LM 7.1.1 FOUNDATIONAL AND GENERAL POLICY ON THE LEGAL LIABILITY OF THE CONTROLLER

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LM 7.1.1 FOUNDATIONAL AND GENERAL POLICY ON THE LEGAL LIABILITY OF THE CONTROLLER

IFATCA is of the opinion that the criminal and civil prosecution of controllers following aviation accidents and incidents is not in the public interest. This is a matter of how and where laws are applied in a very technical area and is not just a matter of inappropriate laws. This problem, then, should not be addressed through an international convention proscribing criminal prosecution in these cases, but rather through an international understanding of the problems created in the technical field by such prosecutions and an understanding of the various matters of public policy involved.

IFATCA Policy is:

Adequate legislative protection shall be provided to the air traffic controller in order to reduce such strains as may be engendered from improper legal status.

IFATCA can never support any controller who is guilty of gross negligence and/or flagrant dereliction of duty. However, the Federation shall reserve the right to use any legal means available to it to protect any member who is accused of such tort.

IFATCA defines that it should be necessary to prove “mens rea” (guilty mind) beyond all reasonable doubt, before a crime can exist.

All other cases where “mens rea” cannot be proven shall fall under Civil law, as opposed to Criminal Law. It shall be heard by a competent Civil Court, and shall be subject to the following conditions:

a) No controller shall be imprisoned pending a civil court hearing, nor after a civil court hearing if it is proven that a controller has committed a tort only;

b) No controller shall be subjected to disciplinary action under administrative law to have the administrative case heard prior to the Civil Court action. If there is likelihood of a Civil action, it would be fairer to transfer the controller to non- active duties without loss of any financial benefits in all cases, thereby avoiding prejudging the Civil Court’s ruling;

c) Employing Agencies shall be responsible for the torts of their employees;

d) Military authorities and controllers shall be subject to the same legislation when either they are controlling general air traffic, or an accident occurs involving general air traffic and operational air traffic, the latter being under military 
control or flying without control;

e) IFATCA is not renouncing legal liability for air traffic controllers, but seeking only to keep it within reasonable bounds so that controllers may suffer less stress in carrying out their day-to-day duties.

IFATCA shall continue the efforts towards a suitable Convention limiting the Legal Liability of air traffic controllers.

In the event of an accident or incident that can be shown to have been caused wholly or in part due to inadequate standards, regulations, staffing, equipment and training or any other professional tool given to the ATCO, the employer should demonstrate that they are not vicarious liable whether or not such acts or omissions were specifically authorized by the employer.

Member Associations shall bring to the attention of their national administration written details of any persistent deficiency in order to create a deficiency data base and to emphasize their vicarious liability.

During the legal proceedings following an investigation, all legal representatives should consider the controllers work environment and any other pertinent factors that contributed to the incident or accident as an overall evaluation of the event (holistic approach).

The controller’s employer should indemnify the controller for all damages and legal costs for defence incurred if a controller is held liable as a result of carrying out his duties for his employer.

An aerodrome controller cannot be held liable for any accident or incident that occurs on that portion of the aerodrome or its vicinity under his control if there is no direct visual observation of the area and a surface movement surveillance system is not in use. Surface movement surveillance systems shall only be used to supplement direct visual observation.


See: WP 79 – Brussels 1979, WP 172 – Santiago 1999, WP 165 – Kaohsiung 2006, WP 159 – Dubrovnik 2009, Resolution C16 – WP 77 – Virtual 2022

See also: WP 51 – Copenhagen 1978, WP 63 – Brussels 1979, WP 59 – Toronto 1980, WP 62 – Athens 1985, WP 64 – Athens 1985, WP 155 – Toulouse 1998 (2), Resolution C16 – WP 77 – Virtual 2022


 

 

 

 

 

 

 

 

Last Update: August 11, 2022  

November 3, 2019   782   Jean-Francois Lepage    LM    

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