Last weekend, a drone collided with a car on the German highway A 99. While the car was severely damaged, no one was injured, apparently. According to press reports, the drone pilot stated that the drone had unintentionally started, got out of sight and landed on the highway, probably due to a technical defect or an operator error.
Who is liable for any damage in such events?
There are no special rules under German liability law for drones used for recreational purposes. Therefore, under general liability law, the pilot is liable for damages only in case of intent or negligence (“liability under tort law” according to Sections 823 et seqq. German Civil Code). In the case at issue, therefore, the pilot might be liable in case of an operator error or other careless behavior, but not in case of an undetected technical defect.
The legal situation is different with regard to drones used for a purpose other than as a recreational activity, therefore, in particular, in the case of commercial use. The use of drones in logistics, agriculture, the security sector, and other industries is not a dream of the future, but has already become reality, even if it is in part still in the testing phase. Such drones used for non-private purposes are regarded as aircraft within the meaning of the German Air Traffic Act. Strict owner liability is provided for aircraft (Section 33 Air Traffic Act). As with automobiles, owners are also liable when not culpably causing the damage event. There is a crucial difference, however: The owner of an aircraft (including a drone) cannot rely on the argument that the accident was unavoidable. Liability under the Air Traffic Act is especially strict. The underlying idea of the legislature: Whoever uses an aircraft, creates a source of danger, which is not entirely controllable. If a damage then occurs, the losses incurred by third parties should therefore be borne by the aircraft user.
Similar to the owner’s strict liability in case of commercial use, the manufacturer is liable if it turns out that the drone was produced defectively and that the product defect had caused a damage. The manufacturer is then also strictly liable (“product liability”). The same applies to importers of defective drones (Section 4(2) German Product Liability Act).
About a half million privately used drones are in operation in Germany. German Air Traffic Control expects that there will be one million drones by 2020. Airspace will thus become more crowded, the risk of accidents will increase. At present, specific legal rules are being drafted for the non-military use of drones. On January 18, 2017, German Minister of Transport Dobrindt introduced the draft of an “Ordinance to govern the operation of unmanned aircraft” (“Drone Ordinance”) in the Cabinet. It includes labeling requirements, ensuring an allocation to the owner. On EU level, there are also efforts to draft a specific law for drones. Unlike in the draft of the German Drone Ordinance, liability is addressed in the proposed EU legislation.