Imagine this scenario and tell me, who has the right of way. One pilot is climbing in a light thermal and drifting closer to the terrain. The second pilot is above the first pilot and scratching in broken lift close to the terrain. The drift of the thermaling pilot is in line with a parcel of broken lift that the second pilot is using to maintain altitude.
Both pilots have made eye contact and are aware of each other.
Who has the right of way?
Note: This scenario was inspired by a recent mid-air collision but it does not reflect what actually happened.
First, there is no “right” of way.
It’s about etiquette and not about rights.
This is etiquette whose purpose is safety for all pilots.
Anyhow, upper pilots must always yield to lower pilots climbing up from beneath so they may climb through their track. Also, the proximity to terrain combined with drift gives the lower pilot a second courtesy cause to yield by the upper pilot.
My 2p worth