Sky Law is Clyde & Co's dedicated aviation bulletin distributed to clients and contacts involved in the aviation industry. It covers selected recent aviation developments particularly in relation to English and European Union laws and decisions. Further copies are available upon request.
Expansion Of Clyde & Co's Paris Office - HPMBC Clyde & Co
We are pleased to announce that Clyde & Co has recently merged with a 30 lawyer French firm, Honig Preel Mettetal Buffat Coulon. Clyde & Co's partnership has been increased by the addition of ten French partners and the Paris office is known as HPMBC Clyde & Co. In addition to non-contentious work, the primary focus of the new office is insurance, aviation, marine, transportation, energy and product liability work.
The merger has enabled us to create the largest insurance practice in France and also one of the largest aviation practices. Apart from representing aviation insurers the office acts for, amongst others, major aviation manufacturers and has experience of many high profile cases. The office's strength in air-carriage work in general has now been supplemented by a particular expertise in product liability work, aviation transactions and regulatory services.
Developments in European aviation law continue unabated. We report below on some recent developments in European aviation law.
The re-certificated aircraft regulation
Following last year's developments at ICAO level on the noise front, the European Parliament passed a Directive which has repealed the Re-certificated Aircraft Regulation, colloquially known as the "Hushkits Regulation". The Re-certificated Aircraft Regulation had a damaging impact on the aviation industry and directly affected certain operators of re-certificated Chapter 3 aircraft. The Directive adopts the so called "balanced approach" to noise management, consistent with wider international policy and it allows some flexibility to enable local solutions to be developed for local problems where appropriate.
European single sky
The debate on the European Single Sky continues. The UK Government has submitted a response to the European Commission's second consultation paper. Although there is still much discussion to occur, it is anticipated that a European Single Sky will be introduced in 2004.
Airline league tables
The European Commission is formulating plans to implement league tables which illustrates airlines with the worst record of delays, lost baggage and cancelled flights. Unsurprisingly, leading airlines are strongly resisting this claiming that a ranking system would be unfair. The European Commission wishes to follow the process used in the USA, where airlines are ranked according to their performance.
European Aviation Safety Agency
This year has seen the adoption of a regulation creating the European Aviation Safety Agency (EASA). The EASA will assist in devising common standards for safety and environmental protection as well as ensuring the uniform application of such standards within the EU. The EASA has one year to become operational from the adoption date of the Regulation.
European Commission - Accession to ICAO and Eurocontrol
The European Commission presented a proposal for Community accession to ICAO. It is seeking a mandate from the European Council to negotiate with ICAO, the long-term aim being to enable the European Commission to co-ordinate with ICAO.
The European Council has reached an agreement on a decision agreeing to community accession to Eurocontrol. It is expected that the Accession Protocol will be signed at a diplomatic conference this year.
The European Parliament has approved a European Commission proposal which lays down new rules for the introduction of the fair allocation of slots at EU airports. One of the key principles is that new air carriers should be given a fair chance when entering the market for slots. Parliament's approval was subject to amendments for clarifying the wording of the proposal, to preserve planning certainty and flexibility for carriers and to confirm that EU Member States have discretionary powers in transport and environmental policy. There are still further discussions to come and the plan is that decisions on airport slot allocation should be taken by the end of 2002.
President Bush has stated that intelligence sources have been alerted to the possibility of 'simple' hi-jackings, rather than what actually happened on September 11. Although there have been comparatively few unlawful airliner seizures since Dawson's Field, there have been many unlawful takings of smaller aircraft which have provoked debate as to whether they constituted "hi-jackings".
The insurance position
Very broadly, unlawful seizures of general aviation type aircraft take place either when the aircraft is in flight, or a pilot on the ground is taken captive and coerced to fly an aircraft to which they have access. In common parlance both would be described as hi-jackings but at least in the United Kingdom only the former is actually a hi-jacking on a legal basis.
The correct classification is of importance to the insurance industry because hi-jacking is normally excluded from Aviation All Risks covers by virtue of the War, Hi-jacking and Other Perils Exclusion Clause, which typically states that:
Ö this policy does not apply:
To claims caused by hi-jacking or any unlawful seizure or wrongful exercise of control of the Aircraft or crew in Flight (including any attempt at such seizure or control) made by any person or persons on board the Aircraft acting without the consent of the Insured.
This Exclusion is sometimes, but not always, written back by the Extended Coverage Endorsement, in which case there is no conflict, but if it is not written back, the prudent insured also obtains separate War Risks cover.
The Aviation Hull "War and Allied Perils" Policy provides cover for hi-jacking by a mirror image of this Exclusion. Thus simplistically, if an unlawful seizure is a hi-jacking it is covered by the War Risks Policy, if it is not, then it is prima facie covered by the All Risks. To be a hi-jacking, at the time of the incident the aircraft must be "in Flight" and the person or persons doing the hi-jacking must be on board the aircraft.
Subject to the normal rules of proof as to when and where the offence took place, "hi-jacking" claims should not pose too many problems, and they probably would not were it not for the fact that "hi-jacking" is an English term of art which does not necessarily mean the same, or indeed anything, in other countries.
The international law position
Article 1 of the Convention for the Suppression of Unlawful Seizure of Aircraft. The Hague, 16 December 1970 ("Hague...