AVIATION HAPPENINGS SUMMER 2016 Volume 2, Issue 3

In this issue  Pilots not Subject to Personal Jurisdiction in Virginia Despite Causing Damage in Virginia Airspace  Registration to Do Business Is Not Consent to Personal Jurisdiction in Delaware  Third Circuit Grapples with Issue of Whether Federal Aviation Act Preempts Design Defect Claims Based on State Law Standards of Care  Comments Are in for FAA’s Proposal to Amend Small Aircraft Certification Standards  Federal Agency Publishes Best Practices for Drone Privacy  Removal Based on Federal Issues Raised by Motion To Compel Pre-Crash FAA Records Deemed Proper  Federal Courts Continue Scrutiny of Removals from State Courts  Seat Downgrade No Accident under Montreal Convention  Federal Court Dismisses all but Contract Claims Arising out of Alleged Bribery Scheme  US Airways Not Liable for Delay Under ‘All Reasonable Measures’ Defense

Pilots not Subject to Personal Jurisdiction in showed that the alleged breach of operating limita- Virginia Despite Causing Damage in Virginia tions occurred in the airspace over Virginia. Schnader Airspace responded that, even if that were the case, the con- Jonathan Stern, Washington, D.C. nection to Virginia would be insufficient to exercise [email protected] jurisdiction because “[a] defendant’s actions that are directed at the forum state in only ‘a random, fortui- In Ondrejko v. Atlantic Airways, et al., the alleged tous, or attenuated way’ are insufficient to support owner of a single-engine airplane leased to Atlantic jurisdiction.” Moreover, Schnader argued that the Airways claimed that 10 pilots, student pilots and reason that nonresidents driving on a state’s high- flight instructors had damaged his airplane’s engine ways are subject to that state’s jurisdiction is that by operating outside of the approved parameters in they are within the regulatory jurisdiction of that the flight manual. One of those 10 was a Pennsylva- state. That is not the case with the airways, Schnader nia resident, and he was charged with deviating from argued, where they are distinctly under the sover- the manual solely on one flight from North Carolina eignty of the federal government, and state and local to Pennsylvania. Schnader represented the Pennsyl- regulation is preempted by federal law. vania pilot and moved to dismiss the Complaint on The court agreed with Schnader’s position, ruling the basis that the claims against the pilot did not that our client’s connection with Virginia was too bear a sufficient relationship to Virginia to support a attenuated to allow the exercise of jurisdiction. Our finding of specific personal jurisdiction because only motion was sustained and the client was dismissed 20% of the route of flight was over Virginia, and the from the case. Ondrejko v. Atlantic Airways, et al., points of departure and destination were outside No. CL-2015-96289 (Cir. Ct. Loudoun Cty. Mar. 4, Virginia. 2016) (Sincavage, J.). At the hearing on the motion, plaintiff’s counsel represented that downloaded data from the airplane

Registration to Do Business is Not Consent to of action, however unrelated to that foreign corpo- Personal Jurisdiction in Delaware ration’s activities in Delaware.” In reaching its deci- Barry S. Alexander, New York sion, the court reversed twenty-five years of Dela- [email protected] ware precedent, noting that a narrower reading of its registration statute (1) avoided subjecting corpo- The U.S. Supreme Court’s decision in Daimler AG v. rations that register to general personal jurisdiction Bauman radically altered the manner in which gen- where it would not exist for foreign corporations eral personal jurisdiction is analyzed in the United that fail to properly register, and (2) “has the intui- States, holding that except where extraordinary cir- tively sensible effect of not subjecting properly reg- cumstances are present, a corporation is subject to istered foreign corporations to an ‘unacceptably general personal jurisdiction only in the state in grasping’ and ‘exorbitant’ exercise of jurisdiction, which it is incorporated, and the state in which it consistent with Daimler’s teachings.” Id. at 31-32. has its principal place of business. In the wake of that decision, plaintiffs have scrambled to find alter- native bases for personal jurisdiction, especially where specific personal jurisdiction is not present. The Delaware Supreme Court’s decision in Genuine Parts Co. v. Cepec, addressed one such issue— whether the registration to do business and ap- pointment of an agent for service in Delaware con- stituted consent to general personal jurisdiction. The action arose out of claims for wrongful exposure to asbestos. The plaintiffs, Ralph and Sandra Cepec, commenced the action against seven companies associated with the manufacture, distribution or As the Delaware Supreme Court noted in its deci- installation of products containing asbestos. Genu- sion, United States courts are split on this issue; the ine Parts Co., one of the defendants, filed a motion court specifically referenced the conflicting deci- to dismiss for lack of personal jurisdiction, arguing sions of the United States District Court for the Dis- that the claims asserted had nothing to do with its trict of Delaware in Acorda Therapeutics, Inc. v. activities in Delaware, and there was no basis for a Mylan Pharmaceuticals Inc., 78 F. Supp. 3d 572, 587, finding of general personal jurisdiction. The Superi- 591 (D. Del. 2015) (finding that registration did not or Court denied the motion, finding that Genuine equal consent to jurisdiction), and Astrazeneca AB v. Parts consented to general personal jurisdiction be- Mylan Pharms. Inc., 72 F. Supp. 3d 549, 555 (D. Del. fore the Delaware courts “merely by registering to 2015) (finding that registration does constitute con- do business in Delaware.” sent). Accordingly, we likely will continue to see this The Delaware Supreme Court reversed the Superior issue raised in cases until the US Supreme Court de- Court, holding that in light of Daimler, Delaware’s cides this issue. Genuine Parts Co. v. Cepec, 2016 registration statutes “must be read as a requirement Del. LEXIS 247 (Del. Apr. 18, 2016). that a foreign corporation must appoint a registered agent to accept service of process, but not as a broad consent to personal jurisdiction in any cause Third Circuit Grapples with Issue of Whether of safety; (2) the Act does not preempt state tort Federal Aviation Act Preempts Design Defect suits; (3) federal standards of care govern state tort Claims Based on State Law Standards of Care suits based on design defects in aviation manufac- Denny Shupe, Philadelphia turing; (4) an FAA-issued type certificate does not [email protected] create a per se bar to a lawsuit; (5) whether a type certificate preempts a plaintiff’s claim is governed by Sikkelee v. Precision Airmotive Corp. arises from the ordinary conflict preemption principles; and (6) crash in 2005 of a single engine, 1976 model Cessna where the FAA has approved the specific design as- 172N aircraft. The plaintiff alleged that the aircraft pect that a plaintiff challenges, any claim that the lost power and crashed as the result of a malfunc- design should have been different is preempted. tion or defect in the engine’s carburetor. The air- The Third Circuit ultimately did not agree with much craft’s Lycoming -O 320 engine was type certificated of this input received from the FAA. In a preceden- in 1966, manufactured in 1969, put in long term tial decision filed on April 19, 2016, a unanimous storage, installed “factory new” in 1998, and over- three judge panel reversed the entry of partial sum- hauled by a third party with a replacement carbure- mary judgment on the design defect claims. The tor that was installed in 2004. A wrongful death Court held that Abdullah, in which the Third Circuit and survival action was filed in federal court in Penn- held that federal law preempts the “field of aviation sylvania by the pilot’s surviving spouse in 2007. safety,” does not extend to state law products liabil- Plaintiff originally alleged state common law claims ity claims. The Court reasoned that “[i]n light of against 17 defendants, including under theories of principles of federalism and the presumption against strict liability, breach of warranty and negligence. In preemption, Congress must express its clear and 2010, the trial court granted the defendants’ motion manifest intent to preempt an entire field of state for judgment on the pleadings, holding that plain- law”. The Court did not find this intent in the text tiff’s state law claims, based on state law standards and legislative history of the Federal Aviation Act. of care, were preempted because they fell within The Third Circuit also concluded that “Congress did the preempted “field of air safety” described in not intend to preempt aircraft products liability Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. claims in a categorical way,” and held “that neither 1999). the Act nor the issuance of a type certificate per se Plaintiff then filed an amended complaint in which preempts all aircraft design and manufacturing she continued to assert state law claims, but also claims.” Finally, the Court found that “subject to tra- incorporated federal standards of care by alleging ditional principles of conflict preemption…aircraft violations of numerous federal aviation regulations. product liability cases like Appellant’s may proceed She ultimately narrowed her claims to defective de- using a state standard of care.” sign (negligence and strict liability) and failure to On May 17, 2016, Appellee AVCO Corporation warn. Lycoming filed another motion for partial (through its Lycoming Engines division) filed a peti- summary judgment, on the design defect claims on- tion for rehearing by the Third Circuit en banc, as- ly. The District Court granted the motion, conclud- serting that the appeal involves a question of excep- ing that the FAA’s issuance of a type certificate for tional legal and practical importance—whether the the engine meant that the federal standard of care Federal Aviation Act preempts design defect claims was satisfied as a matter of law. The District Court based on state law standards of care. In the peti- also certified the summary judgment order for im- tion, AVCO argues that the Third Circuit “panel’s de- mediate appeal, and the Third Circuit granted inter- cision cannot be reconciled with Abdullah, and, if locutory appeal. allowed to stand, will undermine the uniform regula- During the appeal, the Third Circuit sought input tory scheme created by Congress.” from the FAA as amicus curiae. In response to spe- This case will continue to command intense scrutiny cific questions posed by the Third Circuit, the FAA from the aviation industry as it works its way responded with its positions that: (1) the Federal through the federal courts. Sikkelee v. Precision Aviation Act (“Act”) impliedly preempts the field of Airmotive Corp., 2016 U.S. App. LEXIS 7015 (3d Cir. aviation safety with respect to substantive standards Apr. 19, 2016).

Comments Are in for FAA’s Proposal to Amend lishing a performance-based regulatory regime for Small Aircraft Certification Standards small aircraft and (2) adding new certification stand- William Janicki, San Francisco ards for loss of control and aircraft icing. This NPRM [email protected] constitutes one of the largest proposed regulatory revisions in the FAA’s history. The NPRM proposes The general aviation (“GA”) industry has been lobby- to establish performance and risk-based divisions for ing for years to make it easier and cheaper to certify airplanes with a maximum seating capacity of 19 new airplanes and bring new technologies to mar- passengers and a maximum weight of 19,000 ket. In 2011, the FAA formed the Part 23 Reorgani- pounds. The proposal will eliminate commuter, utili- zation Advisory and Rule Making Committee (“ARC”) ty, and acrobatic airplane categories from Part 23, composed of multinational industry and government retaining only the normal category. For example, organizations to recommend updated certification the NPRM proposes the following airplane certifica- standards for small aircraft, resulting in the Small tion levels: Plane Revitalization Act (Public Law 113-53), which Level 1: maximum seating of 0 to 1 passengers, President Obama signed into law on November 27, including simple airplanes 2013. Level 2: maximum seating of 2 to 6 passengers The Small Plane Revitalization Act requires the FAA Level 3: maximum seating of 7 to 9 passengers to replace the current, prescriptive requirements for Level 4: maximum seating of 10 to 19 passengers. certification with ones that are performance-based, and to utilize consensus based standards. Prescrip- In addition, the NPRM proposes the following air- tive design standards specify a particular design re- plane performance levels: quirement, such as materials to be used, how to per- Low speed: maximum operating limit up to 250 form a test, or how an item is to be fabricated or knots constructed. Performance, or outcome-based High speed: maximum operating limit greater standards, state requirements in terms of required than 250 knots. results, but do not prescribe any specific method for In addition to these new classifications, the NPRM achieving the required result. proposes new requirements to improve stall charac- The current Part 23 certification standards were teristics and pilot situational awareness to prevent originally established in 1965 and have become loss of control accidents, and addresses icing certifi- more focused on high-performance, turbine pow- cation. For those manufacturers who certify an air- ered airplanes, creating a barrier to the efficient cer- craft with a prohibition against flight in super cooled tification and introduction to market of new entry- large droplets (“SLD”) conditions, the proposed rule level, simple airplanes (defined by the FAA as entry would require a means for detecting SLD and show- level airplanes with up to one passenger and limited ing the airplane can safely exit such conditions. to VFR operations). Manufacturers that choose to certify an airplane for flight in SLD, must demonstrate safe operations in On March 14, 2016, the FAA published a Notice of such conditions. Proposed Rulemaking (“NPRM”) aimed at (1) estab-

The FAA’s comment period for the NPRM closed on tion, the Aircraft Electronics Association, and Experi- May 13, 2016, and sixty-one comments were re- mental Aircraft Association. ceived. Aircraft manufacturers argue that this The NTSB, however, raised concerns about how the streamlined Part 23 will reduce certification costs and new certification process would work, and warns that the price of new aircraft, and allow for the incorpora- the revised certification process for light aircraft tion of new technologies. FAA Administrator Michael could allow inferior designs to slip through the cracks, Huerta has stated that the changes will double safety impacting safety. The NTSB cited deficiencies in the at half the cost. Positive comments to the FAA’s pro- use of consensus standards currently used in the de- posed rule were received from various industry or- sign of light sport aircraft that do not provide ade- ganizations such as the Aircraft owners and Pilots As- quate protection, and which have resulted in in-flight sociation, General Aviation Manufacturers Associa-

Aviation Group News

 Schnader was ranked by Chambers USA as one of the top firms nationwide for Trans- portation: Aviation: Litigation. Partner Denny Shupe and Counsel Jonathan Stern were individually ranked.  Schnader was named “Best in Aviation Law—USA & Most Feared Litigation Law Firm— Pennsylvania” by Corporate America News.  Denny Shupe, Jonathan Stern, Aviation Group chair Robert Williams and Aviation Group vice-chair Barry S. Alexander were named as Leading Aviation Attorneys and Partner William Janicki was named a Rising Star for 2016 by Aviation Expert Guides. In addition, Denny Shupe was named a Leading Litigation and Product Liability Attorney by Expert Guides.  Denny Shupe was inducted into the Aviation Insurance Association’s Eagle Society.  Robert Williams was selected for membership in the invitation-only International Asso- ciation of Defense Counsel (IADC).  Associate Lee Schmeer was promoted to the rank of Major in the United States Air Force Reserve, where he serves as a C-17 Globemaster III pilot.  Denny Shupe was recognized in the Corporate LiveWire Global Awards for Industrial Defence.  Jonathan Stern will speak at ACI’s 8th National Forum on Aviation Claims & Litigation on June 28th in New York City.  Denny Shupe spoke on aviation law recent developments at a Pennsylvania Bar Insti- tute program titled “Transportation Law Update” on April 6th and 25th.  Robert Williams spoke at the Pennsylvania Bar Institute seminar “So, You Want to Fly a Drone?” on March 7th. Federal Agency Publishes Best Practices for product of practical challenges and con- Drone Privacy straints. First and foremost, the NTIA has little or no Robert J. Williams, Pittsburgh rulemaking authority with respect to UAS opera- [email protected] tions, which falls squarely within the jurisdiction of the Federal Aviation Administration. Moreover, On February 15, 2015, President Obama tasked the even if the NTIA were able to promulgate regula- National Telecommunications & Information Admin- tions applicable to UAS operations, those regula- istration (“NTIA”) of the U.S. Department of Com- tions likely would be subject to freedom of speech merce with development of “best practices for pri- and First Amendment challenges. In recognition of vacy, accountability, and transparency issues re- the First Amendment issue, the NTIA expressly ex- garding commercial and private UAS use in the Na- empted newsgatherers and news reporting organi- tional Airspace System.” After engaging industry zations from the scope of its recommended best stakeholders, including Amazon, Google X, and the practices. Additionally, federal, state and local pri- Association for Unmanned Vehicle Systems Interna- vacy laws already exist (although their application tional, the NTIA issued its report on May 19, specifically to UAS operation largely is untested at 2016. Titled “Voluntary Best Practices for UAS Pri- this time), and harmonization of a detailed best vacy, Transparency, and Accountability,” the report practices list with this existing privacy law would recommends five best practices: present a herculean, if not impossible, challenge.  Notify the public: where practical, operators Nevertheless, the NTIA’s best practices for drone should provide notice to individuals who are privacy are a step in the right direction. They are expected to be in the vicinity of UAS that will be responsive to public demand for government atten- collecting “covered data,” which is defined as tion to this issue, and contribute to the critical mass “information collected by a UAS that identifies a of activity facilitating integration of UAS into the particular person.” national airspace system. We welcome them ac-  Show care: UAS operators should minimize cordingly. flight over private property, collect no more data than necessary, retain data no longer than necessary, and establish a procedure for accom- modating requests to delete, de-identify or ob- fuscate covered data.  Limit the use and dissemination of data: UAS operators should not use, share or disseminate covered data without the consent of those im- pacted by it.  Secure covered data: data should be secured from misappropriation by physical and cyber/ technological means, pursuant to a written poli- cy that includes training, monitoring, and re- strictions to access.  Monitor and comply with “evolving federal, state and local UAS laws.” The NTIA’s best practices are predictable and largely are based on common sense. They also are the Removal Based on Federal Issues Raised by ity of GARA and alleged violations of an FAA- Motion to Compel Pre-Crash FAA Records established standard of care were not sufficient to Deemed Proper confer federal jurisdiction, but distinguished this Allison Snyder, New York case because the plaintiffs also sought to establish [email protected] that Sikorsky’s alleged misrepresentations evi- denced proof of liability, inasmuch as the alleged misrepresentations allowed Sikorsky to evade po- This case arises from the crash of an Era Aviation S- tential revocation of the FAA airworthiness certifica- 76A++ helicopter in Louisiana, which resulted in the tion of the helicopter. death of all three occupants, allegedly caused by the failure of the tail rotor designed and manufactured Although not determinative of the negligence claim, by Sikorsky. Plaintiffs sued Sikorsky and others in the Magistrate Judge noted that interpretation of state court, asserting liability for breach of warranty, the FAA regulations was critical to determining the negligence and product liability. Sikorsky asserted a misrepresentation claim. Having determined that GARA defense, in response to which the plaintiffs the balance of factors favored federal question juris- alleged that Sikorsky knowingly misrepresented or diction, Magistrate Kay declined to address Sikor- withheld required information from the FAA materi- sky’s “more dubious” argument that a federal ques- al to the airworthiness of the tail rotor. tion was raised because the NTSB, invoking 49 U.S.C. § 1154(a)(3), refused to release the cockpit voice recordings without a federal court order. Finally, Magistrate Kay held Sikorsky’s removal was timely, pursuant to 28 U.S.C. § 1446(b)(3), because the plaintiffs’ motion to compel discovery qualified as “other paper,” triggering the 30-day deadline for filing the notice of removal. Even though plaintiffs alleged that Sikorsky misrepresented or withheld required information from the FAA material to the airworthiness of the tail rotor in their complaint and Nearly two years after the commencement of the amended complaint, the plaintiffs did not articulate state court action, plaintiffs brought a motion to the express need for the FAA records to prove an compel the defendants to produce documents re- exception to GARA until they brought the discovery lating to the NTSB’s investigation of the crash and motion. Sikorsky’s pre-crash interactions with the FAA. This decision is currently on appeal. Plaintiffs argued that Sikorsky refused to authorize the FAA’s release of files showing what Sikorsky had This decision serves as an important reminder to reported to the FAA, thereby precluding plaintiffs defense counsel in state court litigation to remain from satisfying their heightened evidentiary burden attentive to any allegations, regardless of the form of establishing an exception to GARA. (e.g., interrogatories, deposition transcripts, attorney correspondence), that explicitly demonstrate Sikorsky removed the action to federal court on the removability. As one of the defendants argued in basis of federal question jurisdiction allegedly creat- this case, the plaintiffs “quite literally made this into ed by the motion to compel, and the plaintiffs filed a a federal case” by filing a motion to compel discov- motion to remand. Magistrate Judge Kathleen Kay ery that made the substantive nature of the federal denied the motion, finding the issue of whether Si- question unequivocally clear and certain. Croucher korsky knowingly violated its reporting requirements v. Bell Helicopter Textron, Inc., No. 16-CV-0082 to the FAA raised a viable federal question and (W.D. La. Mar. 24, 2016). deeming the removal timely. Magistrate Kay acknowledged that issues concerning the applicabil- Federal Courts Continue Scrutiny of Removals mous consent of all defendants, as several defend- from State Courts ants did not file consent statements with the court Robert J. Williams, Pittsburgh until one month after removal and two weeks after [email protected] the plaintiffs had moved to remand. The court was not persuaded by those defendants’ subsequent as- A federal district court’s recent opinion in Dietz v. surances that they had, in fact, been contacted by AVCO Corporation reminds defendants to comply Continental’s counsel and consented prior to remov- strictly with applicable statutes when removing ac- al. Furthermore, no consent was filed by ISI at any tions from state court. This matter arose from the time, and Continental failed to represent that ISI had August 18, 2013 crash of a Mooney M20J-201 air- consented. These circumstances rendered removal craft shortly after take-off from Charles B. Wheeler procedurally defective, and the procedural require- Downtown Airport in Kansas City, Missouri. Plaintiffs ments cannot be waived or extended by the court. allege the aircraft lost power because of a defective Finally, the district court held that diversity removal magneto housing, and filed a product liability action was improper pursuant to the forum-defendant rule in state court against engine manufacturers Conti- of 42 U.S.C. §1441(b)(2), which provides that “a civil nental Motors, Inc. and AVCO Corporation action otherwise removable solely on the basis of (Lycoming), as well as accessory manufacturers Ben- [diversity jurisdiction] may not be removed if any of dix, Honeywell, Unison, Quality Aircraft Accessories the parties in interest properly joined and served as and Interface Solutions, Inc. (“ISI”). defendants is a citizen of the State in which such ac- Continental removed the action to federal court tion is brought.” As ISI is a citizen of Pennsylvania, based upon diversity of citizenship and federal where the action was filed, the removal was defec- officer jurisdiction, insofar as its own employees act- tive. The court rejected Continental’s argument that ed as Designated Engineering Representatives plaintiffs improperly joined ISI solely to defeat re- (“DERs”) of the FAA. The district court concluded moval, finding that plaintiffs had stated viable causes removal was improvident for several reasons. First, of action against it. the court explained that in order to qualify as a fed- The court denied Plaintiffs’ request for attorneys’ eral officer, a private person actually “must assist or fees, costs and expenses associated with the improp- help carry out the duties or tasks of the federal supe- er removal, finding that Continental did not act with rior.” Because Continental’s DERs merely ensured the intent to prolong litigation or impose costs upon the company’s compliance with applicable federal plaintiffs. Nevertheless, Dietz demonstrates the per- regulation and standards of care, they did not satisfy ils of failing to comply with the substantive and pro- this criteria for federal officer removal. cedural requirements of federal removal statutes. Second, the district court found that Continental’s Dietz v. AVCO Corporation (No. 15-4324, E.D. Pa. removal lacked contemporaneous written and unani- Mar. 10, 2016).

Seat Downgrade No Accident under Montreal The plaintiff traveled from Los Angeles, California, to Convention Newark, New Jersey, without incident, but was ad- David C. Dziengowski, Philadelphia vised that he was being downgraded from first class [email protected] to “Economy Premier/Plus” as he attempted to board the connecting flight to Tel Aviv. The plaintiff In David v. United Airlines, Inc., the plaintiff, an objected, noting his edema and the resultant need eighty-six-year-old man, brought claims of negli- to stretch out his legs to avoid swelling, but ulti- gence and breach of contract against United Airlines mately acquiesced to the switch after learning that after United downgraded him from first class to no first-class seats would be available until the next coach class on an international flight. The plaintiff, day. who was “invited to attend the Maccabiah Games in The plaintiff claimed that the downgraded seat as- Israel as an esteemed guest of Israeli government signment resulted in bodily injuries that required officials,” purchased two first-class tickets: one for him to remain in bed for the first three days of his himself and one for a student journalist covering the trip, and caused him discomfort for the remainder of games for a local television station. his time in Israel. The court first held that the plaintiff’s negligence and breach of the contract claims an “accident”—(1) failure of United to accommo- were preempted by the Montreal Convention. The date his request due to a pre-existing medical con- court then ruled that a downgraded seat assign- dition and (2) exacerbation of his edema—were ment is not an Article 17 “accident,” as it is not un- similarly rejected by the district court. Of note, expected or unusual in terms of industry standard there is no indication that the plaintiff argued that or practice.” In so holding, the court cited to the United violated the Air Carrier Access Act. The dis- terms of United’s Contract of Carriage, which pro- trict court then granted summary judgment in favor vide that “reserved seating assignments are subject of United. David v. United Airlines, Inc., No. 2:15-cv to change without any notice for any reason.” Oth- -02262, 2016 U.S. Dist. LEXIS 52457 (C.D. Cal. Apr. er arguments attempting to qualify the incident as 18, 2016).

Federal Court Dismisses all but Contract Claims Georgia RICO and Section 1981. The court dis- Arising out of Alleged Bribery Scheme missed these claims on the basis that neither could Barry S. Alexander, New York be based on conduct outside the United States. [email protected] Loss of Consortium. The court held that there was In Ahmed v. Air France-KLM, et al., the plaintiffs no evidence that the incident alleged affected this were passengers on various KLM flights who assert- plaintiff’s marriage, and, therefore, that there was ed claims alleging that KLM employees in Nairobi, no evidence to support a loss of consortium claim. Kenya discriminated against them on the basis of their Somali ethnicity, demanded bribes from them Breach of Contract/Breach of Covenant of Good and prevented them from boarding their flights. Faith and Fair Dealing. The court denied KLM’s mo- Each of the plaintiff passengers told a similar story tion as to these claims. In so holding, it first held that they were traveling on itineraries including that these claims were for complete non- stops in the United States, and were refused board- performance, and therefore not governed by the ing onto KLM flights out of Nairobi, Kenya. The Montreal Convention (Article 19). It then held that plaintiffs claimed that KLM employees, especially KLM could not rely on its conditions of carriage, in one named John Thumi, who was involved with each which KLM reserved its right to refuse carriage if it incident, advised them that their travel documents had questions regarding the validity of a passenger’s were insufficient as part of a scheme to extract travel documents, because (1) the bribery scheme bribes before continuing their travel. raised questions of fact as to whether there was a legitimate basis to question the validity of these pas- KLM filed a motion for summary judgment dismiss- sengers’ travel documents, and (2) the passengers ing the plaintiffs’ claims, which were resolved as fol- all were able to travel on other airlines using the lows: same travel documents. The court added that the bribery claims were sufficient to support the claim False Imprisonment, Fraud, Conversion and IIED. for breach of implied covenant of good faith and fair The court dismissed these claims pursuant to the dealing. Georgia (US) rule that an employer generally is not vicariously liable for an employee’s intentional torts, Punitive Damages and Attorneys’ Fees. Finally, the concluding that KLM could not be held vicariously court dismissed the punitive damages claims on the liable in this case because the employees’ actions ground that they are not recoverable for breach of were for their own personal benefit, and were not in contract/breach of covenant of good faith and fair furtherance of KLM’s business. dealing claims, and the claim for attorneys’ fees because it was not properly alleged in the complaint. Negligent Hiring, Training, Supervision and Reten- tion. The court dismissed these claims because the Although Air France-KLM did not separately move plaintiffs failed to submit any evidence in support of for summary judgment, the decision of the Court those claims, including any evidence that KLM knew, was applied to Air France-KLM anyway. Ahmed v. or should have known, that its employees were Air France-KLM, 2016 U.S. Dist. LEXIS 23066 (N.D. attempting to bribe passengers. Ga. Feb. 25, 2016).

US Airways Not Liable for Delay Under ‘All age or that it was impossible for it or them to take Reasonable Measures’ Defense such measures.” The court rejected Plaintiffs’ argu- Lee Schmeer, Philadelphia ment that US Airways did not have policies in place [email protected] to mitigate delays under the circumstances present- ed or to mitigate or rectify the consequences of the delay on passengers. To the contrary, it held, a US The U.S. District Court for the Northern District of Airways representative gave written deposition tes- Illinois recently granted summary judgment in favor timony that in the event of a bird strike it temporar- of US Airways after finding that the airline was not ily takes the plane out of service and locates a suita- liable for a ten-hour delay of a flight from Philadel- ble spare aircraft or, if none is available, books phia, Pennsylvania to Chicago, Illinois. In Bernfeld v. affected passengers on other flights. US Airways, Inc., the plaintiffs were traveling from Tel Aviv to Chicago, with a stopover in Philadelph- Plaintiffs’ contract of carriage claim failed because ia. The plane that was to fly them from Philadelphia the contract expressly provided that the Montreal to Chicago suffered a bird strike on approach into Convention was incorporated therein for interna- Philadelphia, which necessitated certain mainte- tional travel, and also set forth similar language to nance inspections and made it unavailable for the Article 19 as a standalone section in the con- plaintiffs’ flight to Chicago. The uncontroverted tract. Finally, the claims under the Israeli Aviation evidence showed that US Airways made every effort Services Law, which provides a scheme of automatic to locate a spare aircraft, but that none was availa- damages based on the length of the flight and ble. Plaintiffs asserted delay claims under Article 19 length of the delay, failed because the Israeli law of the Montreal Convention, as well as claims for could not be applied in the United States. Instead, breach of its contract of carriage and violation of the Court read the Israeli law as creating only ad- Israel’s Aviation Services Law. ministrative enforcement actions within Israel, with no international remedy available. Bernfeld v. US The Court addressed the Article 19 claim first, and Airways, Inc., 2016 U.S. Dist. LEXIS 52997 (N.D. Ill. held that US Airways had a complete defense pursu- Apr. 20, 2016). ant to Article 19 because it took “took all measures that could reasonably be required to avoid the dam- www.schnader.com/aviation

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Robert J. Williams, Partner Barry S. Alexander, Partner Chair Vice Chair

Thomas D. Arbogast Counsel C Lisa J. Rodriguez Partner

Richard A. Barkasy Partner Carl J. Schaerf Partner

David C. Dziengowski Associate Lee C. Schmeer Associate

Aaron J. Fickes Associate Stephen J. Shapiro Partner

Emily J. Hanlon Associate Edward J. Sholinsky Associate

Jon C. Hughes, Partner J. Denny Shupe Partner

William (Bill) D. Janicki Partner Allison A. Snyder Associate

Paul S. Jasper Partner Jonathan M. Stern Counsel

Lilian M. Loh Associate Matthew S. Tamasco Partner

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Leo J. Murphy Counsel Gordon S. Woodward Partner

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