Proceedings of the Workshop - United Nations Office for Outer ...

172 EXPANDING GLOBAL NAVIGATION SERVICEShe wishes, one should do so in such a manner as not toinjure another or his property. This general principle oflaw is operative and effective in national as well asinternational law and applicable to states as to privatecitizens93. The International Law Commission's (ILC)consideration of the question of "International liabilityfor injurious consequences arising out of acts notprohibited by international law" has resulted in considerableattention being given to this rule reflected inthe maxim sic utere tuo ut alienum non laedas.One may recall the vivid expression of the rule andits application in the landmark arbitral award of theTrail Smelter Arbitration94 where it was thus stated:“... (n)o State has the right to use or permit the use ofits territory in such a manner as to cause injury byfumes in or to the territory of another or the propertiesor persons therein, when the case is of serious consequenceand the injury is established by clear andconvincing evidence.”Reliance95Additionally, the freedom of the provider state is alsolimited by the feet that states will be relying on theoffers made to permit the use of GPS, and the fa c t thataircraft operators are relying on the system to navigate.This legal principle of reliance, also referred to asthe Good Samaritan principle, is applied in its variousforms in many legal systems throughout the world.93 Handelskwekerij G.J. B ier B.V. et al. v. M ines de Potassed'Alsace S A . (MDPA) District Court of Rotterdam, 8 January1979, N J (1979) No. 113:313 at 319. Translated in vol X I NYIL(1980), 326.94 UN Reports of International Arbitral Awards vol. III, 1965.95 Henaku, op.cit. note 3 p. 197.As succinctly rationalised by a common lawexpert96, though the law will not heed the promisee'sdisappointment at losing the benefit of a promisedperformance97, it does not disqualify him from complainingof genuine tort losses inflicted on him by thepromisor.The law does not require the existence of anintimate personal relationship. Furthermore, a duty maybe found in justifiable reliance on a more generalassumption of protective care. Thus the railways havebeen held liable for level crossing accidents to personswho relied on a practice of signals or closing gates atthe approach of trains, the argument being that, thepromisee, the railways ought to have contemplated thatif a self-imposed duty is ordinarily performed, thosewho know of it will draw an inference if on a givenoccasion it is not performed98.In the US, the Good Samaritan doctrine holds thatwhenever one voluntarily comes to the aid of anotherand the latter relies upon such an undertaking, there isimposed a duty of care upon the former99. The principlehas been applied in many US cases, among which someinvolving air traffic control100.96 J.G. Fleming, The Law o f Torts, 149 (8th ed. 1992).97 This is in virtue of the common law doctrine that considerationmust support even a promise.98 M ercer v. S.E. & C.R. R ly [1922] 2 KB 549 at 554, per Lush J.99 Sections 323 and 324A, Restatement of the Law (second) Torts,vol. 2, American Law Institute Publishers, 1965. Section 323provides:"One who undertakes, gratuitously, or for consideration,to render services to another which he should recognize asnecessary for the protection of the others person or things,is subject to liability to the other for physical harmresulting from his failure to exercise reasonable care toperform his undertaking if: a) this failure to exercise suchcare increases the risk of such harm or: b) the harm issuffered because of the other's reliance upon theundertaking.”100 Ingham v. Eastern Airlines, 373 F. 2d 227 at 236 (2nd Cir.,)cert . denied, 389 U.S. 931, 88 S.C.T 295, 19 L. Ed. 2d 292(1967). This case involved the failure of a FAA approach