This past week has been nothing short of catastrophe for individuals in the commercial aviation industry and heartbreak for countless families across the world. In just one week, we have tragically learned of over 400 combined casualties from Malaysia Airline (Flight 17) and Al-Algerie (AH5017). However, Flight 17 presents a particularly troubling, frightening scenario, in which airliners and the Federal Aviation Administration (FAA) must now encounter. In response to the present conflict in Israel, the FAA immediately ordered all United States commercial airliners flying to Tel Aviv to suspend their flights for 24 hours. With military weaponry and technology becoming more sophisticated, should commercial airliners or the FAA have the final word with respect to the right of refusal to fly over certain regions of the world that are heavily militarized or are clearly marked as dangerous war zones?
Post-suspension, the FAA instructed the trio of United States commercial airliners that fly to Tel Aviv (Delta Air Lines, US Airways, and United Airlines) to use “extreme caution.” But, consider a pilot’s suspicion over the FAA’s warning. Unfortunately, American commercial pilots are not equipped with any defense against a ground–to-air launch of a heat-seeking missile at 30,000 feet. Thus, unless pilots simply refuse to fly over these conflict zones, they risk the lives of themselves and their passengers. Moreover, while there exist certain prohibitions for United States airliners from flying over a select few countries like East Ukraine, Libya, and Iraq (only 20,000 feet or higher), the FAA lacks a clear response to an imminent threat of harm to commercial flights. Ergo, passing the buck to the individual commercial airliners and vaguely advising them to use “extreme caution,” where rocket strikes are reportedly landing less than one mile away from the international airport in Tel Aviv.
Perhaps, this is a conscious attempt by the FAA to avoid liability under the Federal Torts Claim Act for its own negligence. However, it appears that setting minimum regulations on flights over conflict zones leaves open the possibility of additional tragedies. Rather than rely on our government to determine the safety of a particular route, maybe these decisions should rest with the airline carriers or its pilots? Of course, the issue may be more about economics than safety. Unquestionably, there is direct link between fuel costs and profits. Arguably, avoiding conflict zones would result in a rise in these costs and decline in the carrier’s bottom line; a dilemma which prudent aviation experts should resolve in favor of safe travel.
By: Fahd S. Haque in collaboration with A. Vince Colella_ Moss & Colella, PC.