If you are driving your car along a straight, flat road in the middle of nowhere, is it safe to assume that you will see any oncoming traffic? Of course it is. We all pay attention to other cars on the road, especially those coming in our direction. And let's face it: we all trust that the "other guy" is paying attention too so that he can spot us as well.
Unfortunately, this is not the case with airplanes. After having been a commercial pilot for over three decades, I can honestly say that the one of the biggest surprises for my passengers is how difficult it is for them to see other airplanes in the sky. Let me give you an example. Let's say that I am flying a small airplane with five passengers, none of whom have ever been in a small airplane before. Before the flight I tell them all to keep their eyes peeled for other airplanes, as we don't want to have an encounter with any other aircraft. During the flight, the air traffic controller alerts me to another airplane flying directly towards me, one thousand feet below our airplane.
You would think that it would be easy to spot the other airplane, right? Wrong! Because of "ground clutter" and limitations in the human eye, most of the time we never even see the other guy. Try as I might to see the other airplane, most of the time I keep looking until the controller tells me that the other aircraft is "not a factor" any longer. And it's not just me; other pilots will tell you the same thing.
How can this be? Unless the flight is at night, or unless flying over an "undercast," it is almost impossible to see the other airplane. This is why air traffic controllers have us on their radar screens, so they can alert us to other traffic. This is why all airliners, and some small planes, have electronic devices which spot other aircraft.
The bottom line as far as legal responsibility for pilots flying visually is "see and avoid." In other words, it is the pilot who must avoid hitting another airplane, regardless of what the air traffic controllers may say (or omit to say). Another example: a few years ago two small airplanes departed from a small airport near San Diego. Though it was perfectly legal for each pilot to fly without talking to an air traffic controller (ATC), one pilot chose to talk to ATC. The reason for this decision was because the pilot was with his instructor and they wanted to practice what are known as "instrument approaches," which is a maneuver that requires ATC being aware of the airplane's location at all times.
The two airplanes took off within minutes of each other. Ironically, they both intended to land at another airport located only fifteen miles away. Each airplane was displayed on ATC radar screens located at a ground facility in San Diego. Despite seeing each of the radar blips getting closer together, ATC did not alert the pilot. As the two blips continued to move toward each other, an audible alert at the controller's desk sounded. Still no word was mentioned to the pilot to look out for the other airplane. Within seconds, the two small planes collided over a populated area just east of San Diego, showering airplane parts and bodies throughout what was a quiet residential area.
Three lives were lost that day, and the families of the deceased pilots repeatedly asked themselves: "how could this have happened?" Our offices were hired to conduct an investigation and file a formal legal claim against the government for ATC error. During the case we demanded to view the radar displays which had been preserved for just such a purpose. At that time it became apparent that the controller should have seen the disaster unfolding before his very eyes. Had he simply spoken up, the disaster would have been averted.
With this evidence against it, the government certainly would have acknowledged that it was at fault so that litigation could be avoided, right? Wrong. The government took the position that the accident was solely the responsibility of the pilots because of the long-held rule of "see and avoid." Put simply, its position was that the two pilots should have seen each other, and if they failed to do that, then too bad. We pointed out that with the sun in their eyes, it would have been nearly impossible for each pilot to see the other one. No matter, said the government. When we pointed out the radar display and asked why they had radar if not to prevent such accidents, the government was silent.
The bottom line is that we had to file a lawsuit in federal court. Fortunately, the government came to its senses before trial and we were able to resolve our differences in an out of court settlement. Favorable though the settlement was, it obviously could not bring the deceased parties back to their families. The lesson is twofold: (1) pilots need to be vigilant; (2) even with ATC watching, mistakes can be made. If you have been injured in a plane crash, or if you have lost a loved one in a plane crash, your attorney should take a close look to see if air traffic controller error played a role.
