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Automation in the aviation industry and liability related aspects

As generally known, automation is the utilization of different control systems and technologies that reduces the need for human interference over the processes to complete tasks and activities.

In the aviation industry, modern commercial aircraft are equipped with automated systems that are able to increase or even replace pilots' actions, managing engine power, controlling and operating flights and, in some cases, also complete landings. Also air traffic control authorities rely on automation technologies that can foresee and detect the weather conditions, as well as reduce the chances of air collisions and crashes. In addition, nowadays the provision of on-board services and passenger comfort are largely based on the use of technologies that affects the jobs of crew members whose tasks are shifting from being a performer to a mere checker of devices.

There are clear advantages and benefits that airlines are experiencing in implementing automated tools and applications. With the involvement of humans becoming less and automation taking over a more important role for the aviation industry, the chances of errors are also becoming significantly less. Indeed, with reduced direct operational involvement, flight crew members can allocate concentration to keeping awareness with their environment and communication with colleagues during take-off, cruise and landing phases. Another advantage of automation can be seen in relation to operating cost reduction, since most of the work is carried out by computer systems. For instance, an efficient flight performance can reduce fuel consumption to achieve a lower operating cost and so allow commercial airlines to gain greater profits. Furthermore, as flight information is automatically managed by specific tools, the requirement of having a flight engineer to oversee the performance of the so called "secondary airplane systems" and fuel consumption is no longer necessary. As a consequence, a reduced number of flight crew members can help to cut costs for airlines.

On the other end, there are some concerns on negative effects and disadvantages potentially arising from the increase of automation in the aviation field. Investigations are evaluating the possible role of automated systems in the 2018 Lion Air Flight 610 and the 2019 Ethiopian Airlines Flight 302 crashes. Regardless of those investigations – whose conclusive findings are still to be disclosed – one problem of aircraft with highly automated systems is that pilots may lose track of what is actually happening, and also reduce their capacity of flying planes on their own without the machine support. It is remarkable that the average pilot of a Boeing or Airbus commercial aircraft manually flies the plane just few minutes of the whole flight time, mainly during take-off, the initial climb up to cruise altitude and then for the landing operations. Even if autopilot systems are able to reduce workload and fatigue for pilots, a balance between the reduction of human intervention and capacity/possibility to master technologies in case of emergency must be certainly achieved. Indeed, with increased reliance on automated technologies, flight crew may rely excessively on the glass cockpit and this could lead to negligence events. Experts are almost unanimous in the opinion that improved pilot training programmes would be a suitable solution for these potential consequences of automation, since accidents involving automation failures have historically included deficiencies by the crew to understand the systems, or to understand when systems were malfunctioning.

In terms of liability implications, the main international regulatory source in case of air accident is the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999. In the event of death and injury of passengers, the Montreal Convention provides for a general presumption of liability on the account of the air carrier. In that respect article 17 states that: "The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking". In turn, pursuant to article 21, while below 100.000 special drawing rights the carrier cannot exclude or limit its liability, above such threshold the carrier may exclude or limit its liability if it is able to prove that damage: "(a) was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) was solely due to the negligence or other wrongful act or omission of a third party". Also, article 37 allows the right of recourse against third parties, providing that: "Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person".

Therefore, on the basis of the above provisions of the Montreal Convention, air carriers do have the opportunity to exclude or limit their liability in case of automation failures, of course to the extent that relevant arguments are duly grounded. At the same time nothing prevents passenger claims to be brought against manufacturers directly, as proven to be the case for certain air accidents in the past (mainly settled out-of-court with related confidentiality commitments between the involved parties – e.g. 2009 Air France Flight 447 crash). Having said so, many are of the opinion that technological progress will likely lead to an inevitable full automation flight experience. As a consequence, both the Montreal Convention and the national aviation legislations may need a revision to properly address the new automation related scenarios in the years to come.