The Law: The Pilot and the Air Traffic Controller Division of Responsibilities Captain Henk Geut, LL. M .
The author is an airline pilot, and has been flying for Martinair Holland since 7966 , recently as captain, DC 70. During his flying career he studied law at the university of Leiden , The Netherlands, and wrote a thesis on the 'Legal Aspects of Aircraft Accident Investigation '. He is a legal consultant , and a member of the Legal Committee of the Dutch Airline Pilots'Association . This paper was delivered on 8 September 7988 during the Aviation Law and Operations Conference organized by the European Study Conferences Ltd. , 7-9 September 7988 in London (UK.). For the purpose of this article some textual impr ovements and minor corrections are applied and some additional information from the !CAO-field is added. This article appeared in 'Air Law ,' volume XIII, number 6, 7988 , and is reprinted with permission of the author and of 'Air Law '. Editor. On 22 January 19 77 . the pilot of a Cessna filed an IFR flight plan by radio . for a trip from Nogales . Arizona . to Fresno . California. He req uested clearance to fly from Nogales to · Flatts' intersection , to inte rcept Victor 66 airway and then on airways to Fresno at 10.000 feet. The flight service specia list on duty could not find ' Flatts' intersection on his chart. He then informed the pilot that the route clearance wou ld be Nogales direct to Tucson, and that departure rada r would vector the Cessna direct to the Victor 66 airway so that he would not have to fly via Tucson but on a more direct track. On the assurance that the radar controller would vector t he aircr aft back to its origina l route. the pi lot accepted the suggested route. The minium altitu de at 'Flat ts ' was 9,000 feet. The new route. direct to Tucson. would bring the aircraft over terrain w ith elevat ions in excess of 9 .OOO feet. Witne sses reported low cloud s, and mountain tops obsc ured in the area at the time of t he acc ident . The Cessna was cleared as fi led by the departure con tro ller to mainta in 10,000 feet and to climb VFR until cross ing 9 ,000 feet. Since t he pilot had not asked fo r a VFR climb . this did not comp ly with the prov isions of the ATC Manual . Afte r departure. when radio and radar contact were establ ished. the contro ller saw on his radar screen that the aircraft approached high terrain. so he instructed the pilot to fly im 14
mediately a reciprocal heading . He. saw the aircraft start a left turn. But it also descended. One minute later its altitude read ing was below 9,000 feet. The Cessna continued to turn and also descend ; it crashed in high terrain, 21 miles north west of Nogales becau se of disorientation of the pilot during the turn [1 ] . Division of Responsibilities An air disaster as described is not a regular event. Travelling by air still seem s to be the safest means of t ransportat ion . Howev er. despite the fact t hat within the aviation industry a high degree of safety is reached , it appears every now and then that an accide nt cannot always be prevented. Wh en during an accident air traffic control was involved . the question will be raised as to who had the responsibility for the operation and safety of the fl ight. Is it to be the air traffic co ntroller who. with the help of the blessings of modern technology like radar, computers and radio cou ld direct the aircraft's flight path from the ground, or shou ld it be the pilot in comma nd beca use he . as in the old days of the ·great-av iato rs'. is the only one on board who has suffi cie nt expertise to be able to bear the burden of an absolute responsibility for the safe operation of the aircraft. Without having the intention of giv ing a co mple te overview of statute s. regu lations and case law. in thi s
Henk Geut
paper an attempt to answer thi s question will be made . also with respe ct to pertinent international regulation s. The Pilot In Command When with respect to th e responsibility of the pilot in command. the Chic ago Convention [2] is co nsulted. several Anne xes, attached to th is Convention with provisions that are relevant to the subject. can be found. In Anne x 6 the standards and rec ommended practices are laid down which are de aling with the operational aspects of flight preparation and execution [3] . The applicable standard regarding the respon sibility of the pilot in command is found in chapter 4 . which runs as follows: Duties of Pilot in Command "The pilot in co mm and shall be respons ibl e fo r the operation and safety of the aeroplane and for the safe ty of all persons on bo ard du rin g flight time.·
Furthermore, c hapte r 4 of this Annex con tain s a number of rules pertinent to the ope rationa l aspects of flight execution. such as rul es regard ing the preparation of the flight, inflight procedures . flight check sysTHE CONTRO LLER/ DECEMBER 1989