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Recent Developments in Aviation Law Donald R Journal of Air Law and Commerce Volume 74 | Issue 1 Article 10 2009 Recent Developments in Aviation Law Donald R. Andersen Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Donald R. Andersen, Recent Developments in Aviation Law, 74 J. Air L. & Com. 153 (2009) https://scholar.smu.edu/jalc/vol74/iss1/10 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 DONALD R. ANDERSEN* TABLE OF CONTENTS I. MONTREAL AND WARSAW CONVENTIONS .... 155 A. MONTREAL CONVENTION ........................ 155 1. Parties Liable ................................ 155 2. Exclusive Cause of Action .................... 162 3. A ccident .................................... 168 4. Venue ....................................... 172 5. Limitation of Actions ........................ 175 6. Damages ............................. 176 B. WARSAW CONVENTION ............................. 179 1. Exclusive Cause of Action .................... 179 2. Warsaw Notice Requirements.................. 183 3. "Carriageby Air" .... ....................... 184 4. "Accident" ....... ........................... 186 5. Embarking and Disembarking................. 188 6. Dam ages .................................... 191 II. AIR CARRIER LIABILITY .......................... 192 III. FOREIGN SOVEREIGN IMMUNITIES ACT ....... 200 A. APPLICABILITY ....................................... 200 * Member, Stites & Harbison, PLLC. Member, State Bar of Georgia and the Florida Bar, Board Certfied in Aviation Law. The author would like to acknowledge and thank the following colleagues at Stites & Harbison, PLLC in its Georgia, Kentucky, Indiana, Tennessee, and Virginia offices for their contributions to this survey: Samantha Tzoberi, who coordinated the preparation of this paper, along with summarizing the recent developments pertaining to the Warsaw and Montreal Conventions; Leslie Toran, who summarized the recent developments relating to Jurisdiction and Procedure, the Foreign Sovereign Immunities Act, and Forum Non Conveniens; Catherine Banich and Tasha Inegbenebor, who summarized the recent developments relating to Labor and Employment Law; and Douglas Bates, Clarke Keller, Neal Bailen, Haley Dickerson, and Jay Pontrelli, who assisted with the review of cases generally throughout the survey, as well as Nell Olliff, Ty Hoyte, Evelyn Fields, and the Stites & Harbison library staff, who conscientiously reviewed and assisted in the preparation of this paper. 154 JOURNAL OF AIR LAW AND COMMERCE [74 B. D AMAGES ....................................... 203 IV. FEDERAL AVIATION ACT OF 1958 ............... 204 A. FEDERAL AVIATION ACT OF 1958-FEDERAL PREEMPTION-AIR CARRIER AND AIRCRAFT OPERATOR LIABILITY ............................ 204 B. FEDERAL PREEMPTION-FEDERAL AVIATION ACT OF 1958-MANUFACTURER's LIABILITY .......... 208 V. AIRLINE DEREGULATION ACT-FEDERAL PREEM PTIO N ..................................... 210 VI. FEDERAL PREEMPTION-OTHER FEDERAL STATU TES ......................................... 229 A. AIR CARRIER ACCESS ACT OF 1986- DISCRIMINATION IN BOARDING .................. 229 B. FAA AUTHORIZATION ACT OF 1994 ............. 231 VII. FEDERAL TORT CLAIMS ACT .................... 231 VIII. GENERAL AVIATION REVITALIZATION ACT ... 240 IX. JURISDICTION AND PROCEDURE ............... 247 A. PERSONAL JURISDICTION ......................... 247 B. FEDERAL JURISDICTION-REMOVAL-FEDERAL PREEMPTION .................................... 257 C. JURISDICTION-REMOVAL-MONTREAL AND WARSAW CONVENTIONS ......................... 261 D. PROCEDURE: FEDERAL JURISDICTION-REMOVAL- FEDERAL OFFICER REMOVAL ..................... 261 E. FORUM NON CONVENIENS ....................... 262 F. PROCEDURE-JUDICIAL REVIEW OF ADMINISTRATIVE RULINGS ....................... 269 1. Jurisdiction.................................. 269 2. ProceduralPrerequisites ...................... 273 3. Standing.................................... 275 4. Federal Taking under Fifth Amendment and Federal Law ................................. 277 X. CHOICE OF LAW ................................. 278 XI. INSURANCE COVERAGE ......................... 281 A. AVIATION INSURANCE-COVERAGE ............... 281 B. POLICY EXCLUSIONS ............................. 283 XII. PRODUCT LIABILITY ............................. 284 A. SUCCESSOR LIABILITY ............................ 284 B. PRODUCT LIABILITY-LIABILITY OF CHART MANUFACTURER ................................. 286 C. LIABLITY FOR TRAINING ........................ 288 XIII. FEDERAL AVIATION ADMINISTRATION LITIGATIO N ....................................... 291 2009] RECENT DEVELOPMENTS IN AVIATION LAW 155 A. AIRPORT FUNDING AND EQUAL ACCESS TO AIRPORTS ....................................... 291 B. FEDERAL AVIATION ADMINISTRATION ENFORCEMENT ACTIONS ......................... 293 XlV. EVIDENCE AND DISCOVERY ..................... 295 XV. CRIMINAL LAW ................................... 301 XVI. LABOR AND EMPLOYMENT ..................... 304 A. AGE DISCRIMINATION ........................... 304 B. WRONGFUL TERMINATION ....................... 308 C. TORTIOUS INTERFERENCE ....................... 309 D. FEDERAL AND STATE WHISTLEBLOWER STATUTES. 310 E. RAILWAY LABOR ACT ............................ 313 F. WAGE AND HOUR ............................... 333 I. MONTREAL AND WARSAW CONVENTIONS A. MONTREAL CONVENTION {rflHE MONTREAL CONVENTION is not an amendment .Ito the Warsaw Convention. Rather, the Montreal Con- vention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention."1 The Convention "applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. '2 The Convention was ratified by the United States on November 4, 2003.' 1. Parties Liable In McCarthy v. American Airlines, Inc., the U.S. District Court for the Southern District of Florida addressed the application of "actual carrier" and "contracting carrier" found in Chapter V (Articles 39 through 48) of the Montreal Convention.4 Defend- ants had moved for summary judgment on plaintiffs claims for injuries sustained whilst on board an American Eagle flight bound for Miami from the Bahamas.5 Specifically, the defend- Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004) (quoted in Gardner and McSharry, "The Montreal Convention: The scram jet of aviation law," Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (Apr. 2006)). 2 Convention for the Unification of Certain Rules for International Carriage by Air, art. 1, May 28, 1999, S. TREATY Doc. No. 106-45, 2242 U.N.T.S. 350 (en- tered into force Nov. 4, 2003) [hereinafter "Montreal Convention"]. 3 Ehrlich, 360 F.3d at 372. 4 No. 07-61016, 2008 U.S. Dist. LEXIS 49389, at *6-7 (S.D. Fla. June 27, 2008). 5 Id. at *1-2. 156 JOURNAL OF AIR LAW AND COMMERCE ants argued that Executive Airlines had conceded that it was the owner and operator of the aircraft, rendering it the carrier.6 Since under Article 17 of the Montreal Convention only the "carrier" is liable for damages arising from bodily injuries caused by an accident occurring on the aircraft, the court turned to the task of determining which defendant was the "car- rier" for liability purposes.7 The court, taking into account that neither the Montreal Con- vention nor the Warsaw Convention defined the term "carrier," looked to cases that had been decided under the Warsaw Con- vention to provide the definition.8 Under those cases, there could only be one carrier: the operator of the aircraft.9 But the court noted that the Montreal Convention had included a whole chapter (Chapter V) addressing the distinction and relationship between a contracting carrier and an actual carrier, which was notably missing from the Warsaw Convention. ° As such, the court determined that it could not rely on the old Warsaw Con- vention case law definition of carrier to determine the parties liable under the Montreal Convention.11 What appeared to have troubled the court the most was Article 40 of the Montreal Convention, which states that "where there is a contracting car- rier and an actual carrier, both carriers 'shall, except as other- wise provided in [Chapter V], be subject to the rules of this Convention, the former for the whole of the carriage contem- plated in the contract, the latter solely for the carriage which it performs.'" 12 The court concluded that the added language in Chapter V of the Montreal Convention meant that more than one carrier could be responsible for plaintiffs injuries. 13 Conse- quently, the court denied American Eagle's motion for sum- mary judgment on the grounds that the record showed that the flight was billed as an American Eagle flight, indicative of a code-sharing relationship with Executive Airlines. 4 Accord- ingly, American Eagle was at the very least a "contracting car- 6 Id. at *3. 7 Id. at *4. 8 Id. 9 Id. at *4. 10 Id. at *6-7. 11 Id. at *9. 12 Id. at *7. 13 Id. at *9. 14 Id. at *9-10. 2009] RECENT DEVELOPMENTS IN AVIATION LAW 157 rier," and therefore could be found liable under the Montreal 15 Convention for plaintiff's injuries. But to be liable for plaintiffs injuries, Article 17 of the Mon- treal Convention requires that the plaintiff prove that the
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