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Drones – a blessing or a curse and who is liable when one brings down an aircraft?
Adrian Leopard 589

Drones – a blessing or a curse and who is liable when one brings down an aircraft?

It is unlikely that a lot of thought has gone into this particular issue on the part of members of the public – time to check it out!

With all the problems of Covid-19 and the significant reduction in airline travel at the moment, one may think that the question of drones is not a very important one. Well nothing could in fact be further from the truth.

 

Drones have now been around for a considerable number of years and in that time they have developed from what might be described as “toys” to extremely elaborate, complex and in some cases powerful pieces of aviation equipment. During the years 2013-15 there were approximately 35 recorded airmiss incidents, rising in the years 2016-18 to nearly 290 and this is in the UK alone. Since then however, there have been more and more incidents and one report states that the number of incidents has increased by 730%.

 

The real problem of drones flying around the skies was brought starkly to the public eye when in December 2018 operations at Gatwick airport were brought to a halt as a result of a series of drone sightings over a 48 hour period. The whole thing caused mayhem and huge delays to some 120000 passengers. The obvious danger to aircraft with drones flying around does not need to be spelled out but the ramifications of such incidents are very wide reaching and raise all sorts of questions as to where liability for an incident may lie and who is going to pick up any bill, putting aside the public outcry were a full passenger liner to be brought down.

 

People may not realise but there is a difference so far as insurance is concerned between “terrorist” and “malicious”. When terrorism comes into play, then insurance companies will accept no liability whereas with malicious operation policies may well provide cover. There are policies which will cover terrorism but insurers have little appetite for those. Where the discussion concerns a drone, the distinction between terrorist and malicious could very simply be whether the drone is carrying some sort of explosive device.

 

A further interesting distinction comes into play as to whether an “incident” takes place in the controlled airspace around an airport – is the airport operator going to be responsible for a drone bringing down an aircraft on his patch?

 

In the case of property insurance then the position is fairly straightforward but there does have to be a physical incident, like a drone collides with a vehicle, building, fence or person etc. However, the real problem is where an airport operator has to suspend operations of his own volition because of the risk of an airmiss or indeed airstrike. To be insured for this, airports need to ensure that they have a suitable policy which will cover it. They may or they may not – it is not unlike the current dispute over whether business interruption insurance is covering businesses which were forced to close because of Covid-19 and government regulations. Some policies covered it, some clearly did not and then there are many in the grey zone in respect of which there is current litigation in the courts to determine whether the wording covers Covid-19 or not.

 

With airports we are not simply concerned with the fact that an aircraft may be brought down, we have the much more widespread effect of delays and how this may impact on a whole host of contractual relations between airlines, passengers, airports and so forth. Will airlines now attempt to avoid liability for delays caused by drones? Indeed will they be able to avoid such liability under EU regulations? It is a well known fact that airlines have worked hard over the years to exclude just about every possible liability which they can as regards their passengers which is why governments have stepped in and made the avoidance of certain liabilities impossible by law.

 

For my money, there will be many legal claims fought through the courts in the future as there could be a lot of grey areas here, apart from which the public are going to want to be sure that they are properly covered by someone.

 

It should not be under-estimated just how dangerous drones can be. As they get larger and more powerful, they are going to be able to carry significant payloads. This is why the whole idea is now being picked up for parcel delivery – how very exciting to have your Amazon parcel land on your garden terrace! I wonder what would happen if there was a sudden gust of wind and your coveted parcel and drone are now on your conservatory floor along with a mass of broken glass. May be you accepted terms and conditions excluding liability for such incidents when you clicked on the “deliver by drone” box.

 

Airport operators are now having to install necessary counter-measures – indeed they had them already in 2018 but evidently the perpetrator of the Gatwick incident knew how to evade them and stronger measures are required.

 

The CAA brought in regulations in March 2019 controlling the use of drones and that is obviously essential and will control the law-abiding citizens amongst us. However, what they will not control will be the perpetrators of deliberate disruption, whether that disruption is merely delaying passengers or something far more serious. And how long will it be before some bright spark decides to cause the disruption for the purposes of extortion? Trying to find those responsible may be like looking for a needle in a haystack and following the money may be quite a challenge too.

 

And of course a drone-strike could be a simple accident as much as it could be a terrorist act. What price a drone insurance policy? Believe it or not, you can get £12 million worth of cover for the princely sum of £29.95. Downing a light aircraft plus six lives may well create a bigger liability than that. Sadly it will only be a matter of time before there is a really serious incident.

 

With a bank holiday weekend about to start, probably lots of people will be jetting off to places not yet on the quarantine list. I would definitely ensure that my travel insurance was going to cover me for this risk.

 

I wonder how long it will be before drones are used to transport passengers, e.g. your local air-taxi service? What fun that could be! Visions back to the days when flying in the Channel Islands involved getting on a pair of scales before boarding. Obviously if you are too heavy, it just won’t get off the ground!

 

Adrian Leopard 28-08-20

 

Photo Iewek Gnos

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