2nd ANNUAL ASSEMBLY OF

THE WALA

Ciudad Real – Castilla – La Mancha 17th – 19th May 2009

POSSIBLE EXONERATION OF POSSIBLE EXONERATION OF AIRPORT FROM LIABILITY AIRPORT FROM LIABILITY FOR BIRD STRIKE DAMAGEFOR BIRD STRIKE DAMAGE

Split Airport – CroatiaSplit Airport – Croatia

Split Airport

Ante MatijacaAnte Matijaca

Ciudad Real , 17 – 19 May 2009Ciudad Real , 17 – 19 May 2009

L I A B I L I T Y

Human aspect Financial aspect

- Aircraft owner/operator is first party who may suffer significant damage

- Airport operator is first party to wich damage compensation claim will be put

I N T R O D U C T I O N (1)I N T R O D U C T I O N (1)

A I R P O R T S

Big & Small

International & Local

Public & Private

Civil & Military

D U T I E S

Take-off, landing, parking

Passengers, baggage and cargohandling

I N T R O D U C T I O N (2)I N T R O D U C T I O N (2)

LIABILITY FOR DAMAGE – Obligatory - legal relation in which one side is liable to repair damage caused to other side, and the other

side is entitled to demand such reparation

KIND OF LIABILITY

Contractual andnon-contractual

Subjective and objective

Proper liability andliability for others

L E G A L C A S E SL E G A L C A S E S

Country In favour of

plaintiff In favour of

defendant Unknown

resultTotal

ARGENTINA - - 1 1

CROATIA 3 - - 3

FRANCE 1 1 - 2

GERMANY 1/2 1/2 - 1

ITALY 2 - 1 3

THE NETHERLANDS

- 1 - 1

SPAIN 1 2 - 3

UNITED KINGDOM 1 1 - 2

U S A 8 5 1 14

Total 16 + 1/2 10 + 1/2 3 30

COUNTRY # CASES PLAINTIFFS DEFENDANTS

ARGENTINA 1 Airline CompanyAirport

Ministry of Defence

CROATIA 3 Insurance Company

Airline Company Airport (2)

Insurance Company

FRANCE 2

Private Company Insurance

Company (7) Airline Company

Airport (2) State, Chamber of

Commerce, General Manager

ITALY 3 Airline Company (2)

Insurance Company

Airport (2) Ministry of Transport, Port Authority, ATC, CAA,

General Manager

GERMANY 1 Private Company Private Person

THE NETHERLANDS

1 Airline Company Airport

SPAIN 3 Airline Company (3) Airport (3)

UNITED KINGDOM 2 Airline Company (2) Airport (2) CAA,

County,

UNITED STATES OF AMERICA

14

Insurance Company (3) Airline Company (5) Private Person (3) Private Company (2)

Bank, City, CAA, Environmental

Organization (2), Lawyer Office

Airport (2) Port Authority (2),Airline Company, County, State

(8), City (5), CAA, Aircraft Manufacturer, Engine Manufacturer, General

Manager, ATC, Ministry of Defence

Private Person2%

Airlines Company2%

ATC5%

General Manager5%

CAA5%

Ministry of Transport

2%

Engine Manufacturer

2%Private Company

5%

Department of Defence

2%

County5%

Aircraft Manufacturer

2%

Port Authority7%

City11%

Airport27%

State18%

D E F E N D A N T SD E F E N D A N T S

ANSWER A QUESTIONANSWER A QUESTION

- What are the main reason why an airport operator

is the first who will be sued?

TRY TO EXPLAINTRY TO EXPLAIN

- What are the possibilities of exoneration of airport from liability in case of bird strike?

EFFORTS OF AIRPORTS (1) EFFORTS OF AIRPORTS (1)

- To carry out necessary inspection of runways, taxiways, and other manoeuvring areas;

- To warn pilots about possible presnce of birds and other animals at or in the vicinity of airport;

- To realise proper design, construction operation and maintenance of airport areas and buildings;

- To implement proper manner of land use;

- To implement proper grass policy;

EFFORTS OF AIRPORTS (2)EFFORTS OF AIRPORTS (2) - To implement proper manner of zoning in the vicinity of airports;

- To use different kind of adequate scaring devices;

- To obtain certificates for: operation of airport, airworthiness of aircrafts and construction of engines;

- Activities on permanent improvement in awareness of bird hazard;

- To ensure sufficient financial resources to take necessary measures and activities;

EFFORTS OF AIRPORTS (3)EFFORTS OF AIRPORTS (3)

- To have various specialists and other educated personnel at its premanent disposal;

- To realise timely and accurate communication among all air traffic participants (airport personnel, air traffic controlers and air carrier personnel) in case of bird hazard or bird strike;

- To register all appropriate statistical dana, as well as all other necessary records.

Omissions & Consequences

Canadian Airport Wildlife Management Bulletin No. 23

• In case of :

- material damage

- injury of persons or

- death of personsas a result of bird strike

AIRPORT OPERATORS

lack of proper procedures

lack of adequate bird control

failure to takeother activities

L E G A L P R O C E E D I N G S

LIABILITY IN CIVIL AVIATIONLIABILITY IN CIVIL AVIATION

1. AIR TRAFFIC PARTICIPANT LIABILITY

2. THIRD PARTY LIABILITY

- Airport operator

- Aircraft operator

- ATC agency

- Chicago, Warsaw, Montreal Convention- National regulations

- Rome Convention (1952)- Montreal Protocol (1978)

P O T E N T I A L L I A B I L I T Y

1. DAMAGE - Direct damage (material damage of an aircraft or third persons on the ground)

E L E M E N T S

- The extent and amount of damage - The moment of bird strike

- Indirect damage (profit loss, passengers redirection, goodwill loss, inspection et al.) - Non-material damage (injures, mental stress or death of passengers, crew et al.)

2. CRITERIA FOR ESTABLISHING OF DAMAGE LIABILITY - The exact point of bird strike

- Complete airport liability - Partial airport liability - Airport exoneration from liability

- Consequeces of bird strike with regard to safety of further flight

4. LEGAL PROCEEDINGS

3. WHO IS LIABLE FOR DAMAGE ?

- Activities undertaken to avoid bird strike

- Airport operator is the first party against which legal proceedings may be taken

26th International Bird Strike Committee ConferenceWarsaw, May 2003

Q U E S T I O N ?

If bird strike happens outside bounded and strictly determined

airport area, who is than responsible for occured damage ?

m a r s h l a n d P A N T A N

RNW 05

Airport boundary

EXCLUSION FROM LIABILITYEXCLUSION FROM LIABILITY

AIRPORT LIABILITY CIVIL LAW

ELEMENTS :

2. Successful defence;

3. Knowledge and experience of the judge in this matter;

1. Prevention at or in the vicinity of an airport;

4. Sufficient number of qualitative proofs.

QUALITATIVE PROOFS

1. To have all facts completely and correctly established

2. To prove that everything that had to be done was done, and eventual damage occured without the fault of a defendant

Airport operator shall not be liable for damage occasioned by bird strike if it proves that it had taken all available measures and activities that could reasonably be required to avoid that strike, or if it proves that it had been impossible to take such measures or activities, especially due to safety reasons.

BIRD STRIKE = EVENT caused by

EXTRAORDINARY CIRCUMSTANCES

The extraordinary circumstances justifying airport operator behaviour at the moment of bird strike must be extraordinary in the sense of necessity to maintain total safety of flight.

Meteorological conditions

unusual

with birds’ behaviour and with operation of the concerned flight

EXTRAORDINARY CIRCUMSTANCES

&

BIRDS’BEHAVIOUR

MITIGATING

CIRCUMSTANCES

WILFUL MISCONDUCT

NEGLIGENCE

as intentional performance of an act knowing that its performance will probably result in damage, or as intentional performance of an act in a manner that

implies reckless disregard of its probable consequences

=

failure to take reasonable, ordinary care

=

INSURANCE ASPECTThe insurance covers aircraft operators, as well as airport operators.

Bird strike risks are within frame of aircraft operator property insurance, and of airport liability insurance.

Lloyd’s building London

Kinds of insurances:

- Property insurance (airport operator; aircraft; goods and baggage – against loss or damage);

- Persons insurance (airport operator, passengers and crew on board of aircraft – against accidents);

- Aircraft operator liability insurance (passengers and third persons damages; goods);

- Airport liability insurance.

PROPOSALS & SUGESTIONS

- To acknowledge that bird hazards exist;

- To assess legal implications of airport bird hazards;

- To assign responsibility and delegate authority for developing, initiating and maintaining of effective bird management program;

- To identify sources of technical assistance;

- To identify bird hazards;

- To acquire knowledge about bird management program and to exercise it periodically;

- To allocate resources, funds, and personnel;

- To develop routine training programs;

- To initiate bird management program;

-To develop qualitative control procedures;

- To maintain daily records of bird management program;

- To evaluate bird management program;

- To establish positive bird strike reporting procedure.

C O N C L U S I O NC O N C L U S I O N

- Liability for damages caused by bird strikes within

airport responsibility area represents the risk that,

obviously, brings into question the whole system of

measures predicted for prevention of such events.

- From the aspect of presumed liability the person in charge is obliged to prove that, in definite

circumstances, all required actions were

undertaken in order to avoid definite event.

- Every singular case of wildlife strike represents the

possibility for evaluation of undertaking of

protection measures, and it brings all participants

in air traffic into question whether an airport does

everything predicted in safety instructions or

similar acts in order to avoid wildlife strikes.

- Every act and action of an airport referred to

application of safety measures must be entered in

respective official records, in order to enable its

eventual identification and demonstration.

Contrariwise, even on the assumption that safety

measures are respected, there exists a practical

possibility that an airport will be charged for

damage.

Hrvatski English

BIRD STRIKE COMMITTEE CROATIA

www.caacro.hr/birdstrike

Ante Ante MatijacaMatijaca

Thank you very much for your attention