14. November 2014

The Federal Administrative Court denied the liability of the airport in an accident of a business jet during the approach in December 2010.  The court emphasized that in the uncontrolled airspace it was the pilots‘ duty to comply with the visual flight rules (VFR) and the airport did not have an obligation to take any steps or issue warnings not provided for in the ICAO Regulations and Recommendations or the national law.  The court further held that the two pilots had acted with gross negligence.  Despite unfavourable weather conditions, the two pilots tried to land on Engadin Airport, Europe’s highest airport, which is in the uncontrolled airspace in which VFR rules apply.  The first attempt failed.  After a go-around, the pilots made a second attempt by carrying out a circle not provided for in the AIP.  In the course of this manoeuver the aircraft stalled and crashed.  The two pilots were killed, and a power station was hit.  Passengers were not on board.  The father and the social insurer of one of the pilots brought damage and recovery claims against the airport.  They contended that the flight information service officer (FISO), in addition to the information provided, should have warned the pilots of the bad weather conditions (reported by a single engine pilot 20 min before) before the approach and the airport should have taken measures to prevent the accident.  In a meticulous analysis of the applicable law on aviation and liability, the court came to the conclusion that the airport was not liable for the accident.  In the uncontrolled airspace with VFR rules, it was the pilots‘ duty to comply with the applicable flight rules, including those regarding the applicable visual meteorological conditions.  The airport did not have to install instruments that provide additional information or close the runway.  The court even questioned whether the airport set a cause for the accident.  In any event, liability was excluded because of the pilots‘ gross negligence.  While the court denied the claims of both the father and the social insurer, the court confirmed that a German social insurer subrogating in the claims of the insured is entitled to submit recovery claims in Switzerland, also if the liability is based on federal administrative law and not civil law.  The decisions are not final; an appeal may be filed with the Federal Supreme Court.  (File numbers of the cases: A-4925/2013 and A-7102/2013)