Aviation Law Application - Term Paper Example

The law applicable to Jack’s hiring and operation of the Cessna Bravo-November are regulated by the Air Navigation Order 2005, as amended by the Air Navigation Order 2007. Supplementing these provisions and equally relevant are the provisions contained in the Rules of the Air Regulations. Also relevant are the provisions contained in the UK Aeronautical Information Publication since Jack navigated his aircraft in restricted airspace. In the context of these provisions this paper will evaluate Jack’s conduct and operation of a aircraft and any liability he might have incurred under these provisions. This paper will also evaluate whether or not Jack is accountable to the Civil Aviation Authority and to what extent. At the onset there are two matters of concern with respect to Jack’s ability to navigate an aircraft having been at an all night party and flying an aircraft straight afterwards. Although the Air Navigation Order 2005, officially cited as Statutory Instrument 2005, No. 1970 does not specifically regulate indirect pre-flight behaviour, Section 73 requires that: “A person shall not recklessly or negligently act in a manner likely to endanger an aircraft, or any person therein.”1 It is certainly conceivable that operating an aircraft under conditions of sleep deprivation or fatigue could be interpreted as contrary to Section 73 of the 2005 Order. Section 83 of the Order prohibits acting “as a member of the crew of an aircraft” if the crew member “knows or suspects” that he is suffering from fatigue or is likely to suffer from fatigue.2 Moreover, the Civil Aviation Authority’s Cap 371 on the Avoidance of Fatigue in Aircrews: Guide to Requirements, specifically calls for rest periods prior to flying. Paragraph 17.2 provides that: “The Minimum rest period which must be taken before undertaking a flying duty period shall be: a) At least as long as the preceding duty period, or b) 12 hours, Which ever is the greater.”3 Merely entering an aircraft under a state of drunkenness is forbidden by Section 75(1) of the 2005 Order.4 Assuming that both Mary and Jack had been drinking alcohol at the all night party, it is quite reasonable to assume that they were both drunk upon entering the aircraft almost immediately after leaving the party. Mary would also be in violation of Section 75(1). As a result Section 148(5) Mary can be charged with an offence and subjected to summary conviction and can be required to pay a penal fine.5 Jack however, as the operator of the aircraft, can be liable to both a fine and imprisonment upon a successfully prosecuted indictment if he was drunk while operating the aircraft.6 As the holder of a National Private Pilot’s Licence (NPPL) under Section 30 of the Navigation Order 2005, Jack is subject to the requirements contained under Section 3 of Part C of Schedule 8 of the 2005 Order. According to Section 3 of Part C of Schedule 8, Jack’s license is not valid if he had not flown a minimum of 6 hours in the last 12 months.7 On the facts provided, Jack had flown a few flights over the last 12 months, but his last three entries had been falsified. It is unlikely that Jack had the requisite 6 hour rating if the last three entries had been falsified. However, if he had taken a “simple single aeroplane NPPL General Skills Test” in the last three months his licence would remain valid.8 It is hardly likely that Jack took the test. If he had, he wouldn’t have been compelled to falsify his flight log. If Jack is prosecuted under Section 148(7) of the 2005 Order for any violation of Part C of Schedule 8, he is liable to both a fine and imprisonment of at least five years if convicted by way of an indictment.9 By taking the aircraft in flight without heeding Bob’s advice is not only negligent and reckless, under Section 73 of the 2005 Order, it is also a violation of Section 52 of the Order. Section 52 requires that the commander of an aircraft must ascertain that the flight can be made safely: “taking into account the latest information available as to the route and aerodrome to be used, the weather reports and forecasts available and any alternative course of action which can be adopted in case the flight cannot be completed as planned.”10 Moreover, Section 52(e) specifically requires that the commander of an aircraft ensure that the aircraft has sufficient fuel, oil and coolant for its intended flight.11 Bob left these matters for Jack to comply with. By virtue of Section 148(1) of the Air Navigation Order 2005, the operator, commander and charterer share equal responsibility for the aircraft’s safety prior to taking off. Not only did Jack fail to fuel the aircraft as advised, he made no maintenance checks and likewise failed to check the weather reports. It is entirely unlikely that he checked the oil and coolant. In any event, Section 52(c) requires that the commander ensure that the aircraft is fit in “every way” for its intended flight.12 Jack and Bob were also jointly responsible for providing Mary with safety instructions prior to her boarding the aircraft.13 No instructions were given. Jack will share responsibility for Bob’s failure to comply with the provisions contained in Section 52 unless he can demonstrate in his defence that he neither consented to, or connived in the contravention and “that he exercised all due diligence to prevent the contravention.”14 A contravention of Section 52 leaves both Jack and Bob liable to summary conviction and a fine.15 The indiscriminate loading of the luggage and Silko, the dog is also a contravention of the Air Navigation Order. The dog and the luggage were placed in the aircraft and not secured. As a result Jack as pilot and operator of the Cessna 172 is imperilling the safety of property or causing the aircraft to imperil the safety of property.16 Moreover, the dumping of the articles of clothing while airborne was also a violation of the Air Navigation Order 2005.17 In any event, Jack is required to obtain the permission of the CAA prior to dropping any articles for the safety of the aircraft.18 Liability is criminal and will result in a penalty under Section 148 of the 2005 Order.19 Under the Visual Flight Rules which are regulated by Rules of the Air Regulations 2007, visual flight is not permitted when entering Class A Controlled Airspace.20 Having regard to the fact that Jack’s instrument rating was time expired, Jack was not qualified to navigate an aircraft in a Class A restricted area. A Class A controlled airspace is any airways up to FL 195 with the exception of airways in the Belfast and Scottish TMAs.21In all events, Jack is required to fly no lower that 1,000 feet above “an open air assembly” or a under the “land clear rule”: “An aircraft flying over a congested area of a city, town or settlement shall not fly below such height as would permit the aircraft to land clear of the congested area in the event of a power unit failure.”22 In any event, Jack was required to obtain written permission from the CAA prior to flying over an air assembly of 1,000 persons at a height below: “(i) 1,000 feet; or (ii) such height as would permit the aircraft to land clear of the assembly in the event of power unit failure.”23 It is obvious that Jack was below the required height since he was directly beneath a commercial jet that was taking off. He was also over a restricted Class A area since the location was identified as Luton CTR/CTA and was obviously an air assembly of more than 1,000 people. The area is obviously a High Intensity Radio Transmission Area and could explain why Jack lost his radio frequency. In any event, he is entirely liable for this misfortune since he was in a restricted area without the requisite instrument qualifications. The cumulative impact of Jack’s contraventions of the CAA’s guidelines, the Rules of the Air Regulation 2007 and the Air Navigation Order 2005 as amended were dangerous to himself, the public, the property and passenger on board Bravo November, other aircraft and numerous persons and places on the ground and in the air. This danger was manifested by the fact that Jack was forced to fly into a cloud leaving him with zero visibility as he followed Air Traffic Control’s instruction to exit the restricted air space. Each of the contraventions culminated in the accident and put a number of lives both in the air and on the ground in danger when his aircraft plunged 400 feet out the cloud. In addition to criminal charges, convictions, penalties and imprisonment, Jack will likely be disqualified from flying or have his license revoked or suspended by the CAA. The CAA’s authority is imposed by virtue of the Civil Aviation Act 1992.24 Appeals against decisions and actions taken by the CAA are possible under the Air Navigation Order 2005. Given the number of violations committed by Jack in one particular flight and the risk of harm that he posed to persons and properties and ultimately the accident he had, it is unlikely that an appeal will be successful. The Air Accidents Investigation Branch (AAIB) has the authority to investigate all air accidents and will look into all the facts and circumstances relevant to the accident. The investigative powers are co-ordinated with the Crown Prosecution Services for the purpose of commencing criminal prosecutions under the relevant air regulations, specifically the Air Navigation Order 2005 as amended.25 Moreover, the AAIB will report its findings to the CAA with recommendations for improved safety with respect to regulations and restrictions in general. The CAA will take these recommendations into account and will determine what if any additional safety regulations or restrictions are necessary.26 Moreover, Jack’s negligent conduct may be the subject of a civil claim by Bob for the damages to his aircraft.27 However, any damages that Bob might obtain in an action in tort against Jack may be offset by virtue of the doctrine of contributory negligence.28 The degree of Bob’s liability however, will only be measured according to his obligation to ensure that the aircraft was safe and fit for its intended journey. Having regard to the fact that he advised Jack to check the aircraft and to ensure that it was fuelled, will not him relieve him of responsibility altogether. The fact that he brought those things to Jack’s attention will reduce this liability somewhat, since ultimately the pilot has a responsibility to ensure that the aircraft is fuelled and fit for his journey. Likewise Bob will share responsibility for failing to cross-check the flight log, and for failing to notice that Jack’s instrument qualifications had expired. Ultimately, Jack is responsible for his negligent navigation of the aircraft. Bibliography Air Navigation Order 2005. Air Navigation (Amendment) Order 2007. Civil Aviation Act 1982. Civil Aviation Authority, CAP 371/ The Avoidance of Fatigue in Aircrews: Guide to Requirements, Jan, 2004. Civil Aviation Authority: CAP 493/Manual of Air Traffic Services Part 1.2009. Civil Aviation Authority: CAP 652 Progress Report/CAA Responses to Air Accident Investigation (AAIB) Safety Recommendations. 2002. Hodgson, J and Lewthwaite, J. Tort Law Textbook. Oxford University Press, 2007. Law Reform Contributory Negligence Act 1945. Memorandum of Understanding between The Crown Prosecution Services and The Air Accidents Investigation Branch and the Marine Accidents Investigation Branch and the Rail Accident Investigation Branch 2008. Rules of the Air Regulations 2007. Read More