UK: Aviation Safety Oversight: A Safer Industry but Storing Up Trouble for the Regulators?

Last Updated: 17 March 2004
Article by Sue Barham

Following press attention in recent months surrounding the publication of the names of individual airlines and of countries whose airline operations have been banned by certain states, it is easy to lose sight of where the legal responsibilities lie for the certification and approval of an air operator and its aircraft. 

A state will inevitably come under fire in the event of an accident for permitting "unsafe" carriers to land at its airports, despite the legal regime which puts responsibility for certification on to the home states of the operators concerned. We explain here the legal background to where the certification obligations lie and the drawbacks in the system of safety regulation which over recent years have led to much greater emphasis on safety oversight and auditing at an international and regional level – an emphasis which might conceivably lead to greater exposure for aviation authorities around the world. 

The starting point – as for any issue which concerns the organisation, regulation and operation of international civil aviation – is the Chicago Convention 1944 and, more particularly, its 18 annexes. Annexes 6 (operation of aircraft) and 8 (airworthiness of aircraft) put the onus squarely onto the state in which an operator has its principal place of business and the state in which an aircraft is registered (frequently one and the same) to certify both the operator as competent to carry out commercial air transport operations and the aircraft as meeting airworthiness requirements. In many states, the procedures for obtaining the necessary certification are lengthy and onerous. The responsibility for certification therefore decidedly does not rest upon the states into which a foreign carrier operates its foreign-registered aircraft. 

However, the system of international aviation safety regulation established by Chicago has its drawbacks. The obligation placed upon the now 188 contracting states to Chicago is to give effect to the international standards and recommended practices (SARPS) set out in the Annexes to the Convention by means of their own domestic legislation. Where there are aspects of the standards to which contracting states have not conformed, they are obliged to notify "differences"; the individual annexes to Chicago each contain a list of states which have notified ICAO that differences exist between their national regulations and the provisions of the annex in question. Subject to the notification of differences, the system assumes that all contracting states are fully implementing the SARPs and is based on a principle of mutual recognition; so that an air operator certificate or a certificate of airworthiness issued by one contracting state will be recognised as valid without further inquiry by other states. The system only works effectively however if all contracting states either fully implement ICAO SARPs or are rigorous in notifying any differences which might exist in their own domestic regulations. In practice however experience over the years showed that a great many countries simply did not provide any information to ICAO as to the extent to which they were conforming with the SARPs; a significant concern for a system based effectively on trust and mutual recognition. 

ICAO’s concerns have been broadly that the civil aviation authorities in some states are inadequately established and resourced so that there are insufficient qualified technical personnel and insufficient oversight of safety, that there are no or inadequate civil aviation regulations and that there is a lack of government commitment to civil aviation concerns. All these concerns are of course inter-linked and lead to inadequate implementation of ICAO SARPs. 

The first proactive response to these concerns however came not from ICAO but from the US which has had in place an International Safety Assessment Programme (IASA) since 1991. Concerned with the safety of operators flying into the US and run by the Federal Aviation Administration, IASA is aimed at assessing the compliance of those operators’ home countries with the ICAO annexes and the level of safety oversight provided by the local civil aviation authorities responsible for issuing air operator certificates to the operators concerned. An IASA investigation results in a state being placed into one of three categories: (1) states which meet ICAO standards, (2) states which do not meet standards but are subject to ongoing consultation and (3) states not meeting ICAO’s standards and in respect of whose airlines it is therefore recommended that a foreign carrier permit be denied. 

The US initiative with IASA and concern that the policing of safety regulation implementation, whilst undertaken for entirely legitimate purposes by the US, should not be the preserve of one country gave the impetus to ICAO to develop its own Safety Oversight Programme in 1995 which would enable assessment of compliance with SARPs to be conducted under the aegis of a more international body. The main purpose of this programme was to assess the extent to which ICAO states had implemented certain safety-related SARPs and to assist states in addressing those areas where compliance was deficient. The programme started life as a voluntary and confidential process but has since grown into ICAO’s mandatory Universal Safety Oversight Audit Programme (USOAP) which came into being in 1999. USOAP – very much an ICAO success story – has focused so far on audits of the implementation in contracting states of Annexes 1 (personnel licensing), 6 (operation of aircraft) and 8 (airworthiness). To date USOAP has conducted safety oversight audits in 181 ICAO states, as well as 120 audit follow-up missions, its findings resulting in action plans being developed by the states in order to address safety concerns highlighted by the audit process. Now that audits have been conducted of virtually all ICAO member states, the programme is being expanded so that annexes 11 (air traffic services), 14 (aerodromes) and 13 (accident investigation) and subsequently most of the remaining annexes will be included in the auditing process. The results of ICAO’s audits are made available to contracting states who can therefore obtain information on the level of implementation of ICAO standards worldwide. 

Safety oversight continues to develop at a regional level also. The European Civil Aviation Conference (ECAC) which comprises 41 states has developed its own programme of ramp inspections of aircraft arriving at European airports. These inspections focus chiefly on ICAO annexes 1, 6 and 8 and consist of checks of the aircraft and crew documentation, the apparent condition of the aircraft and the carriage of mandatory cabin equipment. States carry out inspections either on a spot check random basis or try to target specific airlines. The results of the inspections – which put findings into one of three categories depending on the significance from a safety perspective of any deficiencies revealed – are held on a database set up by the JAA which can be accessed by ECAC member states and ICAO. The database now contains over 17,000 reports. In addition, ECAC publishes an annual report giving an overview of the inspections conducted and any trends indicated by the findings. 

Through the US, ICAO and now ECAC programmes, as well as the increasing trend for airlines to investigate the safety operations of their code-share partners, there is now a welter of information available to states and airlines as to the standard of safety regulation operating in other countries and as to the safety of individual carriers. From the perspective of international civil aviation and the fostering of a system based on mutual recognition of licences and approvals, that can only be good. 

However, it might be suggested that with increased knowledge and availability of data arguably comes greater legal responsibility and one wonders whether aviation authorities around the world might find themselves more exposed to potential claims in the event of an air accident. Significant issues of causation as well as the hurdles of establishing the existence and breach of a duty of care will always arise in any claim which is sought to be brought against a regulatory body following an accident and will invariably stop the claim in its tracks. However, those difficulties will not necessarily prevent a regulatory authority from coming under fire if circumstances suggest that knowledge of safety deficiencies was available but not acted upon. 

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.