involved with the legal systems of different countries as their operating functions usually take them to more than one country. Their liabilities may be considered under these different legal systems. The controller, however, may be liable for his actions under the national laws of his country with some possibilities that liability may be the subject matter of another state’s law.

The Professional problems of the pilots see their way through in ICAO study groups as, for example, his legal status and liabilities that are now been investigated by the Organisation’s Legal Commission. The controller’s legal status has not yet reached this stage, despite the fact that the time is apt for such consideration particularly in relation to the Legal Liabilities of the Air Traffic Control Agencies that the Commission has been asked to investigate. The Legal Commission of ICAO – as it is reported under the Legal Developments Paper of this meeting – met in Montreal between the 16th September and 7th October 1980 and considered among other items the legal liabilities of the aircraft commander and of the Air Traffic Control Agencies. Unfortunately, IFATCA was not there to give its views on the individual controller’s liability in aircraft accidents. Fortunately, however, the controller’s voice came from the ILO observer who drew the attention of the Legal Commission to the ILO’s Recommendations with regard to the controller’s legal liabilities.

It is quoted from the report:

“The Observer from the International Labour Organisation stated that a meeting of experts on problems concerning air traffic controllers had adopted, in May 1979, a set of recommendations for national and international action. Any instrument which might be adopted on the liability of the Air Traffic Control Agencies should not overlook the question of the individual liability of the air traffic controllers and accord to them the same limitation as would be accorded to the agency itself; the question of joint and divided liability between employer and employee in this context should be given fair consideration”.

For the sake of understanding the problem better, let us consider briefly some very recent cases that came before the courts for judgment and in which the controller, as the employee responsible, was named defendant:

a) Two recent U.S. court cases that related to aircraft emergencies:

(I) In Swoboda vs U.S. (1979) the government was held fifty percent liable for the death of a pilot during a transpacific flight. Early in the flight the pilot reported that he was unable to transmit on his VHF channels; Anchorage Centre, which was controlling the flight, was aware of the difficulty. The Centre later received a report from another aircraft of intermittent signal from the Emergency Locator Transmitter (E.L.T.) in the decedent’s aircraft. No action was taken. Three hours after a position report was overdue, Anchorage issued an ‘uncertainty phase’. This phase was later cancelled when another report of the E L T signal was assumed to be a position, rather than a distress, transmission.

One hour later the ‘uncertainty phase’ was re-issued and one-and-a-half hours thereafter the Centre went into full distress phase and search and rescue operations commenced. Wrong coordinates were initially given to search and rescue units, resulting in several hours of unsuccessful search in the wrong area. The court held that the Centre’s failure to follow search and rescue procedures mandated by FAA regulations was a proximate cause to death.

(II) In a lengthy decision, Himmler vs U.S. (1979) a district court reviewed the obligations of a controller concerning a VFR flight and his pilot lost in IFR weather. The government (controller) was held liable for deaths and injuries of members of a family in a home struck by the pilot’s aircraft after he apparently became disoriented in the IFR conditions. In its long narration of the accident, the court found what it considered to be multiple errors and omissions by the controller who had found himself alone in the Tower late at night trying to save the pilot. The controller, it was held, failed to stay in frequent communication with the pilot. He had not adequately drawn the VFR pilot’s attention to his instruments. He asked the pilot to look outside his aircraft for airport lights when seeing ground was impossible under the existing conditions and looking outside would contribute to the pilot’s disorientation. The Controller failed to correct a misunderstood transmission and improperly asked the pilot to make excessive turns. The Controller also failed to vector the pilot toward an alternative airport with VFR conditions. The court found that many of these failures were violations of the rules of the Air Traffic Control Manual and that the controller failed to take command of the situation.

b) (Canadian case as reported by CATCA’s President Robertson in his Association’s News Bulletin in June 1980)

On July 10, 1979, a mid-air collision occurred between two aircraft operating in the airspace of the Windsor Control Zone. All occupants in both aircraft were killed. One of the aircraft was a VFR Cessna 150, which was in radio contact with Windsor Tower, having just departed Windsor for Sault, Michigan. The other aircraft was an IFR Cessna 310 on an ILS Approach to runway 33 at Detroit City airport and in radio contact with Detroit City Tower. The ILS 33 approach for Detroit City requires aircraft executing the approach to fly through a portion of the airspace of the Windsor control zone. A civil lawsuit in the Supreme Court of Ontario has now been initiated by the survivors of one of the passengers of the Cessna 310 naming, among the seven defendants, the Detroit Metro Approach Controller and the Unit Chief of the Windsor Tower and the Windsor Tower Controller. The claim: six million dollars.

From the Inquest it has become apparent that there is at least one conflict of evidence between the testimony of the Windsor Unit Chief and the Windsor Tower Controller. With the litigation now in progress it is natural that this conflict may arise once again. The line of defense that these persons wish to pursue will no doubt conflict since one of them (the Unit Chief) was responsible for the development of the inter-unit agreement and the other (the Controller) for its execution. CATCA’s position on the issue and the decision taken by the Board may be explained verbally before the Conference than go into details at this stage.

It was felt that defense of both Unit Chief and Controller be left to the Employer rather than risk payment of six million dollars either by the Controller himself or the Association.

Last year’s Conference (Toronto, 1980) had resolved on a number of points related to Legal Liability of the Controller and by which action was required by the different Member Associations. As nothing came forward it is assumed that no action has yet been taken.

Conclusions

Once again it must be concluded, judging from recent court cases that the controller is subject to both civil and criminal liability and his position vulnerable to unjust employers. It must be emphasized to ICAO that the controller should be considered when the Organisation’s Legal Commission finally concludes any international rules regarding the Air Traffic Control Agencies limits of liabilities. SC7 considered the action taken by the Executive Board to ICAO but feels that IFATCA should be represented in future meetings of the Commission particularly when liabilities that are related to the controller’s profession are being considered. Funds should be made available for such immediate instances and progress on the matter should be closely surveyed.

Recommendations

It is recommended that IFATCA Executive Board seek participation in the deliberations of ICAO’s Legal Commission when the liabilities of the Air Traffic Control Agencies are being considered with the object of considering the individual controller’s legal liabilities and/or in relation with the aircraft’s commander;

It is recommended that Member Associations approach their governments (at least those countries that make up ICAO’s Council and those which participate at the Legal Commission’s meetings) with a view to promote IFATCA’s concern so far as the controller’s liability is concerned;

It is recommended that last year’s resolutions be adopted and acted upon by the Member Associations.

Last Update: September 20, 2020  

November 23, 2019   319   Jean-Francois Lepage    1981    

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