Who is liable if an airstrip is in poor maintenance conditions?

This is the issue addressed by the Italian Supreme Court in case No. 13209 of 27 June 2016, where a principle of undoubted importance was set out, according to which «in the event of damage to aircraft due to the presence of debris on the taxi way, if the power of interference is proved, there is liability on the part of ENAC too».

In the case at hand, the Supreme Court highlights the so-called «Power of Interference» of ENAC (i.e. the Italian Civil Aviation Authority) that can be exercised on the so-called «air service infrastructure». Such power in particular involves the participation of ENAC, in agreement with the Italian Ministry of Defence, in any decisions about improvements and maintenance work on infrastructure in a given airport12.

The Supreme Court seems therefore to have opened the door to recognising new forms of liability on the part of ENAC, in consideration of the scope of its supervisory powers and duties.

The case from which the judgment originated concerns an action brought by Eurofly S.p.A. against the company responsible for managing the airport of Treviso (Aertre) and the Ministry of Defence, in which the plaintiff requested that the opposing parties be ordered to pay € 2,500,000.00 damages as a result of an accident that occurred in August 2002.

On that date, during pre-take-off operations and taxiing manoeuvres, large bituminous rubble came out of the airstrip pavement involving an aircraft. The debris was then thrown by the wheels of the undercarriage of the aircraft against its left stabilizer, causing a 17-day technical stop of the aircraft for maintenance and repair work.

In first-instance proceedings, Aertre defended itself alleging that the liability for the accident lied both with the aircraft captain, due to his inappropriate conduct, and with ENAC, as the entity responsible for maintenance of the airport infrastructure and signage. The Court of Venice found the lability of Aertre and of the Ministry of Defence and upheld the claim for damages by Eurofly S.p.A.. Said ruling was subsequently confirmed also by the Court of Appeal of Venice.

By the aforementioned decision, the Supreme Court partially upheld Aertre’s grounds for appeal, holding that one could not exclude concurrent liability on the part of ENAC, after proving its powers of interference.

The decision at issue is of remarkable importance, as it might lead to finding liability on the part of ENAC whenever an accident occurs as a result of the negligent failure to exercise its supervisory functions, including in connection with airport infrastructure.

Indeed, all technical regulatory activities fall within ENAC’s competence, with a focus on certification, licensing, concession, coordination, monitoring, inspection and the enforcement procedures in the field of design, construction, maintenance and operation of airport infrastructure and facilities.

More specifically, the accident occurred as a result of provisional delivery of the area (the socalled taxi way) to Aertre (the managing company of the airport) for carrying out work in accordance with the instructions, and under the supervision, of ENAC and the Ministry of Defence, with no decision-making or initiative power being attributed to the airport managing company.

Therefore, once work is completed, where does the duty to check the airstrip conditions lie? Does it lie with the managing company, who is responsible for managing the airport and for monitoring the activities of private players (i.e. the companies carrying out the work) in the airport? Or does it lie with ENAC, i.e. the authority in charge of monitoring the infrastructure? Or do they have concurrent liability? And how is their respective responsibility regulated in cases when areas are provisionally delivered (as in the case here)?

Now the matter is brought up again to the Court of Appeal of Venice, who, after the decision of the Supreme Court will have to review the facts and circumstances of the case in order to determine conclusively the individual liabilities of the parties concerned. In any case, as mentioned above, the ruling at issue allows expanding the limit of compensatory measures to all cases of damage resulting from irregularities or poor maintenance of air service infrastructure, and even involving the Italian Civil Aviation Authority, who, in light of its powers and duties and once its negligent failure to act and the link of causality with respect to the event has been proven, may be held liable for damages to the same extent as the other parties concerned.

The above ruling as well as the one that will be issued by the Court of Appeal of Venice after appeal to second instance, might pave the way for further analysis aimed at taking into account also what happens in the port area. We are thinking, of course, of the liability that might be found on the part of the Port Authority System in circumstances similar to those addressed by the Supreme Court in the decision examined here.

Indeed, as we already had the opportunity to emphasise in the past, the port system shows some similarities with the airport system, which in our view cannot be ignored when interpreting existing rules.

We will therefore monitor the outcome of these interesting proceedings, while reserving the opportunity to make any comments in that regard at a later stage.