In the hypothetical case of a commercial flight falling short of the runway to land on the approach area, and in the process causing damage to the aircraft, property and buildings in the approach area, several matters of law come into play, especially because the vignette is rather general. Possible causes of flight accidents include pilot errors, faulty equipment, violations of statutory regulations, structural or design problems, and negligence by the flight service section staff, or by the federal air traffic controllers or by a third party in the selection of a carrier. Among these myriad causes of accidents, the most probable factor in the present vignette, which gives rise to legal liability, is negligence. The field of negligence is very wide, but largely unexplored in aviation law. It is arguable that negligence in itself is still in its infancy having barely clocked a century since Donoghue v Stevenson  UKHL 100,  SC (HL) 31,  AC 562 and aviation law is also tender in its development (Heuston, 2007, p. 12).
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Nevertheless, negligence is apparent in the present vignette and this paper provides an exhaustive discussion of all the various legal issues that arise including but not limited to the axiom of res ipsa loquitur as well as the question of damages. Also worth mentioning is the fact that New Zealand’s aviation industry has undergone a policy overhaul and new players such as the Federal Aviation Administration have come into the picture as the growth of the air travel industry continues to pose a threat of death, injury and damage to property. There is a statutory limitation of 6 years for negligence cases hence the plaintiff should be careful to file the suit before the lapse of this period or risk losing the right to litigation on this matter.
In the US, the National Transportation Safety Board (NTSB) and the aforementioned FAA are in charge of investigating commercial accidents. In New Zealand, such accidents are subject to the Commission of Inquiry Act, which empowers the government to formulate a commission of inquiry to investigate the causes and effects of every commercial accident and promulgate a report of the same for the government. After the commission tabulates the results, the concerned parties have several options including litigation and alternative dispute resolution (ADR). In New Zealand, there is a society, Lawyers Engaged in Alternative Dispute Resolution (LEADR), responsible for handling such matters out of court. Since most of the practitioners in the aviation field are either affluent private proprietors or governments, and often hail from different nationalities, most of them prefer to use ADR because it is more flexible, confidential, inexpensive, the parties have at their disposal intermediaries who are experts in aviation matters, and it is also less time-consuming, among other reasons. Perhaps this is part of why there is scarcity of common law dictates on this field.
The parties involved in the vignette are the defendants comprising of the owner (s) or operator, the pilot, and the injured parties or plaintiffs. The issue of proving negligence can be taxing as it involves the need to prove three basic elements. First, that there existed a duty of care owed to the plaintiff by the defendant, secondly, that the defendant breached this duty; thirdly, that there resulted damage or injury due to that breach, and finally, that the damage was foreseeable. To establish a duty of care, the neighborhood principle established by Lord Atkins in Donoghue:
“The lawyer’s questions: Who is my neighbor? receives a restricted reply…the answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected, when I am directing my mind to the acts or omissions which are called in question.” (Harlow, 2005, p. 108)
Seemingly, one’s neighbor is anyone whose harm is reasonably foreseeable if one fails to take a reasonable care to protect them. The court in Ospina v. Trans World Airlines, Inc., 975 F.2d 35 at 37 (2d Cir. 1992) held that the reasonableness test on willful misconduct is objective in nature so that the question is put to a reasonable person in similar circumstances (DCDD, 2009, p. 13). In this vignette, such a duty definitely arises because the proprietors adjacent to the airport expect to live peacefully and safely despite their proximity to the airport. Consequently, the owners of the airport as well as the owners of the airplane owe this population a duty of care. Because the aircraft fell and caused damage, it is safe to say that this duty was breached and foreseeable damage occurred. Consequently, according to law, liability arises. At this juncture of apportioning liability, several matters require clarification and these are discussed below.
Extent of the Responsibility of the career
The applicable legislation for this hypothetical scenario include the FAA and NTSB regulations as well as the Commission of Inquiry Act, the Civil Aviation Act, 1990, the Montreal Convention 1999 and the Warsaw Convention, which New Zealand is party to alongside 56 other states.
Whereas it appears obvious that the career is at fault, it is possible that the accident did not occur due to any negligence on its part but instead was caused by a defect in design or structure falling under the manufacturer’s ambit. In such a case, the manufacturer shall be liable under the principle of strict liability. It is important to distinguish the source of error because attached to the expected duty of care are heavy sanctions imposed if there is proof of recklessness or carelessness in the discharge of this obligation. It is also damaging to the reputation of an airline if proven that the accident occurred as a result of the negligence of its crew, this could cost it a fortune due to bad publicity and loss of trust. When the pilot is found to be at fault, he or she shall be personally liable as a defendant in the suit. However, it is important to attach the owner in a vicarious capacity because often, the individual pilot may not afford to cater for the damages. However, in instances where both the manufacturer and the career are, the principle of comparative fault applies and the courts need to determine to what extent each party’s responsibility attaches and calculate the damages as a percentage owed by each (Sharrif, 2010, p. 359).
It is also possible that the manufacturer and the career both discharged their obligations fully but the airport erred in some way leading to the accident. This could be due to the negligence of air traffic controllers or of the grounds people in terms of failing to mark the runway and approach area comprehensively. If this is the case, then liability attaches on the airport proprietors, which may at times be the government. In such a case, the can be held jointly liable with the career.
Another possibility is that the plaintiffs in this suit could have contributed to causing the accident somehow. For instance, they may have breached the statutory requirement of building heights or noise levels for occupants of the approach area thus causing the accident. Article 20 of the Montreal Convention 1999 provides full or partial exoneration from paying damages if the defendant can prove that the plaintiff had a part to play in causing the damages. In such a case, if the career and the airport are found to be on the right, the plaintiffs cannot get any damages. However, if the contribution was not major and in effect complemented the negligence of either defendant, the damages rewarded to the plaintiffs shall only amount to the negligent role played by the defendants.
Finally, it is possible that even after thorough investigations, it is impossible to importune negligence on any particular individual but it is obvious that some form of negligence must have caused the accident. In such a case, the doctrine of res ipsa loquitur comes to the plaintiff’s rescue and if proved to a balance of probabilities by the plaintiffs, the court shall determine damages and require the defendants to comply with its decree to pay up.
Since the plaintiffs also include proprietors who paid for the career’s services, the law of contract is also applicable in this scenario. There are two possible contracts that could have been entered into on this level including the bare hull or dry lease charter and the “time and voyage charter” or the wet lease. In both, the rights and responsibilities of each contracting party depend primarily on the initial contract and as such, the damages shall be outlined within the contractual provisions. In case the parties prefer ADR to litigation, they shall have included an arbitration clause providing for settlement out of court in case of breach. Under this umbrella of contract law, the injured parties can file for damages resulting from breach of contract because the cargo did not arrive at its destination as intended. In this instance, if the career is not responsible for the accident, the responsibility of getting compensation from the responsible party falls squarely on the owner and the injured parties are entitled to the damages they claim regardless of the result of the secondary suit against a third party.
According to the Montreal Convention 1999 the damages are limited to 1.00 SDR per passenger. It is also possible that in addition to compensatory damages, if the extent of the negligence or the breach was excessive, the court may issue punitive damages in addition to the compensation.
In conclusion, this paper has discussed the hypothetical case involving the crash of a commercial craft that did not cause death but damaged substantial property. It has analyzed the matter in view of both tort and contract law and explained how the injured parties can prove the defendants’ liability and get damages. This case study adds substance to the expression:
“Aviation is not inherently dangerous. But to an even greater degree than the sea, it is terribly unforgiving of any carelessness, incapacity, or neglect.” (Anon) (Fenston, 2009, p. 221).
DCDD. (2009). Compensation for damage caused by aircraft to third parties arising from acts of unlawful interference or from general risks. International Conference on Air Law (pp. 1-11). Montreal: McGill University Institute of Air & Space Law.
Fenston, J. (2009). International air law: Res Ipsa Loquitur in Aviation. McGill Law Journal, 210-234.
Harlow, C. (2005). Understanding Tort Law (3rd edn). London: Sweet & Maxwell.
Heuston, R. (2007). Donoghue v Stevenson in Retrospect. Modern Law Review, 20, 1-24.
Sharrif, S. (2010). The failure of aviation safety in New Zealand: An examination of New Zealand’s implementation of its international obligations under Annex 13 of the Chicago Convention of International Civil Aviation. Journal of Air, Law and Commerce, 68, 340-384.