Literatur
Arter Oliver/Gut Eva, Verantwortlichkeit des Veranstalters von Sportanlässen, in: Kleiner Jan/Baddeley Margareta/Arter Oliver (Hrsg.), Sportrecht Band II, Bern 2018, S. 19 ff.; Banzer Bruno, Einige psychische Ursachen "menschlichen Versagens", Mit einer Untersuchung am Beispiel Gleitschirmfliegen, Diss. Zürich 1993, S. 291 ff.; Bütler Michael/Stiffler Hans-Kaspar, Sportunfall – insbesondere Haftung beim Schneesport, in: Weber Stephan/Münch Peter (Hrsg.), Haftung und Versicherung, Basel 2015, S. 807 ff. (zit. Haftung und Versicherung); Elsener Fabio/Wälchli Dominic, Pisten-Skifahren, in: Anne Mirjam Schneuwly/Rahel Müller (Hrsg.), Bergsportkommentar; Erni Franz, Unfall am Berg: wer wagt, verliert!, in: Haftung am Berg 2013, Beiträge zur Tagung vom 20. November 2013, Barbara Klett (Hrsg.), Zürich 2013, S. 15 ff.; Gehring Kaspar, in: Hürzeler Marc/Kieser Ueli, UVG, Kommentar zum Schweizerischen Sozialversicherungsrecht, Zürich 2018; Hess, Hans-Joachim, Handkommentar Produktehaftpflichtgesetz (PrHG) (zit. Hess, Produktehaftpflichtgesetz); Holzgang Otto, Wildruhezonen: Vom Problem zur Lösung am Beispiel der Gemeinde Flühli LU, in: Umweltrecht in der Praxis, Vereinigung für Umweltrecht (VUR) (Hrsg.), S. 321 ff. (zit: Wildruhezonen); Schmid Jörg/Rüegg Jonas, Fliegen und Landen mit Hängegleitern im Lichte des Besitzesschutz und Zonenordnung – Entscheid des Bundesgerichts vom 23.11.2009 (5A_428/2009), in Institut für Schweizerisches und Internationales Baurecht, S. 62 f., zit: Schmid/Rüegg; Hügi, Thomas, Verantwortlichkeiten von Sportveranstaltern, Sportrecht, Bern 2015; Lötscher, Urs/Zeller, Thomas: Gleitschirmfliegen, 11. Aufl., Zürich 2018; Müller Rahel, Bergsportrecht: Einführung und Grundlagen, in: Anne Mirjam Schneuwly/ Rahel Müller (Hrsg.), Bergsportkommentar (zit. Bergsportrecht); dieselbe, Haftungsfragen am Berg, Diss. Bern 2016 (zit. Haftungsfragen); Nickel Karl/Wohlfahrt Michael, Schwanzlose Flugzeuge, Basel 1990; Niggli, Marcel Alexander/Muskens, Louis Frédéric, in: Niggli, Marcel Alexander/Wiprächtiger, Hans (Hrsg.), Basler Kommentar zum StGB, 4. Aufl., Basel 2018; Nosetti Pascal Die Haftung bei geführten Sportangeboten mit erhöhtem Risiko, Diss. Luzern 2012; Schneuwly Anne Mirjam, Kitesurfen (Drachensegelbrett), in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar; Vuille Miro, Wandern, in: Anne Mirjam Schneuwly/Rahel Müller (Hrsg.), Bergsportkommentar; Schwerer Michael/Mayr Barbara/Peschel Oliver/Graw Matthias, Auswertung von tödlichen Unfällen mit Gleitschirm, Fallschirm und Drachen, in: Flugmedizin Tropenmedizin Reisemedizin, 2015 Stuttgart, S. 225 ff.; Toneatti Michael, Wettkampf in den Bergen, in: Anne Mirjam Schneuwly/Rahel Müller (Hrsg.), Bergsportkommentar.
Materialien
BAZL-Kommentar zu: Aktive CTR ausserhalb der «HX» Betriebszeiten, BAZL-HX-Betriebszeiten; Karten gemäss Luftfahrtrecht (Luftfahrtkarten), Dokumentation «Minimales Geodatenmodell», S. 5; Bundesamt für Zivilluftfahrt BAZL; Verfügung betreffend die Änderung der Luftraumstruktur der Schweiz 2022, Bundesamt für Zivilluftfahrt BAZL, BAZL-054.3-20/4/36/1/1/1; Grundlagen zu Hängegleitern und Wildtieren; Luftraum Schweiz, überarbeitete Version SHV 2022; Luftraumnews Schweiz, Präsentation Chrigel Markoff vom 30. November 2022; Luftraumbroschüre des SHV inkl. vertonter Luftraumkurs, Stand 1. Januar 2023; Merkblatt freier Zugang, Schweizerischer Hängegleiter Verband (SHV); Praxishilfe, Hängegleiten – Wildtiere – Wald, Anleitung zum Erkennen Bewerten und Lösen von Konflikten, BUWAL 1997, zit: Praxishilfe BUWA); Weisung zum Betrieb einer «Flugschule SHV», Vers. 12/2015, Schweizerischer Hängegleiter Verband.
I. Introduction
The dream of flying is as old as humanity itself. Already Galileo Galilei developed flying machines to realize this dream and the Frenchman, Louis-Sébastien Lenormand is said to have jumped from the tower of the observatory in 1783 with a self-constructed parachute. Paragliding in its current form, however, is rather a newer sport and leisure activity; developed from parachute jumping and used as a descent aid for alpinists. Broadly, the following disciplines can be distinguished: free flying, cross-country flying, and acrobatics. All disciplines have in common that paragliding covers a horizontal as well as vertical distance. It is not only possible to overcome a distance in sinking glide flight, but also to rise again using thermals and gain altitude. Accordingly, paragliding is a sport that is predominantly practiced during the day.
After an initial boom in the early 1990s, the number of paraglider pilots decreased significantly. Only in the last few years has the number of active flyers started to increase again.
A. Definitions and Basics
1. Hang Gliders
Paragliders are classified as hang gliders and are among the flying devices that are used immediately after take-off for the execution of glide or sail wings (Art. 6 lit. a Regulation on Aircraft of Special Categories, VLK; see also Nickel/Wohlfahrt, p. 497). They thus fall into the category of aircraft that can maintain themselves by the action of air in the atmosphere (Art. 1 para. 2 Aviation Act, LFG). As such, they count as aircraft of special categories and are approved for traffic in Swiss airspace according to Article 1 lit. c LFG, whereby special rules apply to them according to Articles 51 and 108 LFG. Hang gliding may be performed by those who possess the corresponding Swiss official license. The minimum age for training flights is 14 years, for which the consent of the legal guardians must be present. Those who wish to take the practical exam and thus obtain the license must be at least 16 years old (Art. 7 VLK). Hang glider pilots must adhere to a multitude of flight rules, which result from different international and national regulations.
2. Hike & Fly
In recent years, an increasing number of paragliders have developed the desire to combine hiking, mountaineering, and paragliding. This harks back to the early days of paragliding when the paraglider served as a descent aid for mountaineers returning to the valley. The Swiss Hang Gliding Association has recognized the Hike & Fly trend and has created its own competition discipline for it. In addition to the flight regulations, Hike & Fly pilots must also take into account the regulations for hiking and mountaineering (Vuille, para. 4 ff.).
B. Flight Disciplines
The following explanations provide an overview of the various disciplines. These include the paragliders themselves, as well as mini-wing and speed flying, which are also practiced with canopies. A distinction plays a particularly important role in terms of insurance coverage, as certain canopies may only be flown legally after passing an additional exam. Moreover, reductions in accident insurance benefits are possible if an accident occurs with a canopy of a higher classification, for example, if newly licensed pilots fly a so-called D-canopy (para. 7).
1. Paragliders and Their Canopy Classification
Modern paragliders can differ in many ways, for example, in their design. There are canopies whose profile is shaped over four line levels; canopies of the sport or competition class, on the other hand, often only require three or two line levels, which leads to less air resistance and turbulence. Further, some manufacturers produce canopies whose shell (bearing surface made of nylon fabric) consists only of an upper sail. The advantage of this design is material savings, which results in a lower weight, which is why such canopies are often used as a descent aid in mountain hiking or for Hike & Fly.
Generally, it should be noted that paragliders in Switzerland are not legally tested for airworthiness (Art. 2 para. 2 VLK). However, in Germany and Austria, paragliders are subject to type-testing for approval. In Germany, the manufacturer is responsible for this type testing (see Regulation on the Testing of Aviation Devices). In this sense, all paragliders sold at a flight school in Switzerland also have approval and a canopy classification.
Class A: Easy to fly canopies with high passive safety and therefore suitable for all pilots as well as for training. |
Class B: This class is divided into Low-B canopies and High-B canopies. The former can be flown by experienced pilots, the latter are usually reserved for those who have regular practical experience and maintain an active flying style. |
Class C: To be able to fly canopies of this class, pilots must have a great deal of experience, fly regularly and foreseeably, and master demanding flight maneuvers to react properly in the event of incidents. |
Class D: Only a few pilots have the skills that allow them to safely control canopies of this class even under turbulent conditions and to react adequately. |
The allocation into the four canopy classes A-D is carried out according to a standardized procedure by independent testing centers qualified for flight tests on paragliders. Details can be found in EN 926-2 (Equipment for paragliding - Paragliders - Part 2: Requirements and test methods for classification of safety-related flight characteristics). As a result, the classification into the different classes provides information on the demands placed on the pilots' abilities.
2. Miniwing
In recent years, a new category of paragliders has emerged that laypeople can hardly distinguish from normal paragliders. These so-called miniwings have a slightly modified design (e.g., shorter lines) and have a reduced area. Advantages can be found in the fact that less space is required to lay out the canopy and the pull-up behavior can be faster in spatially restricted conditions, such as those that can occur in the mountains. The lower weight and reduced pack size make the miniwing the ideal canopy for Hike & Fly flights. Other factors such as higher take-off speed or lower glide ratio require increased skills from the pilots. Legally, the miniwing counts as a paraglider. A special exam, as required for speed flying (see below para. 10), is not necessary; the license for the paragliding category is sufficient.
3. Speedflying
Canopies suitable for speedflying are characterized by the fact that they can be foot-launched, but are usually launched on skis. They are significantly smaller than normal paragliders and mini-wings in terms of canopy size. There is no legal definition for speedflying canopies; therefore, the Swiss Hang Gliding Association, which coordinates the training, takes over the subdivision or the designation of the manufacturers. Due to the higher surface loading of more than 8 kg/m2, speedflying canopies react more dynamically to control impulses and reach higher flight and sink speeds. This can be exploited to touch the ground with the skis during the flight, drive a few meters, and then take off again. Speedflying requires a high degree of aviation and skiing skills, which is why this sport requires an extension to the paragliding license. This includes a theoretical introduction to the peculiarities and dangers of speedflying and practical training. The candidate must then take an exam with the instructor. After passing the exam, the speedflying category is entered as an extension to the pilot's license in the hang glider license.
Like paragliding itself, speedflying is not considered a risky activity and is therefore not covered by the Risk Activity Act. Whether this will change in the future due to the increased requirements for pilots remains to be seen. However, it must be noted that the approach to the launch site may fall under the risk activity legislation, for example when a mountain guide is called in for a fee in the mountains (see Art. 1 para. 2 lit. a Risk Act, Müller Mountain Sports Law, para. 8).
4. Delineation from Kite Canopies
Finally, a delineation from kite canopies is necessary. With these, it is also possible to take off from the water or ground surface and fly a certain distance. Conversely, speedflying canopies can be used to be towed by them, whereby a certain design (tube) is necessary for kiting on water (Schneuwly, para. 29) to let the kite rise. On snow, however, both speedflying canopies and kites can be used, even though the connection from canopy or kite to the pilot or kiter exists in a different line system (Schneuwly, para. 10). The kites unsuitable for speedriding are thus not assigned to aircraft of special categories, especially because they are not manufactured and put into circulation for this purpose.
II. Public Law
A. Airspace Structure
1. Airspace Classes
To ensure all airspace users have the safest possible access, Swiss airspace is divided into a complex structure. The division is done into the airspace classes A (Alpha) to G (Golf) defined by the International Civil Aviation Organization (ICAO) (for Switzerland, see Appendix 1 of the DETEC Ordinance on Traffic Rules for Aircraft, VVR). Each of these airspace classes has different usage conditions, which apply to all airspace users. On the one hand, these are provisions about entry clearance and separation of users among each other, and on the other hand, provisions about flight visibility and cloud distance.
Source: Bernhard Bärfuss, Airspace Structures Switzerland, Presentation from 28.03.2018
Hang gliders are mostly traveling in airspace classes G and E (Echo), as flying here is allowed without a permit. The airspaces classified as C (Charly) and D (Delta) may only be flown by aircraft that are equipped with radio and have received clearance, whereby the pilots can individually request the clearance (see Airspace Brochure, SHV, 2022).
2. Air Traffic Zones
The airspace is further divided into traffic zones and airfields, namely the control zones (CTR), terminal control areas (TMA), Radio Mandatory Zones (RMZ) and airways (AWY), which particularly protect the air traffic around the airfields.
The CTR and TMA zones of the international airports are active around the clock, which is why they are supplemented with "H24". Other airfields such as Bern, Locarno or Grenchen do not have fixed operating hours (see overview in Lötscher/Zeller, p. 175). Their designation is therefore supplemented with "HX".
With CTR and TMA with the addition of HX, it must always be assumed that they are active, or their activation can occur within 30 minutes. This means that regardless of the operating hours published in the VFR manual, aircraft pilots must assume that the control zone is active if the ATIS (Automatic Terminal Information Service) does not send out any contrary information. Accordingly, they must call on the TWR frequency. (see FOCA-HX-Operating Hours). Airfields with only temporary TMA without the addition of "HX" activate the latter by announcing via NOTAM or DABS (Lötscher/Zeller, p. 174).
3. Danger and Prohibited Zones, Restricted Flight Areas
In addition to the general division of airspace and traffic zones, there are danger, restricted flight or prohibited areas that can be activated in all airspace classes (Art. 10 of the DETEC Ordinance on Traffic Rules for Aircraft, VVR-L). In these zones, dangerous procedures for aircraft occur at certain times, which is why their use by aircraft is permanently or temporarily restricted (e.g., due to an air show or other major events). Prohibited areas (LS-P, prohibited area) with a temporary flight ban are not defined in Switzerland. Conversely, danger areas (LS-D, danger area) in which military flight and shooting activities take place at certain times are both listed on the sailplane map and described in detail in the VFR Guide. These LS-D areas can be flown through at one's own risk with due caution. However, if the person concerned does not know the exact activities and the associated dangers of the LS-D, it is strongly advised against a flight through. In the restricted flight areas (LS-R, restricted area), flight traffic is restricted by certain conditions at certain times. Some of these restrictions favor hang gliders and gliders (LS-R for glider), when airspaces are closed for certain times for instrument flight traffic and at the same time reduced cloud distances apply for hang gliders (Lötscher/Zeller, p. 174). Further information on airspace structures and their regulations can be found in the SHV Airspace Brochure including the spoken Airspace Course, as of January 1, 2023.
4. Pilot Information Obligation
It is the responsibility of the pilots to familiarize themselves with all available current information about the airspace before the start of the flight, especially to check any activated airspace restriction zones (Art. 8 VVR). Recognized and available sources include:
- The Glider Map at a scale of 1:300,000 shows airports, airfields, airspace with classification, prohibited/restricted and danger areas as well as aviation obstacles and other specific details for gliding. Changes are issued annually in the spring by the FOCA decree and are legally binding.
- NOTAM (Notice to Airman) publications e.g., via DABS (Daily Airspace Bulletin Switzerland). Available at skyguide, updated daily at 09:00,13:00, and 16:00.
- VFR Guide and VFR Manual. These contain information on flight frequencies, danger zones, weather information services, and airspace division.
Basically, every pilot is obliged to consult the latest version of the DABS immediately before the flight so that even short-term changes in airspace restrictions can be taken into account.
B. Wildlife, Hunting and Nature Conservation
Wildlife, hunting, and nature conservation are regulated in Switzerland at the federal, cantonal, and municipal levels. In addition to federal protection zones (e.g., federal hunting areas, protection areas of the AuLaV), the cantons are also obliged to enact provisions for the protection of wildlife from disturbances (Art. 7 Para. 4 Hunting Act, JSG, Art. 4ter Hunting Ordinance, JSV, Art. 14 Para. 2 lit. a Forest Act, WaG, Art. 5 Para. 1 lit. b Ordinance on the Federal Hunting Reserves, VEJ).
1. Wildlife Refuges, Wildlife Protection Zones
Wildlife refuges are areas of particular ecological importance where wildlife should be able to live as undisturbed as possible. Human use is restricted or completely excluded to prevent excessive disturbance. A temporal and activity-specific gradation of the measures is possible (Art. 7 Para. 4 JSG). The implementation of wildlife refuges varies among the cantons. They are established either through the cantonal and municipal legislative process (cantonal hunting laws, municipal zoning plans), or through official recommendations or voluntary agreements with landowners and users.
Wildlife protection areas aim to protect selected species and habitats. For example, at the federal level, the 41 hunting reserves are determined based on Art. 11 JSG. In addition to hunting, recreational use in the form of access prohibitions is also restricted in these areas. All federal, cantonal, and municipal protection and quiet zones are particularly important for hang glider pilots, especially for the Hike&Fly pilots, as they often take off and land outside official sites. The pilots have to adhere to the access restrictions and possible prohibitions when starting and landing (see Vuille, Rz. 10). Depending on the purpose of the access prohibition, a low-level overflight (a few meters above the ground) can also be considered problematic and therefore a violation of the prohibition.
Hang glider pilots can pose a threat to wildlife and their habitats not only on foot but also while flying. Swiss wildlife guards mention the following wildlife species that are disturbed by the overflight of hang gliders: Above the tree line, chamois and ibex can be startled, usually reacting by fleeing a great distance into the forest. A single flight above the tree line is already enough to drive a large herd of such ungulates into the forest for several hours (Practical Aid BUWAL, p. 10 f.). For the wildlife, what matters is whether a disturbance is predictable and therefore calculable or not (Wildlife Refuges, p. 323).
Also, the effects of hang gliders on the rock nests of golden eagles, peregrine falcons, and other rock-nesting bird species have been observed. The relevant impacts of hang glider flights are limited to an area within a few hundred meters of the nest during the breeding season. Accordingly, most flight bans are limited to a few hundred meters above the ground. The type and color of the aircraft or paraglider used are not relevant. Rough-legged grouse and marmots, which also live above the tree line, are not demonstrably disturbed by hang gliders (for evidence, see Practical Aid BUWAL, p. 10 ff.).
2. Other Protected Areas
In addition to wildlife refuges and wildlife protection areas, special access regulations must be taken into account for nature reserves, private protected areas (e.g., by Pro Natura). A specific prohibition on taking off and landing applies in national high bogs, in core zones of national parks, in water and bird reserves, in floodplain areas of national importance as well as in federal hunting reserves. A violation of the prohibition to take off and land in these zones can be punished with a fine (Art. 19 in conjunction with Art. 42 AuLaV and Art. 91 Para. 1 lit. f. LFG).
3. Violations
Violations in wildlife protection areas and legally binding wildlife refuges (protected areas and zones defined by law, regulation, or decree) are punishable (see para. 72). On the other hand, only recommended protected areas and voluntary agreements with users do not enjoy legal protection. This means that their compliance can only be demanded by admonition and appeal to the hang glider pilots. In particular, no penalties or administrative measures can be issued by the authorities based on these.
An overview of wildlife protection zones and wildlife refuges can be found on the federal geoportal. By clicking on the wildlife protection zone, it becomes apparent whether it is a legally binding wildlife protection or wildlife refuge zone or just a recommendation.
Source: https://wildruhezonen.ch
Further federal protected areas can be retrieved under the filter "AuLaV" or on the respective cantonal geoportals.
My apologies for the misunderstanding. Let's proceed with the translation.4. Agreements SHV/Wildlife Protection Authority
The agreements between the Swiss Hang Gliding Association (or individual local clubs) and local wildlife protection authorities are important for hang glider pilots. The rules of these local agreements can be found on the flight area boards and on the respective club homepages. An overview of the agreements in Switzerland can also be found on the SHV Airspace and on XContest Airspace. The agreements are made with the best possible consideration of all involved interests. They include clear restrictions on the personal freedom of hang glider pilots for the protection of wildlife. The agreements can only be enforced by admonition and appeal to the paraglider pilots. However, compliance with them is of great importance. If the agreements are not adhered to, it is to be feared that future wildlife protection zones will be more extensive and defined exclusively through the legislative process, and the influence of the affected paraglider clubs and the Swiss Hang Gliding Association in their realization will decrease. Finally, this can also make bilateral exceptions (e.g., for events and competitions) more difficult or even impossible.
C. Flight Traffic Rules
1. Visual Flight Rules
In air traffic, a distinction is made between visual flight and instrument flight. Hang gliders fly exclusively under visual flight rules (VFR). These can vary depending on the airspace class and are regulated uniformly across Europe in Commission Implementing Regulation (EU) No 923/2012 of 26 September 2012 (Standardised European Rules of the Air, SERA) and supplemented in the Swiss Federal Department of the Environment, Transport, Energy and Communications (UVEK) Regulation on the Traffic Rules of Aircraft (VRV-L). The visual flight conditions (VMC minima) refer to the minimum weather conditions that must be met in order to conduct flights under visual flight rules. They consist of flight visibility and minimum distances to clouds. Generally, in airspace C, D, E and G from 300 to 600m above ground, a cloud distance of 300m vertical and 1.5 km horizontal applies. In the active LS-R for gliding, reduced VMC minima of 50m vertical and 100 m horizontal apply. In airspace G, up to 300 m above ground, the small VMC minima apply, meaning that hang gliders are allowed to fly as close to the clouds as possible while maintaining constant visibility to the ground, as long as a turnaround curve is possible within sight range (see Art. 23 ff. VRV-L).
2. Air Traffic Rules
Also regulated in the SERA and supplemented for Switzerland in the VRV-L are the flight and priority rights of different aviation categories. The respective rights of way are determined according to the evasion possibilities of the aircraft. Therefore, the aircraft that is better able to do so must always evade . Paraglider pilots must give way to aircraft that are forced to land and to free balloons, and generally have the right of way over airships, towed aircraft, and motorized aircraft. Aircraft may only approach other aircraft in flight as far as there is no risk of collision. When overtaking and crossing, the right of way applies, or overtaking is to be done on the right, with the aircraft in front retaining the right of way. Overflying and underflying are permitted with sufficient distance. Except on the slope, where neither overtaking nor under- or overflying are allowed. If a paraglider is circling in thermals, it must be flown around. The first pilot circling in the thermal can choose the direction of rotation and retains the right of way over later arriving pilots. These must also take over his direction of rotation in the thermal. Deviations from these traffic rules are only allowed when necessary for safety.
3. Take-off and Landing
Generally, according to Art. 8 Para. 1 LFG, aircraft may only take off or land at airports. However, the Federal Council regulates under Art. 8 Para. 2 lit. a LFG, under what conditions aircraft may take off or land outside of airports. Hence, the Ordinance on Take-Off and Landing with Aircraft Outside Airports (AuLaV) was issued. In this ordinance, it is determined that off-airfield landings are permissible, as long as the regulation does not provide for any restrictions (Art. 3 Para. 1 AuLaV). Regarding paragliding, as it is dealt with in this commentary, there are basically no restrictions, as such are only provided for hang gliders with electric drive (permit requirement according to Art. 6 Para. 1 lit. d AuLaV). However, Art. 21 Para. 1 AuLaV stipulates which applicable provisions also apply to hang gliders. The focus here is on nature conservation. In Switzerland, numerous areas are designated for the protection of local fauna and flora. In such protected areas, taking off and landing with hang gliders according to Art. 19 AuLaV is prohibited, e.g., core zones of the national park (see above para. 27). The UVEK can impose restrictions for overflights in connection with off-airfield landings for certain categories of aircraft in protected areas according to Article 19 paragraphs 1 and 2 to protect nature (Art. 20 AuLaV).
A special provision is defined in Art. 23 AuLaV, according to which the BAZL and the BAFU support the nationwide hang gliding associations in the development of voluntary operational rules for the protection of nature. The Swiss Hang Gliding Association makes great efforts in this regard to reconcile nature conservation and the interests of its members (see above para. 23 and 28).
Regarding take-offs and landings on public roads and ski slopes, there is a clear legal regulation: such actions are prohibited according to Article 8 Para. 1 VLK. However, winter sports area operators regularly provide prepared take-off and landing zones, which are exclusively reserved for paragliding. Other winter sports enthusiasts are not allowed to use or enter these zones. It is not permitted to unilaterally designate sections of public ski slopes as take-off or landing sites for paragliders (see Federal Court Decision 6S.728/2001).
Expressly reserved are the rights of those entitled to a property, especially to defend against disturbance of possession and to claim compensation for their damage (Article 4 AuLaV). As a principle, it can be stated that, from a private law perspective, paragliders can take off or land anywhere as long as there is consent from the entitled parties. Similarly, a public-law property restriction in a municipal building and zoning regulation may conflict with the claims according to Article 928 Para. 2 ZGB. In the case BGE 135 III 633, a party filed a lawsuit for possession disturbance. They wanted to prevent hang gliders from flying over their properties within the "Landing Zone" perimeter at an altitude of less than 50 meters or landing on them. The lawsuit was directed against several parties who operated or used the landing site. The landing zone was designated as a sports and recreation zone in the municipal zoning plan. Ultimately, the court decided that there was no disturbance of possession.
D. Mandatory Marking
Article 59 Para. 1 of the LFG requires that every aircraft operating in Swiss airspace must bear a distinct identification mark. As unregistered aircraft, paragliders must be provided with a clearly recognizable identification mark (Article 11a Para. 1, Regulation of the BAZL on Aircraft Identification, VKZ). The identification mark may consist of a maximum of five digits. Each number must be 40 cm high. The identification mark must be affixed to the underside of the canopy. The identification mark is then entered in the liability insurance certificate of the owner and must match this entry (Article 11a Para. 2 VKZ). If the pilot owns multiple paragliders, the same identification mark is used for all. The BAZL has commissioned the Swiss Hang Gliding Association with the allocation and administration (Article 11a Para. 3 VKZ).
The requirement for marking often leads to some practical problems and is a recurring topic of discussion. Essentially, even test paragliders would need to be marked, which would result in a significant increase in effort and lead to unsightly adhesive residues, thereby devaluing the paraglider. This is because the numbers are typically affixed to the sail fabric in the form of adhesive numbers. As a practical alternative, markers are being used where the numbers are attached to an additional piece of fabric, which is then fastened to the rear line system. However, this type of marking does not comply with the regulations, as they must be affixed to the underside of the wing (see Art. 11a Para. 1 VKZ).
In addition to the marking requirement on the underside of the wing, the paraglider must be equipped with a clearly visible label providing the following information: manufacturer, model, year of construction, and the weight range of the load (Art. 11a Para. 4VKZ). In the case of paragliders, this label is usually made of nylon fabric and is sewn or glued between the top and bottom sail on the cell divider or another appropriate location.
E. Mandatory Insurance
Paragliding carries certain risks. Minor injuries often occur during take-off or landing, such as sprains or bruises. Less common, but more severe in impact, are injuries to the pelvic and back area, resulting from falls from heights of 5-15 meters. Above that, severe bodily injuries leading to death are expected. While the pilot has accident insurance or at least mandatory health insurance coverage, liability claims from passengers may arise during tandem flights. To cover these liability claims, appropriate insurance for tandem paragliders must be taken out (Art. 10 Para. 1VLK). The minimum guaranteed sum is 5 million francs for commercial and 1 million francs for all other flights.
According to Art. 10 Para. 1VLK, each holder must have liability insurance that ensures third-party liability claims on the ground. The guarantee amount must be at least 1 million francs. Proof of insurance to cover liability claims must be carried on all flights (Art. 10 Para. 3VLK).
F. Air Traffic Communication
Most paragliding pilots will be able to conduct their flights without radio, as they either do not pass through airfield control zones (see above para. 16 ff.) or they bypass them. However, anyone planning longer distance flights and wanting to keep options open in their flight route selection will almost inevitably have to deal with the subject of radio communication and acquire the necessary equipment and licenses.
1. Device Approval/Frequency Allocation
Only approved radio devices may be used. These are devices with a channel spacing of 8.33 kHz. Each pilot also needs a personal call sign, which can be obtained from the Federal Office of Communications (BAKOM). This authority must also be notified of the radio device. Certain frequency ranges are reserved for air traffic communication (see Appendix 2 to Art. 4 Regulation of the BAKOM on the use of the radio frequency spectrum, VVNF). Hang glider pilots are assigned the frequency 130.930 MHz for direct radio traffic, and hang glider flight schools the frequency 123.430 MHz. The frequencies for air traffic control services and information channels can be read from the gliding map or are available on the skyguide website under eVFR Manual.
2. Radio Operator's License
Participation in air traffic communication requires a VRF Voice (RTF radiotelephony license). This is granted after appropriate training and examination for the areas of powered flight, gliding, or ballooning. Each of these licenses allows paragliding pilots to legally communicate with the air traffic control service. The BAZL has rejected offering training and testing specifically tailored to the needs of hang glider pilots. Communication with the air traffic control service must generally be in English, although in non-commercial visual flight operations - with the exception of Zurich Airport - the locally spoken official language is also permitted (Art. 10a Para. 2LFG).
G. Excursus: Cross-border flights to and from abroad
In regions near the border, flights with suitable weather conditions (cross-country flight) or with short-term changes to flight routes, it may be necessary to fly over the national border. Such flights are explicitly allowed, provided that no goods are carried when crossing the Swiss national and customs border and the necessary papers for crossing the border are carried (Art. 8 Para. 3VLK). Goods within the meaning of this provision also include those for which duty-free allowances would apply in travel traffic according to Art. 65Customs Ordinance (ZV). However, personal items and travel provisions for the day of flight may be taken along (Art. 63ZV and Art. 64ZV).
For flights abroad, foreign law naturally applies (Art. 8 Para. 3VLK). Accordingly, the pilot must deal with the legal situation of the neighboring country before crossing the national border. A serious flight preparation includes this issue.
III. Private Law
A. Principle of Personal Responsibility
Paragliding is an individual sport associated with certain risks. Through thorough training followed by an exam, one is able to properly assess these risks. Important factors include one's physical and mental health as well as weather conditions on the day of the flight. The choice of terrain for launch and landing is also crucial. As with other mountain sports discussed in this commentary, paragliding involves personal responsibility and actions adapted to one's own abilities. This may mean refraining from a launch, even if other pilots are flying, or aborting the trip to the planned landing site (Müller, Liability issues, para. 34).
B. Liability Foundations
In relation to the practice of paragliding, the tort liability according to Art. 41OR is prominent in practice. Of course, liability under a contract is also conceivable, for example in connection with training in flying schools, with tandem flights, or in competitions. Tortious and contractual liability are in competition with each other, with the contractual basis being more attractive for the injured party if a contractual relationship exists, due to the question of fault. Further liability foundations can be found in special legislation, such as in the Aviation Act or in the Cable Car Act, which refers to the Railway Act for liability (there with further references, e.g. the Passenger Transport Act).
1. Liability from Tortious Acts
The requirements for liability from tortious acts arise from Art. 41OR. This includes that damage must have been caused, there must be culpability, there must be an adequate causal connection, and the act must have been illegal. Reference is made here to the extensive literature and case law.
In relation to paragliding, primarily damage to property and personal injury are to be considered. These occur predominantly at launch or landing, extremely rarely in the air. Examples from practice include a damaged pasture fence or destruction of forage grass or grain. In-air collisions can cause direct damage to paragliders or equipment, such as tears in the canopy or lines. A collision in the air can result in a crash, which can cause damage to equipment and/or personal injury. Practice shows that in such cases there are often difficulties in proving the cause. Video camera recordings, which are commonly used today to document the flight, can be helpful in this regard. Damages that occur upon landing often affect agricultural land; it is difficult to quantify the damage in these cases (see Müller, Mountain Sports Law, para. 43 f.).
2. Liability from Contract (especially Training Contract)
The French term for hang-gliding, vol libre, is misleading in that, on the one hand, one is not allowed to fly just anywhere. On the other hand, in Switzerland, it is also not permitted to fly without the appropriate license. Therefore, all aspiring paragliding pilots must undergo training. This is done at a flying school recognized by the Federal Office of Civil Aviation (FOCA). At least one person must hold a flight instructor certificate also issued by the FOCA. Training flights are carried out under the direct supervision of a flight instructor (Art. 7 Para. 3 VLK), who can involve assistants - for example, as launch assistants. The degree of supervision must be adapted to the training level of the flight students.
In Switzerland, training to become a paragliding pilot is predominantly carried out at a flight school licensed by the Swiss Hang Gliding Association. By means of instructions for operating a "SHV Flight School", qualified and safe training in Switzerland is to be ensured in particular. However, it would also be permissible to receive private training from a flight instructor, provided they have an official flight instructor's license (Art. 7 Para. 3 VLK).
Since flight students fly solo from the beginning, active physical intervention, as is possible, for example, during a driving lesson in a car, is ruled out. Thus, liability in the context of training regularly arises when the flight instructor or their assistants give inadequate or incorrect instructions. In the decision ST.2016.121 (Criminal Chamber), the Canton Court of St. Gallen had to assess the duty of care of a paragliding instructor in connection with the fatal crash of a paragliding student. Considering the circumstances, it concluded that the lower court had rightly acquitted the accused (see below para. 64 f.).
In connection with paragliding training, bodily injuries such as bruises, contusions, or fractures (at launch or landing) occur frequently. However, these must be accepted in a sport like paragliding (damage inclination) and only in exceptional cases do they constitute liability on the part of the flight instructor.
3. Liability under the Product Liability Act
Although paragliders and accessories are subject to strict testing, products occasionally have to be withdrawn from the market due to defects.
A manufacturer is liable under the Swiss Product Liability Act (PrHG) for damages caused by defective products. This can include both physical damage (e.g. injuries) and property damage. If, for example, a paraglider pilot injures themselves due to a poorly sewn paraglider resulting in a crash, or is even killed, the person producing the item (manufacturer) is liable for the damage according to Art. 1 Para. 1 lit. a.
A manufacturer is defined as anyone who fulfills one of the characteristics listed in Art. 2 Para. 1 lit. a-c PrHG. According to Art. 4 PrHG, a product is considered defective if it does not provide the safety that one is entitled to expect considering all circumstances. For liability under PrHG, the manufacturer must be identifiable, i.e., it must be clear who manufactured the defective product. In the event that the manufacturer cannot be identified, the supplier is considered the manufacturer unless they disclose the manufacturer or the person who supplied the product to the damaged person (Art. 2 Para. 2 PrHG). Moreover, the damaged person must not have contributed to the damage, i.e., the damage must not have been caused by improper use of the product. As is common with causal liabilities, it is not necessary that the manufacturer caused the damage intentionally or negligently. It is sufficient that the defective product caused the damage. See Hess Product Liability Act in entirety.
IV. Criminal Law
Paragliding accidents can lead to a criminal investigation. However, hang-gliding accidents are usually not investigated by the Swiss Accident Investigation Board SUST (Art. 2 Para. 1 lit. b Regulation on the Investigation of Aircraft Accidents and Serious Incidents, VFU).
A. Offences according to StGB
1. General
In terms of criminal law, the offences of property damage (Art. 144 StGB), negligent bodily harm (Art. 125 StGB) and negligent homicide (Art. 117 StGB) are particularly relevant. Serious negligent bodily harm and negligent homicide are prosecuted ex officio and have predominantly occurred in connection with tandem flights and flying lessons, according to case law. Convictions for property damage are probably rare overall, as this is an offence of intent and therefore at least conditional intent must be present and no grounds for excuse (Art. 17 and 18 StGB) may exist.
2. The Breach of Duty of Care in Special Guarantor Positions
Criminal investigations in Swiss paragliding primarily relate to accidents involving flight students and tandem flights. The criminal liability of flight instructors and tandem pilots is examined due to their respective positions as guarantors (for the criminal law position of guarantor and the general derivation of duties of care, see Müller, Mountain Sports Law, para. 56 ff.). For both flight instructors and tandem pilots, the duties of care to be observed arise from the contracts concluded between the parties (Art. 11 Para. 2 lit. b StGB) and, depending on the situation, from potentially additionally created dangers (Art. 11 Para. 2 lit. d StGB).
a. Duty of Care of Tandem Pilots
According to federal court case law, the level of care to be observed by the pilot during a tandem paragliding flight is determined by the statutory provisions on aviation, the current instructions of the Swiss Hang Gliding Association on the competency examination for paragliding pilots (Tandem Level 1), the theory materials handed out for the examination, and the personal knowledge and skills of the pilots (Federal Criminal Court judgement CA.2020.6 of 18 January 2021, E. 2.3.1). The VLK, in particular, are of significance from the statutory provisions on aviation for hang glider pilots. Art. 5a VLK refers to the provisions of the annex to the SERA regulation. According to SERA no. 31010, aircraft or paragliders must not be operated negligently (or intentionally) in a risky manner that endangers the lives or property of third parties. Since hang gliders or paragliders are also counted as aircraft according to Art. 6 lit. a in connection with Art. 1 VLK, the regulations of the Ordinance on the Rights and Duties of the Commander of an Aircraft of 22 January 1960 (KdtV) also apply to paraglider pilots in addition to the VLK. If there is only one aircraft commander on board, which applies to biplace flights, this person is considered the commander according to Art. 3 para. 1 KdtV. According to Art. 6 para. 1 KdTV, she or he must take all necessary measures to protect the interests of the passengers. The commander is responsible for the management of the aircraft, in particular according to the statutory provisions, the recognized rules of aviation, and the instructions of the holder. These recognized rules of aviation (see also para. III above) are further specified for the competency examination for paraglider pilots in the instructions of the E.-ASSOCIATION (see Federal Criminal Court judgement CA.2020.6 of 18 January 2021, E. 2.3.1).
In casu, a tandem paragliding pilot braked too hard during landing approach , leading to a stall and a fall from a height of eight meters. Based on an expert opinion at the previous instance, the court concluded that instead of pulling additionally on the left brake line, the tandem pilot could have initiated the last left turn by releasing the right brake. Alternatively, he could have already accelerated again before the turn by slightly releasing the brakes. Therefore, it seems highly likely that the crash of the paraglider and thus the injuries suffered by the private plaintiff would have been avoided if the accused had correctly assessed the speed of the aircraft and not performed the landing approach with additional braking. The tandem pilot was accordingly found guilty of negligent simple bodily injury.
b. Duty of Care of Flight Instructors
In the ruling No. ST.2016.121 of 23 November 2017, the Criminal Chamber of the Cantonal Court of St. Gallen ruled on the violation of the duty of care by a flight school instructor. A student pilot, who was already experienced, fell to her death during his supervised flight lesson. To evaluate the flight school instructor's duty of care, the court in casu, in addition to the air traffic rules according to VLK, VVR, LFG, VRV-L, and the SERA regulation, referred to the "Recommended International Paragliding Standards of Safety and Training" of the international air sports federation FAI (Fédération Aéronautique Internationale) as recognized sports rules. These guidelines serve as reference points that should be used to guide the criminal assessment of the questionable behavior (as already stated in the Federal Supreme Court ruling 6B_1332/2016 of 27.07.2017 E. 3.4). Further, the court checked compliance with the instructions of the Swiss Hang Gliding Association for the operation of a "Flight School SHV" as reference points (E. 3b). Finally, the court also investigated whether the flight instructor had instructed and trained sufficiently, whether his instructions via radio during the flight were situation-appropriate, and whether suitable flying equipment was used. The student's flying experience and her behavior during the accident were compared against this.
Regarding the general risk clause, the court stated that paraglider pilots are exposed to an increased risk compared to "normal" sports and that student pilots are not always able to protect themselves from the existing dangers, recognize them, and deal with them properly. Flight instructors, therefore, play an important role. The court includes the setup of a safety and emergency plan, the checking of the physical and mental abilities of their students as well as their technical equipment, the checking of weather conditions and local terrain conditions, the education of students about dangers and risks, and careful instruction among their general duties. Students must be sufficiently instructed about the most important techniques, materials, peculiarities of the terrain and the weather, and know the behavior in case of an emergency. Flight instructors must point out special risks and dangers in time and give appropriate instructions (see Nosetti, para. 315 ff.). However, it is of central importance that the flight students learn increasing independence and responsibility (see ruling ST.2016.121, of 23 November 2017, E. 3c). In casu, a violation of the duty of care by the flight instructors was denied.
c. Criminal Liability of Organizers
Organizers of a paragliding competition also hold a position of guarantor towards the participating pilots according to Art. 11 para. 2 lit. b StGB. The participants have registered with the organizers, thus establishing a contract for the event, and the usual duties of care are regulated thereafter. The organizers of competitions will have to account for the instruction of the participants , the assistants, as well as for the use and checking of material, insofar as this is reasonable (Toneatti, para. 76). Here, for example, one can think of checking the safety equipment required by the respective competition rules (emergency parachute, standard safety helmet, etc.).
The principle of the guarantor position goes beyond the event contract, by generally stating that the person who has created, maintained or increased a situation that could endanger others, is obliged to take all necessary measures under the circumstances to prevent the occurrence of damage or, if necessary, to prevent the worsening of an already existing impairment (BGE 134 IV 255 E. 4.2.2 S. 260 f.). It follows in particular that the organizers of a sports competition, when the activity carried out poses risks for athletes, spectators or third parties, have the duty to take all necessary safety measures to prevent foreseeable damage and should not merely rely on the caution of one or the other (BGer 6B_578/2008 of March 3, 2009, E. 2.1.1). The event can only fulfill its purpose if the athletes can devote their attention to their activity and the spectators can enjoy the spectacle without having to worry too much about safety measures. It is therefore the task of the organizers, who have invited the athletes to the competition and the spectators to watch, to take the necessary precautions under the circumstances and to pay particular attention to the fact that the attention of both sides could be directed towards the sport (BGer 6B_578/2008 of March 3, 2009, E. 2.1.1). The Federal Court convicted two members of the organizing committee of a paragliding competition of negligent homicide (Art. 117 StGB) when a paraglider collided with the mowing tenant of the property on which the starting area was located, and the latter died as a result of the accident (BGer 6B_578/2008 of March 3, 2009; see also Liability and Insurance, p. 838, Rz. 17.77). In casu, the two members of the organizing committees were present at the starting area and failed to ask the tenant not to stay in the lower part of the starting meadow during the start procedure. This was attributed to them as careless, duty-breaching behavior.
Paragliding competitions particularly attract many spectators at the start sites, who sometimes actively help the pilots with the start preparation (spreading out the paragliders). If the start site is predetermined by the organizers and they are aware that spectators also follow the start procedure, they should observe the site during the start procedure in order to be able to intervene in case of recognizable dangers. In hike&fly competitions, the start and landing sites are often not prescribed by the organizers. Rather, it is part of the competition discipline that the pilots independently search for suitable start and landing sites. Accordingly, the organizers are only responsible for the appropriate instruction of the competition participants in this respect.
In assessing the breach of duty of care, the actions of the paragliding pilots must also be taken into account, as is the case with civil liability. Here too, the question is about risk distribution. On the one hand, it is clear that the pilots themselves are responsible for their risky actions; on the other hand, the organizers should create security measures within the bounds of what is technically possible and economically reasonable. The fact that this risk distribution shifts heavily to the detriment of the usually liability-insured organizers is probably a sign of the times: personal responsibility is - wrongly - increasingly less in demand. It is appropriate to increasingly convey the general awareness of personal responsibility, especially in connection with outdoor sports (Bütler/Stiffler, Rz. 17.64, in this regard also Banzer, S. 291 ff.).
B. Special Criminal Provisions
1. Crimes / Offences
Since hang gliders or paragliders also count as aircraft according to Art. 6 lit. a in conjunction with Art. 1 VLK, the regulations of the Ordinance on the Rights and Duties of the Commander of an Aircraft of January 22, 1960 (KdtV) also apply to paraglider pilots. If they intentionally disregard the legal regulations or traffic rules during a flight as the commander of the aircraft, or as a passenger, and thereby knowingly endanger human life and limb or foreign property of considerable value on the surface of the earth, they can be punished with imprisonment for up to three years or a fine. Whoever acts negligently is punished with a fine of up to 180 daily rates (Art. 90 LFG).
2. Violations
The violation of the flight traffic rules according to VLK and VRV-L, which does not lead to endangerment of life and limb or foreign property of considerable value according to Art. 90 LFG, can be punished with a fine (Art. 91 para. 1 lit. a LFG). Where the boundary of the property of considerable value is drawn to the property of not considerable value is not clear and does not emerge from the legislative materials. Buildings and facilities will generally belong to the first category.
If the holders of a paraglider violate the insurance obligation according to Article 10 VLK (see para. 41), a fine is imposed according to Art. 20b VLK in conjunction with Art. 91 para. 1 lit. i LFG. The amount of the fine is at the discretion of the judge and amounts to a maximum of 20,000 Swiss francs. It is imposed regardless of whether the act was intentional or negligent. Landings and take-offs in protected areas are also subject to a fine (Art. 19 in conjunction with Art. 42 AuLAV and Art. 91 para. 1 lit. f. LFG). Finally, failure to comply with overflight bans by the UVEK (Art. 20 AuLAV) is also punishable by a fine.
C. Administrative measures
In the event of a violation of flight traffic regulations, the BAZL can impose administrative measures, regardless of the initiation and outcome of any criminal proceedings. On the one hand, a temporary or permanent withdrawal or restriction of the validity of granted permissions, licenses, and certificates can be ordered. On the other hand, the confiscation of aircraft, the further use of which would endanger public safety or the misuse of which is to be feared, can also occur (see Art. 92 LFG).
V. Social Insurance Law
A. Risk sport
Paragliding is commonly classified as a dangerous sport. The consequences of a crash are usually serious and can lead to severe injuries or be fatal. Nevertheless, the commercial offering of paragliding flights is not considered a risk activity and therefore does not fall under the activities listed in Art. 1 para. 2 RiskG (see Müller Mountain Sports Law, para. 8 ff.). A medical fitness examination is not required (see Schwerer/Mayr/Peschel/Graw, p. 227, who recommend a medical flight fitness test due to the examined fatalities in hang gliding).
B. Paragliding as a Risk
With regard to paragliding, the question arises as to whether this sport is considered an absolute risk. The distinction between absolute and relative risk is fundamentally important in view of potential reductions in benefits in the event of accidents (Art. 39 and Art. 50 UVG). Absolute risks always lead to benefit reductions. Extreme sports that are considered absolute risks include, for example, base jumping, speed flying, or downhill biking (Gehring, para. 77). Paragliding does not fall under the category of absolute risks, so a reduction in benefits per se is excluded.
Nevertheless, there are situations in paragliding when one speaks of a risk. This is the case when pilots deliberately take risks. For example, a so-called cliff launch with limited possibility of a safe launch abort must be classified as a relative risk. Similarly, a start in dangerous weather conditions, such as foehn winds or in front of a storm front, can be classified as a risk (Erni, p. 30).
The effects of benefit reductions in cases of risk can have serious consequences for those affected. While there are no reductions for healing, rescue and recovery costs, on the other hand, daily allowances and disability pensions are reduced or, in particularly serious cases, even completely denied. This can lead to significant financial constraints for the rest of one's life.
C. Reductions in case of Gross Negligence
Even if the pilots do not take a relative risk, insurance benefits can be reduced. This is the case when they have acted with gross negligence. For example, a pre-start check that is not properly carried out can be classified as gross negligence, as can flying under the influence of alcohol or medicinal substances.
VI. Outlook
More and more flying schools are training more and more paragliding pilots. The number of paragliding competitions is also increasing. At the same time, the available airspace is additionally used by new airspace participants such as drones. New solutions for coordinating the different airspace participants are therefore needed. Currently, the introduction of another airspace class (class "U (Uniform)") is being discussed. In this zone, drone traffic alongside hang glider pilots and other airspace participants is to be regulated.