Copernicus, latest developments on the EU programme observing the earth

Copernicus is the EU Earth Observation and Monitoring System and constitutes a key contribution to the Union’s 2020 Strategy for smart, sustainable and inclusive growth. It is a civil, independent, user- driven programme, aiming to provide accurate and reliable information in the field of the environment and security, on a full, open and free-of charge basis. 

European Ministers adopt Resolutions critical for ESA's future space agenda

Yesterday, ESA concluded a successful Council meeting at Ministerial Level in Luxembourg. Ministers in charge of space activities, from ESA’s 20 member states and Canada, took decisions expected to shape ESA’s future. The main topics under discussion were reflected in three Resolutions: on Europe’s access to space, on Europe’s space exploration strategy and on ESA evolution.

Canada releases advisory circular on operation of sUAS

Transport Canada, the Canadian CAA, has issued an advisory circular on the use of small unmanned aircraft, widely known as Unmanned Aerial Systems (sUAS), which clarifies the related statutory requirements.

Travellers and insolvency: Developments in the EU - part 1 IATA agreement

The International Air Transport Association (IATA) announced a new voluntary agreement among its members to help repatriate passengers flying to, from or within the EU, who had booked their ticket with an airline that in the meantime filed for bankruptcy and stopped its operations.

CJEU: Collision of an aircraft with a mobile staircase no “extraordinary circumstances” under Reg. 261/2004

The Court of Justice of the EU (CJEU) issued a Reasoned Order on the case C-394/14 Siewert et al., which clarified that a collision of an aircraft with a mobile passenger staircase (ramp stair) on the tarmac does not constitute ‘extraordinary circumstances’, which exonerate the air carrier from its duty to provide compensation for long delay under the Regulation (EC) No 261/2004 on passenger rights in the event of long delay, cancellation of flight and denied boarding.

Multimodal Transport Operator (MTO)

  

Multimodal transport operator, also known as combined transport, is the transportation of goods under a single contract, but performed with at least two different means of transport.

The carrier is liable (in a legal sense) for the entire carriage, even though it is performed by several different modes of transport (by rail, sea and road, for example). The carrier does not have to possess all the means of transport, and in practice usually does not; the carriage is often performed by sub-carriers (referred to in legal language as "actual carriers"). 

The carrier responsible for the entire carriage is referred to as a multimodal transport operator, or MTO. The United Nations Multimodal Convention defines multimodal transport as follows: "'International multimodal transport' means the carriage of goods by at least two different modes of transport on the basis of a multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator to a place designated for delivery situated in a different country". In practice, freight forwarders have become important MTOs; they have moved away from their traditional role as agents for the sender, accepting a greater liability as carriers. 

The MTO works on behalf of the supplier; it assures the supplier (and the buyer) that their goods will be effectively managed and supplied.

(Source: www.fiata.org). 

FAA vs Pirker: NTSB finds model aircraft are “aircraft”

The US National Transportation Safety Board (NTSB) has delivered its order in the appeal against the decisional order of the Administrative Law Judge, who terminated the FAA enforcement process against Raphael Pirker, an individual fined for violating FAA regulations during the flight of an Unmanned Aerial System (UAS). The NTSB reversed the decisional order and remanded the case for further findings.

FAA rule on repair stations becomes effective

On 10 November 2014 the new FAA rule on repair stations became effective. The rule changes mainly the certification requirements of the repair stations and the related application process (14 CFR 145). The changes were deemed necessary to harmonize the rules on the repair stations with other parts of the FAA’s regulations, mainly these on air carriers (Parts 121 and 135).

HOUSE and MASTER AWBs

The freight forwarder offering a consolidation service will issue its own Air Waybill to the shipper.

The contract of carriage between the shipper and the freight forwarder is called House Air Waybill (HAWB), as well as, the contract of carriage between the freight forwarder and international airline is called Master Air Waybill (MAWB).

FAA issues Compliance and Enforcement Bulletin on UAS

The US Federal Aviation Administration (FAA) has issued a Compliance and Enforcement Bulletin, to guide its personnel on enforcement actions against Unmanned Aircraft Systems (UAS) and model aircraft operators, who violate FAA rules by endangering the safety of the US National Airspace System (NAS). The most interesting part of the Bulletin refers to sanction determination.

Court rejects SNC’s motion to reinstate hold on CCtCap

The US Court of Federal Claims rejected a motion filed by Sierra Nevada Corporation (SNC) against NASA’s decision to proceed with the contracts awarded to Boeing and Space Exploration Technologies (SpaceX) in the framework of the Commercial Crew Transportation Capability (CCtCap) program, despite pending review from the General Accountability Office (GAO).

AWST reveals selection criteria for CCtCap

The aerospace magazine Aviation Week and Space Technology (AWST) reports that an internal document by William Gerstenmaier, NASA’s Associate Administrator, sheds light to the selection criteria that NASA used to award to Boeing and Space Exploration Technologies (SpaceX) contracts on Commercial Crew Transportation Capability (CCtCap), in order to transport NASA astronauts to the International Space Station (ISS) as of 2017. The main criteria were the maturity of concepts proposed and the degree of risk to schedule.

Independent Enquiry Board announces causes for failed Galileo Launch

Last week, the Independent Inquiry Board (“the Board”), entrusted with the task to examine the exact causes that led to the orbital injection anomaly of Galileo satellites 5 and 6 on August 22, announced its definite conclusions. The Board reported that the anomaly occurred during the flight of the launcher’s fourth stage, the Fregat. Its main cause was a deficiency in the system thermal analysis performed during the design stage.

FAA and UAS: Recent developments

The US Federal Aviation Administration (FAA) announced that it has granted regulatory exemptions to six aerial photo and video production companies to use Unmanned Aircraft Systems (UAS) in the US National Aerospace System (NAS). In a parallel development, the FAA has been reported to have issued an email to the industry requiring all commercial UAS to bear an aircraft registration number when applying for a regulatory exemption.

EASA permits use of PEDs throughout the flight

The European Aviation Safety Agency (EASA) announced that it permits the use of Portable Electronic Devices (PEDs), such as laptops, palmtops, cell phones etc. on board the aircraft throughout the flight, provided that the aircraft have been certified as ‘PED tolerant’.

NASA Office of Inspector General publishes report on extension of ISS operations

Shortly after NASA’s awards to Boeing and SpaceX concerning the Commercial Crew Transportation Capability (CCtCap) program, the NASA Office of Inspector General (IG) published an audit report on the extension of the ISS operations through 2024. The report assessed NASA’s (1) progress in certifying the Station’s structure and hardware for a longer lifespan, (2) cost and schedule estimates associated with the extension, (3) efforts to increase utilization of the Station for exploration and other scientific research (4) several of the contracts associated with the Station, including the Boeing ISS Vehicle Sustaining Engineering Contract (Boeing Contract).

Airline ancillary fees: CJEU rules on legality of baggage fees

The CJEU has delivered its judgment on the case C-487/12 on the legality of additional charges for checked and unchecked baggage under EU law. The Court found that such charges are permitted for checked baggage, but not allowed for hand luggage. 

Regulation (EC) No 261/2004: CJEU defines ‘arrival time’

The Court of Justice of the EU (CJEU) delivered today its judgment on the case C-452/13 Germanwings, in which it defines the notion of ‘arrival time’ in the framework of Regulation (EC) No 261/2004 on passenger rights as the time ‘at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft’. 

UK CAA releases report on regulation of suborbital flights

The Civil Aviation Authority (CAA) of the United Kingdom (UK) has released an extensive report on the regulation of suborbital flights, which forms part of the country's efforts to attract operations of suborbital vehicles to its territory.  The report contains a thorough analysis of the regulatory landscape and makes very interesting recommendations. Since spaceflight operations are expected to start in 2018, the report recommends that the short-term regulatory framework should be in place at least one year before.

Commercial operation of UAS in the US: Some clarifications on the case Texas Equusearch vs FAA

Last week the Federal Court of Appeals for the District of Columbia issued an order concerning the case Texas Equusearch Mounted Search and Recovery Team vs FAA. To some, who deny the authority of the FAA to regulate such flights, this order comes as a confirmation of their view (click here for an example). At the same time, the FAA suggests that the order does not affect its regulatory authority. Therefore, a few clarifications on the consequences of the order are necessary.

Single European Sky or Single European Snail? EU Commission sends letters of formal notice to 18 States to accelerate implementation of common airspace management

The EU Commission has sent letters of formal notice, i.e. official requests for explanations, to 18 EU Member States (MS) regarding the long delay in the implementation of the Functional Airspace Blocks (FABs) established under the Single European Sky initiative (SES). A letter of formal notice under the EU law is the first step of the EU law infringement procedure against MS.

On the legality of commercial asteroid mining and the purposefulness of related domestic legislation

It was reported recently that two US Senators introduced a bill to establish and protect property rights on asteroid resources. Leaving aside that this bill is unlikely to become a law, following the fate of similar legislative efforts in the past, and that even if it becomes a law it will not be technologically possible to implement it in the new future, it is worth examining whether such piece of legislation would conform to international space law.

The following thoughts are without prejudice to possible inadequacies of the current legal regime and the need of reform to encourage technological and economic developments in the space sector.

NTSB denies reconsideration of flight TWA 800 investigation

The US National Transportation Board (NTSB) denied last week a petition for reconsideration of its findings and determination of the probable cause of the flight TWA 800 accident, which occurred on 17 July 1996 shortly after departure from New York’s JFK airport. After four years of investigation, the NTSB concluded that the accident’s probable cause was fuel ignition in the aircraft’s central fuel tank. However, there were claims that the aircraft had been shot down by a missile (click here for an example). In support of the latter view, a group called “TWA 800 Project” asked the NTSB in 2013 to reopen the accident investigation based on a new analysis of the radar evidence and witness summaries collected at the time of the accident. The NTSB rejected the petition in its entirety as unfounded.

FAA releases interpretation of the Special Rule for Model Aircraft

The US Federal Aviation Administration (FAA) has released an interpretation of the Special Rule for Model Aircraft established by Congress in the FAA 2012 Modernization and Reform Act and called for comments thereon. As stated in the document’s summary, the FAA clarifies that model aircraft must satisfy the criteria in the Act to qualify as model aircraft and to be exempt from future FAA rulemaking action; if a model aircraft operator endangers the safety of the National Airspace System, the FAA has the authority to take enforcement action against those operators for those safety violations.

Regulation 261/2004: English CA on “extraordinary circumstances” and time bar to claims

The England and Wales Court of Appeal delivered two judgments on the interpretation of “extraordinary circumstances” and the time bar to compensation claims under Regulation (EC) Nr. 261/2004 on passenger rights in the event of flight long delay, cancellation and denied boarding. The judgments are in line with previous case law of the Court of Justice of the EU (CJEU) on these issues.

EASA contemplates revision of its Basic Regulation

The European Aviation Safety Agency has issued an Advanced Notice or Proposed Amendment (A-NPA) concerning the EASA Basic Regulation (Regulation Nr. 216/2008), which means it has initiated preliminary consultation thereon with all actors involved. The consultation regards the Regulation’s modernization in view of the future mid-term and long-term developments in aviation. The changes proposed relate to:

• A performance-based and integrated approach to safety,
• Modernising and updating the EASA’s safety remit,
• Extending the EASA’s remit beyond safety,
• Optimising the use of available resources
• Ensure an adequate and stable Agency funding,
• Further integration of aviation aspects, and
• Aviation regulation beyond the EASA’s facets.

The deadline for comments and responses is 15 August 2014.

You can find EASA’s A-NPA here.

EU Commission releases report on the implementation of the Airport-Charges-Directive

The EU Commission has released a report on the implementation of Directive 2009/12/EC on airport charges. The report evaluates the Directive as to its impact on consultation of airport users by airport managers, transparency and non-discrimination of the charges imposed, the role of the established Independent Supervisory Authorities (ISAs) in each Member State, and the flexibility to impose differentiated services on airport users. The report concludes that the Directive has brought about improvements, yet further steps should be taken, for its implementation varies not only among Member States but also among different airports of the same Member State.

European Commission releases report on complaint handling and enforcement of the Air Passenger Rights Regulations

The European Commission released a report on the application and enforcement of the EU Regulations on the rights of air passengers, i.e. Regulation 261/2004, which lays down passenger rights in case of long delay, flight cancellation and denied boarding, and Regulation 1107/2006, which provides for the rights of persons with reduced mobility. The report contains statistics for the period 2010-2012, based on data reported by the National Enforcement Bodies (NEBs) and Eurocontrol. The statistics provide very interesting information.

Retaliation or Negotiation? Rogozin bans RD-180 exports to the US, while creating uncertainty about GPS and ISS

Russian Deputy Prime Minister, Dmitry Rogozin, has been reported to have ordered a ban of exports of RD-180 engines to the US, as long as the engines are used for military purposes. At the same time, he indicated that GPS stations in Russian may not be allowed after June 1, while Russia is not interested in prolonging ISS operations after 2020. However, all these developments could be seen as parts of a large geopolitical negotiation between the US and Russia.

ICAO takes action on tracking of airline flights

ICAO concluded a Special Meeting on Global Flight Tracking of Aircraft on 14 May and set priorities with Member States and the airline industry. The priorities regard short-term, mid-term and long-term actions.

Preliminary injunction against ULA dissolved

The US Court of Federal Claims dissolved the injunction issued against United Launch Alliance (ULA). The injunction had been ordered based on claims of the Space Exploration Systems Corp. (SpaceX) that ULA’s transactions with NPO Energomash, the manufacturer of the RD-180 engines used in ULA’s Atlas V rocket were in violation of Executive Order Nr. 13,661, which has imposed economic sanctions to Dmitry Rogozin, Russia’s Deputy Prime Minister. It had been found that NPO Energomash served Rogozin’s financial interests. The order could only be dissolved after the US Departments of State, Commerce and the Treasury had sent the court an opinion that commercial transactions with NPO Energomash do not violate the Executive Order Nr. 13,661, which took place on 6 May.

Click here for the text of the dissolving order and here for ULA’s sharp criticism against SpaceX’s judicial actions.

SpaceX's lawsuit against US Air Force sparks developments

Space Exploration Technologies Corp. (SpaceX) has filed a lawsuit against the US Air Force for awarding a series of launch contracts to the United Launch Alliance (ULA) without a competition. At the same time, SpaceX had requested a preliminary injunction to block any commercial or financial transactions with NPO Energomash, a Russian company that manufactures the RD-180 engines of the vehicles used by the ULA, which was granted by the Court. This move has caused a series of reactions in the US and the Russian Federation. However, at present things may not be as tense as they seem.

One-stop shop for safety authorization of TCOs in the EU

The European Commission announced the adoption of new Regulation (Part-TCO) that enables Third Country Operators (TCO) to obtain a single safety authorization for operations in the EU. TCOs will no longer be required to make a separate application for a safety authorization to each EU Member State they want to fly to, as is the case now.

Aviation safety: Statistics and developments

2013 is one of the safest years in aviation, according to IATA and ICAO statistics. However, challenges remain in runway excursions, Loss Of Control in Flight (LOC-I) and Control Flight into Terrain (CFIT). Meanwhile, EASA and IATA have signed an agreement on safety information sharing.

ViaSat awarded $ 283 million in lawsuit against Space System Loral

ViaSat announced that it was awarded $ 283 million in damages in a lawsuit against Space System Loral (SSL) concerning patent infringement and loss of contract. Loral Space & Communications Inc. has expressed its intention to appeal the judgment.

Satellites to prevent aircraft from disappearing

The disappearance of flight MH 370, also in the light of the AF 440 accident in 2009, has sparked discussions on using satellites to enable continuous aircraft tracking. IATA has announced it will form a study group to study the problem and make recommendations by the end of the year.

Space conferences

A non-comprehensive list of space (law) conferences for 2014:

On traveling to Mars

NASA has released an infographic concerning its path to Mars. However, there has been increasing criticism to NASA’s strategy. At the same, studies suggest that a travel to Mars is an extremely dangerous endeavor, to the extent of being viewed as unethical under current astronaut health standards.

“Spaceport Body of Knowledge” released

The FAA Center of Excellence for Commercial Space Transportation has released the Body of Knowledge for Spaceport Operations, which is an evolving collection of documents and information aimed at supporting the development of space launch site interoperability and industry best practices. The information has been selected by members of the Body of Knowledge for Spaceport Operations research team, and the database is constructed and maintained by the New Mexico State University Library. 

The FAA Centers of Excellence are partnerships of academia, industry and government with the objective to address current and future challenges for air and space transportation. To learn more about the FAA Center of Excellence for Space Transportation click here.