What do 18 cattle found dead on arrival in China, on a flight from Melbourne, and an aircraft colliding with a kangaroo after landing at Kempsey Aerodrome have in common? They involve animals, aviation and recent successful claims for damages in Australian courts.
In both cases, the respective courts found that those legally responsible were aware of the risks associated with the aircraft and the animals but failed to take adequate precautions to reduce the risk of harm.
For people operating in the aviation industry, concepts of hazards and risk management are common. Yet rarely do we hear about them being applied to or for animals. Whether for live export or wildlife strike risk mitigation, better recognition of what can go wrong and its social and financial importance appears to be needed, as demonstrated by these cases.
The “cattle case” was decided on August 30 by the NSW Court of Appeal: Singapore Airlines Cargo Pte Limited v Principle International Pty Ltd. It concerned the packing and loading of cattle on to cargo aircraft for live export to China. The risk at issue was that of harm to the cattle during the flight. When the cattle, loaded into crates, arrived in China having suffocated en route, the exporter sued the carrier under the Montreal Convention 1999 for the value of the cattle — incidentally the same international treaty that covers passenger deaths and personal injuries.
The court concluded that the carrier was liable for the cattle deaths because it loaded them on to the lower deck of the aircraft (where there was a lack of ventilation), instead of the upper deck (where there was ventilation). However, further consideration of who was responsible for taking steps to prevent that harm resulted in a reapportionment of blame. The exporter, who packed the cattle into the crate, was aware of the risk of harm to the cattle if they were loaded on the lower deck and failed to take appropriate steps to inform the airline. Thus it was held to be 80 per cent responsible for the loss of the cattle. This meant the exporter only received 20 per cent of the value of the cattle in damages.
The “roo strike case” was decided two weeks later on September 13: Five Star Medical Centre Pty Limited v Kempsey Shire Council. This involved an altogether different risk involving animals. Shortly after landing, an aircraft collided with a kangaroo, killing the kangaroo and causing $161,195 worth of damage to the aircraft. Luckily no one was injured. The aircraft owner sued the council, which operated the aerodrome, for failing to control the kangaroo hazard. There was a Wildlife Hazard Management Plan in place for the aerodrome but aspects of it had not been followed.
Expert advice indicated that a kangaroo-proof fence was required around the aerodrome to properly mitigate the risk of catastrophic damage to aircraft.
The council acknowledged that it should have complied with procedures in the management plan but it did not install the fencing because of lack of funds. The court nonetheless found the council negligent for not having adequate mechanisms in place to control the kangaroo hazard, particularly without the fencing. Because operating the aerodrome was a function the council was not required to carry out, it was determined that it should not have chosen to do so if it didn’t have funding for the fence.
What are the lessons here? On the one hand, for animals that are carried legitimately as cargo, carriers, shippers and freight forwarders need to communicate better when it comes to planning for carrying such a load to ensure humane treatment and minimisation of loss.
On the other hand, when it comes to separating aircraft from animals that have no place near aircraft, those responsible for risk mitigation need to take those risks seriously too, so as to ensure preventable loss of life and damage that inevitably comes with wildlife strikes.
Kangaroo strikes are thankfully relatively rare in Australia but bird strikes are not. The Kempsey case is a reminder for airport operators to remain vigilant against them all.
12:01AM October 13, 2017
Joseph Wheeler is principal of aerospace law firm IALPG, aviation legal counsel to the AFAP, and national head of aviation law at Maurice Blackburn Lawyers.