Legal basis of the duty to ensure public safety
The duty of safety for aerodrome operators arises from Section 823 of the German Civil Code (BGB). In addition to this, the specific aviation law regulations from the German Air Traffic Licensing Regulations (LuftVZO) and the German Air Traffic Act (LuftVG) are also important. In particular, Section 45 (1) of the LuftVZO and Sections 53 and 58 of the LuftVG emphasise that aerodromes must be kept safe and operated properly. This implies continuous monitoring, maintenance and, if necessary, instructions for the users of the facilities.
The duty to ensure public safety is divided into three main duties:
- Duty of supervisionOperators must ensure that the aerodrome is constantly monitored.
- Monitoring obligationRegular checks must be carried out to identify potential sources of danger.
- Duty to instructUsers of the aerodrome must be informed about potential hazards.
However, the focus of AOPA-Germany's note is on the question of how these obligations can be adequately fulfilled in times of "flying without an operations manager". This new regulation, which has been News for pilots (NfL 2024-1-3106) is explained in more detail, poses new challenges for the industry.
Challenges of flying without an operations manager
Traditionally, airfields have carried out a daily inspection of the operating areas to ensure that the runways, taxiways and parking areas are in perfect condition. This practice has proven itself over decades. It follows the case law of the German Federal Court of Justice, which has determined that anyone who creates a potentially hazardous situation must take the necessary and reasonable precautions to avoid harming others. However, complete avoidance of damage is not possible, as stated in a judgement from 2012 (VI ZR 311/11).
Flying without an operations manager means that no permanent supervisor needs to be on site. This raises the question for aerodrome operators as to how often and to what extent checks must be carried out in order to continue to fulfil the duty to ensure safety. The prevailing view of traffic, particularly in comparison with neighbouring European countries, suggests that daily checks are not mandatory unless there is a specific need for them.
Risk assessment and inspection intervals
A central element in the fulfilment of the duty to maintain safety is the determination of appropriate inspection intervals. These depend heavily on the respective aerodrome, its utilisation and the associated risks. For example, traffic figures, weather conditions and the nature of the operating areas can influence the frequency of inspections.
AOPA-Germany recommends defining flexible inspection intervals as part of operating concepts and licence amendments. Instead of rigid time specifications, aerodrome operators should have the option of carrying out inspections depending on traffic figures or operational activity. It is particularly important to regularly check the flight operation areas for possible obstacles or damage. This can be ensured by simple measures such as keeping the runways clear of low vegetation or repairing damage to taxiways.
Adaptation to specific hazardous situations
In cases where there are signs of danger - for example due to extreme weather conditions or the discovery of damage - an immediate inspection of the operating areas is required. A judgement by the Düsseldorf Higher Regional Court (case reference: 22 U 56/01) illustrates the importance of this duty: an airport company that failed to mark a damaged but not properly cordoned-off cable trench on a grass parking area was held responsible for damage caused when an aircraft sank into the softened ground with its nose wheel. This example shows that the fulfilment of traffic safety obligations must always be situation-specific and does not offer any blanket solutions.
Practical implementation and liability issues
Compliance with the duty to maintain safety is not only a legal requirement, but also a question of organisational measures. Aerodrome operators are required to establish clear procedures for risk assessment and elimination. This includes the documentation of inspections and the provision of communication options for reporting potential sources of danger. An emergency number or a public e-mail address for reporting safety deficiencies should be accessible to all those involved in flight operations.
At the request of AOPA-Germany, insurers confirmed that liability insurance cover for aerodrome operators will continue to exist under the new conditions. The prerequisite for this is that all official and legal requirements are met and a corresponding operating licence is available.
Conclusion: Flexibility and responsibility as the key to safety
The innovations relating to "flying without an operations manager" entail a considerable flexibilisation of the operating regulations. Nevertheless, aerodrome operators must ensure that their safety obligations are fulfilled. This requires not only regular inspections, but also a proactive risk assessment and adaptation to specific operating conditions. With clear, flexible operating concepts and close cooperation with insurers, safety at aerodromes can be guaranteed even under the new conditions.
Source references:
AOPA