2nd ANNUAL ASSEMBLY OF THE WALA Ciudad Real – Castilla – La Mancha 17th – 19th May 2009

POSSIBLE EXONERATION OF AIRPORT FROM LIABILITY FOR BIRD STRIKE DAMAGE Split Airport – Croatia Split Airport Ante Matijaca Ciudad Real, 17 – 19 May 2009

L I A B I L I T Y Human aspectFinancial 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) 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 cargo handling

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 and non-contractual Subjective and objective Proper liability and liability for others

L E G A L C A S E S Country In favour of plaintiff In favour of defendant Unknown result Total ARGENTINA --11 CROATIA 3--3 FRANCE GERMANY 1/2 -1 ITALY 2-13 THE NETHERLANDS SPAIN UNITED KINGDOM U S A Total16 + 1/ /2 330

COUNTRY# CASESPLAINTIFFSDEFENDANTS ARGENTINA1 Airline Company Airport Ministry of Defence CROATIA3 Insurance Company Airline Company Airport (2) Insurance Company FRANCE2 Private Company Insurance Company (7) Airline Company Airport (2) State, Chamber of Commerce, General Manager ITALY3 Airline Company (2) Insurance Company Airport (2) Ministry of Transport, Port Authority, ATC, CAA, General Manager GERMANY1 Private CompanyPrivate Person THE NETHERLANDS 1 Airline Company Airport SPAIN3 Airline Company (3)Airport (3) UNITED KINGDOM2 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

D E F E N D A N T S

ANSWER A QUESTION - What are the main reason why an airport operator is the first who will be sued? TRY TO EXPLAIN - What are the possibilities of exoneration of airport from liability in case of bird strike?

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) - 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) - 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 persons as a result of bird strike AIRPORT OPERATORS lack of proper procedures lack of adequate bird control failure to take other activities L E G A L P R O C E E D I N G S

LIABILITY 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)

26th International Bird Strike Committee Conference Warsaw, 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 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 ASPECT The 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. Lloyds 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 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.

HrvatskiEnglish BIRD STRIKE COMMITTEE CROATIA

Ante Matijaca Thank you very much for your attention