Liability Regimes of Air Navigation Service Providers
The liability regimes of Air Navigation Service Providers, their historical models, liability of corporatized ANSPs, developments impacting liability claims management, and liability in cross-border service provision are discussed in this content.
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Air Navigation Services Providers and Airports Liability - International Air Law Conference 85thAnniversary of the Warsaw Convention Warsaw 24 October 2014 Francis SCHUBERT 1
The historical liability regime of ANS Providers Liability of ANS agencies subject to national laws Wide range of organisational models for service provisions, but applicable liability regimes present a number of common features: ANS considered as sovereign functions in most countries; In most cases, elements of State liability; No sovereign immunity, but immunity of foreign jurisdiction; Limited margins for forum shopping; Fault based liability. Historical model applies to most corporatized ANSPs, regardless of status page 2 F. Schubert / ANS Liability / 24-10-2014
The liability of corporatized ANSPs STATE STATE ANSP CLAIMANT ANSP CLAIMANT Subsidiary State Liability Primary State Liability page 3 F. Schubert / ANS Liability / 24-10-2014
Developments Multiplication of actions Direct actions Parallel actions Recourse actions Corporatisation of ANSPs and insurance factors have impacted the way liability claims are managed, not the applicable legal regime: Court decisions vs. Out-of-court settlement Recent court decisions have shifted the judicial focus from: individual to systemic/organisation failures front line operators to managerial levels Scope of legal attention has broadened: From accident related damage to delay related damages From civil litigation to criminalisation of aircraft accidents/incidents page 4 F. Schubert / ANS Liability / 24-10-2014
Liability in case of cross-border service provision National laws: generally offer adequate solutions for events occurring over the territory of the State of the service provider; often not adequate to address cases involving cross-border service provision; No international/regional regime such as the Warsaw/Montreal Systems for events involving cross-border service provision. The long lasting efforts of ICAO Predominance of the "territorial State doctrine" No specific liability provisions in SES Regulations; Requirements for service providers to carry adequate arrangements to cover third party liability; Early attempts to regulate liability within FABs remain minimal: Resolve conflicts of laws and/or jurisdiction 5 F. Schubert / ANS Liability / 24-10-2014
