South Africa: To Land Or Not To Land

Last Updated: 1 October 2007
Article by Pierre Naude

Owners of licensed airfields have an onerous obligation to ensure that services provided to pilots are adequate, safe and reliable. There is little room for error. There is a general statutory and common law duty to maintain an airfield in a proper manner and to warn pilots of problems that may endanger safe operation to and from the airfield. It is trite that obstructions on runways and taxi ways should be properly marked. The owner of an airfield may discharge such duty in a number of ways. He may arrange for an entry in the AIP and, in addition thereto, request the CAA to issue a notam warning pilots of potential problems. Additionally, the owner of the airfield may be compelled to mark runways and taxi ways as unserviceable. The well known St. Andrew’s Cross would be familiar to many pilots. Failure to warn of potential hazardous and dangerous conditions may lead to legal liability on the part of the owner of the airfield.

Our Courts have pronounced on the nature and extent of the owners’ duties on a number of occasions in the past. Meercats, rodents and other animals and construction work at an airfield often give rise to problems that may result in damage. In similar vein, obstructions in the line of flight onto the approach of a runway may create similar difficulties.

In the matter of Van der Merwe v Nelspruit Town Council Curlewis J had to pronounce on the liability of the Nelspruit Municipality pursuant to a landing accident. The owner’s aircraft was damaged when its undercarriage collided with electrical cables that ran parallel to the tar runway. These were in the process of being installed to upgrade the night landing facilities at the airfield. The Court said:

"It is abundantly clear from the evidence as also from the regulations that have been placed before me, that a high degree of care is expected of airport authorities. Pilots, because of this, do not expect to find furrows or obstructions in the runway. They do expect to find warnings when there is an obstruction or danger … It amounts to this in fact that in the absence of a warning, a pilot coming into a licensed public airport is virtually entitled to assume that there are no hazards which are controllable by the airport authorities in the way of landing."

The High Court in Grahamstown was recently called upon to decide on a claim made against 43 Air School that operated the Port Alfred Airport in consequence of a landing accident that happened at the school in 2003.

Briefly, the facts were that the Plaintiff, having departed from East London in a Cessna 340 around midday, made radio contact with the tower at 43 Air School and requested permission to land at an airport he knew well. The facility operated by 43 Air School was one that provided air flight information services ("AFIS") from its tower. The pilot was advised by the tower to call "finals" on runway 28. It was during this stage that things went wrong.

The airfield had only one runway 28 operative at the time. Towards the end of 2002, the airfield operator decided to construct another new runway running parallel and to the south of the existing runway 28. A strip of land parallel to the existing runway 28 was cleared but, because it was thought to be too close to the existing runway 28, work on it was abandoned. A furrow was ploughed in the centre of this strip along some distance of its length which left a mound of sand or ground along the middle of the cleared strip. The cleared strip was not marked as being not in use and unserviceable. Work thereafter commenced on the construction of the new parallel runway further to the south.

At the time of the accident on the 14 March 2003, there were thus three cleared parallel strips of land at the aerodrome. Viewed from the air on approach, the centre strip was the abandoned runway, the runway on the right the only serviceable runway at the time, and the one on the extreme left was the new runway under construction (closed at the time of the accident). The pilot initially lined up for the left strip, alledgedly having been so advised by the tower, and manoeuvred the aircraft to his right and touched down on the centre strip where the aircraft collided with the mound of sand referred to above. There was clearly miscommunication between the pilot and the tower. The Court accepted the Defendant’s version and found that there was no failure to provide adequate "AFIS".

It was submitted by the plaintiff/owner of the aircraft that 43 Air School was negligent in a number of ways. In addition, it was submitted that the airfield owner was negligent in not marking the runway on which the pilot landed as closed and not in use, and that the airfield owner failed to issue a notam timeously in order to warn pilots of this fact.

The essence of the defence raised by 43 Air School was that the pilot, in theory and reality, did not land on a runway and, had he kept a proper lookout, he ought to have realised that the strip upon which he put the aircraft down was not fit and safe for such purpose.

Evidence (expert and otherwise) was lead on behalf of all parties and the Court ultimately concluded that the Defendant had indeed been negligent in that it failed to mark the runway in such a way likely to prevent landings on the left hand strip. In addition the Court found 43 Air School negligent for its failure to publish a notam warning pilots of the existence of the abandoned and new cleared areas running parallel to runway 28.

The Court considered the conduct of the pilot and concluded that there had been contributory negligence in that the pilot failed to keep a proper lookout, should have seen certain markings or absence of markings , the mound of sand or soil at an earlier point from the air, and should have taken evasive action. The Court found that the pilot failed to see a number of markings and features visible to any pilot from the air and had failed to check with the airport. He also failed to make visual checks to ensure that he would land on an active marked runway at any of three possible stages.

The Court acknowledged that "the operation of an aerodrome is conduct that calls for expertise". As mentioned earlier, the Defendant/aerodrome operator argued that the strip on which the pilot landed was in fact not a runway. In this regard the Court said:

"It seems to me that for the purposes of determining the reasonable foreseeability of harm, a good way to start, as an initial rule of thumb, is to accept that any cleared area of land that might look like a runway, in a non-technical sense, to a pilot from the air, carries the risk of landing and potential harm associated with such a landing. In my view it has been shown that the two contentious strips to the left of the licensed runway 28 conform to that basic requirement."

Dealing with the manner in which unserviceable runways are to be marked as prescribed by the Civil Air Regulations, the Court said:

"Thus even if on a strict and proper reading of the regulations the unmarked strips were not "runways" (an issue that I do not consider necessary to decide for purposes of this case) the ICAO standards are nevertheless helpful because the requirements are geared to the same purpose, namely to warn pilots of the dangers of landing on strips that are not serviceable landing strips. … In my judgment a reasonable airport operator would have marked the left hand strip and the centre strip on which the pilot landed with crosses at its start and end as well as along its length, in particular where the mound of sand or ground ran. This would have been reasonable steps to prevent landings on the strip. The airport operator failed to do that and was negligent in that failure."

In dealing with the issues pertaining to the negligence of the aerodrome as well as of the pilot, the Court referred to an article in the 1979 South African Law Journal headed "The liability of aerodrome licensees" by L Weyers. It is appropriate and convenient to quote therefrom:

"The Courts in South Africa would appear to adopt a rigorous attitude towards aerodrome licensees who are in breach of their statutory duty; they receive scant sympathy from the bench … In my respectful view this approach is the correct one; flying is an exact art and one with possible serious consequences if an accident should occur, and a pilot should be entitled to assume (while maintaining his own standards of care) that the aerodrome will not confuse, mislead or trap … [aerodrome/licensing] duty further includes taking such care as in the circumstances is reasonable to ensure that (its) aerodrome will be safe for aircraft movements."

Because of these considerations the Court found that it was just and equitable to apportion blame equally between pilot and airport operator. The judgment serves as a good reminder of the onerous obligations resting on aerodrome operators. It is often smaller municipal airfields that may overlook what the law prescribes and expects. All should however take heed … precaution is always a better option.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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