| by Ruwantissa Abeyratne
( July 12, 2013, Montreal, Sri Lanka Guardian) They say air transport is the safest mode of transport. As a professional in aviation for the past 30 years and also speaking statistically, I can vouch for the truth of this statement.
But...On 6 July 2013 an Asiana Airlines Boeing 777 on Flight 214 from Seoul to San Francisco crashed while landing at San Francisco International Airport. The aircraft was a total loss (irreparable damage to the hull) and there were 2 fatalities but over 150 passengers were injured, some critically. It was later reported that the pilot who attempted the landing, although an experienced pilot, had only 43 hours of flying experience on the 777 and had never before landed in San Francisco. It must be emphasized that, at the time of writing, the negligence of the pilot had neither been established nor suggested. However, upon reports received from the airline and some other authorities that there was no engine failure nor adverse weather, focus was laid on the pilot who affected the landing, if only to inquire whether he had sufficient experience to effect the landing with success.
It is a well known fact in aeronautical circles, at least among competent and experienced pilots, that the possibility of an accident caused by pilot error can be greatly diminished if not totally obviated by adherence to two compelling concepts – standardization and harmonization. Standardization simply means compliance with procedures and regulations. In other words, if the pilot in control follows the rule book, he/she cannot go wrong. Harmonization means consistency in international practice, which means rules of the air and aeronautical navigation must be equally practiced under common rules from Australia to Zimbabwe.
The tenets of international aviation law attribute to the pilot (hereafter also referred to as the commander) of an aircraft absolute responsibility for the safe operation of his aircraft. Often, this principle is seen to defeat its purpose in the determination of a single instance of professional conduct of the pilot when such is considered to have endangered the safety of the aircraft, its passengers and property. The main reason for this confusion is the clear dichotomy which exists between statutory provisions and international conventions on the one hand which unequivocally lay down the fact of absolute responsibility of the pilot and the treatment of single instances of negligent professional conduct of the pilot in their isolation, on the other. So far, no attempt has been made either by international law and local statute or by judicial decisions to recognize that the conduct of the pilot in the aircraft should be viewed in its entirety, due regard being given to fundamental principles of law, the conduct of the pilot as a professional in whose hands lie the lives of hundreds of passengers and who takes on his job assuring his employer that his special skills and expertise would transport the passengers and their property safely under normal circumstances and any special circumstance which would render the effect of that assurance nugatory.
The law as it exists lays down a presumption of absolute responsibility of the pilot. In sharp contrast, the adjudication of instances of professional conduct of the pilot shows a clear demarcation between good airmanship and bad airmanship. Of these, the latter shows clear evidence of having been decided on individual merits and not on a general criterion or principle of recognizing the elements of law, special circumstances and the human factor as a composite whole. Therein lies the problem.
The following analysis would examine the question of bad airmanship of the pilot in its entirety thereby seeking to introduce certain general principles based on the presumption of responsibility that the law imposes. Such general principles could then be applied to response special circumstances which would thus give rise to special rules pertaining to the professional conduct of the pilot. To achieve this end, an examination and analysis of legal principles, judicial decisions and special circumstances is necessary.
According to accepted principles of law as laid down by international convention, it is incontrovertible that the final responsibility for the safe operation of an aircraft 1ies with the pilot. The Convention on International Civil Aviation provides that the pilot-in-command shall be responsible for the operation and safety of the aeroplane and for the safety of all persons on board, during flight time.
This presumption of responsibility has influenced most States which have signed or ratified the Convention and is reflected clearly in their air navigation laws. These laws have been have been observed to list requirements which any pilot with a sense of good airmanship would naturally comply with. Failure to comply with such regulations has been clearly interpreted to be bad airmanship which renders the pilot liable for prosecution on a criminal charge. In any event, the fundamental postulate which imposes prima facie responsibility on the pilot has been accepted as a general principle of liability of the pilot which sets the base for determining his legal status and responsibility.
The legal responsibility placed on the commander of the aircraft is therefore inextricably linked with the expectation of good airmanship. Airmanship has been regarded as an indefinable quality and has been used to describe the intuitive faculty of the pilot where he concerns himself with what is right or wrong in the operation of an aircraft which is acquired by sustained experience in flying. Whilst it is: the proper conduct of the normal flight to avoid creating hazard, it is also the ability to overcome potential hazard where failure has occurred. With procedures laid down, drills to cover eventualities and the installation of duplicated equipment it is not surprising that crew error is seen as an element in so many accidents.
The above analysis seems to suggest that the pilot should be held absolutely responsible for the safety of his flight not only as he lays claim to special expertise but also as he has been given the benefit of sophisticated duplicate equipment which makes his job easier. Thus, the stringent legal responsibility placed upon the pilot is seen to be further justified.
The absolute responsibility cast upon the pilot inevitably carries with it absolute and final authority from take off to landing. The status of the pilot therefore entails far reaching consequences making an instance of his negligent act open to be interpreted as a dangerous and unlawful act which could justify a charge of manslaughter in the least. Criminality of the act of the pilot lies quite independently of the incontrovertible liability in negligence which would follow from such act.
Yet another consequence that the pilot would face is loss of employment. The pilot who holds a valid licence is considered to be responsible both to the State and to his employer. The employer of the pilot has been recognized to demand of his employee the right to decide whether to continue the employment of a pilot if he constitutes a threat to air safety in the course of his employment. This principle is obviously followed on the basis that the product that the aircraft operator offers the passenger would lose its value totally if his credibility as a safe operator is lost by the negligent act of his pilot. In this perspective, no reputation, however glamorous, would obviate adverse publicity regarding the safety standards of an airline. Further, the pilot naturally hinges his entire capability and eligibility for employment on his ability to transport his passengers and cargo safely from one point to another. To achieve at least minimum standards of safety the employer should ascertain the competence of the pilot on his record at the point of employment and the pilot should justify his employment by the professional conduct that is expected of him and not regard his employer as one who suspiciously watches the performance of his duties. The ideal relationship between the pilot and his employer has been expressed by Captain A. J. Burridge when he said: “ If the suspicions of pilots can be allayed, and if an atmosphere of mutual trust between pilots and airline managements can be created, I think that responsible pilots could be persuaded to accept that the standard of flight safety we all want requires that Draconian remedies must be applied to cases of really bad airmanship in order to prevent their recurrence” .