Transcript EUROCONTROL Strategy

Liability Aspects of Autonomous
Aircraft
ASAS-TN SEMINAR
13 October 2004
Francis SCHUBERT
corporate secretary skyguide
The Limits of Positive Air Traffic Control
•
"Pilots are required to follow clearances issued by ATC whether
there are operating under visual or instrument flight rules."
•
•
K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in-Command
Concept - A Recipe for Disaster?", JALC, vol. 62/3, 1997
"The techniques used guarantee the safety of only a limited
number of aircraft in any given space, sometimes with fairly
rough and ready methods. Airspace thus has limited capacity
which, to maintain the optimum level of safety, requires the
organisation of queues on the ground or the diversion of traffic,
and delays are created".
•
Commission of the European Communities, Communication from the Commission
to the Council and the European Parliament, "The creation of the single European
sky", COM (1999)yyy final, 29.11.1999, p. 2.
C/SF/s040903/13.10.2004, 7/18/2015
page 2
The promises of CNS/ATM
•
•
•
Datalinks will enable the exchange of sophisticated data, in particular
between aircraft which should help aircrew to capture an enhanced
traffic situation awareness.
Satellite CNS applications offer a global coverage and provide aircraft
with reliable and accurate position information. Airspace users will be
able to fly preferred flight paths independently from the availability of
ground infrastructure and airways network.
Free Flight
– "A safe and efficient flight operating capability under instrument flight rules
(IFR) in which the operators have the freedom to select a path and speed
and real time ... Restrictions are limited in extent and duration to correct the
identified problem. Any activity which removes restrictions represents a
move towards free flight."
• Final report of RTCA Task Force 3: Free Flight Implementation, 25 (RTCA, Inc. ed.,
Washington, 1995) at 7
C/SF/s040903/13.10.2004, 7/18/2015
page 3
Legal implications of Airborne Separation
Assurance Systems (ASAS)
•
•
•
ASAS as a technological revolution
ASAS as an operational revolution
ASAS as a legal revolution?
– "Possibly, lawsuit may have a chilling effect
on the desire for free flight".
•
Allison K. LAWTER, "Free Flight or Free Fall", JALC, vol.
62, February-March 1997, No 3
– The need to return to basics
•
The distribution of liability between the pilot
and the air traffic controller
C/SF/s040903/13.10.2004, 7/18/2015
page 4
Basic principles for traffic separation
•
The "Pilot-in-command" principle
– "The pilot-in-command of an aircraft shall have final authority as
to the disposition of the aircraft while in command".
•
ICAO Annexe 2, § 2.4.
– "The pilot-in-command shall be responsible for the operation
and safety of the aeroplane and for the safety of all persons on
board during flight time"
•
•
ICAO Annexe 6, part. I, chapt.3, para. 3.2 ,
The "see and avoid" rule:
–
–
"pilots are required by regulation and common sense to maintain a
sharp lookout so as to “see and avoid” other aircraft."
• PanAm v. Port Authority, 787 F.Supp. 312 (E.D.N.Y. 1992) at 318.
According to ICAO, "an aircraft shall not be operated in such proximity
to other aircraft as to create a collision hazard";
• ICAO Annex 2, § 3.2.1 "Proximity".
C/SF/s040903/13.10.2004, 7/18/2015
page 5
ATC instructions vs. the Pilot-in-Command
principle
•
•
•
•
"...a clearance issued by a tower (such as "cleared to land") either by
radio or visual signal is permissive in nature and does not relieve the pilot
from exercising a reasonable degree of caution in executing the
provisions of the clearance."
• United States v. Schultetus (1960) 277 F 2d 322
"the pilot, after his clearance has been given... remains primarily
responsible for the movement of his aircraft..." The pilot is "...required to
follow his clearance, not blindly, but correlative with his duty to exercise
care for his own safety...."
• Hartz v. United States, 387 F 2d 870 (1968)
"Flight crew members have a continuing duty to be aware of dangers
which they can perceive with their own eyes."
• Thinguldstad v. United States, 343 F.Supp. 551, 558 (S.D.Ohio 1972)
"Pilots cannot fail to use their own eyes and ears to be aware from
danger."
• Pan Am v. Port Authority, 787 F.Supp, 312 (E.D.N.Y, 1992)
C/SF/s040903/13.10.2004, 7/18/2015
page 6
The pilot-ATC relationship
ATC instruction
or clearance
Binding
Pilot accepts
Pilot may request an alternative clearance
if original clearance not suitable
Not Granted
Granted
C/SF/s040903/13.10.2004, 7/18/2015
Pilot complies with
original clearance if
Pilot must refuse clearance not contrary to safety
if it compromises safety
page 7
An immunity for ATC?
•
•
•
•
"In particular, some courts have applied the Pilot-incommand concept to absolve ATC of liability in cases in
which ATC could have prevented an accident by using due
care".
"Controllers were absolved of liability simply because the
pilot did not follow the regulations, even in cases where
prompt attention and warning by ATC might have prevented
the accident."
"This view might have been realistic when Orville and Wilbur
first flew at Kitty Hawk, but in today's environment it is simply
not logical."
"A fair distribution of liabilities between air traffic controllers
and pilots "…will require that courts abandon the Pilot-incommand concept in tort litigation."
• K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-inCommand Concept - A Recipe for Disaster?"
C/SF/s040903/13.10.2004, 7/18/2015
page 8
Aircraft Separation
Visual separation
Pilot
C/SF/s040903/13.10.2004, 7/18/2015
ATC provided separation
page 9
ASAS and the Pilot-in-command principle
•
"The rule… makes sense since the pilot, not Air Traffic Control, is
actually in the cockpit and is therefore in the best position to judge
the correct course of action with respect to that aircraft. Applying
this line of reasoning to the impending Free Flight era, it could be
argued then, that ultimate responsibility will remain with the pilot."
•
•
•
Allison K. LAWTER, "Free Flight or Free Fall?"
How new is really the Free Flight concept?
–
–
–
–
VFR separation rules
Visual approaches
Visual separations
VMC climbs maintaining own separation
"With Free Flight's technology, pilots will be able to "see" other
aircraft, even in IFR conditions".
• K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in-Command
Concept - A Recipe for Disaster?"
C/SF/s040903/13.10.2004, 7/18/2015
page 10
Aircraft Separation
Visual separation
Pilot
ATC provided separation
Free Flight Separation
C/SF/s040903/13.10.2004, 7/18/2015
page 11
Conclusions
•
•
No change in the fundamental liability principles
–
"While technology has improved the Air Traffic Control system and made it
more efficient, it has not changed the Pilot-in-command concept. Therefore,
improved technology should not shift to air traffic controllers the pilot's
burden to fly safely, nor should it cause Air Traffic Control to question a
pilot's ability to use and rely on the cockpit's instrumentation".
–
Allison K. LAWTER, "Free Flight or Free Fall?"
Changes in the way theses principles are applied
–
"It is likely that Free Flight will have little effect on the distribution of liability
between ATS providers and pilots… from a liability perspective, the shift in
responsibility is more a matter of degree than a fundamental change."
–
–
B. Elder, "Free Flight: The Future of Air Transportation Entering the 21st
Century"
It is not the "see and avoid" rule or the "pilot-in-command" principle
which should be questioned, but the criteria against which the pilots
"reasonable behaviour" is to be assessed.
C/SF/s040903/13.10.2004, 7/18/2015
page 12
Conclusions
•
Change in the nature of aviation liability
•
failure liability
Possible misuse of legal arguments to disguise other factors
– Significant shift from human error liability to product or technical
–
–
–
Safety concerns
Human factors
• "Pilots claim they do not want primary responsibility for maintaining
separation… and controllers do not seem to want to relinquish the
responsibility."
– Allison K. LAWTER, "Free Flight or Free Fall"
Political factors
•
"The task of implementing Free Flight, however, will probably
prove to be more difficult politically than technically".
– Allison K. LAWTER, "Free Flight or Free Fall"
C/SF/s040903/13.10.2004, 7/18/2015
page 13