The Legal Liability of Air Traffic Controllers
Defendant and Jurisdiction
Legally speaking, the victim of an accident caused by an air traffic controller may be an air operator (because it may incur economic loss if its aircraft is out if service after an accident or in case a flight is cancelled or delayed due to the negligent actions of an ATCO), a crew member, a passenger (in case of death, personal injury or damage or loss of luggage or other economic losses), the owner of the cargo being transported by air (in case cargo is destroyed after an accident or damaged because of a delay such as, for example, perishable goods), the owner of the aircraft destroyed or damaged, or third parties on the ground.56 Eurocontrol is the main provider of air navigation services in Europe. According to its revised constitution, any victim of an aviation accident or its descendants can sue Eurocontrol even if they are not a citizen of a member state of this organization.57
Having in mind that the liability of ATCO’s derives usually from the law of tort, following an aviation accident, the competent court to adjudicate the case will generally be the courts of the country where the accident took place. In the rare cases where ANSP have a contractual relationship with the users of their services, the liability of these agencies will be clarified by the tribunals of the country where the contract was entered into.58
If an accident is caused by an ATCO who is employed by the national agency of the state where the accident happened, then the law of this country will apply. Problems may occur if an accident takes place in a territory where air navigation services are provided either by a foreign ANSP or by an ASNP of another state but providing its services within the country where the accident occurred. In other words the question raised is weather in such a case the lex loci would be applied or the law of the defendant.59
The court case following the mid air collision over the skies of Germany in 2002 that was mentioned previously was adjudicated in accordance to the lex loci principle. In other words, since the accident took place in the German State, the court’s decision was founded exclusively upon German law.60 It is important to note that in Germany only the State can be sued for the alleged negligence of its air traffic controllers. On 27 July 2006 a German court ruled that Germany remained responsible for the air navigation services provided in its territory even if it has delegated this task to the Swiss provider Skyguide. Germany was liable to pay damages to Bashkirian Airlines.61 Russia did not bring its claim in front of ICAO and the domestic court in Germany did not found its argument upon Article 28 of the Chicago Convention. It is important to note that until today ICAO never had to adjudicate any case between its Member States based upon the violation or the negligent performance of the provisions contained in Article 28.62
To make things more complicated, there are also divergences between countries as to the type of court that will adjudicate these disputes. For example, in France, administrative tribunals will have jurisdiction because of the governmental status of the agency responsible for providing air navigation services, while in Switzerland the Supreme Court will hear the case. In the United States, actions against ATCO’s must be brought before district courts while in Germany civil courts will be competent to hear the case.63
Domestic courts will decide the amount of damages that will be awarded to the victims. According to the UK Law Reform (Contributory Negligence) Act 1945, if it is proven after an accident that a pilot was contributory negligent, the courts in the UK will lessen the amount of damages awarded by a proportion reflecting the extend to which the pilot’s acts or omissions contributed to the damages. Some states in the US adopt a stricter approach in relation to contributory negligence by recognizing it as being a complete defense to negligence.64
The Criminalization of ATCOs and Just Culture
Acts of gross negligence can lead to criminal prosecutions. ATCO’s may be faced with charges of manslaughter depending on the criminal laws of each State. Indeed, a State can decide to criminally prosecute an air traffic controller for his actions and omissions that led to or contributed to an accident. Society at large and in particular the victims of aviation accidents or their descendants want ATCO’s and other aviation professionals to be held accountable for their part of responsibility leading to a crash.65
As early as 1977, the International Federation of Air Traffic Controllers proclaimed that ‘’it can never support any controller who is guilty of a deliberate act which impairs air safety, not 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. IFACTA defines that it should be necessary to prove mens read beyond all reasonable doubt before a crime can exist. All other cases where mens rea cannot be proven must fall under Civil Law as opposed to Criminal Law’’.66
After an aviation accident a technical investigation is conducted by the investigating body of the country where the disaster occurred, in accordance with the provisions of ICAO Annex 1367 in order to determine what factors caused or contributed to the accident and put in place new measures in order to avoid the recurrence of such events. The purpose of Annex 13 is not to apportion blame or liability. The findings of the technical investigation are now used as a primary piece of evidence during litigations involving ATCO’s. This new trend is highly detrimental to the enhancement of aviation safety because ATCO’s may then be reluctant to supply relevant information to the investigating team. As a consequence the same mistakes are likely to be committed again. This goes against the philosophy of the Just Culture which tries to draw line between what is acceptable and non-acceptable behavior and according to which aviation professionals should only be punished for acts of gross negligence or willful misconduct and not for their unintentional errors or mishaps. The issue of criminalization of aviation professionals is dealt with in a very inconsistent manner all over the world and adds vagueness and confusion to the question of the liability of air traffic controllers.68 This trend will now be illustrated by briefly explaining the criminal prosecutions that were taken against ATCO’s after four different aviation accidents.
In 1976, two aircrafts collided in mid air over Zagreb in Croatia. One of the controllers on duty that day was convicted to seven years imprisonment for his negligence. On appeal, the Supreme Court reduced his sentence to three years and six months.69
In 1997, a Ukrainian aircraft crashed in Thessaloniki during a missed approach. The technical investigation subsequently conducted in accordance with ICAO Annex 13 revealed that miscommunication between the ATCO’s and the pilots were a probable cause of the crash. During the trial following this accident, the ATCO’s were found guilty of manslaughter and were convicted to 5 years in prison.70
In 2001, 118 persons died when two aircrafts collided on the runway. It was proven that the negligence of an ATCO had contributed to the disaster. As a result, he was sentenced to 8 years imprisonment.
In 2001, contradictory orders given a controller and resolution advisory commands given by a TCAS on board a Japanese aircraft led to a near midair collision. 42 passengers were injured. In 2008, the two controllers on duty at that time were convicted to a suspended prison sentence of 18 months for the first one and 12 months for the second.71Continued on Next Page »