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Recent Developments in Aviation Law Stephen C Journal of Air Law and Commerce Volume 61 | Issue 1 Article 2 1995 Recent Developments in Aviation Law Stephen C. Kenney Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Stephen C. Kenney, Recent Developments in Aviation Law, 61 J. Air L. & Com. 3 (1995) https://scholar.smu.edu/jalc/vol61/iss1/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. RECENT DEVELOPMENTS IN AVIATION LAW STEPHEN C. KENNEY* TABLE OF CONTENTS I. INTRODUCTION ............................... 5 II. JURISDICTION ................................. 6 A. Personal Jurisdiction ....................... 6 B. Foreign Sovereign Immunities Act (FSIA).. 7 C. Forum-Non Conveniens .................... 9 III. AIR CARRIER LIABILITY AND DEFENSES ..... 11 A. Preem ption................................. 11 1. Airline Deregulation Act (ADA) of 1978 .... 11 a. Preemption of Personal Injury Claim s .............................. 11 b. Preemption of Air Carrier Business Practice Claims .................... 21 c. Preemption of Air Carrier Employment Practice Claims ....... 25 2. Warsaw Convention........................ 27 a. Scope of Preemption, Removal Jurisdiction ......................... 27 b. Timeliness of Action ................ 34 c. Occurrences and Injuries Covered . 37 * Stephen C. Kenney is a partner in the law firm of Kenney, Burd & Markowitz of San Francisco, California. Mr. Kenney holds a Bachelor of Science degree from The Ohio State University and received his Doctor ofJurisprudence degree from Hastings College of Law at the University of California in 1972. Mr. Kenney is the author of numerous law review articles dealing with aviation and space law and has spoken at several aviation and space law symposia. He is a member of the Editorial Advisory Board of Andrews Aviation Litigation Reporter and is a licensed pilot with instrument and seaplane ratings. Tom K. Hammitt is an associate with Kenney, Burd & Markowitz and is a li- censed pilot with multi-engine and instrument ratings. Before obtaining his Doc- tor of Jurisprudence degree in 1989 from Boalt Hall School of Law at the University of California, Mr. Hammitt worked for several years as an editor and free-lance journalist for numerous aviation publications. 4 JOURNAL OFAIR LAW AND COMMERCE [61 d. Recoverable Damages .............. 44 e. Proper Forum ...................... 47 B. Korean Airline Flight 007 Cases ............ 50 C. PAN AM Flight 103 Case ................... 56 D. Death On The High Seas Act (DOHSA) ... 61 E. Other Air Carrier Liability .................. 63 1. Liability and Defenses ..................... 63 a. Standard of Care ................... 63 b. Employment Practices .............. 65 c. Civil Rights ......................... 69 d. Detention of Excluded Aliens ...... 70 e. Limitation by Contract ............. 74 f. Miscellaneous ....................... 75 2. Damages - Limitation by Contract........ 78 IV. SELLERS' AND MANUFACTURERS' LIABILITY AND DEFENSES ................................ 80 A. General Aviation Revitalization Act of 1994 80 B. Government Contractor Defense ........... 82 C. Economic Loss Doctrine ...... ............ 84 D. Agency and Successors' Liability ............ 87 E. False Claims Act ............................ 88 V. UNITED STATES GOVERNMENT TORT LIABILITY AND DEFENSES .................... 89 A. Discretionary Function Exception .......... 89 B. Air Traffic Control Negligence ............. 92 C. Other Government Liability ................ 96 VI. Airports and Fixed Base Operators .............. 99 A. Personal Injury Actions ..................... 99 B. Land and Use Regulations ................. 100 C. Mechanic's Liens ........................... 117 VII. PRACTICE AND PROCEDURE ................. 118 A. Contribution and Indemnity ............... 118 B. Conflicts of Law ............................ 120 C. Evidence and Trail Practice ................ 122 D . Sanctions ................................... 133 E. Jury Trial ................................... 135 F. C osts ........................................ 137 VIII. PUNITIVE DAMAGES ........................... 138 IX. INSURANCE COVERAGE ....................... 139 X. FEDERAL AVIATION ADMINISTRATION (FAA) ENFORCEMENT/LOCAL REGULATION 142 A. Certificate Actions .......................... 142 1995] RECENT DEVELOPMENTS 1. Pilot Certificates .......................... 142 2. Medical Certificates ....................... 148 3. Other Certificates ......................... 152 XI. DEBTOR-CREDITOR ........................... 155 XII. PENAL ACTIONS AGAINST PILOTS AND PASSENGERS ................................... 15.7 I. INTRODUCTION THE FOLLOWING "Recent Developments in Aviation Law" article was originally presented as a paper and speech at the 1995 SMU Air Law Symposium. The article attempts to present a reasonably comprehensive report of aviation case law decisions from all United States jurisdictions that were published between November 1, 1993, the submission deadline for the 1993 report, and December 1994. Unpublished reported decisions are in- cluded, as'well, to the extent they could be located using con- ventional resources. To all who participated in cases resulting in published decisions that are not included, the author extends his humble apology. Although a summary of aviation case law decisions decided over slightly more than one year's time presents only a snapshot view of the state of the law, it is possible to identify certain trends. For example, the preemption of state law tort claims by federal law under the Aviation Deregulation Act of 1978, which was expanded significantly in the case law decisions of recent years, underwent a marked retrenchment in 1994, with fewer successful cases of preemption published. The Warsaw Conven- tion, on the other hand, seems to have largely retained its his- toric vitality, although the case law authority continues to be split over several important issues, and the Convention itself continues to be frequently attacked by the aviation plaintiffs' bar. In addition to aviation case law decisions, this year's article includes a selection of important cases decided outside of the aviation context that may have significant effects in future avia- tion cases. The author believes this is the first time such cases have been included in the continuing series of "Recent Develop- ments" reports and hopes that the practice will be continued. This year's article also summarizes relevant statutory enact- ments, including, most prominently, the General Aviation Revi- talization Act of 1994. JOURNAL OF AIR LAW AMD COMMERCE Because the summarized cases are of recent vintage, in con- sidering their impact it is important to recognize that some may have been modified by subsequent court or legislative action. In addition, while the summarized cases are grouped under dis- crete subject headings corresponding to their dominant area of concern, many of the cases deal with multiple issues that are covered elsewhere in the article. As with any project of this magnitude, many hands played a role in its creation. The author's heartfelt appreciation goes to the following Kenney, Burd & Markowitz attorneys, without whose assistance this article would not have come to exist: Tom K. Hammitt, the editor of the article; James D. Caven; Adam S. Gruen; Stephen E. Kyle; George M. Moore; David R. Pearl; Wil- liam F. Gutierrez; Philip D. Witte; and legal assistant Gordon Aber-all of whom contributed generously of their valuable time and effort. II. JURISDICTION A. PERSONAL JURISDICTION In Durrett v. Cessna Aircraft Corp.,1 applying the long-arm stat- ute of the forum state, Michigan, the United States District Court for the Eastern District of Michigan found personal juris- diction lacking and dismissed the case. This personal injury ac- tion, which arose from the crash of a Cessna aircraft equipped with Wipaire floats, involved a challenge to the district court's exercise of personal jurisdiction in a case where subject matter jurisdiction was based on diversity. When federal subject matter jurisdiction is based solely on di- versity of citizenship, the district court looks to the law of the forum state to determine whether personal jurisdiction exists over a defendant. As neither Cessna nor Wipaire are incorpo- rated or have their principal places of business in Michigan, the state long-arm statute provided the sole possible basis for juris- diction. Under that statute, plaintiffs were required to prove that the defendants carried on "continuous and systematic busi- ness" in Michigan.' The district court examined the plaintiffs' pleadings and affidavits in their most favorable light and found: (1) Cessna's corporate headquarters and manufacturing facility were in Kansas; (2) Cessna did not operate any service centers, I No. 93-CV-72837-DT, 1994 U.S. Dist. LEXIS 3240 (E.D. Mich.Jan. 18, 1994). 2 MICH. CoMP. LAws ANN. § 600.711 (West Supp. 1994). 3 Id. § 600.711(3). 1995] RECENT DEVELOPMENTS dealerships, or subsidiaries in Michigan; (3) Cessna advertises in national publications; (4) Wipaire was a Minnesota corporation with its principal place of business in Minnesota; (5) Wipaire did not have an office in Michigan; (6) Wipaire did not maintain a bank account in Michigan; and (7) Wipaire did not have any representatives, agents, or dealers in Michigan.
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