Unlike its marine counterpart the London aviation insurance market but rarely provides the English legal profession with the opportunity to try a case. Chary of both the inordinate expense of litigation and the potential for creating unwelcome precedent, aviation insurers faced with claims arising within the United Kingdom jurisdiction prefer where possible to deal with them on an amicable and pragmatic basis. Indeed, the list of aviation cases brought to trial in the High Court since 1945 at the behest of insurers numbers less than a half dozen. Members of the Bar and academics occasionally despair at the paucity of case law in the aviation arena.

An action has, however, recently been heard which will comprise a notable addition to the short list. Although the case in question did not raise issues of fundamental legal principle it for the first time applied well tried rules to a familiar aviation problem —the bird-strike—with what for many will at first sight appear to be surprising consequences.

The claim in question concerned a hull recovery suit brought by the operators of an executive jet and their insurers against an airport authority. However, the success of the plaintiffs will also provide useful encouragement to legal advisers seeking to enlarge the group of third parties who may be drawn in as defendants to a passenger claim in an effort to avoid the constraints of limited liability protecting the air carrier for reward. Certainly many airport authorities will have cause to ponder anew the nature and extent of their liability exposure for events taking place in, on or over their property. The principle that the pilot has ultimate responsibility for the safety of his aircraft by no means provides the airport authority with immunity.

A/S Fred Olsens Flyselskap (Fred Olsen Airtransport Limited) v. The Norwich City Council and The Norfolk County Council (report not yet available) arose out of an accident at Norwich Airport on Dec. 12, 1973. A Falcon executive jet operated by the plaintiff Norwegian charter company took off at 15 37 hours to return to Scandinavia. As the aircraft lifted off from runway 10/28 a flock of herring gulls appeared directly in front of it. The handling pilot increased his rate of climb to pass over these birds whereupon he was confronted with a second flock. This he successfully underflew only to be faced with a further massive concentration of birds which he subsequently described as

This third flock was unavoidable and the aircraft was struck by numerous gulls. Both engine intakes became choked with birds and the loss of air caused a total power failure. A successful forced landing was carried out in a field beyond the airport perimeter. Although the occupants of the aircraft escaped serious injury the Falcon jet was written off.