Article citation information:
Tobór, D., Barcik, J., Czech, P. Legal aspects of air transport
safety and the use of drones. Scientific
Journal of Silesian University of Technology. Series Transport. 2017, 97, 167-179. ISSN: 0209-3324. DOI: https://doi.org/10.20858/sjsutst.2017.97.15.
Damian
TOBÓR[1], Jacek BARCIK[2], Piotr CZECH[3]
LEGAL
ASPECTS OF AIR TRANSPORT SAFETY AND THE USE OF DRONES
Summary. Over the past few years, interest in
the use of unmanned aerial vehicles (commonly referred to as drones) has
increased. Uncontrolled drone flights poses a threat to air navigation,
including air transport. The aim of this article is to identify potential
sources of this threat, together with the identification of Polish legal
regulations that respond to them. Conclusions will be based on proposals de lege ferenda, i.e., related to the
postulated change of legal regulations, in order to limit the risk of
incidents. The object of the article is subordinate to its structure,
consisting of five parts. In the first part, the concept of unmanned aerial
vehicles used by the Polish legislature will be defined, which is necessary
because of the inaccuracies surrounding it. The second part will present ways
to use drones for civilian purposes. The next part of the article will describe
the cases of accident and aerial incidents involving drones. The fourth part
focuses on the indication of Polish legal regulations related to the
exploitation of drones. The article closes with concise conclusions.
Keywords: drones; air transport safety; legal
aspects
1. concept of “unmanned aerial vehicles”
Article 126 of the Act of 3 July 2002 on Aviation Law[4]
introduces the concept of an unmanned aerial vehicle (hereinafter referred to
as UAV), which the legislator describes in Paragraph 2 of the article using the
UAV acronym. However, the act does not introduce a definition of a UAV. This
term also appears in the Ordinance of the Minister of Infrastructure and
Construction of 8 August 2016, amending the regulation on the exemption of
certain provisions of the Aviation Law Act for certain types of aircraft and
determining the conditions and requirements for the use of these vehicles[5].
As in the case of the act, the regulation does not introduce a definition of
UAV. It should be noted, however, that, in Appendix 2 to this regulation, we
find that the concept of UAVs is reserved by the Polish legislature for
determining the legal provisions for UAVs with a maximum take-off mass
(hereinafter, MTOM) of no more than 150 kg, used solely for visual line of
sight (VLOS) operations for non-recreational or sports purposes[6]. For
the regulation of UAVs with a take-off mass of no more than 150 kg, used
exclusively for VLOS operations for recreational or sports purposes, the
legislator uses the term “flying model”[7].
Drone is the name most often used in the context of the use of unmanned
machinery in military operations. This context is referred to in the definition
of the term “drone” in the New Standard
Encyclopedia, which describes drones as “unmanned aircraft used for
purposes such as reconnaissance or target elimination exercise, or as a lure to
attract anti-aircraft fire”[8].This
concept has its roots in terms used by NATO. According to NATO sources, drones
should be called unmanned vehicles, which carry out their mission, without
interfering with the external source[9].
In Polish literature, we find the term “drone” refers to “ an object with or
without controls or interference from the operator”. When using the term”
flying model” or “remotely controlled aircraft”, one should refer to an
aircraft without a pilot on board, but permanently driven by an operator having
a permanent impact on all activities performed by the facility”[10].
It is emphasized that “flying models” should also qualify as UAVs, even though
they are for recreational or sports flights[11].
The concept of UAVs appears in the Polish legislation in the context of
non-recreational or sports flights (e.g., flights related to running a
business). The distinction between UAVs and flying models, i.e., the purpose of
the flight, is derived from the previously mentioned Regulation of the Minister
of Infrastructure and Construction of 8 August 2016, although it originally
appeared in the Regulation of 26 March 2013[12].
These regulations do not, however, contain definitions of the above-mentioned
objects. Attention should be drawn to the fact that, although commonly used in
everyday language, “drone” does not occur in Polish regulations. In turn, the
Polish Air Navigation Services Agency (hereinafter referred to as PAŻP), in
accordance with the ICAO, uses the term remotely piloted aircraft (RPA) on its
website[13]. The
ICAO defines RPA as “an aircraft whose pilot is not present on board”[14].
Many countries are moving away from
the UAV concept, referring collectively to UAVs. The concept of a
remote-controlled aircraft (RPA) draws attention to the fact that so-called
drones are under the constant control of the operator. Constant influence on
the flight and the operator’s supervision of the machine contradict the
“unmanned” aspect of which the term UAV speaks. The ICAO thus defines the UAV
term as obsolete[15].
The terms VLOS and beyond visual
line of sight (BVLOS) should also be distinguished. They appear in the context
of UAV operator (UAVO) status, which, in Polish law, refers to the certificate
of qualifications of operators, authorizing them to use drones for purposes
other than sports and recreational flights, e.g., for commercial flights (not
necessarily for profit)[16]. Under
the UAVO status, VLOS (i.e., drone flights within sight of an operator) or
BVLOS permissions to make drone flights out of sight (including flights within
drones’ coverage) can be obtained. It is also worth mentioning first-person
view (FPV) flights here, which are made
using models with a specially mounted on-board video camera. With video
transmitters, the video is sent to the operator on the ground. This involves a
special eyeglass on which is displayed the image from the camera mounted on a
drone. With the gyroscope mounted in goggles, the operator’s head moves the
camera, giving a realistic effect in the cockpit of the aircraft and thus its
piloting. Thanks to the used electronics, it is already possible to fly outside
the visible area of the operator on the ground. This gives a great opportunity
to observe objects located a few kilometres from the model’s starting point.
FPV equipment is also used by hobbyists to drone races and organize events in
this field, even international ones[17].
2. The use of drones for civilian purposes
Recently, there has been an increase
in the use of drones for civilian purposes. The value of the drones market in
Poland was estimated at PLN 201.31 million for 2016, which means an increase of
22.75% compared to 2015 (PLN 164 million), despite a decline in the military market.
Most of the revenue was generated by the sale of recreational equipment for
professional photography and film and other services, including training for
licensed unmanned operators.[18]
The popularization of drones is primarily due to the fact that they have become
more accessible. Drones with varying degrees of sophistication, different
functions and utility parameters are available on a mass sale, depending on the
customers’ needs. By the end of 2016, the price of the simplest UAVs (mostly
rotors), based on low-cost components, ranged from a few dozen to several
hundred zlotys. Drones have become a commodity found on shelves of not just
speciality shops, but also supermarkets and discount stores. Due to the lower
prices, drones have become a popular form of gift, often aimed at children. In the interest of civil
aviation safety, the Civil Aviation Office (hereinafter ULC) launched a “Fly
with the Head” information campaign in mid-2015. As part of the campaign, the ULC
prepared a television spot and a website[19],
which is designed to attract the attention of drone owners on the most
important principles of the safe flying of UAVs. The campaign promoters point
out that drones that look like toys are subject to aviation law for which
serious damage is likely to occur, and that unintended use can cause danger to
people and property. The President of the ULC also issued guidelines on
informing users of UAVs on the principles of safe flight[20].
In this document, a recommendation has been made for entities marketing UAVs
within the territory of the Republic of Poland to include those accompanying
the UCL leaflet as set out in the Annex to the Guidelines. Most drones are used
by photographers and film-makers. Drones give their operators the ability to
take pictures and record aerial footage, which was previously reserved for
expensive photo shoots a few years ago, because it was necessary to rent
avionics or a helicopter. The most popular among photographers and hobbyists is
the French Parrot and the Chinese DJI, whose flagship and most popular products
are quadcopter drones (i.e., floating with four parallel rotors) from the
Phantom series[21].
Besides photography, drones can serve many other purposes, such as commercial
purposes, e.g., marketing or mailing. American online trading giant, Amazon, is
working on “Prime Air”, where drones will deliver courier services[22].
The first shipment was delivered by drone to a customer in England on 7
December 2016[23]. The
fact is that the flight was autonomous and one man was only needed to pack the
package. A project that would revolutionize the delivery of mail to addressees,
however, still requires a lot of work from the investor to solve the numerous
problems involved. The obstacles that must be overcome by investors include weather factors, the issue of safe
handling of consignments, and restrictions for the safe use of airspace.
Similar to Amazon, Google is also working on its “Wing” project, as part of the
research and development of the “X” company[24].
Facebook, on the other hand, focuses its research on developing a drone called
Aquila, powered by solar energy. This energy source would allow for a
continuous uninterrupted flight of the machine, lasting for up to several
months. The world leader in social media wants to use this technology to
deliver the Internet to places in the world that it is not reaching today. On
28 June 2016, Aquila made its first successful flight[25].
Among the various uses of drones, there are also studies on areas inaccessible
to humans, spraying of fertilizers in crop fields, fire extinguishing, fish
baiting, border control etc. To patrol the borders of our country, the Border
Guard uses, as does the Polish Army, Fleye drones manufactured by the Polish
arms company, WB Electronics. They help to catch people breaking the law on the
border, e.g., smugglers. However, there are no reliable data on their actual
effectiveness and information on the principles of storing and sharing the data
collected[26]. In the performance of duties, drones also help the Polish
Police. They can be used for missing persons searches, operational work,
traffic monitoring, and managing safety at
major events[27].
PKP Cargo uses drones to protect its trains from theft. The presence of drones
on the train discourages criminals from stealing (e.g., dumping coal from
wagons). This device works preventively, while discouraging people from
trespassing on railway tracks near the trains. The careful choice of colour
scheme for these devices and their high observation height make them virtually
impossible to detect by thieves. Drones record the image in the vicinity of
warehouses and send it in real time to the headquarters of the Hazard
Prevention Team. Among the drones used by PKP Cargo are “Eagle” machines with
an arm span of about 1 m. They are used primarily to patrol large areas from
high altitude. These drones are equipped with two cameras, where the first has
a large optical zoom, which allows the face of the thief to be recorded in very
good quality, even from a few hundred metres away. The second camera, which
uses thermal imaging, makes it easy to work under night-time conditions. Thanks
to this, drones are able to recognize the silhouette of a human from a distance
of up to 2 km. According to data presented by the carrier, largely due to the use
of drones, from January to October 2014, the value of stolen consignments and
goods from trains dropped by nearly 65% compared to the same period in 2013[28].
Drones are also employed to check the status of wagons used by the company’s
customers, as drones allow for quick inspection of dozens of wagons[29].
Drones can also be used by the Forest Service, and even in the fight against
low emissions. In the autumn of 2016 in Bytom, the Central Mining Institute
conducted tests using drones, which checked what was being burned in the
furnaces in the city. The institute has developed a mobile platform for
monitoring selected low-emission parameters using drones. It has its own
solution: laser meters for dust, carbon dioxide and carbon monoxide. Its
“Flying Laboratory” is characterized by high measurement accuracy, which allows
for determining the source and amount of pollutant emissions[30].
3. Selected
occurrence and aviation incidents involving drones
Drones are becoming increasingly
visible in the sky[31]. On
the Polish market for these machines, the majority of revenue generated relates
to the sale of recreational equipment and that intended for professional
photography and film[32], so it
can be seen that most used machines are already used for civil purposes. The
increasing presence of UAVs in the sky and the increase in the number of drone
owners carry the risk of more frequent incidents and aviation hazards, and pose
a great challenge to security and the protection of human rights and freedom.
Security is the overarching goal of EU aviation policy. In the Communication of
the European Parliament and the Council, entitled A New Era in Aviation
History, the European Commission clearly pointed out that only the RPA System
(RPAS) should be based on the principle of zero safety concessions. RPAS
operations should have an equivalent level of safety compared to manned flights[33].
According to the Commission, the legislative framework designed in the EU
should reflect the diversity of aircraft and operations, preserve the
proportionality of regulations with regard to potential risks, and reduce
administrative burdens for industry and regulators. The legal framework should
first focus on those areas where technology is advanced and sufficiently
tested.
Drones can be a threat if they are
used as weapons, for example, in terrorist attacks. Mostly, however,
unintentionally piloted aircraft is a threat to air traffic and to people and
property on the ground. In March 2014, the ULC President issued a communication
on the violation of flight rules and UAVs[34].
It mentioned the basic principles of safe flight of drones in Polish airspace
and called for the dissemination of this information in the broader aviation
and modelling environment, for the common good and for the safety of all
airspace users. However, this appeal did not reach all drone operators,
confirmed by the fact that several incidents of relevance took place in Poland.
During the NATO summit in Warsaw in July 2016, there were, according to
information from the Minister of National Defence, four incidents involving
drones[35].
At the time of the summit, a no-fly zone was introduced in Warsaw and its
surrounding areas[36].
The incident took place in the vicinity of Frederic Chopin Airport in Warsaw in
July 2015. During the approach to landing at Chopin Airport, the pilots of a
Lufthansa aircraft informed the flight control tower that a drone flew, during
the landing approach on Runway 33, at about 100 m, from the machine. The
incident occurred at an altitude of 762 m[37].
In the above situation, there was a violation of the control zone of Chopin
Airport. This incident drew the public’s attention to the threat to flight
safety posed by the growing number of UAVs. As flight controllers have pointed
out, drones are becoming increasingly commonplace; because of their low mass
and small size, they cannot be seen from the tower and are often are not
visible to radar[38]. At
that time, Dr. Maciej Lasek, Chairman of the State Commission for Aircraft
Accidents Investigation, pointed out that the collision of a drone weighing
several kilos with a passenger plane could cause serious trouble[39].
By comparison, the suction of a bird, due to its soft substance, by a jet
engine of a passenger plane usually ends with a replacement of the propulsion
and its general refurbishment. Equally dangerous is when
the cockpit or fuselage is hit. The collision of
a plane with a drone made of hard plastic can have serious consequences[40].
4. Polish legal regulations
According to Polish law, civil
aviation is subject to the minister responsible for transport (since 16
November 2015, this has been the Minister of Infrastructure and Construction),
who issues implementing regulations to the Act of 3 July 2002 on Aviation Law
(Journal of Laws No. 130, Item 1112), which is the basic legal act regulating
the legal relations in the field of civil aviation. The minister supervises the
ULC, which is the state budget unit serving the President of the Civil Aviation
Authority and the central civilian government administration body responsible
for civil aviation, and the PAŻP. The Shipping Agency provides safe,
continuous, smooth and efficient air navigation in Polish airspace by
performing the functions of air navigation service providers, airspace
management and air traffic flow management[41].
An independent and permanent State Commission for Aircraft Accident
Investigation (hereinafter referred to as PKBWL) operates alongside the
minister responsible for transport, and conducts or supervises investigations
into aviation incidents. The commission conducts research on the basis of the
EU Civil and Commercial Code and acts on civil aviation accidents and
incidents, taking into account the standards and recommended practices set out
in Annex 13[42] to
the Convention on International Civil Aviation, signed in Chicago on 7 December
1944, known as the Chicago Convention[43].
In addition, as a member of the EU, Poland applies the findings of the European
Aviation Safety Agency (hereinafter the EASA), which deals with air traffic
safety issues in Europe. According to Article 126, Paragraph 1, the Aviation
Law Act states: “Unmanned aerial vehicles may be operated in the Polish
airspace.” Drone operators, however, also have additional regulations that
abolish the obligation to comply with certain rights and principles, which
apply to other flight crew members, such as pilots or paratroopers. Rules for
drones may vary depending on the nature of the flight, which is also determined
by the requirement to have a qualification certificate. UAVO certification,
issued by the ULC, authorizes the use of drones for purposes other than sports
and recreational flights. This means that all non-recreational or sports
flights, for example, providing services related to photographs, video,
photogrammetry, various types of measurements, air monitoring, research flights
etc. require a pilot to hold a qualification certificate.
In addition, a UAV/flying model
operator should exercise extreme caution and avoid any act or omission that
could cause a safety hazard, including a threat to air safety, obstruct air
traffic, disturb public order, and expose anyone to harm. The operator is also
required to control the drones in such a way as to avoid collisions with other
aircraft and to ensure that the drones performing the flight give priority to
the manned aircraft, as well as being responsible for the flight decisions and
for the correctness of the flight[44].
Failure to comply with these requirements increases the risk of incidents,
which, upon receipt of the necessary reports, are qualified by the Chairman of
the PKBWL as either an aviation accident, a serious aviation incident, an
aviation incident or other occurrence (e.g., breakdown, aircraft damage)[45].
An aviation incident is an occurrence other than an accident involving the
operation of an aircraft, which has an impact or could affect its safety. A
serious incident is an incident whose circumstances indicate that an accident
has almost occurred[46].
On the other hand, an aviation accident is an occurrence where any person has
suffered at least serious bodily injury or the aircraft has been damaged or
destroyed, or the aircraft is missing or located in a location where access is
impossible[47]. The
above-described aviation occurrence involving a drone, which took place in the
control zone of Chopin Airport, was classified as a serious aviation incident[48].
In civil aviation cases, ULC personnel have extensive control responsibilities
related to maintenance of safety. The authority is authorized to check the
qualifications of the flight crew and the airworthiness of the aircraft. Representatives
of the ULC have the right (after presenting the relevant ID) to secure an UAV,
which is in poor technical condition, to prevent it from flying. In addition,
they can secure an UAV used by unauthorized persons to continue flying or in
violation of its use, and demand access to the documents and materials
necessary for inspection[49].
Police officers may rebuke a drone operator if they consider that the drone’s
flights pose a risk to persons or property. In unequivocal situations, for
example, in the case of causing nuisance noise using a drone, officers can
punish a UAV operator with a criminal penalty for disturbing the peace[50].
Police (or another public authority or service providing assistance) must also
be notified of the occurrence of an aviation accident[51].
It is worth pointing out that there are penalties applicable to air accidents.
Chapter XII of the Criminal Code (Journal of Laws of 2016, Item 1137) describes
crimes against security in communication. Article 173, Paragraph 1, states
that: “Whoever brings a catastrophe in land, water or air traffic which
threatens the life or health of many persons or property in great proportions,
shall be subject to the penalty of deprivation of liberty for a term of between
one and ten years.” For the above-mentioned incident, Article 174, Paragraph 1,
is applicable, which reads: “Whoever directs the immediate danger of a
catastrophe in land, water or air traffic shall be liable to imprisonment for a
term of imprisonment from 6 months to 8 years.” On the other hand, the
provision of Article 177, Paragraph 1, states that: “Whoever, inadvertently,
inadvertently, the rules of safety in land, water or air traffic,
unintentionally causes an accident in which another person has suffered
injuries as referred to in art. 157 § 1 (i.e., a violation of a body organ
function or a disorder of health other than serious injury) shall be subject to
the penalty of deprivation of liberty for up to 3 years.” According to
Paragraph 2, if the result of an accident is the death of another person or a
serious injury, the perpetrator is subject to imprisonment from six months to
eight years[52].
Section XII of the Air Law Act describes, in turn, air traffic offences. In the
context of the division of Polish airspace into zones, UAV operators should be
aware of the provision of Article 212, which states, in Paragraph 1, that
anyone performing an airplane flight, which violates the rules governing air
traffic in the area in which the flight takes place, shall be punishable by the
deprivation of freedom for up to five years. In order to reduce any possible
dangers in air traffic and to people and property on the ground, drones are
often equipped with rescue and emergency systems. The basic rescue procedure is
“return to home” (RTH), i.e., an automatic return to the starting point. Before
the flight and after calibrating the compass, the starting point coordinates
are stored in the memory. Low-battery RTH is an automatic return system, which
starts when the battery is discharged to a level that ensures safe return to
the “base.” The FailSafe RTH system works in such a way that the drone
automatically returns to the starting point after the transmitter loses signal,
usually after few seconds of no contact[53].
Since 7 September 2016, the condition for using UAVs with a take-off mass of no
more than 150 kg, only in operations within VLOS visibility for purposes other
than recreational or sporting purposes, is equipping them with the FailSafe
system.[54]
It is also appropriate to require drones to be equipped with a geofencing
function, which allows the aircraft to independently detect areas of the no-fly
zone, thus preventing flights in control zones or restricted zones.
Legal regulations also apply to
flight rules and responsibility for potential damage. In spite of the existence
of legal regulations, it does not seem possible to completely avoid the dangers
of air transport caused by the use of drones. It is important, however, that,
where a drone poses any threat to human life or health and to property, it can
be effectively eliminated prior to the occurrence of injury or terror. Shooting
drones does not seem to be the best idea, as it involves the risk that a
shotgun falls on something or someone, causing additional damage. The creators
of hardware called DroneGun were inspired by how to deal with this problem.
This device, which resembles a futuristic weapon, allows users, after targeting
a specific machine, to disrupt communication in the 2.4- and 5.8-GHz bands used
by most common communication drones. DroneGun also interferes with the GPS
signal and allows it to take control of the intruder and, as a result, safely
land it[55].
Devices of this type can be identified as security equipment. Dangers caused by
drones prompt a wider need for specialist anti-unmanned equipment. Among the
devices that allow for the capture threatening drones, it is worth mentioning
yet another British invention called SkyWall, which is an intelligent launcher
that allows users to catch drones in the net and safely bring it to the ground
using a small parachute. Bringing the whole drone to the ground not only
provides security for people and property, but also facilitates the
identification of an intruder[56].
Elimination of drones is permitted in Poland in the circumstances and by the
services referred to in Article 126a of the Aviation Law Act. According to its
content, a UAV, including a flying model, may be destroyed, immobilized or,
during its flight, may be subject to control where the flight or its operation
endangers the life or health of the person, poses a threat to protected
objects, facilities or areas, or creates a reasonable suspicion that it may be
used as a means of terrorist attack.
5. Conclusions
The drones market has grown
tremendously in recent years. There is also a growing number of drone
applications for civil purposes. At the same time, more and more
technologically advanced versions of these machines are being developed. The
use of drones raises an increasing threat to air traffic safety, including
transport. There is a need for new legal solutions in this regard, but it
should be stressed that the legal response to the long-term nature of the
legislative process is delayed in relation to needs. However, it should be
noted that Polish law is relatively well suited to the emerging threats. The
amendment of 2016, i.e., the Ordinance of the Minister of Infrastructure and
Construction of 8 August 2016, Amending the Regulation on Exclusion of Certain
Provisions of the Aviation Law Act from Certain Types of Aircraft, and the
Conditions and Requirements for the Use of These Aircraft (Journal of Laws of 2016, Item 1317). This regulation
came into force on 7 September 2016 and requires UAV operators to include a
nameplate on the side with the name of the entity to which the UAV belongs, as
well as the need to have night-time warning lights and a properly programmed
FailSafe function. Introducing the above requirements not only enhances the
security of commercial operations, but also identifies the potential offender, while
indicating that the Polish legislators are watching over the drones market and
responding to emerging needs. A positive reception also met the appointment, in
May 2017, of a separate Airborne Unmanned Aerospace Division within the
framework of the ULC. One of its tasks is to supervise and coordinate matters
related to the integration of unmanned aircraft within civil airspace[57].
Polish legislation duly regulates issues such as civil liability insurance and
separation of airspace, and rightly requires the training of certified training
centres to obtain the right to operate commercial flights. One drawback of
Polish regulations is the existing distinction between flying models and UAVs.
There is some opacity here, because this terminology may be unintuitive for
drone operators, and produces certain legal consequences. It should also be
noted that, in the next few years, it may be necessary to regulate access to
drones, so that the airspace is not overfilled. In addition, it may be
necessary to cover recreational drones with the same requirements as commercial
flyers (for example, the need to have a qualification certificate), so that the
level of security is not reduced.
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Received 15.08.2017; accepted in revised form 28.10.2017
Scientific Journal of Silesian
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