Problemas a causa de la temperatura en el sistema de frenos

In the previous section, we have shown that certification or licensing is designed to

achieve minimum safety or quality standards and that its objective is basically to induce

actors to take optimal care, even though various regulatory constraints involved may hamper the achievement o f optimal deterrence in practice. In any case, do negligent regulatory activities give rise to a cause of action to victims or their relatives? In other words, should the regulatory body be subject to liability for the negligent discharge o f its regulatory functions?

8.2.1 Constraints on efficient regulatory activities due to lack o f adequate information

and expertise: Obviously, the success or failure of regulatory activities will largely depend on accurate information, technical competence and expertise o f certifying or licensing personnel.'*'^'^ But regulatory bodies are usually operating under inadequate staffing because o f financial constrainf*^* and under legal and administrative constraints on their mandate (e.g. subject to parliamentary scrutiny or judicial review).'*^^ Because o f this lack of information, resources and technical expertise, any regulatory body will have to rely on ’experiment and discretion’ and learn from experience based on trial and error.'*^° The regulatory body thus turns to promulgation of minimum standards for entry and practice, conducts periodic inspections of compliance with the standards, issues orders for

'*^^. Ibid, s 1423(a)-(c); 49 USC s 44704 (1996); D W Madole, Improving Aircraft Type Certification, 17 Forum (1981-82) 627, 637.

'*^'*. Ibid, s 1430(l)-(4); J S Jodice, Airmen Certificates and Enforcement Procedures, 37 JALC (1971) 281.

'*^5. Ibid, ss 1371(a) & 1429; 49 USC ss 44709-10 (1996); Juglart, 1(562). '*^6. Ibid, s 1432 (1988); Juglart, 1(806).

^*'^. D W Madole, n.473 above, 633 & 635; ch 1; 7.4.1 above. '*^^. Kahn, xxii.

'*79. Ibid, 11/93.

480 Y Prosser, Regulation of Privatized Enterprises: Institutions and Procedures, in L Hancher & M Moran (eds). Capitalism, Culture, and Economic Regulation, 135, 144; Ogus, 251.

correction/^ ^ or simply delegates much of its functions to airlines and manufacturers, as explained below.

8.2.2 Incentives o f imposing liability on regulators for regulatory risk; It is admitted that

one o f the purposes of a regulatory statute was to promote air travel safety; and that once the regulatory agency has decided to regulate the flight and repair and modifications of aircraft and licensing of pilots, etc., it becomes responsible for the care with which those activities are c o n d u c te d .B u t these facts alone hardly create a legal duty to provide a particular class o f passengers with particular protective m e a s u re s .S in c e certification or licensing is designed to establish minimum standards for prospective practitioners to satisfy

in the interest o f the travelling public, regulatory activities per se do not create a duty of

care to individual air travellers who incidentally derive benefits as the result o f regulatory activities. And given practical constraints on technical competence or expertise of regulators in aircraft design, manufacturing, maintenance or operation, imposing liability on regulators may not induce them to devise efficient regulatory techniques. Nor does the failure by the regulatory agency to inspect add significantly to the risk.^*^

If nevertheless courts were allowed to readjudicate on certification or licensing and to hold regulators liable for negligent regulatory functions (erroneously imposing sub- optimally low safety standards), this will expose regulators to a unduly high level o f strain on their initiatives."*^^ Imposing liability on regulators may not necessarily make the

government an insurer o f losses"*^^ caused by defectively designed, manufactured,

maintained or operated aircraft. This is because it is "subject to the same requirements of negligence and causation as would affect the liability o f a private person in the same circumstances"."*^^ Nevertheless, it will make taxpayers bear the risk o f negligent regulatory decisions, which may not be distributionally desirable."*^^ And given the limited technical competence o f judges in the industry regulated, judicial readjudication may not adequately induce regulators to take optimal care to reduce risk in exercising their functions or discretion. Again, since certification or licensing is designed to establish minimum safety standards, which may also be the optimal, it is not intended to guarantee.

"***. See Kahn, 1/22.

"*82. Clemente v. US, 567 F 2d 1140, 1150 (1st Cir 1977). "*83. Ibid. 1144.

"*8"*. Ibid, 1145; Restatem ent (Second) o f Torts, s 323(a).

"*85. J R Harrison & P J Kolcz> nski, Government Liability' for Certification of Aircraft?. 44 JALC (1978) 23, 34.

"*8^. See W M Ste\ ens, Government Liability under the Federal Tort Claims Act for Negligent Inspection and Certification o f Aircraft, 8 Air L (1983) 230; Harrison & Koiczynski, ibid, 38.

"*82. Clem ente US, n.482 above, 1150; sec 8.2.4 below. "*88. Ch 5: 4.2.1 & ch 6; 4.2 below.

nor does it actually guarantee, the safety of aeroplanes '*^^ Indeed, imposing liability on the regulatory agency for negligent certification or licensing will not greatly reduce the risk

caused by defectively designed, manufactured, maintained or operated aeroplanes/490

8.2.3 Delegation o f regulatory functions to the private sector: In America the Secretary o f Transportation must employ inspectors charged with the duty of making inspections of aircraft, aircraft engines, propellers and appliances during manufacture to decide whether they are in safe condition and maintained properly.'*^* In addition, the Secretary may, in discharging the regulatory functions vested in him, delegate to any properly qualified private person any work relating to inspection, examination and testing necessary for the issuance o f certificates.'*^^ This is mainly because the FAA’s certification and inspection staff are not only outnumbered by engineers and scientists employed by manufacturers and airlines but may be less qualified in their technical competence.'*^^ The quality o f aircraft design and manufacture is nevertheless ensured mainly by dint o f the manufacturer's proficiency in technical and engineering expertise ('self-policing' o f regulatory risk).

8.2.4 Certification as a discretionary act under domestic laws: Although it is not clear what the position o f English law is in respect o f negligent certification or licensing, it is submitted that any liability arising from erroneous aircraft design or manufacture must be initiated not against the regulatory agency but against the manufacturer.'*^'* In French law certificates of airworthiness merely create a rebuttable presumption o f safety, and the grant o f certificates or licences does not necessarily relieve the carrier of liability for accident losses.'*^^

In American law the federal government may be held liable under the Federal Tort

Claims Act (FTCA)'*^^ for personal injury or death or loss o f property caused by negligent or wrongful acts or omissions o f its employees. This waiver o f governmental immunity,

however, is subject to the discretionary function e x c e p t i o n ' * ^ ^ which is designed to protect

regulatory activities from judicial review o f administrative initiatives in the guise o f tort suits. Certification o f aircraft is a form o f regulatory adjudication and the performance o f a '*^^. Harrison & K olczjuski, n.485 above, at 27. In the context o f licensing pilots, a contrary view is expressed in V L Minter, Certification o f Unfit Pilots: Is the United States Flying Blindly?, 59 JALC (1994) 763. He nevertheless admits that there exists no uniform and workable standard in US courts for determining the applicability o f the discretionary function exception.

'*90. See Kahn. 1/22-24.

'*9*. Ibid, s 1425(b): 49 USC s 44713(b) (1996).

'*92. 49 USC s 44702(d) (1996); 49 USC Appd s 1355(a) (1988). '*9^. See D W Madole, n.473 above, 629.

'*9'*. See ch 3: 2.4:5 below. ^*95. Juglart. 1(509).

'*96. 28 USC ss 1346(b), 2671, 2680 (1988). '*97. Ibid. s 2680(a).

discretionary function, and an erroneous certification is an unintentional 'misrepresentation'

for which immunity is still re ta in e d .A g a in , the Federal Aviation Act o f 7955"*^^ is a

regulatory statute which is designed not to establish a legal duty to the individual but to secure the safety and welfare of the flying public as an entity, and as such does not afford an independent basis o f liability for alleged negligent inspection or certification.^®®

As to the applicability o f the discretionary function exception to particular cases of

negligently inspection or certification, the First Circuit in Clemente v. made a correct

distinction between service activities and regulatory functions. The Federal Aviation Act is

a regulatory statute and is designed to ensure general safety and welfare o f the travelling public as a class and not to establish a duty o f care in favour o f a particular class of individuals.^®^ Regulatory functions o f the government discharged through certification and inspections are intended to ensure compliance with minimum safety standards and benefit the body politic and not to render the government liable for negligent performance o f these functions.

The Supreme Court has restricted the scope o f governmental liability involving the FAA's inspection and certification process in its broader interpretation o f the discretionary

function exception in US v. Varig Airlines^^^ and US v. United Scottish Insurance CoA^^

which was later joined with Varig. Varig involved a decision not to inspect, whereas

United Scottish involved a mandatory inspection negligently implemented. Discarding its

previous distinction between planning (policy-making) discretion and operational (policy-

implementation) activities,^®^ the Supreme Court drew a new regulatory-nonregulatory distinction,^®® the validity o f which remains to be seen. By so doing, the Supreme Court extended the scope of the discretionary function exception and barred any wrongful death action from being brought under the FTCA against the federal government for the FAA's negligent certification of aircraft.^®^ The court also ruled that holding the United States

Harrison & Koiczynski, n.485 above, 28.

499. Act o f Aug. 23, 1958, as codified at 49 USC Appd ss 1301-1557 (1988).

^®®. C Hatfield, The Non-liability o f the Government for Certification o f Aircraft, 17 Forum (1982) 602, 608-09.

^®k N.482 above. 5®2. Ibid, 1144.

^®^. USV. S4 Ewpresa de Viacao A erea R io Grandense {Varig Airlines), [18 Avi 17,960] 104 S Ct 2755,

2765-68 (1984) (A smouldering cigarette stub put in a lavatory trash receptacle causing 135 deaths against FAA regulations requiring that any such fire should have been contained in the disposal unit). See ch 3, Example 3.3.

-®4. 104 S Ct 2755 (1984). (A modified heater in a DeHavilland Dove aircraft leading to a mid-air fire and crash allegedly because o f an FAA inspector's negligent checking of its installation).

^®^. Indian Towing v. US. 350 US 61, 68-70 (1955) (a case involving the Coast Guard's negligent maintenance and operation o f a lighthouse which caused a ship to run aground); ch 1; 5.1.2.

^®®. USV. Varig Airlines, n.503 above, at 2764-65.

liable would have the effect of making it the insurer of air transportation risk,^®^ which is not necessarily correct as already e x p la in e d .A more reasonable analysis can be found in

the Ninth Circuit decision in United Scottish, where the court held that manufacturers and

operators o f aircraft had the primary duty to design, manufacture and maintain the aircraft in such a manner as to ensure its safety and that inspection merely supplements another’s primary duty.^^®

Conclusion

Summing up, although carriage by air benefits international society as a whole, it exposes passengers and subjacent people and their properties to the risk o f passenger and surface damage and environmental harm. Assuming that the goal o f the law of carriage by air is to generate the socially optimal level of safety which will minimise the sum o f accident and environmental costs plus their avoidance costs, liability rules putting a collective valuation on their costs have been found to be more efficient than property rules in achieving this goal under positive transaction costs. This is because under property rules based on parties' voluntary transactions, strategic behaviour may well obstruct allocative efficiency and market valuation o f these damage is often costly or unavailable.

In the case o f noise and pollution harm, transaction costs for bargaining may well be much higher than in contractual relationships, not to speak o f the possibility o f strategic behaviour o f the parties. Even in this environmental harm, efficiency remains the primary criterion by reference to which we can assess the desirability o f a legal rule and attribute the losses. Hence those risk creators should, in principle, be made liable for the harm they create in the course o f their activities. As such, the efficiency norm does not necessarily conflict with the notion o f equity, since the polluter derives benefits from his activity and he therefore should be liable for any losses caused to third parties by his a c tiv ity .^ In the case of passenger damage risk, it is necessary to impose liability on business enterprises, since they have more accurate information about risk than victims and are better positioned to assess the probability and gravity of the harm caused by their activities. They

At 2769. See Hatfield, n.500 above, at 607. For an article in support o f governmental liability, see G Tompkins, The Liability' o f the United States for Negligent Certification o f Aircraft, 17 Forum (1982) 569, 586-89.

Sec 8.2.2 above.

United Scottish Ins. Co. v. US, [15 Avi 17.846] 614 F 2d 188, 193-94 (9th Cir 1979); C S Hatfield, n.500 above. 613.

Posner, 185; Polinsky, clis, 2, 14 & 15, where he put forward the possibility o f tradeoffs between efficiency' and equity if they are in conflict.

are thus better capable o f reducing or avoiding losses by allocating the efficient amount of resources or by buying adequate insurance for accident avoidance.^^^

Although the negligence rule induces the injurer to take optimal care, it may induce the parties to take a higher or lower than optimal care to the extent that there exists uncertainty over the exact degree o f fault in single injurer cases and over causation in multiple injurer cases. If the court makes errors in assessing the optimal level of care applicable to each injurer, it may induce him to allocate too much or too little resources to accident avoidance. It should nevertheless be noted that the incidence o f judicial errors in determining the optimal level o f care are problematic only insofar as such errors are asymmetrical, i.e. courts make errors consistently on too much care or too little care. As regards administrative costs, the negligence rule creates incentives for the injurer to bring an action to defend his case, increasing the number o f actions. The negligence rule also incurs higher information costs than strict liability because o f the difficulty in determining a negligence and establishing causal link between the behaviour in question and its consequence. This is the case if the injurer were to be held liable only for 'foreseeable' accidents, since the court must figure out the distinction in each case. Again, if the parties are risk averse and the victim is not fully informed of risk, the negligence rule is liable to produce inefficiency, since he will not buy adequate first-party insurance.

On the other hand, strict liability creates powerful incentives for the injurer to internalise accident costs and take all justified steps. And there exists little valid ground for excluding 'unforeseeable' losses from the scope o f liability whether for deterrence purposes or otherwise. Strict liability can also be applied with less administrative costs than the negligence rule because o f relative ease with which to establish causal link. Under strict liability, the but-for cause can best be explained as a device for allocating accident costs to the cheapest cost avoider, whereas proximate cause o f an accident can best be determined by reference to the relative accident probability o f risk creators. In single-injurer cases, the injurer alone should be held liable for the loss, for there can be no other but-for cause to which to attribute the losses. In multiple-injurer cases as in a collision, the injurers should be liable in proportion to their relative accident probability registered over a given period of their activities. Liability allocation in this way is equivalent to liability assignment in proportion to the relative output and will induce the high-risk creator to invest more resources to reduce the risk or to adjust his future activity to the optimal level by taking account o f the probable losses he may cause. Taking note of administrative costs incurred

^*2. A report drawn up by the German Airspace Users Association estimated that the inefficient European air traffic control system cost 4 billion pounds in 1988 alone. FT. 9 Aug. 1989, p.2; id, 26 Sept. 1989, p.3: WSJ/Eiir, 7 Sept. 1989, p.2; id, 4 Sept. 1989, p.2.

to run the tort system, however, we have argued for a balanced approach between tort liability and social insurance scheme.

In view o f widespread availability of insurance, we introduced the assumption o f risk aversion and examined how proper risk allocation will affect parties' own expected utility and social welfare in general. Social welfare defined as the sum o f aggregate individual utilities will be raised by shifting risk from the more to the less risk averse or from the risk averse to risk neutral. Again, risk sharing between equally risk-averse parties will also increase their aggregate utilities and social welfare. The existence o f insurance has transformed the nature and role of tort liability in such a significant manner that insurance forms an indispensable part o f the tort process as the mechanism o f performing the dual functions o f compensation and deterrence. Although tort liability retains its deterrence function in this process, it does so merely by allocating losses to the responsible party and by linking the victim's entitlement to indemnity to liability insurance taken out by tortfeasors. Since it is now the insurer who ultimately pays out damages, he has direct financial interest in deterring his insureds from causing losses and inducing them to take risk-reducing steps, thus contributing to the enhancement o f safety.

Insurance performs the deterrence function mainly through its premium-setting techniques. If insurers have perfect information about insureds' behaviour, they can offer insurance policies which provide complete coverage yielding maximum expected utility without incurring the insured's moral hazard problem. If, however, insurers are unable to do so, they generally cannot provide full coverage nor can they link premiums to insureds' actions (moral hazard and adverse selection). In this case, insureds' accident record or claims data can be used as the most reliable substitute for direct monitoring o f insureds' behaviour for premium-fixing purposes. Partial coverage and risk sharing (through coinsurance or deductibles) between the insurer and the insured will also increase expected utility and enhance social welfare.

Although liability rules create an incentive for parties to take care and to reduce risk, the problem is that the deterrent effect of tort liability can be achieved only when the market functions properly (e.g. the optimal supply of relevant information, competition, and proper functioning o f the insurance market, etc.) and when individual consumers are