Drone disruption liability. In the last several months, there were three incidents where drones operating in the vicinity of airports disrupted operations. No one was injured, but tens of thousands of passengers were affected. (Photo: Shutterstock)

Within the last several months, there has been substantial media coverage of drones being operated in the area surrounding three major airports, Gatwick, Heathrow and Newark. Fortunately, there were no collisions with passenger aircraft. However, all three incidents caused significant disruption to airport operations and the plans of tens of thousands of passengers.

The media coverage about these incidents has focused on the inadequacy of airport drone security measures, the risks posed by increased numbers of drones and the possibility of a serious accident involving a passenger aircraft.  While the focus on these topics is certainly understandable, there has been little attention paid to who could be held liable if there was an accident, what the standards for liability would be and whether there would be insurance coverage for the damages that might be claimed.

Determining liability

More than 25 years of handling aviation accident cases makes several things clear to me. First, if there was an accident, there would be litigation. Second, the more uncertainty there is about who is liable and what the standards for liability are, the more litigation there will be. Third, there will be calls from commentators and self-described “experts” for government regulators “to do something.” Couple the foregoing with the likelihood of worldwide media coverage and the result will likely be legal rulings and government regulations that do more harm than good to a fledgling industry that has the potential to provide many transformative benefits.

I do not propose to have the definitive answers to what the standards for liability or insurance coverage should be. However, I have given much thought to what the questions are that should help provide the answers to these questions. In that regard, the first question is: Should there be uniform rules for drone operations? If so, how should uniform rules be established? If not, should operating rules vary from city to city, state to state and country to country?

Should Heathrow, Gatwick, Newark and airports around the world have anti-drone security measures? If so, what type of system would be considered adequate?

Should a parent who owns, registers and insures a drone be liable and insured for an accident caused by that drone if it was used without the parent's knowledge or permission?

Is a drone manufacturer or drone use app developer liable for erratic drone operation or failure to warn about operations in certain types of meteorological conditions?

Finding answers to future claims

I cannot provide definitive answers to these questions, but I can offer some guidance that I have gleaned from my many years of experience handling aviation accident claims and litigating the issue of standards in a wide variety of matters.

My long-held position is that standards for aviation-related operations must be generally uniform. In the U.S., that means that the FAA is the source of all safety-related and operational standards. This position has gradually been accepted by the courts and endorsed by the FAA. In fact, the FAA has cited to the foregoing and advised state and local jurisdictions that they lack authority to regulate airspace and flight operations. A federal court in Boston has also adopted this rationale to preclude the City of Newton from infringing upon the federal regulatory scheme.

In the area of security, the federal court supervising all the 9/11 litigation held that federal security standards preempt common law based on “reasonable care” standards and establish a complete defense for airlines and airports complying with same. While that holding certainly establishes some useful precedent, is it really applicable when the FAA sends a notice to airports — as it did in July last year — telling them that they should hold off purchasing anti-drone security until the technology is better developed?

In all likelihood, there is enough information available to start providing answers to the liability questions listed earlier. However, merely giving thought to these issues is not enough. That is because the law addressing these issues will most likely develop in random cases that will likely involve seemingly minor incidents. It is important that the judges considering these claims (and the media covering them) understand the larger context in which these incidents should be considered. In that regard, it will most likely be drone manufacturers, operators and their insurers who will be in the best position to educate the court and the media about these concerns.

Without the proper context, the law will develop in a way that fails to consider the larger operational and liability issues that are essential to the continued growth of a truly transformative technology. It is time to give these questions more thought and come up with some sensible answers and a construct that provides far more certainty than presently exists. Compared to the technological issues that drones present, finding answers to these legal liability issues should be comparatively “easy.”

Jeff Ellis ([email protected]) is an aviation partner at Clyde &Co. He has represented the interests of United Airlines in the litigation arising from the 9/11 terrorist attacks, Delta Air Lines in the Swissair/Delta Flight 111 crash, Continental Airlines in the Air France Concorde crash, Delta/Northwest in the litigation arising out of the Underwear Bomber incident and AUVSI and CTA as amici in Singer v Newton.

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