UK: Aerospace News: Liability Issues Arising From "FOD" Incidents

Last Updated: 18 October 2005
Article by Peter Coles

FOD – damage to aircraft caused by foreign object debris – can be a significant source of liability for airports and airport service providers. Training, regular and proficient cleaning and contractual protections are all ways in which exposure to this risk arising can be reduced.

On 25 July 2000 an Air France Concorde jet bound for New York crashed after taking off from Paris, killing 109 people in the aircraft and four people on the ground. A French legal inquiry concluded in December 2004 that a titanium strip that fell from a Continental Airlines DC-10 sliced through the New York-bound Concorde’s tyres, sending rubber chunks through a fuel tank and causing the jet to fall from the sky in a fireball.

Damage to aircraft and equipment caused by FOD is not only a serious threat to safety, but continues to cost the airlines and aircraft and engine lessors millions of dollars annually in losses resulting from the loss of use of aircraft and equipment.

Paragraph 9.4.2 of I.C.A.O Annex 14 states: "The surface of pavements (runways, taxiways, aprons etc.) should be kept clear of any loose stones or other objects that might cause damage to aircraft structures or engines, or impair the operation of the aircraft systems". Typically, foreign object debris include metal (e.g. tools, nuts, bolts, lock wire), wood, stones, pavement and glass fragments, sand, plastic wrapping and paper, and cause damage to a number of aircraft components including engines, auxiliary power units, tyres, flaps and fuselages. Damage caused by natural occurrences such as lightning or hail is not included within the acronym FOD, although damage resulting from impact with birds and animals is sometimes included.

The causes of foreign object damage include a failure to properly clean areas and account for removed objects like aircraft waste and catering equipment, inadequate housekeeping and clean-up operations after typhoons, aircraft operations in jet blast hazard areas and cabin rubbish left in passenger boarding bridges and on aprons prior to aircraft departure. One of the more startling causes of foreign object damage are sweepers that use steel bristles to clean taxiways and runways. It is not uncommon for individual steel bristles to be lost from the brush fitting or for such bristles to cause dangerous sparks across pavement surfaces during rotation.

At most airports, the airport authority, airport operator or civil aviation authority (the "airport operator") have ultimate responsibility for ensuring that all aprons, taxiways and runways are kept free from debris, and should have procedures in place to ensure this, including an official FOD monitoring and prevention program. However, all airlines, ramp handling operators, MRO facilities, refuelling and catering companies and other airport service providers share a responsibility to maintain a FOD-free environment.

At some airports, airlines are only permitted to carry out operations subject to and conditional upon the strict compliance at all times with specific terms of use. Typically, these terms provide that airlines have to indemnify the airport from all losses arising out of their use of the airport including damage caused by FOD. In some cases the indemnity does not extend to losses that arise from the failure of the airport to free airport areas from FOD, but in such cases the airport will usually only pay for direct losses such as physical damage and the cost of repair and replacement as opposed to indirect, special and consequential losses like the loss of revenue and profits arising from the loss of use of the aircraft and business interruption.

It is not unusual for FOD incidents to not only result in damage to an aircraft but also damage to an apron, taxiway or runway. This may occur at the same time as the initial impact as well as subsequently, for example, where an aircraft collides with an object on its take-off run but the aircraft commander does not fully appreciate what has happened until the aircraft has rotated or commenced its climb. In such cases, parts of the aircraft undercarriage may have fallen off causing damage to the runway centreline and rapid exit lead-out lights. Further surface damage may be caused after declaring an emergency, dumping fuel and landing the aircraft back on the runway.

In many jurisdictions, strict liability is imposed upon an aircraft owner for any loss or damage caused to any property or land by an article falling from an aircraft while taking off or during landing. Compensation is therefore recoverable without proof of negligence. Interesting issues may arise regarding whether an aircraft operator can be held strictly liable for damage caused to runways, lights and other property in circumstances where the objects causing the damage fall from aircraft as a result of the presence of debris on runways etc. which the airport operator has failed to prevent.

Where there is evidence that an airport service provider is to blame, two lines of enquiry may need to be examined. First, the terms of any tenant or franchise agreement between the airport operator and the airport service provider. These may be on identical terms as that between airlines and the airport operator. Secondly, what avenues are open to the airline to pursue a claim directly against the airport service provider.

In many countries, claims can be made by airlines against airport service providers in contract and, where no direct commercial relationship exists, in the law of negligence. If the parties have agreed to be bound by an IATA ground handling agreement, then a claim involving aircraft damage will be governed by Article 8.5 of that standard agreement which states that the ground handler is required to indemnify the airline against any physical loss or damage to the aircraft caused by its negligent operation of ground support equipment [1998 edition] or negligent act or omission [2004 edition]. Liability is limited to US$1.5 million and the ground handler need not indemnify the airline in respect of any damage below US$3,000. In most cases there will be important evidential issues to deal with including proof that a ground handler’s acts or omissions actually caused the damage complained of with no intervening event involving the airline or a third party.

Training is the major component in any FOD programme. The provision of sufficient and conveniently located disposal containers, the use of magnetic bars below ground support equipment and the regular deployment of surface cleaning equipment are critical controls. Given the size of potential financial losses, all airport users need to consider very carefully how they can minimise their exposures to this risk.

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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