It is a quiet predawn morning in the Seattle, WA area and the lone FAA air traffic controller who is controlling the airspace in the sector south of the city has been on duty for seven hours. The weather is clear with a visibility of 15 miles. The only traffic is a Navy helicopter on the East side of the controller's airspace, transiting the area westbound en route to a nearby Navy facility, and a private airplane on the Southside of the controller's airspace flying northbound. Both aircraft are operating under visual flight rules, are in contact with the controller, and flying at an assigned altitude of 3,500 ft. The controller dozes off, then is awakened by the ringing telephone, learning that the two aircraft collided in flight in the controller’s airspace. There are no survivors. Investigation reveals that the two collided while in level flight at the altitude assigned each by that controller. Analyze the potential liability of the United States and the controller for the accident. (You may find it helpful to diagram the positions and approximate tracks of the two aircraft, first) Respond critically and analytically, but politely and professionally, to at least two of your classmates’ posts. Welcome to the fifth week of Applications in Aviation/Aerospace Law. This week we will review various issues arising with respect to (i) airline liability, (ii) government liability and (iii) accident notification, investigation and reporting. You will be asked to read Chapters 8, 9 and 10 in our textbook and to respond at some length to the scenarios posed in Assignments 5.2 and 5.3. Please keep in mind that your responses must reflect your understanding of the related material in our readings and should not merely be a recitation of what you think you might do under the circumstances described in the scenarios. In addition, please insure that your responses are carefully crafted and are free of grammatical and spelling errors. You will also be asked to respond critically and analytically to the posts of your classmates. As previously mentioned, your responses should be substantive in nature and not just a pat on the back for a job well done. I can do that, but you shouldn’t. As you read the material in Chapter 8, please keep in mind that the standard of care imposed on an alleged tortfeasor (i.e., one who commits a tort) differs based on the type of activity involved and, in certain instances, the location of that activity. In Chapter 4 we learned that the standard of care in most negligence cases is that of a “reasonably prudent person”. We also learned that in certain cases involving a defective product or an ultra hazardous activity, courts will impose strict liability (i.e., liability regardless of fault). In the chapter on airline regulation, you will be introduced to yet another standard of care – the “highest degree of care” – which is applicable to a common carrier. In Chapter 8 you will also encounter a discussion of certain aspects of international law. As you might recall from the section on “International Regulation” in Chapter 1, international law is created by treaties (and to a very limited extent, the practices among nations). There is no worldwide body that creates laws for all mankind (although treaties can create bodies, such as ICAO, that are empowered to regulate specific activities). Chapter 8 will discuss the Warsaw Convention, the Montreal Convention and, to a very limited extent, the Montreal Agreement. These are all treaties and many, but not all, nations are signatories to all or parts of those treaties. Assignment 5.2 requires that you refer to the applicable international law relating to the fact situation presented. Please note that the applicable international law for that discussion and the related Progress Exam will be the Montreal Convention, which, for all practical purposes, is the controlling law. The Warsaw Convention has to a large extent been superseded and it, along with a limited discussion of the Montreal Agreement, is presented to provide background and historical context for a better understanding of the Montreal Convention. The Federal Tort Claims Act (FTCA), which constitutes a limited waiver of sovereign immunity by the United States, will be introduced in Chapter 9. The important thing here will be to focus on the FTCA’s limitations and exceptions. The last chapter we will explore this week, Chapter 10, concerns accident reporting. As you read this material, consider the value, from a risk management perspective, of not notifying the FAA of the occurrence of an accident or other mishap and of notifying the NTSB only when laws and regulations require such notice. As I pointed out during our discussions of FAA enforcement proceedings (Chapter 2), you may not agree with certain positions advanced by the author of our textbook, but your responses to Assignments and any related Progress Exam questions must reflect an understanding of the nature of, and rationale for, those positions. As an aside, there is one pearl of wisdom presented in Chapter 8 that I want to call to your attention – our author advises us on page 190 that “no one is ever certain what a jury is going to do”. A truer word was never spoken. That certainly doesn’t mean that the jury system isn’t a valuable element of Anglo/American jurisprudence. The quote from our textbook is merely an oft repeated observation about the unpredictability of juries. I practiced law for more than 36 years and I can say unequivocally that my most rewarding legal experience was serving on a jury and deliberating over the course of several days with eleven of my fellow citizens. Important Reminder Concerning the Montreal Convention The Montreal Convention (again, not to be confused with the old Montreal Agreement) is for all practical purposes the controlling law worldwide for international airline travel. All discussions and exam questions that present an international airline scenario will focus on the application of the Montreal Convention. Please assume in all cases that all relevant nations have ratified the Montreal Convention. The Warsaw Convention and Montreal Agreement information is studied only for background, to help you understand how we got where we are today in this area of the law, and to appreciate what progress the Montreal Convention represents.