Introduction

The aim of IFATCA is to promote air traffic control throughout the world. The objectives, functions and problems of this essential service can be mastered only by the common effort of all nations, which should be based on close international co-operation and a continuous exchange of ideas and experience. Nowadays more and more Member Associations are faced with legal cases against their members and are anxious to obtain legal assistance or legal advice in these matters. Although the current IFATCA policy on Legal Aid asks for qualified controllers with legal background, able to assist SC7 in legal matters, there is urgent need to decide upon clear IFATCA policy based on WP 83 brought before the Acapulco conference 1990 and accepted as information material.

Discussion

The purpose of this working paper is to find a way to enable the individual air traffic controller who is involved in an ATC incident or accident and facing disciplinary action or other legal procedures, to obtain the best and most effective assistance possible. Most of the incident inquiries are brought before investigation boards who do not necessarily have a legal expert or a lawyer amongst its members. The legal rights of the controller involved are not always observed by such a board, like questioning witnesses or obtaining all the relevant material before the investigation board commences the hearing. The results of an investigation board could be detrimental to the air traffic controller – their license could be suspended also, there is a possibility of legal action. We have to realise that from the moment the board publishes their findings it is almost too late for the controller or his legal counsel to contradict the evidence brought before the board.

It is important to obtain legal assistance at the beginning of an inquiry, especially if there is a liability of ATC involvement in an aircraft accident. There is no need to stress the importance of malpractice insurance when we look at the charges of manslaughter associated with the accident of the cross-channel ferry “Herald of Free Enterprise” and the railway accidents in the U.K. Also several court cases past and present where controllers have been found guilty of negligence give rise to concern for the legal liability of the ATCO.

Legal Representation insurance is available in many fields like medicine, law, engineering, etc. The benefit of such a scheme is that by paying a relatively small amount of money the person insured is able to obtain the legal aid at the time it is needed, this without the heavy burden of paying a considerable sum of money to experts and lawyers. Normally, legal counsel that handles a court case will make use of the available (national) jurisprudence about similar cases. If international law is not involved in a certain case it is difficult to obtain access to jurisprudence of other countries. This search will only be successful when one knows where to obtain this jurisprudence and even then it would be a time consuming exercise.

The establishment of a data bank containing world-wide jurisprudence concerning ATC incidents and related accidents would assist in these matters. Although there are various legal systems in the world, the arguments to find a controller guilty or not guilty in case of e.g. negligence will not differ much. When there is such a data bank available with enough cases stored, one can make the relevant data available to legal counsel. It is also possible to analyse each case and deliver the conclusions, recommendations and other interesting material to all MA’s through IFATCA. Since not many legal counsels are specialised in air traffic control regulations and cases which are brought before courts are ruled by the penal code, without enough consideration for the aspects of the special ATC situations, it is complicated to achieve the best possible assistance for the controllers involved. Legal Counsels who have to deal with such cases usually hire experts familiar with ATC. In some cases it would be advantageous to obtain assistance from IFATCA.

Conclusions

Assisting the controller should be based on two levels. One level can be provided by their Association (moral support, professional assistance, medical or psychological help) after the occurrence of the incident or accident. The second level is assistance from IFATCA through the Executive Board. The Executive Board will contact the Chairman of SC7 when necessary.

If a legal aid program is to be successful it should consist of the following aspects:

A. Insurance for Legal Representation.

B. Legal assistance from IFATCA through SC7.

C. Central data bank of jurisprudence supported by the MA’s.

Recommendations

To put on SC7 work Programme for 1992 a new agenda item which is the establishment of a central data bank of jurisprudence concerning related ATC incidents and accidents.

To accept the following articles as IFATCA policy, to be included in the Manual: “Policy Relating to Legal Matters, Legal Assistance”:

1. MA’s should obtain insurance against the costs of legal representation in cases of ATC related incidents or accidents.

2. When incidents or accidents involving ATCO’s are brought before an investigation board or court of law IFATCA shall endeavour to provide legal assistance, if so requested by the Member Association.

3. In order to obtain legal assistance from IFATCA the MA should establish contact with the IFATCA Executive Board who will consult with the Chairman of SC7 when appropriate.

4. A sub committee of SC7, under the supervision of the Chairman of SC7, shall be established to develop and implement an IFATCA Legal Aid Program. The sub committee will consist of controllers with a law degree or legal background.

5. The task of the sub committee will be:

   1. 1. to research the availability and costs associated with Legal Representation Insurance;

      2. to make available one (or more) of its members to the Member Association when requested by the IFATCA Executive Board;

      3. to establish a central data bank of jurisprudence concerning ATCO’s involved in ATC related incidents and accidents.