Airport Bird Hazards and Controller Liability by A.P. Wilde Director-Professional GATCO (first written ,n TRAN SM IT)
Last Summer. headlines appeared in the Press concerning a court case in which a Norwegian aircraft operator claimed a large sum of money from the local authority responsible for the operation of a regional airport in England. The claim resulted from the loss of a Fan Jet Falcon following a multiple bird strike shortly after take-off in December 1 9 7 3. The case focused sharply on the actions and responsibilities of the air traffic controller on duty in the tower at the time of the crash and is worthy of some study. The AIB Accident Report (No. 24/ 7 4) of the crash, published in December 1974, summarised the accident in the following terms: 'The aircraft flew into a large flock of seagulls just after takeoff, and sustained multiple bird strikes. Both engines failed due to bird ingestion and the aircraft made a forced landing in a field beyond the end of the runway. The aircraft was substantially damaged and the three crew were injured: the six passengers were not hurt.· The reason for the case coming to Court in 19 7 9 was the failure of the respective insurance companies to agree upon liability for the accident. The action by the aircraft operators claimed damaged of £ 1 ½ million against the airport authority for damage to the aircraft and consequential losses. The basis of the claim was the alleged negligence of the airport authority in failing to take adequate steps to minimise the bird hazard at the airport and failing to warn the crew of the existence of a hazard. In particular, the plaintiffs alleged: a) that the system for discovering the presence of gulls on the airfield and dispersing them was defective: b) that the duty air traffic controller cleared the aircraft to takeoff when it was unsafe to do so because of the presence of gulls; c) that parts of the airfield surface were invisible from the control tower: d) that in the prevailing weather conditions near dusk and in view of the
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condition of the control tower windows, no proper view of the airfield was available to the duty controller. The AIB report stated that no concentration of birds was observed by ATC or the aircraft crew prior to takeoff, but that a large concentration of gulls was either on the active runway or was arriving over the airport at the time of take-off. The airport bird-action coordinator believed the latter was the case. However, the plaintiffs thought otherwise, and much of the case revolved around this issue - for if the birds were not present at the time the aircraft was cleared for take-off, the airport authority could hardly be held responsible. It is impossible in the space of a few paragraphs to reflect accurately all the arguments and counter-arguments presented in Court. (NB The case lasted three weeks and Mr Justice Tudor Evans· judgement took several hours to deliver.) However, some salient points should be noted. The tower controller gave evidence that. on two separate occasions before the aircraft departed. he looked at the airfield and did not see any gulls. He was questioned in some detail about visibility from the VCR and the effects of condensation and raindrops on the windows. The issues of whether the controller could see the whole length of the runway and, if he could, whether he scrutinised it adequately for the presence of birds were fundamental to the plaintiffs claim that the birds were present when the aircraft took off and that the airport authority were therefore in breach of their statutory duty of care. _ In his judgement. Mr Justice Tudor Evans rejected the evidence of the tower controller that. as condensation had been wiped off the tower windows, visibility from the VCR was adequate for him to check that the runway and surrounding area were clear of birds. Despite the controller's statement that he had stood on the platform outside the
VCR, the Judge rejected his claim that he had checked for the presence of birds, finding 'that he merely stepped outside briefly to glance at the state of the weather·. He continued •I reject Mr ... (the Tower Controller) evidence that on this occasion he surveyed the airfield and the runways looking for the presence of birds. I am afraid that I thought that Mr. . . was an unsatisfactory witness on this issue. I reject his evidence that he looked for the presence of birds on the second occasion. I find that he was watching the aircraft when it taxied out.· The Judge went on to consider whether the whole of the runway was visible from the VCR. Despite a dip in the aerodrome which severely limited visibility, and the very oblique view from the VCR, he found that if the tower controller 'had looked, 9 nd looked carefully, he should have been able, with the aid of binoculars, to see the gulls which were on or near the runway. despite the difficulties of visibility and of seeing the surface of the runway·. After severely criticising the airport authority for the inadequacy of their bird control and bird scaring arrangements. despite a known bird hazard at the airport. the Judge went on to find in favour of the plaintiffs, saying the airport authority was in breach of its duty. of care - the duty not to clear an aircraft for take-off unless reasonably satisfied that it was safe to do so. The Court accepted that. even if the gulls appeared after clearance had originally been given, the duty continued at last until the aircraft commenced its takeoff roll. In such circumstances, the controller ought to have instructed the pilot to hold his position and arranged for the gulls to be cleared before permitting the aircraft to take-off. It is of interest to note that. in considering whether there was contributory negligence by the flight crew, the Judge found that. in view of the high cockpit workload, 'the state of the light and the weather, the colour of the runway, the fact that the runway was wet and the size and colour of the gulls, they could not have been expected to see them'. I report the facts of the case without comment. Whilst many statements were made in Court which a controller may feel could be challenged legitimately. the case as a whole was long and complicated. However, the issues are of concern to all controllers, especially those at airports with poor visibility from the tower. or bird scaring arrangements which may not always be adequate. Since the accident. the airport in question has obtained new bird scaring equipment and has built a new control tower.