Airports and Liabilities

1. Airports and Liabilities Rohmer & FennPresentation to Airport Management Counsel of Ontario (2011) CAPTAIN R. J. FENN

2. Liability • Civil • Regulatory • Criminal

3. Civil Liability Two Principal Sources • Negligence • Contract

4. CAREFUL!!

5. Negligence (Principally 3 – some lawyers argue that there are 6) • Duty of Care • Breach of that duty/standard • Damages happen (foreseeable)

6. NegligenceDuty of Care • Hold out as Public Airport • Invitee • Lease property • Regulatory

7. Negligence Breach of Duty/Standard • Runway Surface • Apron Surface • Overrun and Obstacles

8. Negligence Damages • Aircraft (Hull) • Injuries and Wrongful Death

9. Contract • Landing Fees • Lease for Land or Space on Airport

10. DUTY OF CARE • Principally regulatory duty of care (“Reg/Neg”) • Convention (used by Plaintiff in Air France Class Action) • CARS Pt. III Aerodromes • (limited use by scheduled airlines) • Lighting, wind indication • Control of persons and vehicles

11. Airports • Certified aerodromes • Airport certificate • Documentation condition of A.C.; documentation imposes duty and standard of care • Variations to standards by aeronautical study • Lighting, marking • Control of persons and vehicles Fire fighting TP2633 Airport Traffic Directions • How and where it applies • Can impose a duty, liability if not complied with

12. ICAO, Annex 14, Standards and Recommended Practices (“SARPs”) Sets out standards and recommended practices • Aerodromes, Vol. 1 • Countries can file a difference (state letter) (Incorporated into Supplement) • Supplement (differences) • Heliports, Vol. 2 • State letters (re: amendments since last Supplement)

13. Aeronautical Information Manual TP 1437 • Reference: What the government says pilots can expect at airports. • Can be used to show what is reasonable and reasonably expected.

14. Examples for Discussion • PWA Boeing 737 (Cranbrook) • Air France Airbus 340 (Toronto) • MK Air Boeing 747 (Halifax) • Pacific Coastal Baggage Cart (Vancouver)

15. Cranbrook • Snow plow operator on runway at uncontrolled airport • Boeing 737 crashes after attempting “go around” • No direct aircraft/vehicle communication (situation still exists on some airports) • Outcome: • FSS provides vehicle control • Remaining Issue: • Remote vehicle control/advisory

16. Air France • Airbus 340 landing in Thunderstorm • Runway covered with standing water (heavy rain) • Telecom system compromised (lightning) • Power System failing (lightning)

17. Claims • Claim against the Airport were the following: • Did not close the Runway • Did not issue Runway Condition Report (contaminated with standing water) • Airport Power and Telecom System not robust enough re lightning and power surges • Runway not grooved • Runway End Safety Area (RESA)not large enough and did not have EMAS material installed

18. Pilot • Captain (pilot-not-flying) had all the weather information, but still chose to attempt landing

19. Airbus 340 Landing In Toronto • AIR FRANCE – CLASS ACTION AGAINST GREATER TORONTO AIRPORT AUTHORITY • Negligence of Greater Toronto Airport Authority • Particulars of the negligence of the GTAA presently known to the Plaintiffs include: • Failing to design Runway 24 Left in such a way as to ensure that there was adequate margin of safety for aircraft in the event of an overrun event;  • Failing to adopt and implement the recommendations of the Coroner for the re-design of Runway 24 Left and the adjacent gulley following the crash of an Air Canada DC 9 in June 1978 which resulted in two deaths and numerous serious injuries when the aircraft overran the runway and crashed into the gulley; 

20. Failing to re-design Runway 24 Left to provide adequate overrun protection following the crash of the Air Canada DC 9 in June 1978; • Failing to install an engineered material arresting system to provide adequate overrun protection to Runway 24 Left; • Failing to redesign the runway either by lengthening or widening it and/or utilizing buffer zones on the runway; • Failing to incorporate grooves into the surface of Runway 24 Left to increase braking action during rainstorms and in particular, the meteorological conditions prevailing at the time of the Crash; • Failing to ensure that there was a clear zone beyond the runway in the event of a mishap such as an overrun; • Failing to adequately inspect, test and report on runway surface conditions including Runway 24 Left on the afternoon of August 2, 2005;

21. Failing to install Terminal Doppler Weather Radar, or other similar systems which would have alerted Toronto ATC and inbound aircraft in the event of wind shear or sudden changes in the direction of the prevailing winds at the airport; • Failing to install real time display systems which would have provided Toronto ATC with real time display of critical meteorological information including sudden changes in the direction of prevailing winds; • Failing to install any or adequate wind sensing equipment; • Failing to shut down Runway 24 Left when it knew or ought to have known that the existing wind sensing equipment has ceased to function due to a lightning strike; • Failing to shut down Runway 24 Left when it knew or should have anticipated that the prevailing wind directions would change rapidly given the prevailing meteorological conditions at Pearson International Airport on the afternoon of August 2, 2005; and

22. Failing to shut down Runway 24 Left when it knew or should have anticipated that the meteorological conditions prevailing at Pearson International Airport on the afternoon of August 2, 2005 were rapidly deteriorating rendering the runways including Runway 24 Left unsafe.

24. MK Airlines • Boeing 747 Cargo crashes on take-off into ILS berm (ILS built to runway height in gulley at end of Runway) • Claims – Airport approved NAV CANADA ILS installation • Airport did not have proper Runway End Safety Area (“RESA”) due to gulley

25. Crew was fatigued and set power for 100,000 lbs less aircraft weight due to improper computer (lap top weight and balance) program procedure

26. MK AIRLINES EXPERT Stated in his opinion that a berm raising the ILS antenna in a gully to be level with the runway, 1,150’ past the end of runway, was an obstacle and therefore, is unsafe and caused the accident. “Based on this recommendation, it is evident that had a RESA existed, it is very likely the earthen berm would have been identified as an obstacle, it would not have been constructed, and the accident would not have occurred.”

27. RUNWAY OVER-RUN??

29. Pacific Coastal • Baggage cart starts moving in high winds and strikes almost new business jet • Carts and aircraft were on Apron • No Apron control or regular or ad-hoc Apron inspection on the south side Apron for vehicles, etc. • Carts were left unchecked and with brakes off (tongue down)

30. Other Areas of Airport Operations • Obstructions to Vision • Obstructions to NAV aids • Electrical/Telecom System failures in inclement weather

31. SUMMARY • Safety is paramount • Ensure compliance with Part 3 of CARs • Airport inspections • Proper communications regarding airport safety procedures • Compliance with snow removal plan • Runway inspection reports • Routine safety briefings for airport ops, including operators • Airport monitor • Runway monitor • Equipment monitoring

32. Electrical/power requirements and back-up systems • Timely runway inspections/snow removal • Winter operations/differences • Summer operations/differences • Runway and safety areas • Other considerations

33. LITIGATION COSTS If involved in a law suit it will: • Involve hundreds of hours of work • Substantial documentatary production • Potential liability exposure • Damages could exceed millions of dollars • Defence costs of several millions of dollars • Manpower resources for discovery • Manpower resources for trial • Better to be pro-active that re-active