Introduction 

 In this age of modern aviation technology and reduced flight traffic due to COVID, the recent spike in midair collisions, including three accidents in July, leaves many wondering why do midair accidents still happen, and who’s responsible for them. The amount of horizontal and vertical airspace in the sky, especially in low traffic remote areas, makes midair collisions extremely unlikely. But that does not seem to matter lately.

 On May 13, 2019, a De Havilland DHC-2 Beaver crashed into a De Havilland DHC-3 Otter just east of Ketchikan, Alaska, killing seven and seriously injuring nine. Aviation Law Group represents numerous victims involved in that accident, of which ALG and our aviation accident experts, continue to investigate.

 More recently, on July 5, 2020, a DHC-2 Beaver collided with a Cessna 206 over Lake Coeur d’Alene, Idaho, causing both aircraft to fall into the lake, killing eight persons. On July 30, two Air Tractor AT8T firefighting aircraft collided in southern Nevada, taking the lives of each pilot on board. On July 31, a DHC-2 Beaver was involved in a midair collision with a Piper PA-12 near Soldotna, Alaska, killing seven people.

Understanding the risk, regulations, and technology is essential to both determining fault and how such accidents might be prevented in the future.

The Danger

Collisions of aircraft while in flight are unforgiving. Even slight contact involving minor structural damage could result in an aircraft being uncontrollable in flight, hundreds, or thousands of feet above the ground. While some people have been fortunate to survive midair collisions, many have not. 

Historically, the introduction of air traffic control and air traffic radar lowered the risk of midair collisions. However, these facilities and services are not available everywhere, especially in more remote areas, at lower altitudes, where the most recent midair collisions have occurred.

The Regulations

The Federal Aviation Regulations govern flight activity within the U.S.  From their first flight lesson, pilots are taught always to maintain a vigilant outlook, to “see and avoid” other air traffic. (14 CFR 91.113) Pilots are also required not to operate in such close proximity to other aircraft as to “create a collision hazard.” (14 CFR 91.111)  Part 91.113 further provides the right-of-way rules for aircraft operating in good weather conditions,  commonly considered VFR (Visual Flight Rules). Part 113 covers converging aircraft, aircraft approaching head-on, overtaking aircraft, and landing aircraft.

While these regulations are rather general in nature, they do provide the basic foundation of rules for pilots to avoid midair collisions. However, compliance with these regulations does not mean a midair collision will not occur, but it is certainly very unlikely if pilots of both aircraft do comply.

 14 CFR 91.159 provides further rules to avoid collisions in flight by setting forth different cruising altitudes based on the magnetic direction of travel.  An aircraft flying in an easterly direction can fly at 3500 feet, while an aircraft flying in a westerly direction can fly at 4500 feet. This regulation may also allow for similar altitudes of converging aircraft on less than head-on headings. One concern is that 91.159 only applies to aircraft in cruise above 3000 feet above the ground, and pilots not in cruise flight or below 3000 feet do not have similar heading/altitude rules.

 Starting in 2020, new regulations came into effect requiring onboard collision avoidance technology on aircraft operating in most of the U.S. airspace, which is commonly referred to as ADS-B.

State-of-the-Art Technology

ADS-B, which means Automatic Dependent Surveillance-Broadcast, consists of technology that allows aircraft position surveillance via satellite navigation. It is part of the NextGen upgrades for U.S. airspace enhancement.  Importantly, ADS-B Out is capable of transmitting information about an aircraft’s position, heading speed, and altitude, which can be received by aircraft that have ADS-B In receivers. The result is that pilots may have a live radar view of air traffic, allowing them to self-separate and hear warnings of potential danger.  Also, ADS-B provides Air Traffic Control enhanced air traffic radar coverage.

Yet, ADS-B does not provide full coverage throughout the U.S. Furthermore, there have been reports of system malfunctions resulting in actual air traffic not appearing on ADS-B In displays. The result is that pilots may get a false sense of security, thinking there is no air traffic when that is not the case. Aviation Law Group attorneys are currently investigating one case of possible ADS-B failure.

However, despite the advanced technology of ADS-B, under no circumstances is it meant to relax the strict obligations of all pilots to scan the sky diligently and to “see and avoid” other air traffic.

Who’s At Fault for A Midair Accident

Every midair collision involves different facts and unique circumstances surrounding each aircraft involved, and how they came to arrive at the specific point of collision, at the same time. 

 The potentially at-fault parties include the pilots and operators of one or both aircraft, air traffic control, the manufacturer of any defective ADS-B units, and possibly other individuals or entities, depending on the facts. If a midair collision case goes to trial, a jury will allocate fault on a percentage basis to each of the culpable persons and entities. This is done regardless of the NTSB findings and NTSB probable cause, which is inadmissible in evidence at trial.

What needs to be done?

Part of our work at Aviation Law Group results in improving safety in the aviation industry. In our opinion, for midair collisions, the NTSB/FAA needs to undertake a study of the recent numerous midair collisions. Though a study alone, is not enough, they must then issue recommendations that must be approved and implemented, especially in light of the ever-changing technology. There needs to be a coordinated effort in government and industry to increase safety, and significantly decrease the future risk of midair collision between aircraft, especially in this day and age, where we have the technology to avoid midair crashes in the future.