User avatar
Buyantukhaa
Posts: 2290
Joined: Thu May 13, 2004 5:33 am

Ruling: Germany Liable For Midair Collision

Fri Jul 28, 2006 3:33 am

http://news.bbc.co.uk/2/hi/europe/5222194.stm

A [Swiss] court has told Germany to compensate Russia's Bashkirian Airlines over a 2002 collision that killed 71 people, most of them Russian schoolchildren. The court in Constance said Germany was partly responsible, since it had given the private Swiss firm Skyguide control over part of its airspace. The German court did not specify the amount of compensation due.

[..]

"The sovereign task of securing airspace was never effectively transferred to Switzerland," the court ruling said, adding that Germany remained liable.

German crash investigators concluded that a single Skyguide air traffic controller on duty had given the pilots just 43 seconds to act. The controller was fatally stabbed by a Russian man in 2004, in a suspected revenge attack.

Technical problems and staffing levels were criticised in the report by German investigators. The controller had told the Russian pilots to descend, while their onboard collision avoidance system had told them to climb to avoid the DHL cargo plane.

[..]


I wonder what happens if such a collision were to happen once the European Single Sky is operational (although I obviously hope such a collission will never happen again). What are the legal aspects of a Single Sky when countries still have legal sovereignty?

[Edited 2006-07-27 20:34:08]
I scratch my head, therefore I am.
 
A342
Posts: 4017
Joined: Sun Jul 31, 2005 11:05 pm

RE: Ruling: Germany Liable For Midair Collision

Fri Jul 28, 2006 3:45 am

Quoting BuyantUkhaa (Thread starter):
A [Swiss] court...

The court is German.
Exceptions confirm the rule.
 
TheSonntag
Posts: 4306
Joined: Wed Jun 15, 2005 7:23 pm

RE: Ruling: Germany Liable For Midair Collision

Fri Jul 28, 2006 4:08 am

The provision on which it is based is §839 BGB. According to this provision, an officer must compensate for claims which he is held liable for, and this is then taken over by the state according to Article 34 of the Constitution.

I must say, I was rather surprised by this ruling, but I agree with it.

I was surprised, because §839 BGB states that a claim cannot be brought against the state if there is another way of getting the claim compensated. This could have been done by suing SkyGuide. The court denied that option, because it held that the legal framework between Germany and Skyguide was unconstitutional. It was neither a contract bound by public international law, nor was it a legal normal contract.

Pretty bold by the court. This will most certainly be brought before the highest court. So expect this lawsuit to last for minimum 10 more years to last.
 
N1120A
Posts: 26468
Joined: Sun Dec 14, 2003 5:40 pm

RE: Ruling: Germany Liable For Midair Collision

Fri Jul 28, 2006 4:09 am

Yet another example of why ATC should never, ever be privatized.
Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
 
TheSonntag
Posts: 4306
Joined: Wed Jun 15, 2005 7:23 pm

RE: Ruling: Germany Liable For Midair Collision

Fri Jul 28, 2006 4:13 am

Quoting BuyantUkhaa (Thread starter):
What are the legal aspects of a Single Sky when countries still have legal sovereignty?

A very interesting question. This will depend on whether we will have a supranational institution or just an institution introduced by ordinary public international law.

In both cases, however, this institution could be sued. In that case the subsidiary clause of �839 BGB says that if it is possible to sue this institution, the German state is not liable.

Believe me, if this ruling is held by the highest German court, a solution will be found by the German government very fast in order to prevent to be sued again  Wink
 
User avatar
Buyantukhaa
Posts: 2290
Joined: Thu May 13, 2004 5:33 am

RE: Ruling: Germany Liable For Midair Collision

Fri Jul 28, 2006 7:59 am

Quoting A342 (Reply 1):
Quoting BuyantUkhaa (Thread starter):
A [Swiss] court...

The court is German.

My mistake! Yes, it'd be hard to see how a Swiss court could hold the German state liable...

Quoting TheSonntag (Reply 2):
The court denied that option, because it held that the legal framework between Germany and Skyguide was unconstitutional.

While I'm no legal expert, I'd be interested to know what that legal framework was.

Quoting TheSonntag (Reply 4):
Believe me, if this ruling is held by the highest German court, a solution will be found by the German government very fast in order to prevent to be sued again

Maybe the Single Sky? It has come into force (at least the regulations 549/2004 till 552/2004). But what the legal liability implications will be, well, do we have a specialist on the forum?
I scratch my head, therefore I am.