EDGARDO Diaz, deputy director general of the Civil Aviation Authority of the Philippines (CAAP), told reporters last week that CAAP’s internal investigation into the New Year’s Day shutdown of the country’s airspace is yet to be completed, and that sabotage and force majeure are not being discounted as possible causes of this international embarrassment that resulted not only in inconvenience but untold expense to the airlines and their passengers.
Not to say that there is an intent to fudge the investigation, but CAAP appears to be entertaining angles to pursue other than negligence or incompetence in maintaining the delicate air navigation systems that it runs to the exclusion of everyone else.
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Force majeure, for example, is known to refer to unforeseeable circumstances that make it impossible to comply with a duty or obligation required by a law or contract. “Acts of God,” like earthquakes and floods may be used as a legal excuse to elude liability for injury to others.
Evidence of negligence will negate a defense anchored on force majeure. Negligence is what the Supreme Court refers to as the intervention of a human factor. The rules applicable to acts of God cannot be applied to a “humanized” event.
A mouse eating away at cables is neither unforeseeable nor unavoidable. The human element is the failure to address a pest problem. Not everything can be charged against “stranger things.”
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CAAP was created in 2008 to replace the Air Transportation Office then being run by the transport department. A law was passed (Republic Act 9497) to make Philippine air transport compliant with international standards.
What were the tools given to CAAP to make this happen?
CAAP was made an independent corporation, attached to the Department of Transportation only for the purpose of “policy coordination.”
It is a regulatory body equipped with quasi-judicial and quasi-legislative powers. This means that it can decide cases and issue rules and regulations.
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CAAP was also granted fiscal autonomy. Anything and everything that is paid to it by way of runway or terminal fees, licensing fees, and overflight fees are required by law to be spent exclusively to fund its operations.
Aircraft flying over the civilian airspace of the Philippines are charged overflight fees for their use of air traffic control and navigation services. It is computed based on distance flown within the Philippine flight information region (FIR).
Flights that do not take off or land in Philippine airports are charged overflight fees for as long as they traverse our FIR. A flight from Tokyo to Sydney will be assessed those fees for every kilometer that it crosses our airspace.
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Government must not be daunted by the billions of pesos required to set up and maintain aircraft navigation and monitoring systems. They exist not only to ensure safety but also to generate fees to ensure proper maintenance and updating.
In fact, it can be argued that airlines and other air transport organizations have a cause of action against CAAP for the latter’s failure to maintain uninterrupted traffic and radio services thereby causing inconvenience and suffering despite their timely payment of overflight fees. CAAP has the power to sue and be sued under its charter.
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Sen. Grace Poe, who chairs the Senate committee on public services, said yesterday that she believes CAAP is “almost 100% responsible” for the New Year’s Day fiasco. She must be privy to advance information because she made the pronouncement days ahead of the Senate investigation on Thursday.
The people expect enlightenment, unclouded by gibberish disguised as technical jargon./PN
