This article is authored by Sushmita Choudhary, a student pursuing BBA LLB from New Law College, Bharati Vidyapeeth University, Pune. It aims to discuss Air Traffic Services and the legal liabilities of Air Traffic Controllers.

Introduction

The very first air traffic controller was Archie League who was stationed at Saint Louis Airport, America. His control tower consisted of a wheelbarrow with an umbrella (to provide shade in the summer heat), a notepad, and flags. He was training the pilot to proceed by raising a checkerboard flag and signaling the pilot to wait before take-off or landing by waving a red flag. At the time of 1929, aviation was an infant industry. In the thirties, runways were extended for Air Traffic Controllers to be deployed on the building top. Additional visual signs coupled with markings on the ground and lights were inducted to enable operations.

The introduction of radio communications in aviation enabled the ground-based air traffic controllers to have basic communications with the operating pilots. During the second world war, high-quality radars were introduced which were able to detect aircraft and determine their altitude, speed, and registration. The civil aviation field soon implemented this technology to enhance communication. At that time, there were few and limited models of aircraft which had approximately the same flying speed, hence the air traffic control operations were comparatively easy. However, by the end of the 1960s, operations got complex with the introduction of supersonic jets such as the Concorde or wide-shaped commercial airliners like the Boeing 747. It was soon realized by the international aviation community that air traffic controllers were crucial for the safe operation of flights.

Air traffic services

According to Rule 3(1F) of the Aircraft Rules of 1937, air traffic service means ‘the flight information service, alerting service and air traffic control service (area control service, approach control service or aerodrome control service)’. Rule 95 of the Act deals with the grant or renewal of the specified licenses by the licensing authority and the conditions required for grant or renewal of the same. A Civil Aviation Requirement was issued on 8 January 2010 on the subject of Air Traffic Services. Air traffic service also finds its definition in Section 2(d) of the Airports Authority of India Act of 1994. According to Section 22 of the Act, the AAI may, with the prior approval of the union government, charge fees or rent for providing air traffic services, etc.

In a manual issued by the AAI on the subject of Air Traffic Services, Chapter 4 of it throws light upon air traffic services including its objective, divisions, classification of airspaces, responsibility for control, etc. The AAI through its Department of Air Traffic Management provides air traffic services to all arriving, departing, and en-route aircraft over Indian airspace. Also, it provides for the establishment of air routes and realignment of existing air routes, manpower planning, awards, training, and ratings to air traffic controllers in consultation with international airlines which conform to International Civil Aviation Organisation and International Air Transport Association rules and regulations. Those rules and regulations are set out in Annex I (Personnel Licensing). 

The AAI draws up plans for the up-gradation of the air traffic management infrastructure in aspects both of conditional provision of automation systems and technology ranging from ground-based navigation to satellite-based navigation. Communication, navigation, and service planning department which is known as CNS in India deals with planning procurement and commissioning of CNS facilitation and support systems for Air navigation.

Legal liabilities associated

The liability of the air carrier found its definition long ago by the Warsaw Convention of 1929 and later, consolidated in 1999 by the Montreal Convention. The liability To third parties on the ground which was established by the Rome Convention of 1952. So these instruments supply legal certainty. But there is no universal convention providing for the liability of air traffic controllers till date. This subject remained unexamined by the drafters of the Chicago Convention in 1944 and left to the discretion of nations. 

Article 28a of the Chicago Convention says that each member state shall undertake so far as States may find practicable to “Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention’’. This provision has a loophole and a controversy arises as to whether this article is legally binding on the contracting parties because of the escape-clause “States may find it practicable”. Nevertheless, in practice States do respect this provision and oblige to it by enacting national legislation for this purpose.

Standard 2.5 of Annex 11 to the Chicago Convention talks about air traffic services and says that States must designate the particular portions of airspace and controlled aerodromes where it intends to provide air traffic services.

According to Article 69 of the Chicago convention, in case the ICAO Council considers airports and air navigation services of a particular state which is a party to it are not safe, it may issue recommendations after consulting with this member state in order to remedy this situation. Nonetheless, this is not a legally binding obligation as no sanctions can be taken against a state who does not comply with the recommendations of ICAO. The ICAO regards safety as a subject matter of primary importance which is highlighted in the Preamble. Its Preamble declares that the convention will lay down “principles and arrangements in order that International Civil Aviation may be developed in a safe and orderly manner”. Article 44 goes on to say that the ICAO ensures the safe and orderly growth of International Civil Aviation throughout the world”.

Air traffic controllers carry a very heavy burden filled with responsibilities as they have to ensure accurately the safety of human beings, third parties, and aircraft. Their functions are laid down in Annex 11 to the Chicago convention and in Annex 2 which deals with rules of the air and in ICAO Doc 4444. Though this document does not have the same status as standards and recommended practices followed by the Council of ICAO,  it is recommended by ICAO to all the member States for a global application. ICAO talks in great detail about the technical and operational aspects of air navigation services, however, It does not touch upon the subject of liability of air traffic controllers. As per standard 2.2 of Annex 11, the aircraft controllers must prevent collisions and obstructions between aircraft, between aircraft operating on the maneuvering area, accelerate and maintain an orderly flow of Air Traffic, provide useful advice and information to ensure the safe and orderly conduct of flights, notify appropriate organizations about aircraft that need to be searched and rescued and assist in such programmes as required.

Standard 2.3 of Annex 11 lays down that Air Traffic services consist of four different services: the air traffic advisory service, the air traffic control service, the flight information service, and the alerting service. These tasks are concerned with the monitoring and supervision of aircraft by using radars and satellite equipment and relying on the information Obtained by Aeronautical Communications using specific terminology.

Annex II to the Chicago convention states that the instructions given by the ATCO (Air Traffic Control Association) are binding upon the pilot. Nonetheless, it stipulates that the ultimate responsibility for ensuring the safety of the passengers as well as the aircraft flies with the pilot these two provisions may seem contradictory to each other but the practice has revealed that the clearances of the air traffic controllers are to be followed by the pilots always except in cases of emergency where unusual circumstances lead the pilot to believe that a different action is preferable. One of the very few situations sometimes occurs when a crew member must disregard the orders given by a controller due to a conflict arising between the instructions given by the controller and those given by the collision avoidance equipment on board the aircraft (Traffic Control Avoidance System). 

This exception to the general rule regarding the orders of the ATCO has found its illustration in a terrible mid-air collision between two aircraft that occurred on 1st July 2001. In this case, Tupolev 154 operated by Bashkirian Airlines on its course from Moscow to Barcelona collided in mid-air with the cargo Boeing 757 which was being operated by DHL En Route from Bergamo to Brussels rain over the German town of Uberlingen. The Zurich control tower in Switzerland controls this particular portion of the German airspace and at that time there was only one Air traffic controller present in charge of the whole airspace. This tragic accident witnessed the death of 71 persons. The German investigating agency Bundesstelle für Flugunfalluntersuchung (BFU) revealed in its report that the Air traffic controller failed to maintain a vertical space between the two aircraft. The controller did not realise on time that the two aircraft were on the brink of collision and only a few minutes before the incident he ordered the Russian to descend.

Following some seconds of confusion, the Russian crew acted according to the instructions of the controller whereas the crew of the cargo aircraft chose to comply with the resolution advisory commands of their TCAS which resulted in both the flights coming to the same flight level and hence their collision in mid-air. The regulations provided by the ICAO and the national authorities were contradictory in nature at that time and not universally accepted by all operators. The Russian crew was not aware of the fact that in case a conflict arises between the instructions of the ATCO and TCAS, the latter shall prevail in accordance with the current International rules.

Cases

In 1977, at Tenerife Airport in the Canary Islands, two Boeing 747 Passenger jets collided resulting in the death of 583 people. Upon technical investigation, it was revealed the accident took place due to the miscommunications between the pilots of one aircraft and the Control Tower. Following the accident, the Spanish state was faced with litigation where it waived its immunity and was found liable on behalf of its employees. Consequently, it partly paid for the damages of the victims.

In the United States vs Union Trust, the court decided that the controller owes a duty of care to the pilot and said that the government can be held liable vicariously on their behalf.  In Eastern Airlines vs Union Trust, it was held that tower operators nearly handle operational detail which is outside the purview of the discretionary functions and duties referred to in Section 2680 (a), so the Tort Claim Act holds the government to be sued for damages caused because of their negligence.

Conclusion

In India, the air navigation services are provided by the Airports Authority of India (AAI which is a statutory body. According to Indian legislation, AAI can be sued but its body and its employees can’t be prosecuted if they acted or omitted anything in good faith that resulted in damage to the passengers.

References

• http://www.inquiriesjournal.com/articles/613/the-legal-liability-of-air-traffic-controllers
• https://amity.edu/UserFiles/aibs/1714Article-II%20(Page%2017-25).pdf
• https://indiankanoon.org/

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