Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 14
In the view of the Commission, existing liability regimes,
although developed for human-operated aviation,
continue to provide clear routes to redress. The
Commission’s preference is to preserve those routes
rather than replace them. This becomes more difficult
as responsibility shifts away from onboard pilots to
scenarios in which functions are shared across operators,
manufacturers, and software providers, making it less
straightforward in practice to determine where liability
should lie. The Commission nevertheless proceeds on
the basis that established legal principles can adapt to
this greater complexity.
Certainty in an uncertain environment
The Report acknowledges a considerable uncertainty
as to how autonomous aviation will develop in practice.
There is no clear consensus as to which technologies
will reach the market, on what timescale, or in what
operational form. Fully autonomous systems remain a
longer-term prospect and may evolve in ways that are
difficult to anticipate at this stage.
“...it is not entirely clear that autonomous UAS – in the
existing legal sense of the word – will ever exist, but if
they do, they will clearly be a longer-term development
and our recommendations in relation to them can only
be relatively high-level at this stage.”
Against that background, the Commission cautions
against premature legislative intervention. In some
areas, detailed reform at this stage could introduce
unnecessary complexity without addressing a clearly
defined problem. The preference is therefore for
measured development of existing legal principles,
allowing the law to evolve alongside operational
practice. This reflects a pragmatic judgement: that
attempting to impose a detailed legal structure on a
rapidly developing field risks creating uncertainty rather
than reducing it. The emphasis instead is on maintaining
stability in liability rules while leaving room for gradual
adjustment as experience is gained.
Passenger liability
Passenger liability remains anchored in the Montreal
Convention 1999 (‘MC99’)[5], which the Commission
regards as a well-established and effective regime for
aviation passenger liability and “key to the commercial
success of the aviation sector”. MC99 provides a clear
and internationally recognised basis for compensation,
without requiring passengers to engage with the
technical detail of how an accident occurred. Currently,
some 144 ICAO-contracting states are states parties to
MC99.[6]
In this area, the Commission sees no immediate need for
substantive reform. Passengers are therefore expected
to continue benefiting from the relative simplicity of
the MC99 regime, including its system of strict and
presumed liability. For claims up to the relevant SDR
threshold (currently around £156,000) liability cannot
be excluded. Beyond that level, the burden shifts to the
14
DAC Beachcroft
carrier to show it should not be held liable because it
was not at fault.
That said, the Report identifies potential pressure
points as automation increases. Where claims exceed
the limits of strict liability, challenging the carrier’s
defence above the SDR limit may become more difficult
if the underlying cause lies within complex or highly
automated systems. This raises a longer-term question
as to whether the current balance struck by MC99 will
remain adequate. For the time being, however, the
Commission’s preference is to maintain alignment with
the existing international regime.
Any future, more fundamental change is likely to
depend on engagement at ICAO level. The Report
encourages the UK Government to engage with ICAO
on early consideration of whether MC99 may require
update, to address more advanced forms of automation
in commercial air transport. On a practical level,
one consultee flagged that MC99 took eight years
to develop and implement, and for this reason, work
should begin on any revision to it (if that is the approach
to be adopted), as soon as possible.
As to ICAO, they have acknowledged the issue but have
not yet acted on it. The issue was raised in express terms
at the 42nd ICAO Assembly (2025), including through
a State working paper.[7] The proposal was made for a
dedicated legal study group to explore a harmonized
international instrument, whether a new convention or
a supplementary protocol, to clearly define liability and
compensation mechanisms in the context of the “new
frontier” that is autonomous aviation. :
Whilst current conventions…continue to govern air
carrier liability, their applicability to fully autonomous
or AI-directed flights is uncertain. These frameworks
were developed for human-operated aviation and do
not adequately reflect the complexities of autonomous
systems, including the delegation of decisions to
software or machine-learning model…” and “Legal
definitions of terms such as “carrier,” “accident,” and
“operational control” may not map directly to scenarios
where no pilot is onboard, or where responsibility is
shared across software developers, manufacturers,
and operators. Whilst these conventions might apply
by analogy, they lack specific provisions that clearly
allocate responsibility in such technologically advanced
environments.”
However, for the time being, the matter remains under
discussion rather than active development within ICAO’s
legal programme.
Cargo liability
The Commission takes a similarly conservative position
in relation to cargo, concluding that the existing MC99
regime can accommodate autonomous operations
without significant change. Carriers therefore remain
subject to a form of strict or quasi-strict liability for
loss, damage, or delay, on terms already familiar to the
aviation sector.
Aviation Anthology 2026 - Volume I
