Facts
On May 5, 1989, a collision occurred at the military airfield in Kägiswil, which was also open to civil air traffic, between a civil training aircraft and a military training aircraft. The civil aircraft crashed, resulting in the deaths of the student pilot [S.] and the flight instructor C. The military pilot was able to land unharmed.
The parents and brothers of [S.] filed a claim for satisfaction with the Federal Military Department, which was however rejected. The surviving relatives then filed an appeal with the Appeals Commission of the Federal Military Department, which found that the Confederation was not liable for the claim asserted.
The relatives of [S.] then filed an administrative court appeal with the Federal Supreme Court, requesting that the liability of the Confederation be established based on Art. 22 para. 1 or Art. 23 para. 1 of the Federal Act on the Military Organization (MO).
Considerations
The Federal Supreme Court concluded that the liability of the Confederation for the collision between the military and civil aircraft is to be assessed not under the Aviation Act, but under the Military Organization.
According to Art. 22 para. 1 MO, the Confederation is liable for the damage caused by a serviceman in the performance of his official duties "unlawfully". The Federal Supreme Court found that the violation of an absolute right, such as the…