3rd ALIAS Conference Presentation 2015

2. Emerging issues from
Aviation Law and
Aviation Security Law
Elmar M. Giemulla
Berlin University of Technology

3. • Session I:
Automation and innovation in aviation:
different perspectives
• Now:
Aviation Law and Aviation Security Law

4. EASA Automation Policy Paper (as of 28 May
2013)
• Facts:
– Modern aircraft are increasingly reliant on automation
– Significant advantages for safety and operations
– Required for certain types of operations and for precision navigation
• Safety Problems:
– Senior pilots are less comfortable with automation
– New generation of pilots may lack basic flying skills
• And – Security Problems:
Background Check (Article 3 No 17 EC-Reg. 300/2008)
– ‘background check’ means a recorded check of a person’s identity, including any
criminal history, as part of the assessment of an individual’s suitability for
unescorted access to security restricted areas
– Pilots must undergo a background check
– Air Traffic Controllers?
– Designers / Manufacturers of equipment?
– Hackers?

5. Legal Responsibility
• For an act:
The allocation of a field of activity to a person = Responsibility to
act
or
• For the consequences:
Who is liable for damages arising from the faulty exercise of the
responsibility to act? = Responsibility for the result
• Should liability be linked to the
- illegality of the act (responsibility of a human being) or
- illegality of the result (responsibility of a system)?
Which means: Liability just for the violation of a personal
legal right or only if someone has acted illegally?

6. Safety: Pilot or Computer in Command?
Aviation law allocates responsibility to a human being and not to a machine
Chicago Annex 2 – Rules of the Air
• Chapter 1 – Definitions: Pilot-in-command.
The pilot designated by the operator, or in the case of general aviation, the owner, as being in
command and charged with the safe conduct of a flight.
• 2.3.1 Responsibility of pilot-in-command
The pilot-in-command of an aircraft shall, whether manipulating the controls or not, be
responsible for the operation of the aircraft in accordance with the rules of the air, except that the
pilot-in-command may depart from these rules in circumstances that render such departure absolutely
necessary in the interests of safety.
• 2.4 Authority of pilot-in-command of an aircraft
The pilot-in-command of an aircraft shall have final authority as to the disposition of the aircraft
while in command.
Problem: Can pilots still exercise their responsibility?

7. EASA Automation Policy Paper identifies
several Safety Issues
• Authority and Control
• Managing the automation versus flying the aircraft
• Transformation of pilots‘ role
• Flight crew co-ordination and communication
• Situation awareness
• Complacency, over-reliance on automation and decision making
• Programming
• Database related issues

8. Facts versus law?
How can pilots exercise their final decision authority?
Do they still have the final authority in the cockpit?
Is the role of the PiC still that “archaic”?
Hasn´t “colleague Computer” actually already taken over?
Or at least: Isn´t he on his way to do so?
In other words: Can pilots still have the “responsibility to
act”?

9. Facts versus Law or Law versus Facts?
• Options:
– Is the law to be adjusted to the facts
– or have the facts to be re-adjusted to the still existing law?
• Airbus “Standard Operating Procedures Optimum Use of Automation”
– Principles formulated in the form of competences that pilots must have to
best use automation, for instance: “Select the appropriate level for the task
and situation at hand”.
• EASA Automation Policy Paper
– Pilots must be trained to be able to select the appropriate level of
automation

10. Consequences for a liability scheme
• There must be different levels of automation where the PiC
can “take over” - If not: Liability of the
Designer/Manufacturer.
• There must be appropriate training – If not: Liability of the
Carrier.
• If PiC is trained appropriately but has acted improperly –
Liability of PiC/Carrier.
• If PiC is trained appropriately and has acted properly but
automation was faulty: Liability of the
Designer/Manufacturer.

11. How does that fit into the current liability
scheme?
Third party liability: National law
Usually:
• No-fault liability of the operator
• No exoneration
• Limitation
• Operator can seek redress from the pilot
Contractual liability: Montreal Convention
• Article 17 para. 1:
– The carrier is liable for damage sustained in case of death or bodily injury of a passenger
upon condition only that the accident which caused the death or injury took place on board
the aircraft or in the course of any of the operations of embarking or disembarking.
• No-fault liability:
– Liability is not based on the “illegality of an act” (no responsibility of a human being)
– But is based on the “illegality of the result” (responsibility of a system)

12. How does that fit into the current liability
scheme?
• However: Exoneration is possible – referring to missing “illegality of
an act”
Article 21 para. 2:
– The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to
the extent that they exceed for each passenger 100,000 Special Drawing Rights if the
carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of
the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission
of a third party.
• This is the Designer/Manufacturer.

13. Security Concerns
Corrupting the automation system by hacking, jamming or any other technical means:
• Problem: The traditional security concept seeks to avoid physical access to the
airside
– Physical separation of suspicious persons or baggage/cargo
– Mainly by: airport protection, aircraft protection, Regulated Agent and Known
Consignor
– Background Check of certain persons
• Who can avoid jamming, hacking etc.?
– Again: Designer/Manufacturer?
– Airports, Operators of Aircraft?
– Authorities?
• Liability Scheme: Primary responsibility of the Carrier (Art. 17 MC) with posssible
exoneration (Art. 21)