Third Party Risk – Legal Aspects

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Third Party Risk – Legal Aspects

43RD ANNUAL CONFERENCE, Hong Kong, China (SAR), 22-26 March 2004

WP No. 164

Third Party Risk – Legal Aspects

Introduction

The subject “third party risk” was introduced to IFATCA by a work-study presented by SC1 at the 2003 annual conference in Buenos Aires.

The 2003 work-study presented an overview of all countries that have established procedures regarding third party risk. This work-study contained no definition of the term third party risk. The 2003 work-study is an appendix to this paper.

Committee B recommended a work-study performed by SC4 to investigate the legal and professional aspects of third party risk.

For the purpose of this working paper, SC4 considers third party risk to be the probability that individuals on the ground are affected by aircraft accidents.

Discussion

ICAO has general Standards, Recommended Practices and Procedures dealing with aircraft in emergency situations:

ICAO PANS/ATM, Doc 4444, paragraph 15.1.1.1 states:

“The various circumstances surrounding each emergency situation preclude the establishment of exact detailed procedures to be followed. The procedures outlined herein are intended as a general guide to air traffic services personnel. Air traffic control units shall maintain full and complete co-ordination, and personnel shall use their best judgement in handling emergency situations.”

ICAO PANS/ATM, Doc 4444, paragraph 15.1.1.3 states:

“Manoeuvring instructions to an aircraft experiencing engine failure should be limited to a minimum.”

ICAO Annex 10, Volume II, chapter 5, paragraph 3.1.6 states:

“In cases of distress and urgency communications, in general, the transmissions by radiotelephony shall be made slowly and distinctly, each word being clearly pronounced to facilitate transcription.”

ICAO Annex 2, chapter 3, paragraph 3.1.2 states:

“Except for take-off or landing, or except by permission from the appropriate authority, aircraft shall not be flown over the congested areas of cities, towns or settlements or over an open-air assembly of persons, unless at such a height as will permit, in the event of an emergency arising, a landing to be made without undue hazard to persons or property on the surface.”

There are no specific international Standards, Recommended Practices or Procedures regarding reduction of third party risk during handling of emergencies.

In case of an emergency arising onboard an aircraft, it is common practice that ATC offers the shortest way to the nearest suitable aerodrome and runway to the pilot in command of the aircraft. Vectoring aircraft away from the direct route to comply with procedures only increases the possibility that third parties could be involved in an eventual accident.

Some countries have populated or congested areas defined in law. ATCO’s should not vector aircraft in an emergency situation over these areas.

Vectoring an aircraft in an emergency situation outside congested areas provides no guarantee that the aircraft eventually will not crash within the confinements of a congested area. The vectors will neither provide a guarantee that no third party is at risk at all.

At the ICAO Air Navigation Conference 11, held in Montreal in the Fall of 2003, the Secretariat submitted a paper stressing the need to develop adequate procedures for in-flight emergency response for air traffic controllers. This is in light of the continuing threat of unlawful interference to aircraft. In this respect, it is felt that consideration should be given to the development of in-flight emergency response procedures for air traffic controllers. The procedures outlined are intended as a general guide to air traffic services personnel. In the paper it states:

“When an emergency is declared by an aircraft, the ATS unit should take appropriate and relevant action […] and decide upon the most appropriate type of assistance which can be rendered. Air traffic control units shall maintain full and complete coordination, and personnel shall use their best judgement in handling emergency situations.”

The above provisions make clear the demands on air traffic controllers; yet, there is no specificity, or provision for the “liability” issues that could result from “special circumstances”. There is a need for guidance in the form of liability protection, both for controllers and potential third parties.

It is for the above reasons that procedures to reduce third party risk should describe what the responsibility of the ATCO is and what is not.

Conclusions

There are no international Standards, Recommended Practices or Procedures regarding reduction of third party risk during handling of emergencies.

Procedures to reduce third party risk cannot prevent third parties to be at risk. Therefore, an ATCO cannot be held liable for losses suffered by third parties caused by an emergency aircraft.

Procedures to reduce third party risk should clearly describe the responsibility of the ATCO providing ATS to the emergency aircraft.

Recommendations

It is recommended to conference that following be added to the IFATCA Manual on page 4415:

1.3 Liability – Third Party Risk

Third Party Risk can be defined as the probability that individuals on the ground are affected by aircraft accidents.

1.3.1 Procedures to reduce third party risk should clearly describe the responsibility of the ATCO providing ATS to the emergency aircraft.

1.3.2 ATCO’s providing ATS to aircraft in an emergency situation should not be held liable for losses suffered by third parties caused by the emergency aircraft.

References

ICAO Annex 2 “Rules of the air”.

ICAO Annex 10 “Aeronautical Telecommunications” Volume II “Communication Procedures including those with PANS status”.

ICAO Doc 4444 “Procedures for Air Navigation Services / Air Traffic Management”.

WP 2003 third party risk.

ICAO Secretariat WP #25, ANC 11, 2003.

Last Update: September 29, 2020  

March 24, 2020   259   Jean-Francois Lepage    2004    

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