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Content

Flight Indemnity

Introduction

This guidance highlights the MOD requirements when DEFCON 638 - Flights Liability and Indemnity is contractually invoked.

Inclusion of DEFCON 638 in contracts for the operation of military registered aircraft indemnifies the contractor against third party claims and all damage to the aircraft. This indemnity is given because MOD self-insurance is likely to be cost-effective and the assessment and approval of the contractor by DES SE Air-TESD mitigates the MOD risks. DEFCON 638 is a no fault indemnity which apportions liabilities to both the MOD and the Contractor for Authorised flights only.

MOD Policy

Government accounting requires that Departments should carry out a careful appraisal of the risks, including where appropriate the legal aspects, before contingent or actual liabilities are accepted.

Under the terms of DEFCON 638, Authorised flight, taxiing or engine ground running is established by the endorsement of a Flight Authorisation Certificate or Engine Ground Running Certificate by the Authority’s Authorised Representative. It is the issue of a Flight or Engine Ground Running Certificate that activates the indemnity provisions, not the existence of DEFCON 638 in the Contract.

Contractor’s flights under a MOD contract

When contracting for the operation of military registered aircraft. The Integrated Project Team Leader (IPTL) must ensure that either the Contractor:

• accept all liability for aircraft operations, or
• invoke DEFCON 638 - Flights Liability and Indemnity [16KB PDF], together with Def Stan 05-100 [PDF] - Ministry of Defence Requirements for Aircraft Flight and Ground Running,
  (formerly: Ministry of Defence Requirements for Certification of Aircraft for Authorised Flight and Ground Running).

A Contractor working under a MOD contract is responsible for the airworthiness and quality aspects of aircraft construction, overhaul, repair, modification or servicing throughout all stages and phases of manufacture, including Authorised flights and installed engine ground running. MOD provides flight and engine ground running indemnity by invoking DEFCON 638 (formerly: Form 6/38) in the contract.

Before a military aircraft is flown at a Contractor's airfield or other location, including Government Establishments, the Contractor shall comply with the requirements of AvP 67 - Flying Orders to Contractors [1.04MB PDF] or similar document defined by the Authority. The indemnity cover provided by DEFCON 638 is activated by the Authority's Authorised Representative endorsing the Flight Authorisation Certificate (FAC) or the initial Engine Ground Running Certificate (EGRC). The period of this cover for flights and engine ground runs is referred to as the "period of cover", and provides indemnity in accordance with the contract.

Def Stan 05-100 defines the requirements which precede the endorsement by means of a FAC when aircraft undertake Authorised flights and EGRC, for contracts invoking DEFCON 638. The requirements of Def Stan 05-100 can only be met where the Authority's Authorised Representative has confidence that the aircraft has been constructed, modified, serviced, maintained, inspected and functions in accordance with approved drawings, specifications and procedures; and satisfies the design standard laid down in the Design Certificate, the Certificate for Flight Trials or the existing Release to Service (RTS).

Def Stan 05-100 does not of itself confer any indemnity on the Contractor, but provides procedures to be complied with when DEFCON 638 is called up in a Contract.

Where aircraft flight and ground running is “outside” the existing RTS, only the Government Quality Assurance Representative (GQAR) is recognised as the Authority’s Authorised Representative who is required to carry out such verification as the Authority requires, in support of the endorsement of Flight and Engine Ground Running Certification.

When aircraft flight and ground running is “within” the existing RTS a competent Crown Servant who is Authorised by an IPTL or the GQAR is recognised as the Authorities Authorised Representative when Def Stan 05-100 Issue 3 is invoked.

To enable the Authority to gain the required confidence, before granting permission for flight or initial engine ground run, the Contractor should make provision for the Authority's Authorised Representative to carry out such verification as the Authority requires and demonstrate to the Authority's Authorised Representative that the aircraft is fit for the intended purpose in support of the endorsement of a FAC or EGRC.

The MOD verification activity by the Authority's Authorised Representative may be carried out at suitable stages prior to the submission of the FAC or EGRC for endorsement, and may be carried out at a stage subsequent to the Contractor's special inspections, (see Def Stan 05-61 Part 9 [PDF] - Independent Inspection Requirements for Safety Critical Items). This verification activity by a member of a Registered GQAR Organisation will be achieved by planned surveillance and the Contractor who will make provision for this in his programmes.

During the Authority's Authorised Representative's verification activities, the Contractor should make available qualified personnel to provide assistance in the operation of the aircraft systems and ground support systems.

Aircraft covered by contracts that call up the requirements of Def Stan 05-100 shall not be flown, taxied or engine ground run, unless authorisation in the form of a FAC or EGRC has been received from the Authority's Authorised Representative. Only the Authority's Authorised Representative gives this agreement, and under no circumstances is the endorsement to be made by a member of the Contractor's organisation.

It is acceptable that an aircraft may have more than one FAC in operation at the same time. For example where a dedicated aircraft is operating on a number of contracts or an aircraft is operating on two or more contracts during the same flight. To avoid confusion in relation to any possible claims under the indemnity cover afforded by DEFCON 638 it must be made clear which FAC is in operation for any particular activity. When an aircraft operating on two or more contracts that are placed upon a “single Contractor” it is acceptable that more than one contract is identified on the FAC.

Service pilots who are on long or short term loan and/or attachment to a Contractor for flying duties or Crown Servant pilots from the Defence Aircraft Repair Agency (DARA) who undertake flights under sub-contract to the Prime are regarded in the same manner as a Contractor’s pilot when authorising flights under the terms of DEFCON 638.

Granting permission for aircraft flight / engine ground running under the terms of DEFCON 638

IPT staff and other MOD stakeholders should familiarise themselves with the requirements of Def Stan 05-100 and where an aircraft is “outside” the existing RTS; formally task the appropriate Registered GQAR’s Organisation to carry out the activities associated with the endorsement of Flight and Engine Ground Running Certification as detailed in Def Stan 05-100.

When aircraft flights are “within” the existing RTS, an IPTL may either (i) task the appropriate Registered GQAR Organisation or (ii) authorise a competent Crown Servant to endorse the Flight and Engine Ground Running Certification. The IPTL should make sure that an Authorised Crown Servant is competent to:

• ensure that the MOD Form 700 Series documentation is complete and reflects the build standard of the aircraft.
• ensure that the declared configured standard of the aircraft is “within” the existing RTS and fit for the purpose of the intended flight or initial engine ground running as detailed in the Flight Authorisation Certificate (FAC) or Engine Ground Running Certificate (EGRC).
• ensure that the requirements of Clause 9 within Def Stan 05-100, Issue 3 are met. These requirements are reflected within Annex A - Specimen Letter of Delegation [40KB DOC].

Crown Servants who grant permission for flight and initial engine ground running under the terms of DEFCON 638 must familiarise themselves with the requirements of Def Stan 05-100 Issue 3, together with the Authority’s obligations under the terms of DEFCON 638. Flight Authorisation and Engine Ground Running Certificates may be obtained from Def Stan 05-100, Issue 3 [PDF].

Where a Contractor’s Ferry Flight from the Military Air Environment (MAE) is required to deliver an aircraft to the Contractor for Contracted work, the IPTL or his delegated representative may endorse the Ferry Flight FAC (obtained from Annex C of Def Stan 05-100 Issue 3) to grant permission to proceed with the Ferry Flight, on the basis that the MOD Form 700 series documentation is complete and the pilot has accepted the aircraft on the MOD Form 705. The Def Stan 05-100 requirements for the endorsement of Ferry Flights are reflected within Annex B - Specimen Letter of Delegation [38KB DOC].

Note: Def Stan 05-100, Issue 2 or Issue 3, must be invoked to contractually recognise the IPTL or his delegated representative’s authority to endorse a Ferry FAC.

Contractor’s flights outside a MOD Contract

Unless otherwise agreed by the Authority, the Indemnity arrangements provided under the terms of DEFCON 638 are not applicable to Aircraft Loan Agreements. The Contractor must therefore agree alternative arrangements with the IPTL; see Def Stan 05-123, Part 5, Issue 2, Annex Z [PDF].

Where a Civil-Owned Aircraft has Military Registration and the operation of the aircraft is not pursuant to a MOD contract: The Sponsor shall ensure that the aircraft manufacture and/or applicant organisation shall enter into a deed of indemnity with the Secretary of State to indemnify the Secretary of State for Defence, his servants or agents; for more information see Def Stan 05-122, Issue 3 [PDF].

MOD Service Unit flights (no Contractor involvement)

Military flights and engine ground running within the Military Air Environment are indemnified by Secretary of State for Defence, therefore the indemnity arrangements under the terms of DEFCON 638 and Def Stan 05-100 do not apply.

Flights Liability and Indemnity

DEFCON 638 grants indemnity to the Contractor for the period covered by the Flight and Engine Ground Running Certification. Where damage or Personal injury results from an Authorised Flight, the Authority accepts indemnity and indemnifies the Contractor and his Subcontractors for: all damage to the aircraft or to any property of the Authority; all damage to any property of the Contractor or his Subcontractors carried or installed in the aircraft; all claims by or on behalf of any representative of the Authority participating in or present at the Authorised flight and all third party claims.

When damage or Personal injury results from an Authorised Flight, DEFCON 638 requires that the Contractor accept liability and indemnify the Authority for: all damage to any property in the care of the Contractor or his Subcontractors on the ground, whether the Contractor’s property or on loan, other than that property belonging to the Authority; all claims by or on the behalf of any person in the Contractor’s or his Subcontractor’s employment including the Authority’s reasonable costs of defending the claim, including the cost of any legal proceeding or action and all claims by any person on board the aircraft, excluding the claims by or on the behalf of the Authority’s representatives.

Flight and Engine Ground Running Indemnity Overview

A flowchart summarising the Flight and Engine Ground Running Indemnity process [19KB PDF] has been developed.

Flight Indemnity Terms and Definitions

Term	Definition
Authority	Means the Secretary of State for Defence
Authority's Authorised Representative	For the purposes of Def Stan 05-100; Flight and Engine Ground Running Certification will be endorsed by a member of a Registered Government Quality Assurance Representative (GQAR) organisation, with the requisite scope and competency or a competent Crown Servant who is Authorised by the IPTL (see above: Granting permission for aircraft flight and/or engine ground running under the terms of DEFCON 638).
Authorised Flight	A flight or taxiing trial in support of the contract which has a valid Flight Authorisation Certificate (FAC), or in the case of and Engine Ground Run, a fully completed Engine Ground Running Certificate (EGRC).
Contractor	In addition to the meaning ascribed in DEFCON 501 “Contractor” shall include the Contractor’s subcontractor where such subcontractor is the party responsible for the Authorised flight, taxiing trial or Engine Ground Run and has been approved for this role by the Authority.
Engine Ground Run	Testing and/or running the engine on the ground with no intention to taxi or fly but without removal of the engine from the aircraft.
Initial Engine Ground Run	The first engine run following installation into the airframe.

Change History

Change History

Any future amendments to this guidance will be recorded here.

There are currently no amendments to report.