17
$\begingroup$

Recently, a Cessna made an emergency landing on a crowded beach in Portugal. The two occupants of the aircraft did not sustain any serious injuries, but two people on the ground died.

A couple of years ago, a similar incident occurred with a Piper in Florida. Again, the occupants were unharmed, while two people on the ground died — one at the scene, the other later succumbed to her injuries. The main difference is that here, the pilot hadn't noticed them and thought he was landing on an empty beach.

In Portugal, however, the beach was not just not empty, it was crowded. And the pilot could have known it would be, too — it was summer in Europe and a lot of beaches are crowded every summer.
It's hard to tell while the investigation is still ongoing, but in a situation like this, shouldn't a pilot choose another way to resolve the emergency?

I understand that a pilot's first responsibility is to the people on board the aircraft, but what are a pilot's responsibilities to people on the ground?
Are there any differences in the different legislations (FAA / EASA)?

Are there any other laws applicable? Have any precedents been set in court?


As noted in a comment, the flight instructor and the trainee have appeared in court, facing charges of negligent homicide.

"Portugal pair in court after fatal plane beach crash", BBC News.

$\endgroup$
  • 2
    $\begingroup$ I think we should restrict this to a legislation, EASA/EU/Portugal laws might be different from FFA/US ones $\endgroup$ – Federico Aug 3 '17 at 10:58
  • $\begingroup$ @Federico perhaps, but does the EU legislation differ that much from the US? $\endgroup$ – SQB Aug 3 '17 at 11:00
  • $\begingroup$ I don't know, but to prevent N different answers all about different legislatures, it's upon you to decide which legislature you are interested in and to clarify that with the appropriate tag. $\endgroup$ – Federico Aug 3 '17 at 11:01
  • 1
    $\begingroup$ @Federico Actually, I'm interested in learning about those differences if they do exist; a good answer should address these. $\endgroup$ – SQB Aug 3 '17 at 11:04
  • $\begingroup$ note that if you make the question too much about this specific case, it can get closed as opinion-based (you are asking us to evaluate something that is currently in court, an we are not the court). I suggest you to keep it eventually based on the fact, but a general question. $\endgroup$ – Federico Aug 4 '17 at 8:16
12
$\begingroup$

Factors in pilot choices are often subject to political spins, as few people are able to objectively evaluate the information available to the pilot, the bandwidth to manage the events, and the conditions which may have added complexity as well as the experience level of the pilot. A student pilot logically is held to a different competency expectation than a commercial/ATP with 15,000 hours in type, intimately familiar with the conditions, etc.

In common law, the pilot is supposed to protect in order, innocent third parties, the passengers, the crew, and property of others.

Where there were people impacted (no pun intended) who were not seen or known to the pilot/crew, that becomes a mitigating factor.

The bulk of civil liabilities on flight crews is established in case law, as there are few statutes which address that, at least in the US and Canada.

Addendum #1 Protection of innocent third parties, is first order as they have not elected to become part of an aviation event. Passengers need protection because it is the duty of the crew to protect passengers, even if non-paying. Of course passengers assumed some risk by electing to fly. Crew need protection because they are humans. Property is last.

Addendum #2, incorporation of comments, per requests. Comments are largely unedited, simply included to preserve the record. The comments were in response to a challenge for authorities on the common law obligations of pilots.

HLS Torts 2, Aviation under the Common Law, Francis H. Bohlen , and for contributory relation: Recreational boating accidents: Which law applies? Kevin Donius, for duties: TRITCH, ALLAN M. University of St. Thomas Law Journal: Fides et lustitia 2014/04/01, Vol: 11, p331, for practicality, and legislative mix: Fifty Years of Torts Harvard Law Review, Vol. 50, No. 5, Kohr, 504 F.2d 400 (creating federal common law of contribution in aviation accident). Kohr figures prominently in Professor Field's theory of federal common law, see Field, supra note 14, at 913-15, but almost certainly does not survive the refusal to create a federal common law right of contribution in antitrust cases. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981)

But see Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 292 (1993) (creating "ancillary" common law right of contribution in implied Rule 10b-5 right of action). Indeed, within seven years of Kohr, even the Seventh Circuit did not think to use federal common law to deal with the complex conundrums of choice of law analysis in an aviation accident. In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979, 644 F.2d 594 (7th Cir. 1981).

The Bohlen one, while dated (~1937) hits many of the foundations. But the boating one points out that by being a passenger you accept a greater risk than an independent third party. In the Torts class, I did a couple of papers on aviation torts. The rest of the cites become rather obtuse, because the focus in most litigation is not on common law, but on statutes. Yet, in NY, the bar exam covers common law. Go figure.

I cannot comment of EASA regulations, but generally the FAA regulations do not cover tort liabilities. Tort law and common law, where applicable, would appropriate references. This may be more relevant for SE Law. FAA regulations cover operational matters, certification, registration and administrative aspects of aviation.

Also the liabilities can be quite complex, for example in the Chicago crash, state Public Utilities Act was invoked, which added one of many local complexities to the litigation. That kind is stuff is, I believe, beyond the scope of SE Aviation.

This congressional intent not to exclude state statutory and common law from the field of aircraft safety is further illustrated by the existence within the Federal Aviation Act of a savings clause. 49 U.S.C. app. 1506 (1988)

$\endgroup$
  • 7
    $\begingroup$ "In common law, the pilot is supposed to protect in order, innocent third parties, the passengers, the crew, and property of others." Do you have any sources for that? $\endgroup$ – Ron Beyer Aug 3 '17 at 14:51
  • 2
    $\begingroup$ HLS Torts 2, Aviation under the Common Law, Francis H. Bohlen , and for contributory relation: Recreational boating accidents: Which law applies? Kevin Donius, for duties: TRITCH, ALLAN M. University of St. Thomas Law Journal: Fides et lustitia 2014/04/01, Vol: 11, p331, for practicality, and legislative mix: Fifty Years of Torts Harvard Law Review, Vol. 50, No. 5, $\endgroup$ – mongo Aug 3 '17 at 17:11
  • 3
    $\begingroup$ Kohr, 504 F.2d 400 (creating federal common law of contribution in aviation accident). Kohr figures prominently in Professor Field's theory of federal common law, see Field, supra note 14, at 913-15, but almost certainly does not survive the refusal to create a federal common law right of contribution in antitrust cases. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981). $\endgroup$ – mongo Aug 3 '17 at 17:11
  • 2
    $\begingroup$ But see Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 292 (1993) (creating "ancillary" common law right of contribution in implied Rule 10b-5 right of action). Indeed, within seven years of Kohr, even the Seventh Circuit did not think to use federal common law to deal with the complex conundrums of choice of law analysis in an aviation accident. In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979, 644 F.2d 594 (7th Cir. 1981). $\endgroup$ – mongo Aug 3 '17 at 17:12
  • 3
    $\begingroup$ Mongo, please add those (awesome!) citations into the answer as notes/footnotes, since comments can disappear over time. $\endgroup$ – KorvinStarmast Nov 4 '17 at 17:23

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.