Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 15
Some practical points nevertheless arise in the context
of emerging operational models. Although MC99
traditionally operates by reference to an air waybill as
the key document recording the contract of carriage
and the handling of cargo, the domestic implementation
does not prescribe strict requirements as to form. This
allows a degree of flexibility as to what may constitute
an air waybill for domestic carriage. The Commission
does not seek to impose greater formality in this area,
preferring to leave existing practice undisturbed.
Likewise, it declines to introduce statutory definitions
of “cargo” or to prescribe specific cargo-carrying use
cases. This reflects a desire to avoid divergence from
the international MC99 regime and to allow case law to
develop in step with UAS operational experience.
Of more immediate relevance is the interaction between
MC99’s weight-based liability limits and the nature of
UAS cargo operations. These are expected to involve
low-weight, but high-value consignments such as
pharmaceuticals, precision electronic components,
medical devices, and other commercially valuable
goods, meaning that the standard MC99 limits (currently
17 SDRs per kilogram) may offer limited protection in
practice. That issue is not new. The limitations of MC99’s
weight-based liability system are well understood in
the context of traditional air cargo, where shippers
routinely manage the position through declared value
or supplementary insurance. However, the profile of
UAS operations is likely to bring this tension into sharper
focus, particularly if the sector attracts new market
entrants who are less familiar with the established
experience of air freight carriage. The Report highlights
the importance of industry awareness of those limits,
and of the option to make special declarations of value
(typically on payment of an additional fee).
Surface damage liability
The regime governing surface damage, set out in
section 76 of the Civil Aviation Act 1982, is considered
broadly capable of accommodating autonomous
aviation without substantial modification. It imposes strict
liability on the owner or long-term lessee of an aircraft
for damage caused to persons or property on land or
water by an aircraft, or by anything falling from it, without
the need to establish fault. In the Commission’s view,
the shift from onboard pilots to remote or autonomous
systems does not materially affect the operation of that
regime. Liability continues to attach by reference to the
aircraft and its operation, rather than the presence or
conduct of a pilot. This reflects the underlying strength
of the section 76 regime: its focus on risk allocation
rather than fault. As a result, it adapts naturally to more
automated forms of aviation, avoiding the evidential
difficulties that may arise in other areas of liability.
judgement, awareness of and compliance with the
rules of the air. These assumptions become less
straightforward where operational decisions are
made, in whole or in part, by automated systems. As a
result, establishing fault may become more complex.
The use of sophisticated systems has the potential
to make it harder to determine what went wrong in
each incident, particularly where decision-making is
distributed across multiple stakeholders, including
operators, manufacturers, software providers, and air
traffic systems, with no single point of failure readily
identifiable.
Despite these challenges, the Commission does not
favour the introduction of a distinct liability regime
for autonomous aircraft collision claims. Instead,
it proceeds on the basis that existing negligence
principles can evolve alongside developments in
technology and operational change. That position is
understandable in terms of maintaining continuity, but it
places considerable weight on the ability of traditional
fault-based concepts to operate effectively in a more
technically complex environment. The outcome is likely
to depend heavily on the development of evidential
developments, expert analysis and, potentially, parallel
developments in product liability law. As to the latter,
the Law Commission is currently undertaking a separate
review of product liability law particularly in relation to
complex technologies and AI-driven systems.[8]
Trespass and nuisance
The Report also addresses the growing significance
of low-level drone operations over private land.[9]
While existing principles of trespass and nuisance
remain applicable, their interaction with aviation law
is less straightforward in the context of UAS. Drones
are expected to operate at lower altitudes, with more
frequent overflight, hovering and repetitive movement
patterns than conventional aircraft. This alters the
balance that historically underpinned the limited
exposure of aircraft operators to claims in trespass and
nuisance.
Section 76 of the Civil Aviation Act 1982 provides a
degree of protection to aircraft operators from liability
for claims where flights occur at a reasonable height
and in accordance with applicable aviation rules. The
Commission identifies a potential misalignment between
that protection and the realities of modern drone
operations, particularly over residential areas where
concerns may arise in relation to noise, surveillance, and
repeated intrusion of drones.
Mid-air collision liability
Mid-air collision liability presents one of the more
difficult areas in the context of increasing automation.
Existing principles assume a degree of human
Aviation Anthology 2026 - Volume I
DAC Beachcroft
15
