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Tompkins Publishes Authoritative Book on Impact of United States Jurisprudence on Air Carrier Liability Involving International Air Transportation

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Tompkins Publishes Authoritative Book on Impact of United States Jurisprudence on Air Carrier Liability Involving International Air Transportation June 2010 Aviation Tompkins publishes authoritative book on impact of United States jurisprudence on air carrier liability involving international air transportation George N. Tompkins Jr. (Of Counsel-New York) has authored “Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States, From Warsaw 1929 to Montreal 1999.” The book, which is part of Kluwer Law International’s Aviation and Policy Series, was released in April 2010. As a leading authority with worldwide recognition on the interpretation and application of international private air law agreements – and himself among the drafters of the 1999 Montreal Convention (MC99) – George lays out his vast personal experience in handling cases and controversies in United States courts involving the application of the liability rules of the Warsaw Convention and now MC99. He explains the required particulars for establishing the liability of the air carrier in detail under a wide variety of circumstances. George provides a thorough summary and critique of the interpretation and application of the 70-year body of Warsaw Convention jurisprudence and the basis for the development of a body of MC99 jurisprudence. The book is an incomparable practical guide that may be helpful to anyone involved in the practice or study of international private air law, including lawyers, airline in-house counsel, international aviation organizations, aviation liability insurers and reinsurers, aviation insurance brokers, aviation-related departments of national governments, judges, law clerks, students and teachers. This article does not constitute legal advice. Before implementing a policy seeking to comply with all applicable law, employers are advised to consult with legal counsel. Contact us at [email protected]. © 2010 Wilson Elser Moskowitz Edelman & Dicker LLP. All Rights Reserved. June 2010 Aviation Case updates New York/New Jersey/Pennsylvania - In re Air Crash Over the Hudson River, New York, NY on August 8, 2009; MDL No. 2152. Nearly 20 lawsuits have now been filed in the State of New Jersey and the Commonwealth of Pennsylvania. Notices of Claim were also filed in New York. The actions arise from the midair collision between a fixed-wing private aircraft and a tourist helicopter. Nine fatalities resulted from the incident. Wilson Elser filed motions to dismiss the two complaints brought against its client in the Commonwealth of Pennsylvania. Gary A. Gardner (Partner-New York) and Jonathan Dryer (Partner-Philadelphia) obtained a pre-answer dismissal in the Hudson River case from the Court of Common Pleas, Philadelphia County, Pennsylvania. Moreover, following receipt of Wilson Elser’s moving papers in the companion federal district court action, counsel for the groups of plaintiffs voluntarily dismissed all claims without prejudice. Counsel for a group of plaintiffs in the Eastern District of Pennsylvania subsequently moved the Multidistrict Litigation Panel to transfer all pending cases pursuant to USC §1407 to the Eastern District of Pennsylvania for all pretrial litigation purposes. Numerous parties opposed the move, including counsel for the Italian tourists onboard the helicopter, the U.S. Department of Justice, and Wilson Elser, prior to dismissal of its client. Although opposition to the transfer was grounded in various arguments, the primary issues addressed by the panel were (1) whether transfer is appropriate under USC §1404(a), and (2) whether, if the matters are transferred pursuant to USC §1407, the District of New Jersey is the appropriate forum. Oral argument was held before the Multidistrict Litigation Panel on May 27, 2010, in the Middle District of Illinois, Chicago. A. Ernest Tonorezos (Associate-New York) appeared for the MDL hearing in order to preserve all interests and keep Wilson Elser’s client from litigating in Pennsylvania. The MDL panel issued a quick opinion and followed Wilson Elser’s line of reasoning in holding its decision in abeyance. The panel agreed that USC §1404(a) was the more appropriate statute for transfer of the cases and provided the Eastern District of Pennsylvania with 60 additional days to rule on the pending motions in that court. Western District, New York - In re: Air crash near Clarence Center, New York, on February 12, 2009; MDL- 2085. Parties in this matter have battled over whether the cockpit voice recording of Continental Connection Flight 3407 must be turned over to families seeking damages in a suit stemming from a commuter crash. The plaintiffs argued that, without the unedited recordings, they will not receive a fair trial because “the transcripts do not provide sufficient information to provide a full understanding of the egregious behavior of Flight 3407’s flight crew.” Colgan Air Inc. and parent company Pinnacle Airlines Corp. argued that the plaintiffs failed to show that the written transcript of the last moments of the flight was insufficient. The transcript was drafted by consensus of a group that included representatives of the defendants, but not the plaintiffs. The plaintiffs said the group’s conclusions may not be accurate and an independent expert may determine that a word or noise in the recording is different from what the group transcribed. In addition, the plaintiffs argued, the transcript contained significant gaps and edits that did not adequately portray the atmosphere in the cockpit. Colgan and Pinnacle said the plaintiffs failed to show that the transcript was insufficient to provide insight into the crew’s state of mind and the decedents’ preimpact terror, as all cockpit voice recordings lack tone of voice, pitch and inflection. An official ruling has not yet been entered by Judge William M. Skretny. This article does not constitute legal advice. Before implementing a policy seeking to comply with all applicable law, employers are advised to consult with legal counsel. Contact us at [email protected]. © 2010 Wilson Elser Moskowitz Edelman & Dicker LLP. All Rights Reserved. June 2010 Aviation Select recent national decisions impacting aviation law New York - U.S. Magistrate Judge Henry Pitman has refused to allow Cirrus Design Corp. to reference U.S. National Transportation Safety Board (NTSB) findings and conclusions relating to the crash that killed New York Yankees pitcher Cory Lidle. Lidle and his flight instructor were killed in October 2006 when their Cirrus aircraft flew northbound up the East River in a corridor of uncontrolled airspace. The aircraft was unable to complete the turn and crashed into an apartment building on East 72nd Street in Manhattan. The plane did not have a flight data recorder or cockpit voice recorder, and there were no radio transmissions from the pilot right before the crash. Lidle’s family filed suit, arguing that certain deformations in parts of the aircraft’s control system caused the controls to jam. Cirrus countered that pilot error caused the accident. The defense moved for summary judgment and included in its briefs and submissions, references to NTSB findings. At the request of Lidle’s family, the Magistrate struck Cirrus’ references to NTSB findings that the company made in support of its motion for summary judgment. Magistrate Pitman said the NTSB produces several different types of reports in the course of its investigations. However, 49 U.S.C. § 1154(b) provides that no part of an NTSB report “related to accident or investigation may be admitted into evidence.” The factual report NTSB investigators developed can be used in civil damages proceedings, but the agency’s overall conclusions cannot, Judge Pitman clarified. Lidle v. Cirrus Design Corp., No. 08 Civ. 1253 (S.D.N.Y. Apr. 22, 2010). Florida - U.S. District Judge Alan S. Gold denied Teledyne Continental Motors Inc.’s summary judgment motion under the General Aviation Revitalization Act (GARA) as foreign law applied to the claims. The lawsuit was filed following a June 2006 air crash near Peten, Guatemala. The Cessna aircraft took off for Peten from Guatemala City. The aircraft had two people onboard and was scheduled to return with three more, two of whom had been seriously injured in a traffic accident and would be receiving medical care in the city. The Cessna experienced engine failure on the return trip, killing all five people onboard. The plaintiffs sought damages from Teledyne for negligence and strict liability. Judge Gold rejected the defense’s motion, noting that Teledyne relied on several unsworn documents that were not based on the witnesses’ personal knowledge in attempting to establish the essential elements of its GARA defense. Judge Gold further noted that even if Teledyne presented evidence to support its GARA claims, the statute would not apply to the plaintiffs’ tort claims because they were governed by foreign law. “Guatemalan law governs ‘all substantive issues’ in this tort action … and statutes of repose are considered ‘substantive’ for choice-of-law purposes pursuant to Florida law.” Castillo v. Cessna Aircraft Company, Teledyne Technologies Company, and Teledyne Continental Motors, Inc., No. 08-21850, (S.D. Fl. April 26, 2010). Alabama - U.S. District Judge Ira DeMent of the Middle District of Alabama transferred a plaintiff’s suit to the U.S. District Court for the Middle District of Pennsylvania following dismissal of one defendant, because defendant Lycoming Engines designed, manufactured and tested the engine at issue in the Commonwealth of Pennsylvania. The plaintiff, an Ohio resident, was injured when the Piper/PA-32R-301T airplane he was flying crashed near Tazewell, TN, in June 2005. Claiming the accident was caused by a defective engine, the plaintiff sued several companies, including Lycoming and Alabama-based turbocharger manufacturer Kelly Aerospace Inc. Following the dismissal of Kelly Aerospace from the suit, the plaintiff sought transfer to Pennsylvania (personal jurisdiction over Kelly in the commonwealth was no longer an issue). He argued that the Middle District of Pennsylvania would be a more convenient forum for the parties and that transfer was in the interest of justice. Lycoming countered that the transfer request was untimely, would delay the litigation, and lead to additional costs.
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