Pilots Fighting in the Flight Deck: A New One!
Pilots, surgeons, bus drivers and others in professions where the lives of persons are placed in their care are expected at law to profess and practice special skill, the absence of which entails liability for gross negligence.
The only alternative to co-existence is co-destruction…Jawaharlal Nehru
( January 25, 2018, Montreal, Sri Lanka Guardian) It is on record that 2017 was the safest year in recent times for air transport as it ended without a single fatality. This figure is quite impressive, considering that 36.8 million flights were operated during the year. However, 2018 seemingly responded to this unblemished record with a pernicious effort. Right on the nose, on 1 January, on a flight from London to Mumbai carrying 324 passengers and operated by Jet Airways, the captain (male) had reportedly slapped his female co-pilot and, according to a BBC report: “[T]he commander came out of the cockpit about one hour before touchdown complaining of being physically harassed by the co-pilot. Soon after, the co-pilot also came out, leaving the cockpit unattended thereby jeopardising the safety of aircraft operations”. Apparently, the woman was crying and in distress and had to be cajoled by the rest of the crew to return to her seat in the cock pit. Thankfully, the plane had landed safely.
Reportedly, Jet Airways fired the two pilots and the Director General of Civil Aviation (DGCA) of India suspended the license of the two pilots and imposed a ban on flying as flight crew for both for a period of 5 years. Both the United Kingdom (where the flight took off from) and India (where the flight landed) are common law jurisdictions which follow principles of tort law. Additionally, both States are signatories to the Convention on International Civil Aviation (Chicago Convention) which recognizes that a professional pilot is a person who engages in such flying as makes it necessary that he or she holds a valid airline transport pilot’s license (ATPL). Annex 1 to the Convention requires inter alia the captain to demonstrate the ability to perform as pilot-in-command of an aircraft within the appropriate category of aircraft, and have the special ability inter alia to recognize and manage threats and errors; and exercise good judgement and airmanship. The Annex in Attachment C provides for the establishment of a State Safety Programme (SSP) where one of the requirements of the SSP is that the State provides training and fosters awareness and two-way communication of safety-relevant information to support, within the State aviation organizations, the development of an organizational culture that fosters an effective and efficient SSP.
There is also Annex 19 on Safety Management, an integral element of which is Safety Promotion, which entails training, communication and dissemination of safety information to strengthen the safety culture and support integration of the SMS into operations. There are several provisions of law in the United Kingdom which apply to the professional commercial pilot. Firstly, Article 81(1) of the Civil Aviation Act of 1982 provides that where an aircraft is flown in such a manner as to be the cause of unnecessary danger to any person or property on land or on water, the pilot or the person in charge of aircraft, and also the owner thereof, unless he proves to the satisfaction of the court that the aircraft was flown without his actual fault or privity, shall be liable and on summary conviction to fine not exceeding up to a particular scale1 or to imprisonment for a term not exceeding six months or to both.
In addition to the above provision, Article 55 of the Air Navigation Order of 1995 stipulates that a person shall not recklessly or negligently act in a manner likely to endanger an aircraft or any person on board. Article 56 provides that a person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property. As for India, analogically, there have been many instances of pilot negligence that have been recorded wherein cockpit crew had indulged in photography in the flight deck. There have been instances where both pilots were away from the aircraft controls when the photographs were taken. On a few occasions crew had also allowed people to enter cockpit and take photographs. In response t these occurrences, the DGCA issued Air Safety Circular No. 02 of 2016 (Rev. 01) stating that such practices could lead to distraction that would adversely affect the safety of flight.
The tenets of international aviation law attribute to the pilot of an aircraft absolute responsibility for the safe operation of his aircraft. Annex 6 to the Chicago Convention (on operation of aircraft) provides that: “[T]he 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”. 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 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 absolute responsibility cast upon the pilot inevitably carries with it absolute and final authority from take-off to landing. 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 status of the pilot therefore entails far reaching consequences leading an instance of his negligent act open to be interpreted as a dangerous and unlawful act which could justify a charge of attempted involuntary 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.
Pilots, surgeons, bus drivers and others in professions where the lives of persons are placed in their care are expected at law to profess and practice special skill, the absence of which entails liability for gross negligence. The position of the pilot in command of an aircraft therefore seems to be governed by the application of three presumptions. They are: the special skill and expertise the pilot is presumed to possess; the enhanced duty of care expected of the pilot in view of such special skill and expertise, and the magnitude of the damage that may be caused in the eventuality of a breach of the duty by the care by the pilot.
The three questions that should be asked in the instance of the quarreling pilot and his co-pilot in the Jet Airways case are: had they shown absolute dedication to ensuring the safety of the aircraft and the passengers at all cost; was it impossible in that instance to adhere to accepted professional practice; and did their conduct in any way prejudice the safety of the aircraft and the passengers.
Whatever the debate is, there is no denying that this was a shameful and dangerous black mark on commercial air transport.
The author is former Senior Legal Officer of The International Civil Aviation Organization. He is currently Senior Associate, Air Law and Policy, at Aviation Strategies International.
