ASAS TN2 Final Seminar Paris, April 2008 LEGAL ASPECTS OF ASAS Dr. Francis SCHUBERT Head Corporate Development / skyguide

ASAS TN2 Final Seminar Paris, April 2008 Traffic conflict management SEPARATION PROVISION SRATEGIC CONFLICT MANAGEMENT Airspace organisation and management Demand and capacity balancing Pilot maintained Separation:  Visual ATC provided separation COLLISION AVOIDANCE Safety nets Airborne Collision Avoidance System (ACAS) Short Term Conflict Alert (STCA)  ASAS

ASAS TN2 Final Seminar Paris, April 2008 Managed airspace Unmanaged airspace High density area Airport ASAS separation ATC separation Visual separation ATC separation Visual separation ASAS separation Visual separation ATC separation Visual separation

ASAS TN2 Final Seminar Paris, April 2008 Basic principles for traffic separation The "Pilot-in-command" principle –"The pilot-in-command of an aircraft shall have final authority as to the disposition of the aircraft while in command". Annexe 2, § 2.4. –"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" Annexe 6, part. I, chapt.3, para. 3.2, According to ICAO, "an aircraft shall not be operated in such proximity to other aircraft as to create a collision hazard"; – ICAO Annex 2, § "Proximity". The "see and avoid"rule: "pilots are required by regulation and common sense to maintain a sharp lookout so as to “see and avoid” other aircraft." PanAm v. Port Authority, 787 F.Supp. 312 (E.D.N.Y. 1992) at 318.

ASAS TN2 Final Seminar Paris, April 2008 "Application of the pilot-in-command concept in tort litigation is inimical to safety because it destroys one of the ATC's incentives to use due care. In addition, the premise is inconsistent with the realities of modern aviation. The pilot in command concept assumes that only the pilot is responsible for all of the factors that ensure the safety of flight, such as pre-flight planning and evaluation of the weather." "Advanced technology should not be used as an excuse by ATC to ignore an aircraft and potential danger, but rather as a method to more closely monitor the aircraft's progress." "Second, and more importantly, to relieve air-traffic controllers of all liability for their negligence would both remove an important incentive that enhances air traffic safety and undermine public confidence in the air transport system." K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in-Command Concept - A Recipe for Disaster?"

ASAS TN2 Final Seminar Paris, April 2008 Pilot in Command Role of ATC Visual Separation ATCO

ASAS TN2 Final Seminar Paris, April 2008 Pilot in Command ATCO Organisation ASASHuman Error Technical Failure Role of ATCVisual Separation Equip. Manufacturer Regulator Aircraft Operator ANSP

ASAS TN2 Final Seminar Paris, April 2008 "For the new system to work, the courts must clarify the rules governing liability of pilots and air traffic controllers", –K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in-Command Concept - A Recipe for Disaster?" The issue is not liability rules, but a clear definition of responsibilities "…The question may arise whether a reallocation of responsibilities between pilot in command and air traffic control will become necessary to legally reflect the changed working environment and interface between participants." –Stefan A. Kaiser, "Infrastructure, Airspace and Automation - Air Navigation Issues for the 21st Century", AASL, vol. XX, part I, 1995, p. 453

ASAS TN2 Final Seminar Paris, April 2008 SESAR & ASAS legal issues

ASAS TN2 Final Seminar Paris, April 2008 SESAR & ASAS legal issues Recommendations 1. The implementation of the ATM Target Concept should be performed within existing legal frameworks also noting that new legislation is expensive and time-consuming to develop. 2. When developing the ASAS/self-separation concept clarification of the responsibility and liability issues of ASAS, including mixed mode of operation, is required. 3. Future developments of the ATM Target Concept should include clarification of new roles and responsibilities in order that the legal implications may be assessed. 4. Future developments of the ATM Target Concept should plan to make all data flowing through SWIM available for recording in case it is required for legal/investigation purposes.