EMERGING ISSUES: UNMANNED AIRCRAFT

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1 American Bar Association Tort Trial & Insurance Practice Section Aviation & Space Law Committee Behind the Curtain: Insight into the Aviation Practice from Go-Team to Trial October 22-23, 2009 Ritz-Carlton Hotel Washington, DC EMERGING ISSUES: UNMANNED AIRCRAFT AND SPACE DEBRIS John M. Socolow, Esq. Brian P. Mitchell, Esq. Pino & Associates, LLP Westchester Financial Center 50 Main Street White Plains, New York Tel. (914) Fax (914)

2 The purpose of the first part of this paper is to offer a brief overview of unmanned aerial vehicles ( UAV ), and to identify potential issues that aviation tort lawyers may encounter as utilization of UAV s continue to increase. The purpose of the second part of this paper is to offer a brief introduction to space (or orbital) debris, and to identify potential issues that lawyers may encounter as the private space industry continues to grow and more objects are placed in earth orbit. UNMANNED AIRCRAFT I. INTRODUCTION A recent 60 Minutes broadcast reported that the United States Air Force ( USAF ) will, for the first time, be purchasing more unmanned than manned aircraft. The proliferation of UAV s has reached a point where USAF pilots are being sent directly to UAV s for their initial assignments, nonpilots are being trained as unmanned aircraft pilots, and UAV operators will soon have their own distinct career field. 1 Military use of UAV s -- particularly in the wars in Iraq and Afghanistan -- is well-known, and increasing. One function of those unmanned aircraft, frequently referred to in media reports as drones, is to serve as the eyes in the sky for soldiers on the ground in those conflicts. Those UAV s are often flown by pilots who are in ground control stations in bases near cities such as Las Vegas, Nevada, thousands of miles away from the war zone area where the mission is being carried out. Other UAV s, which are [s]mall enough to fit in a soldier s backpack and outfitted with cameras that feed real- 1 Anna Mulrine, UAV Pilots, Air Force Magazine, January

3 time video in color or infrared to a handheld screen have quickly become cherished equipment to soldiers searching for terrorists in Iraq or Afghanistan. 2 While UAV s may be primarily thought of as being developed and flown by the military, it may only be a matter of time before UAV s are viewed no differently than manned aircraft. The FAA s philosophy regarding UAV s is noted on its website, at the Unmanned Aircraft Program Office ( UAPO ) page, which states that UAV s are part of the future of aviation, and that future is on our doorstep right now. The system is in place today to accommodate the entry of new aircraft into the National Airspace System; this is nothing new for the FAA. It is our day-to-day business. 3 The future may already have arrived. However, according to the UAPO, flight of UAV s is not permitted over populated areas and no hazardous material may be carried or objects dropped outside of Restricted Area Airspace. 4 Thus, while the FAA clearly supports UAV s, it also has concerns about their integration into the National Airspace System. II. WHAT ARE UAV S? According to the FAA, an unmanned aircraft is: [A] device that is used, or is intended to be used, for flight in the air with no onboard pilot. These devices may be as simple as a remotely controlled model aircraft used for recreational purposes or as complex as surveillance aircraft flying over hostile areas in warfare. They may be controlled either manually or through an autopilot using a data link to connect the pilot to their aircraft. They may perform a variety of public services: surveillance, collection of air samples to determine levels of pollution, or 2 Jonathan Fahey, You Can Run But, Forbes, July 13, (last visited Sept. 8, 2009). 4 organizations/uas (last visited Sept. 8, 2009). 2

4 rescue and recovery missions in crisis situations. They range in size from wingspans of six inches to 246 feet; and can weigh from approximately four ounces to over 25,600 pounds. The one thing they have in common is that their numbers and uses are growing dramatically. In the United States alone, approximately 50 companies, universities, and government organizations are developing and producing some 155 unmanned aircraft designs. Regulatory standards need to be developed to enable current technology for unmanned aircraft to comply with Title 14 Code of Federal Regulations (CFR). See Docket No. FAA , Unmanned Aircraft Operations in the National Airspace System, issued February 6, Regardless of their shape or size, UAV s should not be viewed in a vacuum as simply unmanned aircraft. Rather, they operate within a system. A typical unmanned aerial system ( UAS ) consists of three primary components: (i) the unmanned aircraft itself; (ii) a ground control station (from where the pilot flies the aircraft); and (iii) and a data relay link, which allows the pilot at the ground control station to communicate with and control the unmanned aircraft. There is a wide variety of UAV s in use or development today, as a simple internet images search will readily reveal. UAV s range from micro-devices that are designed to travel inside buildings, to hand-launched aircraft resembling remote controlled model airplanes, to larger aircraft (e.g., Predator) which can be used for surveillance (of suspected terrorist activity, and more recently, pirate activity off the coast of Africa) and missile attacks, to rotary wing and even tilt rotor aircraft. Appendix A includes a number of photographs (all obtained from the internet) depicting examples of some different types of UAV s currently in existence, as well as a photograph of a pilot in a ground control station. 5 (lasted visited Sept. 18, 2009). 3

5 UAS s, and the pilots who operate them, must comply with applicable Federal Aviation Regulations ( FAR s ). Like manned aircraft, unmanned aircraft must be airworthy. 6 FAA Order lists FAR s applicable to unmanned aircraft. With respect to pilots, the pilot-in-command requirements of 14 C.F.R are applicable to the pilot-in-command of a UAV. 7 In terms of medical requirements, the FAA has determined that a second-class medical certificate would be adequate for UAV pilots. Specifically, the FAA noted that [T]here were several factors that mitigated the risk of pilot incapacitation relative to those of manned aircraft. First, factors related to changes in air pressure could be ignored, assuming that control stations for non-military operations would be on the ground. Second, many of the current UA systems have procedures that have been established for lost data link. Lost data link, where the pilot cannot transmit commands to the aircraft, is functionally equivalent to pilot incapacitation. Third, the level of automation of a system determines the criticality of pilot incapacitation because some highly automated systems (e.g., Global Hawk) will continue normal flight whether a pilot is or is not present. See DOT/FAA/AM-07/3, Unmanned Aircraft Pilot Medical Certification Requirements, Executive Summary, February III. FAA POLICY FAA policy regarding UAS s depends upon whether the unmanned aircraft is to be operated as a civil aircraft, a public aircraft, or a model aircraft. 8 A. Civil Operation Special Airworthiness Certificate Required The FAA recognizes that civil operation of UAS s is a quickly growing and important industry. 9 For civil operation, an operator may apply to the FAA for a Special 6 Federal Aviation Administration Memorandum, AFS-400 UAS Policy 05-01, September 16, 2005 at p Id. at p (Docket No. FAA , Unmanned Aircraft Operations in the National Airspace System, issued February 6, 2007). 4

6 Airworthiness Certificate, Experimental Category, 10 for purposes of research and development, crew training, and market surveys. The applicant must show that the entire system -- not just the unmanned aircraft -- can operate safely within an assigned flight test area and cause no harm to the public. 11 The applicant must describe, among other things, how the system is designed, constructed and manufactured, software development and control, and how and where they intend to fly. 12 B. Public Operation Certificate of Authorization or Waiver Required For public operation of a UAS, public agencies and organizations may apply to the FAA for a Certificate of Authorization or Waiver ( COA ). 13 Once issued, the COA allows the organization or agency to operate a particular UA, for a particular purpose, in a particular area. 14 This usually means, even for public operation, that the unmanned aircraft is not operated in a populated area, and that the aircraft is observed either by someone in a manned aircraft or by someone on the ground. 15 In addition to public operation of UAS s by the military, public operation of UAS s also includes such activities as border patrol, police and fire patrol, and weather observation. 9 Id. 10 (last visited Sept. 8, 2009). 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 5

7 C. Model Aircraft FAA Advisory Circular 91-57, issued in June 1981, applies to operation of model aircraft. Certificates do not appear to be required if a model aircraft will be flown in accordance with the operating standards set forth in AC IV. FUTURE APPLICATIONS The military s use of UAS s has laid much of the groundwork for public and civilian use. Civilians and non-military public agencies will likely see advantages (already recognized by the military) in increasing their utilization of UAS s because, among other things, they: (i) pose less risk to crews; (ii) can remain airborne for longer periods of time, since crews can be changed on the ground; (iii) can loiter in a given area for longer periods of time for surveillance and reconnaissance; (iv) can be flown longer distances; and (v) are relatively smaller and lighter than manned aircraft, so they presumably use less fuel, and therefore may be greener and less expensive to operate. There are countless examples of possible civilian and/or public UAS applications. Some of the more obvious applications include: emergency response and search and rescue; disaster relief (e.g., delivery of cargo such as food and medical supplies); monitoring nuclear facilities; monitoring oil and gas pipelines; oceanic and hurricane observation; monitoring ice packs and avalanche conditions; forest fire detection; wildlife monitoring; air quality sampling; traffic observation; geological surveys; and cell phone transmissions. 6

8 V. EMERGING ISSUES Like manned aircraft, UAV s can be involved in mishaps. As UAV s proliferate, the risk of accidents -- mid-air collisions with other aircraft, and crashes on the ground -- also will increase. Likely causes of such crashes include failure, or inability, of the pilot of the unmanned aircraft to see and avoid other aircraft or objects, as well as reliability problems that may be encountered during operation. A. See and Avoid The July 2009 mid-air collision over the Hudson River between a small airplane and a helicopter is one of the latest and most well-known examples of the need for pilots to be able to see and avoid. One wonders whether a pilot operating an unmanned aircraft would have been better able to have avoided that collision. UAV pilots, like pilots of manned aircraft, must follow the see and avoid rule, and must be able to respond to air traffic control commands. In FAA Memorandum AFS-400 US Policy 05-01, the FAA sought to provide[] guidance to be used to determine if unmanned aircraft systems (UAS) may be allowed to conduct flight operations in the U.S. National Airspace System (NAS). 16 The FAA noted that [w]hile considerable work is ongoing to develop a certifiable detect, sense and avoid system, an acceptable solution to the see and avoid problem for [unmanned aircraft] is many years away. 17 The FAA also noted that if operators of UAS s were held rigorously to the see and avoid requirements of Title 14, Code of Federal Regulations (14 CFR) part , Right-of-Way Rules, there would be no [unmanned 16 Federal Aviation Administration Memorandum, AFS-400 UAS Policy 05-01, September 16, 2005 at p Id. at p. 2. 7

9 aircraft] flights in civil airspace. The FAA supports UA flight activities that can demonstrate that the proposed operations can be conducted at an acceptable level of safety. Obviously, the ability to see and avoid is critical. The fact that the UAV pilot is not in the aircraft only underscores the need for the development of technology to allow the UAV pilot to perform that function in compliance with Federal Aviation Regulations. 20 Additionally, pilots of manned aircraft may have a heightened burden of seeing and avoiding UAV s, since many UAV s are smaller than manned aircraft. B. Human Factors Human factors often play a role in aviation accidents. UAV s are not immune to this problem. 21 Because the UAV pilot is in a ground control station, rather than on board the aircraft, he is deprived of a range of sensory cues that are available to the pilot of a manned aircraft. Rather than receiving direct sensory input from the environment in which his/her vehicle is operating, a UAV operator receives only that sensory information provided by onboard sensors via datalink. Currently this consists primarily of visual imagery covering a restricted field-of-view. Sensory cues that are lost therefore include ambient visual information, kinesthetic/vestibular input, and sound. As compared to the pilot of a manned aircraft, thus, a UAV operator can be said to perform in relative sensory isolation from the vehicle under his/her control Id C.F.R provides, in pertinent part, that vigilance shall be maintained by each person operating an aircraft so as to see and avoid other aircraft. 20 (Docket No. FAA , Unmanned Aircraft Operations in the National Airspace System, issued February 6, 2007). 21 A brief search of the NTSB s aviation accident database revealed several accidents involving UAV s, at least two of which were attributable to pilot error. 22 See McCarley, Jason S. & Wickens, Christopher D., Human Factors Concerns in UAV Flight, Institute of Aviation, Aviation Human Factors Division, University of Illinois at Urbana-Champaign. 8

10 Another human factors issue relates to the quality of visual sensor information presented to the UAV operator [which] will be constrained by the bandwidth of the communications link between the vehicle and its ground control station. 23 Presumably, these humanfactors related concerns may lessen as UAV technology continues to improve. C. System Reliability & Redundancy UAS s incorporate many new and sophisticated technologies. Because many UAV s weigh less than conventional aircraft, the ability to provide redundant systems is limited. This is a trade off, since the lack of redundancy would be unacceptable if a pilot and crew were on board. Unless technologies can be developed to address every possible system failure or adverse situation, the lack of a pilot on board lessens the likelihood of identifying and solving problems occurring in flight, let alone hand-flying the aircraft to a safe landing. 24 Another obvious concern that may arise involves the loss of communication between the ground control station and the UAV. In anticipation of this scenario, some UAV s have a lost-link profile, which is a predetermined autonomous flight path, 25 that would likely be appropriate for use only in remote, unpopulated areas. 23 Id. 24 An official from a police department in a major American city who has requested anonymity expressed to us his belief that the use of UAV s in densely populated urban areas was unlikely because, in the event of a system failure, they cannot be hand flown. 25 (last visited Sept. 18, 2009). 9

11 VI. CONCLUSION Although UAV s are relatively new, many of the same legal principles, rules and regulations, applicable to manned aviation accidents will also apply to unmanned aviation. The FAA has expressly recognized the ability to see and avoid as a primary concern in unmanned aviation. As UAV s proliferate, the risk of their involvement in accidents -- where other aircraft, and persons and property on the ground, are put at risk -- also will increase. In the event of a UAV accident, entities which manufacture, maintain and/or operate UAV s will likely face the same exposures that would be present in an accident involving a manned aircraft. Aviation liability insurers, and aviation tort lawyers for both plaintiffs and defendants, must be prepared to address the issues that will arise as this new segment of the aviation industry continues to quickly develop and mature. 10

12 SPACE DEBRIS I. INTRODUCTION Debris in orbit is becoming an increasing hazard as more and more objects are launched into earth orbit joining those objects already there. While national and international governmental organizations are still the big players in space, the growth of the private, commercial space satellite and launch industries has been contributing to the growth of orbital traffic. Although governments and the scientific community may be looking into ways to prevent or minimize the hazard of collision, to mitigate the damage to active space assets, and to better exchange information regarding debris tracking and space situational awareness, the possibility and risk of loss continues to exist. But as those technical experts try to deal with the problem in space, what will the lawyer be called to do when a space asset is damaged or destroyed by space debris? The lawyer must traverse a legal framework that is disjointed because a damaged party may not be able to identify who is responsible and may not be able to pursue the offending party, if known, because there are no binding rules of the road in space. Ultimately, a client 26 Some methods to reduce the threat of orbital debris include: (1) limiting the creation of orbital debris; (2) preventing satellite explosions by venting or burning remaining fuel in rockets and by designing better batteries; (3) removing satellites from popular orbits at the end of life (i.e. to graveyard orbits at 300 km above geosynchronous orbit or to lower altitudes to encourage natural decay); (4) enhancing tracking and encourage collision avoidance; (5) employing NASA Safety Standard (which establishes guidelines and provides supporting analysis tools for: (a) limiting the generation of orbital debris, (b) assessing the risk of collision with existing space debris, and (c) assessing the potential of spacecraft generated debris fragments to impact the Earth's surface); and (6) developing some form of clean-up program (which does not seem to be a cost-effective and feasible solution to date). See (last visited Sept. 16, 2009). See also (last visited Sept. 16, 2009). 27 Marion C. Blakey, Editorial, Space Debris: A Threat We Can t Duck, SPACE NEWS, June 15, 2009, at 19, ( Although we are beginning to make great advances in improving our situational awareness for aircraft operating in the Federal Aviation Administration s air traffic control system, it is now time to improve that level of service for our assets in space. ). 11

13 whose space asset is in danger of being damaged by space junk may not have any effective form of redress available in the event of a collision. Rather they may have no choice but to rely exclusively on insurance, technological and information-sharing advancements for collision avoidance and mitigation, and blind luck to protect their investment. II. THE PROBLEM OF SPACE JUNK According to NASA s Orbital Debris Program Office, 28 orbital debris is defined as any man-made object in orbit about the Earth which no longer serves a useful purpose. 29 NASA lists examples of this debris as [d]erelict spacecraft and upper stages of launch vehicles, carriers for multiple payloads, debris intentionally released during spacecraft separation from its launch vehicle or during mission operations, debris created as a result of spacecraft or upper stage explosions or collisions, solid rocket motor effluents, and tiny flecks of paint released by thermal stress or small particle impacts. 30 The known number of objects in space larger than 10cm is approximately 19, The estimated population of particles between 1cm and 10cm in diameter is approximately 500,000, while the estimated population of particles smaller than 1 cm is greater than tens of millions The average relative velocity of these objects is nearly 10km/sec. 34 According to NASA, the principal source of large orbital debris is now satellite 28 (last visited Sept. 16, 2009). 29 (last visited Sept. 16, 2009). 30 Id. 31 Id. 32 Id. 33 See Appendix B for artist- and computer-generated image of space traffic. 34 (last visited Sept. 16, 2009). 12

14 explosions and collisions; prior to 2007, the principal source of debris was old upper launch vehicle stages left in orbit. 35 Regardless of the danger posed by the various sizes of debris and their sources, it seems that the debris receiving the most news headlines are those that either may affect manned missions (i.e., the International Space Station ( ISS ) or the Space Shuttle), or those that are caused by collisions or explosions. Among the many newsworthy debris events, 36 four of the most recent and more notable are: 1. September 4, 2009 close encounter of 1.3km between the Space Shuttle Discovery [STS-128] linked to the ISS and the remains of a European Ariane 5 rocket about 19 square meters in size; February 10, 2009 fortuitous collision of an operational commercial satellite [Iridium 33] and a spent Russian spacecraft [Cosmos 2251] resulting in a decades-long pollution of a widely used orbit; 3. February 20, 2008 shoot down of a crippled U.S. spy satellite [US 193] carrying hazardous fuel by a U.S. Navy cruiser; 40 and 4. January 11, 2007 intentional destruction of the Chinese weather satellite [Fengyun-1C] by China via an anti-satellite device. 41 As recently as September 7, 2009, NASA was tracking a piece of leftover space junk from [the] 2007 Chinese anti-satellite test that [was] expected to fly near the [ISS] to 35 (last visited Sept. 16, 2009). 36 On July 24, 1996, the CERISE communications satellite collided with a piece of fragmentation debris (about the size of a briefcase traveling at a relative velocity of 14km/sec or 31,500 mph for a head on collision) from an Ariane 1 rocket body. The satellite s 6 meter long stabilization boom was severed requiring the satellite s computer to be reprogrammed for attitude control. See (last visited Sept. 16, 2009). 37 Ariane 5 Remnant Buzzes Space Station and Shuttle, SPACE NEWS, Sept. 7, 2009, at 3, 38 Peter B. de Selding, Collision Avoidance Practices Questioned Following Incident, SPACE NEWS, Feb. 23, 2009, at 1, 39 The two satellites had collided 500 miles above Siberia at 26,000 mph, generating a debris cloud that spread around the Earth in just a few hours. The junk was in the orbital path of the Hubble Space Telescope and just 250 miles higher than the orbit of the International Space Station. See (last visited Sept. 16, 2009). 40 (last visited Sept. 16, 2009). 41 (last visited Sept. 16, 2009). 13

15 determine whether it could pose a threat to the space station [requiring the ISS] to fire its thrusters in order to dodge the satellite remnant 42 NASA currently states that the probability of two large objects ([greater than] 10 cm in diameter) accidentally colliding [to be] very low. 43 Indeed, prior to the February 10, 2009 Iridium/Cosmos collision, many nations had been approaching the issue of space debris under what is called the Big Sky Theory. 44 This theory charges that threedimensional space is so vast that the odds of a collision are infinitesimal. 45 Whatever the probability may be, the February 10, 2009 Iridium/Cosmos collision occurred and will force satellite operators (commercial or otherwise) to play dodgeball for decades to avoid debris from the [February 10, 2009] collision. 46 III. THE POTENTIAL LEGAL ISSUES OF SPACE DEBRIS When identifying potential legal issues presented by a loss caused by space debris, the first two questions lawyers may want to ask themselves are: (1) what legal framework, if any, is available to their damaged client; and (2) how does that framework operate. On the international level, damage to and by spacecraft is covered by the March 29, 1972 Convention on International Liability for Damage Caused by Space Objects ( Space Liability Convention ). See 24 UST 2389, 961 UNTS 187. The Space Liability Convention recognizes the need to elaborate effective international rules and 42 (last visited Sept. 16, 2009). 43 (last visited Sept. 16, 2009). 44 (last visited Sept. 16, 2009). 45 Id. 46 (last visited Sept. 16, 2009). 47 (last visited Sept. 16, 2009). 48 (last visited Sept. 16, 2009). 14

16 procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage See Space Liability Convention at Preamble. The treaty defines damage as loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations See Space Liability Convention at Art. I (emphasis added). The Space Liability Convention further states: In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. See Space Liability Convention at Art. III (emphasis added). It seems that any claim made for damage caused by a space object to another space object is not absolute (as is the case for damage on the ground or to aircraft in flight), 49 but is based on fault. 50 Therefore, one issue (if one were to invoke Art. III of the Space Liability Convention) would be that a damaged party would have to at least identify the source (i.e., country of origin) of the defunct spacecraft or debris, if at all possible, to try to 49 Under that treaty, liability for damage caused to people or property on the ground is absolute meaning that the country that launched the spacecraft is liable for damages even if there was no negligence. The same is true if a crashing space object strikes an aircraft. It does not matter how the accident happened: If your spacecraft does damage, you pay. See (emphasis added) (last visited Sept. 16, 2009). See also Convention on International Liability for Damage Caused by Space Objects art. II, March 29, 1972, 24 UST 2389, 961 UNTS 187 ( A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight. ) (emphasis added). 50 U.S. Congress, Office of Technology Assessment, Orbiting Debris: A Space Environmental Problem- Background Paper, OTA-BP-ISC-72 (Washington, DC: U.S. Government Printing Office, September 1990). See also %20Orbiting%20Debris.pdf (last visited Sept. 16, 2009). 15

17 positively assign fault for the damage incurred. Under the Space Liability Convention, however, it is the launching State that would be responsible under Art. III. A launching State is defined as: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory of facility a space object is launched. See Space Liability Convention at Art. I. Given the tremendous growth and the numerous private and governmental players in the business of launching satellites from so many different locations around the globe, the legal issues to simply identify a responsible party under the treaty can be complex. A hypothetical example may help to illustrate the complexity of the present state of affairs regarding the nationalities and parties participating in the launch of spacecraft: Private Satellite Owner/Operator of State A together with the Government of State B, as a joint scientific (or commercial) venture, procure and launch their satellite aboard a vehicle of Private Launch Company of State C, which has a joint launch business venture with companies of State D, from a launch facility operated by the military of State D, which is geographically located in State E. The next issue is which forum, if any, to choose to bring a claim. If one can positively identify the source of the debris and the responsible launching State(s), a claim for compensation for damage against the identified negligent party under the Space Liability Convention must be brought or sponsored by a State against the responsible launching State and must be made through diplomatic channels. See Space Liability Convention at Art. IX. However, the Space Liability Convention is not the only avenue to seek compensation. The Space Liability Convention states that: 16

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