IFATCA Policy on Legal Matters

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IFATCA Policy on Legal Matters

24TH ANNUAL CONFERENCE, Athens, Greece, 18-22 March 1985

WP No. 64

IFATCA Policy on Legal Matters

Introduction

As a result of resolution C.6 at the Estoril 1984 IFATCA Conference, IFATCA’s policy on legal matters as established by the Lyon 1976 Conference has been reviewed.

Discussion

Article 1, Section 3M of the Constitution states that IFATCA will “Sponsor and support the passage of legislation and regulations which will increase and protect the safety of Air Navigation through the improvement of working conditions in Air Traffic Control”. Nothing is more likely to increase and protect the safety of air navigation and working conditions than giving to every controller, wherever he may work in the world, the freedom from constant worry as what will happen to himself and his family should an aircraft accident occur while he is on duty. At this time, there is not much support amongst the ICAO States for a Convention pertaining to liability of air traffic control agencies.

At this time there is general support amongst the ICAO States for further investigation of the possibility of drafting model legislation pertaining to liability of air traffic control agencies, as an alternative to Convention.

Conclusion

To enhance aviation safety IFATCA must continue to pursue all possibilities in co-operation with International Organizations and States to have included in an International Convention Articles to Limit Legal Liabilities of Controllers. IFATCA must be prepared to assist Member Associations with the drafting of model legislation pertaining to the liability of air traffic controllers.

Recommendations

It is recommended the following be IFATCA’s Legal Policy and that it be included in the IFATCA Manual:

IFATCA can never support any controller who is guilty of a deliberate act that impairs air safety nor can IFATCA support any Controller who is guilty of criminal negligence but the Federation must reserve the right to use any legal means available to it to protect any member who is accused of such crimes.

IFATCA defines that it should be necessary to prove mens rea (guilty mind) beyond all reasonable doubt before a crime can exist.

All other cases where mens rea cannot be proven must fall under civil laws as opposed to criminal law, must be heard by a competent civil court and must be subject to the following conditions:

    • No controller to be imprisoned pending a civil court hearing or after a civil court hearing if it is proven that a controller has committed a tort only;
    • Controllers in states having a Roman Law system to be covered by the requirement that the State must prove tort beyond all reasonable doubt before a Controller can be liable in Civil Law;
    • Controllers in all States especially those having Anglo-Saxon legal system to have a fixed maximum civil liability;
    • No controller subjected to disciplinary action under administrative law to have the administrative case heard prior to the Civil Court action. If there is likelihood of a civil action, it would be fairer to transfer the controller to non-active duties on full pay in all cases thereby avoiding prejudging the Civil Court’s ruling;
    • Employing Agencies to be responsible for the torts of their employees;
    • Employing Agencies to be responsible under Statutory Law, as the airlines, to pay a maximum fixed sum to the victim(s) or their next of kin as an ex gratia payment pending the resolution of insurance claims and the balancing of such payments between the insurers, the airlines and the employers to be carried out under government supervision thus avoiding unnecessary hardship and prolonged Court proceedings for the general public involved in accidents;
    • Military authorities and Controllers to be subject to the same’ legislation when either they are controlling general air traffic or an accident occurs involving general air traffic and operational air traffic, the latter being under military control or flying without control.

Where good legal limitation of liability exists in a State, this should remain unless the eventual law is an improvement.

IFATCA is not renouncing legal liability but seeking only to keep it within reasonable bounds So that the controller may suffer less stress in carrying out his day-to-day duties.

It is recommended that IFATCA continue the efforts towards a suitable Convention limiting the legal liability of Air Traffic Controllers.

(Editor’s Note: A Draft IFATCA Convention was attached to the original WP for consideration and adoption by the 1985 Conference. However, the Draft IFATCA Convention was not adopted and has not been included.)

 

Last Update: September 20, 2020  

December 1, 2019   286   Jean-Francois Lepage    1985    

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