In the history of aviation, accidents have been one of the dangers that have coloured the sector. According to an ironical statement credited to an aviation magazine, âAviation safety is excellent–but accidents will occurâ, it is very scary when considering how dangerous flying in the air could be. Why is it that accident must occur? How can safety in aviation then be in excellent mode? What instrument has been used to achieve this excellence?
Just to mention a few, on the 9th of May 1987, the last words of the pilot of the LOT Polish Airlines, flight 5055 according to NTSB investigative group are âGoodnight, Goodbye, We Perishâ. Another statement says âthere it goes, there it goes! Oh no!â made by the pilot of American Int. Airways on the 18 of August 1993. On 4th of April 2010, the Continental Express pilot of flight 3407 said âwe are downâ. It is very unfortunate that safety is 100% not guaranteed but fortunately, safety has been effectively buffered since the industry is now responsive to all hazards revolving round the air transportation and has become safer as more knowledge and experience is being acquired. Since the inception of the tracking of accident rate by ICAO, it is estimated over the previous six years in the trend of accident rate that 2009 had 4.1 accidents per million departures. In 2010, 2011, 2012 and 2013 it was 4.2, 4.2, 3.2 and 2.8 accidents per million departures respectively. This fact and figure seem interesting as it can be seen that there is a reduction in rate of accidents as year goes by. This is a feat even though death is still recorded each year. Just in 2014, there were approximately 2.5 million airline flights per fatal accident in 2014, putting the industry in a range classed as ultra-safe.
Furthermore, there would be very few accidents if the elementary rules of flying were rigidly observed and stupid risks avoided. So many instruments have been used to keep aviation safety in the present state it is and one of the instruments used that this study will address is law. Law in the shape of rules and regulations has helped to make air transport the safest means of transportation. Rules and regulations have been made to enforce laws; both federal and state governments have joined hands together to enact statutes and create administrative agencies to regulate air traffic and ensure safety. So many international meetings and conventions have been held unifying rules and regulations to ensure safety.
Has it has been known that âair safety has improved greatlyâ, the understanding of the influence of law in aviation safety that has provided a framework that keeps the aviation industry safe would be the focus of this study in the area of civil aviation which is the flights and aircraft used for personal and business purposes, such as transporting goods or passengers, rather than for military purposes.
1.2 Statement of Problem
In any atmosphere where Humans are carrying out daily activities whether with primitive or sophisticated techniques, it is highly imperative that both the humans and non-humans are given the appropriate checks to ensure that one is not affected by the action of the other.
According to facts, flying is the safest means of transportation, which is due to the deployment of modern equipment and well-trained personnel who work according to set procedures and responsibilities. In addition, air traffic has doubled over the last twenty years and the number of accidents has not increased in this respect. All the glory to the implementation of rules and regulations made by national and international bodies in improving aviation safety.
The focus of this thesis is to carefully examine, in selected jurisdiction such as United State, Canada, and Nigeria, the safety administration in its dimensional structure with the lens of law. It will critically discuss who are in charge of safety in the aviation world and how the laws or Acts have been used to ensure safety.
Responsibility is a key factor that determines how safe everyone can be and sustainability of policies to keep safety at highest peak. Hence, this study tackles issues bothering (legal) responsibilities of airliners, aircrew, air marshal, air traffic controller, baggage handler, cabin crew, pilot, co-pilot, test pilot, flight engineer, ground crew, ground staff, and passengers.
This work addresses the public confidence bestowed on air transport, is it diminishing or increasing, this work would evaluate it and give answers to it analytically.
Safety programs need some level of evaluation. This study would address the challenges faced as regards best indicator of successful safety and reporting systems in the aviation industry.
Furthermore, this work will discuss legal issues such as physical assaults, threatening behaviors, verbal abuse, hostility, harassments towards passengers or crew on board, homicide and terrorism and give a way forward to using law to checkmate subsequent occurrences.
Some important factors that are making the aviation safety not effective includes lack of maintenance of infrastructure and equipment, lack of resources to improve safety, corruption, bureaucratic failures, lack of efficient and safe airport infrastructure required to support the projected traffic growth, safe navigation and air traffic control systems. This work reveals the importance of the role of law as a tool at national and international level in exercising and correcting these deficiencies and making safety an inevitable model.
This thesis topic is not going to leave behind the technical safety codes that have been employed in Aviation Safety
1.3 Purpose of the study
a. To dissect the nature and roles of safety in aviation.
b. To check in details what does safety involves
c. To discuss the state of aviation before laws and after laws were enacted
d. To critically examine what laws are in place to ensure safety in aviation
e. To look at the conditions for the violation of the laws.
f. It will analysis the civil and criminal law that affects aviation industry
g. It will not fail to explain the violations applicable to safety related legislations
h. Also inclusive in this study is the claim investigation and defenses
i. It will explore the aviation safety agencies
j. It will preview the focus of safety programs and policies in aviation industry
k. To examine the relationship between the agencies, airliners, and passengers
l. It will discuss the responsibilities of stakeholders in the industry
1.4 Significance of the study
The significance of the study is to bring out the understanding through the assessment of the role of law in dealing with the susceptibility of the aviation industry to the inherent risks of flight, and all possible safety measures from legal perspectives.
Correlative research method of deductive reasoning would be adopted. Also, the source of data to be used will be both primary and secondary sources of information. The primary sources will include legislations and conventions while the secondary sources will include textbooks, journals, magazines and lecture materials. Articles from the web would be used.
1.6 Structure of the study
This work is set into five chapters, which would simply be sequentially labelled. The first chapter envelops the introduction, which gives the overview of the main points of this thesis. It carries along with it the background of study, which has set the general tone and theme of this study. The statement of problem is embedded in this chapter coupled with purpose of the study, significance and methodology used.
Chapter two delves into the definition of aviation law hanging by its side the explanation of the meaning, role and nature of aviation safety and the meaning of civil aviation. It briefly highlighted the evolutionary historical events in aviation safety in timelines. It included the aviation safety regulatory agencies at all levels and what Bilateral Air Service Agreement (BASA) is all about.
In chapter three, the basic concept of law in aviation constitutes this chapter. The meaning of law, in inclination to the legal framework for safety in civil aviation industry is the focus of this chapter. The safety laws, standards, rules, regulation applicable to the aviation sector are subset of this chapter. The fundamentals of aviation regulations and the regulatory structures are not exempted. Majorly and finally,, this chapter explored the Chicago Convention Articles, Annexes and Appendixes that centres on aviation safety.
Chapter four accentuates legal responsibilities and rights of airlines manufacturer, airlines employers, airlines employees and passengers. It also encloses in it the protection of employees and passengers in aviation, conditions for employees to refuse to work and condition for passengers to refuse services offered.
Chapter five broadly focuses on the implementation and enforcement of safety laws. It tackles the civil and criminal law that affects aviation industry or the application of civil and criminal liability concept to aviation safety and the influence of the enforcement agencies. It will not fail to treat the types of violation applicable to aviation safety, claims investigation and defense and the punishment for breach which basically promotes strict adherence to the rules and regulations for safety. Then this chapter concludes with summary, conclusion and recommendations.
2 AVIATION LAW
This highly specialized field of law encompasses most facets of air travel, as well as the operation and regulation of business issues relating to air travel, which requires a comprehensive knowledge of FAA regulations, specific laws regarding flight, and an in depth understanding of aviation. It governs the operation of aircraft and the maintenance of aviation facilities. Aviation law pertains to nearly all individuals connected to the operation and maintenance of aircraft. Air traffic regulation polices, in both federal and state government, has created laws and administrative agencies with certain restrictions preventing states from regulating routes, services, or the rates of all air carriers authorized to provide interstate air transportation by the Federal Aviation Acts.
Through Laws, aviation industry been organized in terms of their activities and professionalism prohibiting all acts that may endanger airplanes, airports or any facility related to aviation services. The law obligates aviation workers to obtain permit or license from recognized bodies, with penalties and fines to be imposed for violations. The law has been utilized to assess and screen all aviation exercises and aeronautics specialists, and may additionally characterize any demonstrations that constitute hazard on aviation facilities, air operations, aeroplanes, air travellers and air traffic.
To cut it short, the law that has to do with aviation is âAviation lawâ and this is the branch of law that governs the legalities and business aspects of flight and air transport, such as air traffic rights, aviation safety and security, economic regulations of airlines, and the operation of airports.
2.1 Aviation Safety
A remarkable means of mobility is one of the skeletal make up of a modern society. Every means of transportation connects with each other. They perform a same function at different dimensions. Out of all the means of transportation, air transport is the safest in regards to the ratio between the number of accidents and that of passenger/kilometers. Another issue is that when incidents or accidents occur such as plane crash, with casualties, all ears are aware about it and this gets the attention of the government. It is therefore not new or surprising that every State government priorities and give attention to it more than other means of transportation. One of the key elements to increase the public confidence in air transport is put in place a standard impeccable level of safety in the Aviation Sector through law.
Aviation safety is not an agenda of a group or a sect of people; itâs a universal concern that needs an international attention and enforcement. It is just simply the very important issues on a world stage. Being able to critically interpret the word âsafetyâ in the aviation is very important.
What does safety means? According to Merriam-Webster definition, safety itself means the condition of being safe from undergoing or causing hurt, injury, or loss. This definition, if applied to the aviation world, would totally picture the idea of âdo not go against the fundamental principle of nature since the law of gravity is universal and machines (which is prone to technical fault) are not human.â Another definition made it clear that safety is a mechanical device designed to prevent inadvertent or hazardous operations. This could mean that if we go against the laws of nature, devices with high technological concepts can be used to carry out operations of high risk with the tendencies of circumventing inevitable catastrophes. A source gave another definition of safety as a complete understanding of your work and knowledge of every step that must be taken and the realization that mistakes could be costly to yourself and to the company. This in actual sense could mean that every personnel in the (aviation) industry must be completely learned and adequately trained always towards every operation going on in the industry and not having believe in luck but having the right mind to handle any sudden hitches that may come up briskly. More so, safety could mean remembering the safety rules set up by a company and applying them every minute when on the job. It can be finally concluded, with the understanding of air transportation, according to the definition given by ICAO Air Navigation Commission that âaviation safety is a state of freedom from unacceptable risk of injury to persons or damage to aircraft and propertyâ. This definition is very encompassing as it indicates that mistake(s) that lead to fatal accidents would become an intolerable hazard, for lessons must be learnt and since safety is not a rigid concept, it has to be flexibly and exposed to changes in synchronism with technological and innovative advancement. What caused power failure, wire sparks, or technical problem in last yearâs crash must not repeat itself in the present year. According to the ICAO definition of aviation safety, everything must be put or set right and there must be a zero or insignificant risk before operations.
However, marriage between safety and security cannot be sundered. No matter the highest precautions put in place to ascertain safety in a situation, such situation must be secured. The September 11, 2001 attack on US was not as a result of default in safety, it was the ability of the terrorists to bye-pass the security instruments, which nullified the effective safety mechanisms that was put in place. To make aviation safety at its optimal level, aviation security must be kept and treated as a subset to it.
Every airline company has a duty to comply with the rules and regulations of the States Aviation Regulatory Bodies. Likewise, no State Aviation Authority is autonomous, they must be under the international body, which gives and determines rules that all aircrafts and airlines must comply with before flying.
The role of aviation safety is but not limited to prevention of accidents but covers all scopes but this study will focus on just the legal dimensional aspect of it. It has been noted that safety is not limited to accident prevention, but should be considered in a broader term as risk management. Keeping the aviation industry safe is just the law, which sets right the right things to put in place to ensure safety. For example, the Federal Aviation Agency which is saddled with the responsibility to regulate airlines in US has embraced safety as its core mission with the statement âOur mission is to provide the safest, most efficient aerospace system in the world and our mantra is to improve the safety and efficiency of aviation, while being responsive to our customers and accountable to the publicâ. Likewise in, the EU, the European Aviation Safety Agency, EASA, which is the centrepiece of the European Union’s strategy for aviation safety has its mission, which states that âto promote the highest common standards of safety and environmental protection in civil aviation.â They majorly draft legislation that centres on aviation safety and works hand in hand with the national authorities, which continue to carry out many operational tasks, such as certification of individual aircraft or licensing of pilots. Additionally, in Nigeria, the most populated black nation in the world, has Nigerian Civil Aviation Authority, NCAA, as its highest aviation regulatory body that ensures that all stakeholders in the sector comply with the aviation safety regulations. Where safety rules are breeched, the NCAA takes strong corrective actions to enforce compliance, which may include sanctions.
As it is conspicuous that every democratic government must have a 3-arm component, which constitute of the executive, legislature and judiciary, it is also not new that they must function as a sovereign entity. They can make laws that would solely affect them and form ties with friendly nations with treaties of economic and political importance. As it is extremely pertinent for states to be free of any form of external aggression, its will be disturbing and dangerous to leave some issues in the hands of States to regulate fully without some international bodies influencing them. In as much that citizens of State âAâ can have the freedom to chose another State of interests to visit for any good reasons, then safety doctrines that is regimented by international bodies would save State âBâ from the possible safety negligence from State âAâs aviation sector. Since law is a product of drafting of bills, passing the bills and giving assent to it and implementing it, it can be seen that when laws dealing with aviation industry, having in mind that there are rules of international standards which binds all, every legislative arm of a State have the duty to marry the national laws with the international rules such that the world will have a safe air transport system.
2.2 Civil Aviation
It is among the most widely controlled sector in the world. Every single technical personnel, equipment and airport must be certified and monitored by competent regulatory agencies known as Civil Aviation Authorities (CAAs). Indeed, the International Civil Aviation Organization (ICAO) and other global bodies thus evaluate even the CAAs themselves. The working standards, rules and measures used in civil aviation have Standards And Recommended Practices (SARP) of ICAO and stipulated National laws and regulations as there working template.
2.3 History of Aviation Safety
It is very important to always have a fine connection between the past, present and the future. Aviation safety did not just become an issue of concern today. It can be dated back to when humans began to add air to the means of transportation.
History of airplane can be traced to the age of the Wright Brothers who went against all odds to air-control an aircraft that was engine-powered for 12 seconds in 1903.
However, the ideas of these brothers were tailored to meet the aims of victory that spelt doom to the generations in the World War I (1914 – 1918). This ushered in a new era of flight. There came into existence the invention of flights instruments, airplanes were equipped with radar, the first jet engine was already in production.
Technological advancement bringing about improved aerodynamics, high-powered engines and aircraft (fabric) metals enabled these flying machines to go on high cruising altitudes and bringing about transoceanic flights. After the ending of the World War II, jet airliners began. Airline companies such as Pan Am and airplane manufacturers, for example, Boeing are into air transporting meeting the fast mobility need of uncountable number of passengers all over the world. Fear was an element that gripped people in regards to their safety. In course of making sure that public confidence is buffered, aviation safety became the channel by which the establishment of ICAO came into being.
Regulations were put in place, which happens to be the earliest form of legislation, to make sure that everyone on the ground not aboard is safe from the aircraft impact on the ground. This however became or was seen as a biased legislation, which did not consider those on-board. Aviation Law that has to do with safety got a new face when in 1819, France enacted a law which required that man-flight balloons be equipped with parachutes which can be seen as to incorporate not only safety on the ground but also safety on board aircraft. In Paris, the year 1889 gave birth to first international aeronautical congress in which Brazil, Mexico, France, United Kingdom and United States were in attendance. In this convention, issues such as aeronautsâ certificates; liability of aeronauts towards passenger, the public and landowners; salvage; and the use of aircraft in war were discussed.
Another conference was held in 1910 in France attended by nineteen states but suffered no adoption of a single convention due to the fact that the participants could not agree on the kind of treatment to be extended to foreign and national aircraft in regards to over flight freedom. This convention happens to be the first international air law conference that displayed the very much eagerness to make provision for a regulatory regime of global standard for civil aviation. However, in 1913, precisely, July 26 1913, France and Germany signed the first bilateral agreement, which allowed for airships from Germany to enter French airspace and remained in France.
The first legal instrument to enter into force in the world of aviation was the Paris Convention of 1919, which is enclosed with a recognised comprehensive and exclusive sovereignty of states over the airspace. This convention enjoyed a ratification by 32 nations. Few of the features of this convention was the generally acceptable definition of aircraft; CINA, the Commission Internationale de la Navigation Aerienne , was established in Article 34, which got a far-reaching regulatory powers chiefly directed towards technical matter. ICAN, the International Commission for Air Navigation was established by this Paris Convention, which dealt exclusively with the regulation of international air navigation and in particular public international air law. In law the ICAN was placed, and remained, under the direction of League of Nations, in practice direction was replaced by friendly cooperation. The League never attempted to exercise any authority on the ICAN, and the ICAN never attempted to break away from the League; cooperation was mostly carried on through the Leagueâs Committee on Transit and Communications. This Committee and the ICAN were represented at each otherâs meetings, when any question of common interest was under discussion. It also provided for innocent passage of the aircraft of other jurisdictions in times of peace and prohibited aircraft from carrying explosives or weapons. The Paris Convention was starved with universal acceptance, which should have been the desired goal that coloured aviation safety. Like it was said above that this Convention got a 32-state-ratification, however, giant states; Russia, Germany, China, United States were absent in this Statesâ ratification of the Convention.
In Madrid, the Ibero-American Convention on Air Navigation (which is also referred to as Convenio Ibero Americano de NavegaciÃ³n AÃ©rea, or CIANA, also called the Madrid Convention) was formed which seems to succeed the Paris Convention. This Convention came up due to the growth of aviation activity between Spain and South-America and as a result of the failure by the USA and most Central and South American States to adhere to the Paris Convention, Spain decided to initiate a diplomatic counteraction and invited all Latin American and Caribbean States and Portugal to the Ibero-American Conference to be held in Madrid from 25 to 30 October 1926. This Convention suffered neglect because at no point in time was it registered with any international body. It was labelled unsuccessful; reason being that at the time it was being formed, aircraft of the period were not sufficiently developed to tie together Iberia and Latin America. Another factor that made this Convention to lack success was Spainâs political environment during the period was very unsettled, deteriorating into Civil War and the change of focus of Latin America energies on North America keeping them distracted away from Iberia.
1927 marked the year when the United States commenced the drafting of an air navigation Convention for the Americas identified as Pan-American Convention. It was not signed until 1928 at Havana. It can be said that the modelling of the Pan-American Convention was after Paris Convention being applicable to not government aircraft but only Private aircraft. Mutual freedom of air passage was orchestrated by this Convention with stone-rules for aerial traffic as the principal structures lacking technical standards of uniformity and Annexes. This Convention however did not help ICAN but weakened it. Unfortunately, after the World War II, it became out-dated due to the mammoth improvement of aerial transport in the period of war.
On 7th of December 1944, some 50 states signed the Chicago Convention couple with two agreements annexed to it, which are the International Air Services Transit Agreement, and the International Air Transport Agreement. This Convention was a replacement for the Paris Convention and became an heir to the safety framework set by the Paris Convention, in fact, Chicago Convention would not have been what it claimed to be if not for the residues of previous conventions, conferences and all-important statement of aerospace sovereignty. Even though there is no such Convention that is stable and universally accepted, Chicago Convention seems to be a package of agreements that is use today. It is widely known formally as Convention on International Civil Aviation (CICA). Without mincing words, it created an independent agency known as the International Civil Aviation Organisation (ICAO), which succeeded International Commission for Air Navigation (ICAN). This Convention is pregnant with sub-agreements listed below: The right to fly across another’s territory without landing;
1. The right to put down passengers and cargo taken on in the territory of the aircraft’s nationality;
2. The right to take passengers and cargo destined for the territory of the aircraft’s nationality; and
3. The right to take on passengers and cargo, and to drop-off passengers and cargo destined for, or coming from the territory of any state signatory to the Chicago Convention The right to land for non-traffic purposes (such as to re-fuel).
2.4 Aviation safety Regulatory agencies
With a specific end goal to meet the prerequisites for safe air transport benefits, various organisations and foundations have been set up at worldwide, regional and national levels to create basic guidelines, regulations, benchmarks and methods on safety and administer their execution over all aviation jurisdictions.
The administrative system and safety necessities have been developed over decades and are persistently being changed or amended and upgraded to accomplish a perpetually expanding safety execution and to meet future difficulties postured by the usage of new air navigation ideas and the need to guarantee manageable advancement of civil aviation.
Before distinguishing the three basic layers of safety regulations, it is important to state that all administrative regulatory agencies perform the functions of making of rules, enforcement of the rules, or adjudication. The rulemaking function is very much like the legislative process performed by the Congress; enforcement is the same sort of process performed by the executive branch of government and adjudication is essentially the function performed by the judiciary.
The three basic levels of aviation safety regulations are:
1. International regulatory arrangements and requirements, established and promulgated by the International Civil Aviation Organisation (ICAO)
2. Regional regulatory arrangements and requirements.
3. National regulatory arrangements and requirements, promulgated in national legislations and other normative acts by the designated State authorities.