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Who is responsible for preventing midair collisions?

On Sunday afternoon, July, 6, 2020, a de Havilland Beaver and Cessna 206 crashed into each other above Lake Coeur d’Alene, Idaho. It is believed that eight people on board the aircraft have died.

Witnesses described the two aircraft striking each other at a low altitude, approximately 200 feet, over the water. Both the National Transportation Safety Board (NTSB) and the Federal Aviation Administration (FAA) will investigate the accident.

Attorneys at Krutch Lindell have litigated midair collision cases before. On of the first questions we are often asked is the following: “who has the responsibility to keep these aircraft from hitting each other?” In aviation terms, we call this “maintaining aircraft separation” or simply “maintaining separation.”

In this case, the short answer is this: The Pilot in Command of each aircraft considering the Federal Aviation Regulations “right-of-way rules” found at 14 CFR § 91.1134. To understand the reasoning behind this answer, we have to look at how aircraft maintain “separation” in airspace.

First, pilots have the responsibility to avoid hitting other aircraft they can see in any circumstance. In flight school, we are taught that there is only one Pilot in Command (or PIC) for each aircraft flight. According to the Federal Aviation Regulations (FAR), the PIC is directly responsible for the operation of the aircraft. 14 CFR § 91.3(a). The regulations require that each pilot maintain “vigilance” so as to “see and avoid” other aircraft while in flight. § 91.113(b). The requirement of “see and avoid” applies even when another aircraft has the right of way. Section 91.111(a) of the FARs also prohibits pilots from operating an aircraft so close to another aircraft as to create a collision hazard. Finally, Section 91.13(b) prohibits a pilot from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.

From this basic premise, the “rules of the road” change depending on the type of operation. Aircraft operations can be divided into VFR and IFR operations. VFR means “Visual Flight Rules” and IFR means “Instrument Flight Rules.” Although many people associate instrument flying with flying in clouds (instrument meteorological conditions), the truth is that the main difference between VFR and IFR is whether Air Traffic Control (ATC) is providing separation for aircraft.

For example, all commercial jetliners fly on an IFR “flight plan.” From takeoff to landing, the aircraft is in communication with ATC. ATC and the pilots have the responsibility of maintaining aircraft separation, with ATC taking the lead. They do this through sequencing, radar, Traffic Collisions Avoidance Systems (TCAS), and other means. Because an aircraft on an IFR flight plan can fly in the clouds, separation is not dependent on the “see and avoid” concept. However, if a pilot sees another aircraft on a collision course, they still have the responsibility to avoid an accident as PIC.

On the other hand, pilots operating aircraft under VFR have the primary responsibility to avoid other aircraft through the “see and avoid” concept. While new technology, such as ADS-B, is assisting pilots in locating other aircraft that may present a collision hazard, “see and avoid” is still the law when it comes to separation.

When aircraft approach each other under VFR, they are required to follow the “right-of-way rules” set out in 14 CFR § 91.113. In general, when aircraft are converging, the aircraft to the other’s right has the right of way. When aircraft approach head-on, each aircraft alters course to the right, and each overtaking aircraft alters course to the right. § 91.113(d)-(f). An aircraft on final approach for landing has the right of way over non-landing aircraft. § 91.113(g). An aircraft in distress always has the right of way over all other aircraft. § 91.113(c). Finally, seaplanes on the water have special rules found at § 91.115.

The aircraft in this accident were very likely on a VFR flight plan. If so, the FAA “right-of-way” rules will become a critical factor in determining responsibility for the accident.

Jimmy Anderson is an Attorney with Krutch Lindell Bingham Jones, representing victims of aviation accidents and other aviation related incidents.

Above: Photo by Jimmy Anderson from the cockpit of a de Havilland Beaver

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