Enforceability of Commercial Air Carriers' Contracts of Carriage In

A Publication of The Florida Bar Aviation Law Committee To Promote Education in the Florida Aviation Community

Volume 2, Issue 2 Florida Aviation Law Journal September 2011

www.fbalc.org Enforceability of Commercial Air Carriers’ Contracts of Carriage in the Smartphone Era By Adam G. Wasch* Introduction in, not to exceed $5,000 and pays JetBlue The paper ticket and ticket jacket are $1.00 per $100 of excess value. JetBlue slowly but surely becoming extinct with more provides passengers with a list of items, and more commercial air carriers providing including cameras and jewelry, not accepted IN THIS ISSUE electronic methods of allowing passengers in checked baggage and for which JetBlue Registering an Aircraft Under a to check-in and board airplanes. Air carriers assumes no responsibility or liability. To Deleware Holding Company...3 such as American Airlines and Continental make a baggage claim on a domestic flight, The Dreaded 709 Ride: Aircraft have been at the forefront of the instant notice must be given to JetBlue within four Accident, Incident, or Just gratification, “want-it-now” technological (4) hours after the arrival of the flight on Another Disney Attraction...... 4 age by giving passengers the option to use which the baggage was damaged, delayed ... And Here, as Paul Harvey their smartphones as boarding passes. or lost. Written notice detailing the items lost would say, is the Rest of the Tech savvy travelers are able to pull up an or damaged must be provided to JetBlue Story...... 5 air carrier’s “App” on their phone, purchase within 21 days. Legal action, if it becomes Aviation Expert Witnesses: How a ticket, and simply show the barcode on necessary, must be commenced within one to Keep Yourself and Your their smartphone to pass through security year of the date of the incident. This is not Experts Out of Trouble...... 6 and board the aircraft. These passengers unique to JetBlue, as most air carriers have Flying for a “$100 hamburger?” bypass the face-to-face contact with gate similar provisions. Don’t Pay the Landing Fee! agents to discuss the airlines’ contracts of History of Liability Limitations in Airport User Fees: the Legal carriage. These passengers also never re- Contracts of Carriage Quagmire...... 7 ceive a paper ticket with, at the very least, Prior to airline deregulation in 1978, ev- a contract of carriage printed on the back. ery commercial air carrier was required to Air travel could very well be paperless in file tariffs with the Civil Aeronautics Board Editorial Board: the future. This prompts the question: how (CAB) setting forth, among other things, S. V. (Steve) Dedmon do commercial air carriers enforce their all classifications, rules, regulations, prac- Editor-in-Chief contracts of carriage in the smartphone era? tices, and services in connection with air Carriers’ Limitation of Liability transportation.1 Tariffs filed with the CAB, if valid, were conclusive and exclusive, and Committee Officers: for Damaged or Lost Luggage One of the most common issues for an air carrier could achieve limited liability Timoth M. Ravich airline passengers is damaged or lost lug- simply by filing a valid tariff containing such a Chair gage. Major commercial air carriers publish provision.2 However, airlines no longer enjoy Daniel W. Anderson their contracts of carriage containing liability the conclusive binding effect of contracts Vice Chair limitation related to damaged or lost luggage of carriage simply by filing a tariff with the online. JetBlue’s Contract of Carriage, for CAB.3 Today, federal regulations authorize Charles R. Morgenstein example, limits its liability for lost, damaged airlines to incorporate contract terms on a Vice Chair or delayed delivery of checked baggage to passenger’s ticket so long as certain uniform Walter G. Campbell, Jr. $3,300 unless the passenger declares a disclosures are met and permit the Depart- Board Liaison higher value for loss of baggage at check- ment of Transportation (DOT) to review the See “Contracts of Carriage” page 16 “Read Back” By S.V. (Steve) Dedmon

ollowing a little over a year and a self imposed sabbatical After a short break, Dennis Haber discussed FAA Airmen following my year as the chair of the Aviation Law Enforcement Actions. Using an actual case as a backdrop, he FCommittee, I am back in the left seat of the Vectors detailed the steps in an enforcement action proceeding. He publication. So, in conjunction with our annual convention, which began by addressing how the FAA uses a Letter of Investigation is the beginning of our committee year, I am back to put together to contact an individual and although it appears innocuous the legal and flying related articles as well as reviews of our past letter may be it should be taken seriously as a person has no meetings and previews of upcoming events. So, buckle up. Miranda rights when it comes to speaking to a the FAA. The On June 24rd the committee met at the Gaylord Palms Resort discussion then moved to the FAA’s procedure related to a and Convention Center in Orlando. I had heard about the Notice of Proposed Certificate Action and a pilot’s choices in resort through my daughter, who graduated with a hospitality handling the matter, up to and including a hearing before a NTSB management degree from UCF, but it was my first visit and it administrative law judge and possible appeal to the full NTSB was everything she claimed it was-even down to the alligators in board. He concluded by explaining another option available to the garden, or I guess that is what you call the place they were the FAA in regard to actions against pilots-the 709 ride. You can laying (see Ed Booth’s photo). find a detailed account of his The meeting opened with chair article -The Dreaded 709 Ride: Tim Ravich giving an overview Aircraft Accident, Incident, or of the past year and his vision Just Another Disney Attraction, for the next. As a record of later in this issue. attendance and to elicit member Pat Phillips finished the day input, he had each attendee strong with a potpourri of legal fill out a sheet about their issues including looking at interest pertaining to publishing, the AOPA’s Legal Services speaking, board certification, Plan, the EAA’s Legal Advisory practice areas and any ideas Council and Airshows and for committee activity during the Airshow Waivers. He included 2011-2012 calendar year. Part as a handout a typical AOPA of the intent of the questionnaire Panel Attorney Agreement. was to stimulate conversation As it pertained to the number on how to increase membership and rate allowed under the involvement and to increase the program, various members committee’s overall presence of the committee expressed in the Florida Bar. Adding to Photo by Ed Booth concerns that both, in most this discussion was Walter Campbell, the committee’s Board of cases, were insufficient. They also added they have, under Governors representative. As part of activity for the past year, I certain circumstances, negotiated higher rates with the AOPA. was able to update the committee on this year’s recipient of the Another issues was a client’s perception of the totality of their Eilon Krugman-Kadi scholarship, Da Hyun Shim. He is a junior at representation as opposed to the actuality of what being in the Embry-Riddle Aeronautical University, majoring in Aeronautical program affords them. Science. Then, as is our practice, everyone introduced themselves, Pat moved from there to a history of Sun ‘n Fun, its economic where they were from and their area of practice. impact, and a point lost on many that it is home to the Florida Air Elizabeth Kozlow was the afternoon’s first presenter. Her topic Museum which was designated as the “Official Aviation Museum was New Developments in Recording and Registration. The and Education Center of the State of Florida.” They also house discussion including filing registrations for new aircraft, updating the Central Florida Aerospace Academy, which is a high school changes of address, and Aircraft Re-registration/Renewal. She that revolves around aviation related curriculum and careers. He emphasized all aircraft, on a scheduled established by the FAA then discussed the definition of aerobatic flight and various FAA based on their original certification date, have a window for waivers and authorizations as they pertain to pilots performing re-registration and must comply. As such, the FAA will send a at airshows such as Sun ‘n Fun. Notice of Expiration of Aircraft Registration to aircraft owners that We finished up with announcing the next meeting is scheduled includes Re-regulation instructions of who, when, where, and in Orlando on September 23rd at the Hilton at the Walt Disney how much as it relates to the process. She also included a sheet World Resort in Orlando. from a website where a person could check the status of their On a personal note, being in the position of having to procure re-registration application. Included as part of the presentation speakers, I would like to personally thank Elizabeth, Dennis was as sheet listing various additional registration cites, including and Pat for taking on that responsibility. Also, thanks to all the international registration. attendees, it is not a meeting without you.

2 Registering an Aircraft Under a Delaware Holding Company By Mohammad Ahmed Faruqui, Esq.* A foreign company or national may find it con- or residents of the United States. The common venient and economical to register their aircraft stock shares are held by the voting trustee who under the United States registry for their business issues certificates of stock ownership to the actual purpose. The use of a Delaware holding company is owner(s) of the Delaware Corporation. These are a commonly used option for achieving this purpose. mandatory conditions, and if they are not met, then A foreign company or national may not register the corporation is “not a citizen” and the aircraft an aircraft under the United States registry unless may not be registered on the U.S. Registry. Once he, she or it is a permanent resident, or has a place the Aircraft is registered under the U.S. registry of business in the United States. The corporation with an “N” number, it must be maintained to its owning the aircraft must be either a U.S. “citizen” manufacturer’s standards as well as those of the corporation or a foreign corporation that is “quali- Federal Aviation Administration (FAA). fied to do business” in the U.S. As a result of such As the Delaware corporation will function solely qualification, it would be taxable in the U.S. and as a “Holding Company” to hold title to the aircraft have all the usual obligations of a domestic busi- for the actual owner(s), it is precluded from doing ness according to State and Federal Laws. any business whatsoever in the United States. As such, many non-U.S. companies and for- Everything must be structured exactly in accor- eign persons form U.S. holding companies in dance with U.S. Law and the applicable Federal Delaware. The creation and continued existence Aviation Regulations (FAR). of the U.S. holding company must be in scrupu- An aviation attorney who is knowledgeable in lous compliance with all state statutes, federal state and federal laws, and in the FARs, can as- statutes, and Federal Aviation Regulations so the holding company can “qualify” as a “U.S. Citizen”. sist their clients who wish to structure their aircraft Since the new Delaware company is a “Holding ownership for registration under the U.S. registry. Company”, it does not participate in any mon- Doing this using the Delaware holding company etary transactions and therefore does not receive is one available option. income or incur expense to report to the Internal Endnotes: Revenue Service (IRS) for purposes of taxation. * Mr. Faruqui is an attorney at Aerolaw.info LLC in Fort Lauderdale, FL, servicing aviation clients throughout the United States and abroad. Appropriate documentation is required to satisfy He graduated from Nova Southeastern University Shepard Broad Law the Internal Revenue Service. Center in 2005 and became a member of the Florida Bar and Florida A Delaware corporation can be treated as a Bar Aviation Law Committee in 2006. Mr. Faruqui can be reached by phone at (954) 527-0002 or by e-mail at [email protected]. “U.S. Citizen” if at least 2/3 of the members of its 1. 49 U.S.C. §44102, §44103, and 14 CFR § 47.8 of the Federal board of directors are citizens of the United States Aviation Regulations. and at least 3/4 of its corporate officers are citizens 2. §47 and related subsections of the Federal Aviation Regulations.

3 The Dreaded 709 Ride: Aircraft Accident, Incident, or Just Another Disney Attraction by Dennis Haber* I went to Disney World recently, closely discover evidence (the source of which they According to FAA Order 8700.1, Volume followed by a trip to Universal Studios. I do do not have to disclose) that leads them to 2, Chapter 26, “.there must be ample or it because… well, because I never grew question an individual’s qualifications to probable cause for requesting the re-exam- up. I guess that’s why I love aviation. Every exercise the privileges of their certificate. ination” including reliable reports, personal flight is a different ride. The stalls, the spins, Incidents such as the examples above knowledge, or evidence obtained through an the parachute drop, they are all amusement illustrate circumstances that very well accident, incident, or enforcement investiga- rides to me. Then there is that “other” ride may lead the FAA to question an airman’s tion.1 Thus, the “lack of competence” has to – the terrifying 709 ride. But this ride is not qualifications. Conversely, since this isn’t a be supported by the facts and circumstances at Disney, or Universal. It’s at your local court hearing, the details of the complaint in the case. However, as long as a basis airport, and only your local FSDO gives out are not substantively disclosed. This is an for questioning an airman’s competence the tickets. “administrative proceeding” and the “rules of has been implicated, rather than actually There are those times when you run a evidence” are not applicable. The only axiom demonstrated, the request is considered stop sign, or rear end the reasonable. The irony car in front of you because here is that while there ap- you were busy playing pears to be adequate “due with your new iPhone™ process” protections prior or GPS device. Of course to them calling you in, they you didn’t mean to, but don’t have to provide them there he/she was, and to you. They just have to you ended up with a ticket. come to the conclusion That can also happen in internally and that in and airplanes. Well, maybe of itself, constitutes “prob- there is no cop to pull able cause.” Once the you over, but they are out FAA’s version of probable there. They know your ev- cause is established, your ery move. So, what hap- goose is cooked; don’t pens if you are involved in argue, just take the test such an “incident” (what- and get it over with. ever that is) in which your The Re-examination Re- aircraft is damaged, but quest no one is injured? Or per- Photo courtesy of: lifeabovetheclouds.blogspot.com The procedures for the haps you cut the corner of Class B airspace is the rule of the government, which states, 709 ride are set out in Order 8700.1.2 The or fly too close to the President’s house. “We are the government, and we are here Flight Standards District Office (FSDO) Alternatively, perhaps you landed on a grass to help you.” responsible for the area within which the field breaking off your wheel pants or flew What if the accident or incident wasn’t accident or incident occurred will send the under a bridge thinking nobody would notice. your fault? What if it was caused by a me- airman a letter requesting re-examination If the FAA finds out, you will quite possibly chanical failure, or the result of a unexpected via certified mail, return receipt requested. get a nasty-gram demanding you appear for expansion of Class B airspace or the Presi- The letter will include (1) the reasons for the terrifying and dreaded 709 ride, and trust dent is on the move along with an accom- the re-examination (like you were caught me, this is no Mickey Mouse examiner. panying TFR the moving of which cannot busting a TFR that nobody knew about and Not the Latest Ride at Disney World or be anticipated. What then? Unfortunately, just appeared because some politician was Universal Studios unless the mechanical failure is obvious to hob-knobbing around trying to be President); The 709 ride relates to the FAA’s authority the FAA as the sole cause of the incident, (2) the specific certificate and/or rating for to re-examine an airman holding a certificate a request for re-examination is likely to be which the re-examination is necessary (the (pilot, flight instructor, airframe and power considered reasonable. Why, you ask? Be- government code for whatever license you plant, etc.) at any time pursuant to 49 U.S.C. cause the FAA only has to show that a lack might hold); (3) the type of re-examination 44709(a). They may have good reason, or of competence “could have been a factor” (such as; we want to see if you can fly a hold- no reason at all, because they don’t really and, if it was, the re-examination request ing pattern within 50 miles of the designated have to go into any detail in telling you what is considered reasonable, without regard fix); (4) the category and class of aircraft you did wrong. The FAA issues a “request to the likelihood that a lack of competence required (if applicable); (5) the location of for re-examination” to an airman after they had actually played a role in the event. the re-examination (again, government Continued on page 11 4 …And Here, as Paul Harvey would say, is the Rest of the Story by S.V.(Steve) Dedmon* Last year, Jim Inhofe, a U.S. the runway Inhofe exclaimed, “[W] Senator from Oklahoma, was piloting hat the hell is this? I was supposed an airplane and landed on a closed to have unlimited airspace.”17 Later, runway. The incident was widely Inhofe expressly noted he had not reported in a variety of news publica- admitted a violation and said he was tions not only for who was doing the "cleared to approach by the FAA prior flying, but also for the eyewitness ac- to landing on the runway."18 counts of the landing and the FAA’s No matter one’s opinion of what handling of the situation. It is the should or should not have happened ultimate repercussion, or at least my as a result of this incident, the FAA perception of it, which is the subject drew a final conclusion. Ultimately, of this article. But, first here is… they investigated alleged violations The Story of the Federal Aviation Regulations, On October 21, 2010 Senator Sections 91.13(a) and 91.103(a).19 Inhofe was piloting his Cessna 340, count, Inhofe said not getting the NOTAM Based on Inhofe’s agreement to N115EA, to Port Isabel-Cameron County was the result of a bad relationship he complete remedial trainings and the sat- (PIL) airport in Texas1 (see accompany- had with an individual who declined to isfactory completion thereof, they chose ing figure). Reportedly, he, including take his phone call before the flight and to forego any legal enforcement action.20 three others, made a landing on a runway did not tell him about the NOTAM, then Further, they informed the senator, the bearing oversized Xs, a large red truck, saying, “I did not know it because it was letter addressing their findings would be a and other vehicles. Additionally, there not given to me.”9 Conversely, pertain- matter of record, held for two years after were construction workers on the runway ing to checking NOTAMs for a closed which the matter would be expunged.21 who could not hear the approaching runway, Inhofe conceded, “it “probably” is The FAA then essentially said, have a airplane due to noise from their construc- “technically” something a pilot should do great day and do not violate any regu- tion equipment, only to be warned by a but added, [P]eople who fly a lot just don’t lations in the future. However, another person running to the area alerting them do it.”10 He added, “he was not sure of the peculiarity associated with this whole of the impending landing.2 exact wording of the FAA’s regulations affair is when Inhofe left PIL he took off In a recorded conversation with the regarding NOTAMs, but that his frequent on a taxiway!22 Now, for the… FAA, obtained under the Freedom of flights across Oklahoma would make it The Rest of the Story Information Act, runway crew supervisor impractical for him to check for NOTAMs On Wednesday July 6, 2011 Senator Sydney Boyd said Inhofe touched down, on every small airport he uses.11 When Inhofe, along with 24 original co-spon- then "sky hopped" over personnel and six asked whether his experience in Texas sors introduced the Pilot’s Bill of Rights,23 vehicles before landing.3 He also com- would lead him to change his mind on S.1335.24 Its stated purpose is to amend mented the aircraft "damn near hit" one NOTAMs, he said, “ I don’t want to make title 49, United States Code, to provide red truck and the driver “actually wet his any commitment.”12 rights for pilots, and for other purposes.25 britches.”4 Boyd continued by saying he Looking further into the issue, there In addressing his reasons for the bill, was so close he could have spit on the was some confusion about the airport’s Inhofe said, “I have helped an untold fuselage. Later, in another conversation, lack of communications. First, the in- number of pilots facing the pressure of Lee Williams, an FAA Quality Assurance cident report states airport employees dealing with the Federal Aviation Admin- Specialist spoke with PIL Airport Man- heard the senator call-in on the UNICOM, istration [a]nd the bill ensures pilots are ager, Marshall Reece, who emphatically but did not respond or alert him of the treated in a fair and equitable manner.26 stated, “I’ve got over 50 years flying, runway closure prior to his landing.13 Adding to his explanation for introduc- three tours of Vietnam and I can assure A one-page statement released by the ing the legislation, Inhofe says, "[I]t's you I have never seen such a reckless senator blamed a lack of response to our job in Congress to ensure that there disregard for human life, in my life, add- three radio transmissions on a negative are appropriate safeguards in place to ing, “something needs to be done. This relationship with an “attendant” at the prevent agency overreach and this bill guy is famous for these violations.”5 airport.14 Regarding the runway envi- proves it."27 However, there is possibly In both the incident report6 and record- ronment, Inhofe said he did not see the more than representing the nation’s pilot ed audio, the air traffic controller asked if Xs until late on final approach and was community as motivation. He goes on Inhofe was familiar with the NOTAM7 at concerned he could not abort safely.15 to personalize the issue, referring to his PIL and he replied Yes, but admitted to Thus committed, he said he landed “well landing incident, by further declaring, "I not checking for them prior to the flight.8 off to the side” of the workers.16 When was never fully appreciative of the feeling Adding to this seemingly conflicting ac- confronting the on-site workers tending of desperation until it happened to me."28 Continued on page 12 5 Aviation Expert Witnesses How to Keep Yourself and Your Experts Out of Trouble*

By Donald M. Maciejewski, Esq.1 may require, thus avoiding possible of not losing their temper while tes- S.V.(Steve) Dedmon, Esq.2 negative ramifications tifying in a deposition or while on Expert witnesses – in today’s litigious The Lawyer’s 13 Point Expert Check- the stand. legal environment we just can’t seem list Do not allow the expert to answer hypo- to get along without them. Whether When selecting an expert try fol- thetical questions that have no basis you are in Federal or State Court, try lowing these tips when meeting with in fact whether they are, or are not, proving up your aviation case without and selecting expert witnesses to help related to the case. any expert testimony and chances are insure your case and client’s problems Although, this sounds obvious, require that you will not get very far. are minimized: your expert to review all materials While its is no secret that a good Do not let the expert offer opinions pertinent to the case. Failure to sup- expert can be worth his/her weight in outside their area of expertise. ply the expert with critical materials gold and the key to your winning your Insure the expert is a master of the facts will make them look less than fully case, the trick is to find the expert(s) of the case. Failure to master the prepared. Additionally, discuss infor- that best suit your case. facts will result in your expert look- mation they believe to be pertinent Think back to different cases you ing as though he/she does not know and review its relevance to the case. have worked on and the Go over any “blemishes” or experts you employed in “baggage” in the expert’s those cases; are your CV or reputation and re- memories of the expert, solve any conflicts prior their testimony and ef- to the expert’s deposi- fectiveness favorable or tion and trial testimony. forgettable? Were your Finally, remind your ex- experts well prepared, pert they are more than credible, and believ- just purveyors of facts, able? Did they explain figures, and statistical their theories and information, and have opinions to the jury them portray a story in terms they could to the jury. When de- understand and ulti- picted the evidence mately comprehend? to a jury, have your Did your expert have expert explain the some “baggage” that technicalities of the you were concerned about, as in a what they’re talking about, which case on a level of an intelligent 16 year controversial methodology or inde- creates an issue of creditability. old, all the while being sensitive to not fensible conclusion? Did your experts Do not permit your expert to rely on underestimate their intelligence. Also, tell the truth? How did your experts irrelevant data or documents not have your expert explain key issues to compare personably, technically and pertinent to the case. the jury on the basis that they may have conclusively against your opponents’ Insure your expert learns and thor- little or no familiarity or background in experts? Was your expert’s testimony oughly understands the opposing the expert’s field of expertise. good, bad or downright ugly? lawyer’s theory of the case. Finally, a trial is supposed to be a Selecting and hiring experts is just Do not let the expert become your cli- search for the truth. Every lawyer that as important to your case as is jury ent’s advocate instead of an unbi- employs an expert witness in any type selection, opening/closing arguments ased expert whose factual testimony of case, whether it be a complex avia- and developing a case theme. As such, favors your client’s position. tion case or a simple auto negligence in the current contemporary civil litiga- As a practical matter, do not let the case, has to ask himself, “Am I attempt- tion environment, experts play a vital expert bill for work not authorized ing to reveal the truth, or am I ignoring role. Literally, as you may suspect, by you as the hiring attorney. the truth to espouse something I per- they come in all shapes and sizes with Do not let the expert mishandle custody sonally believe?” It is the duty of every varying credentials and levels of experi- of tangible evidence. lawyer to insure an experts who tell ence. If the possibility of settling a large Do not allow the expert to impose their less than the truth are eliminated from and technically complicated aviation ego into their deposition or trial earning a living as they denigrate their cases exists, more often than not, it testimony. profession and the reputation of their will not be settled until after the experts Do not allow the expert to reveal an air colleagues, by literally being paid liars. have testified. It then is incumbent on of arrogance when discussing how As officers of the court and its ultimate you, as lead counsel, to select the best much they are being compensated guardians you should not only expect, available experts and avoid those who for their time. but demand honesty and veracity from do not possess the attributes your case Counsel the expert on the importance your experts and accept nothing less. See “Aviation Expert” page 18 6 Flying for a “$100 hamburger?”1 Don’t Pay the Landing Fee! Airport User Fees: the Legal Quagmire By Jason Lorenzon* Introduction ated difficulty for attorneys to identify stupid to solve the debt crisis and leave The debt crisis, the economy, and a legal causes of action upon which a this imperiled sector in a worse position broken immigration system had all but court may grant relief if user fees are than it is already in. buried the user fee debate in General disputed. Many cases disputing the I. Establishing the User Fee Through Aviation. However, it has reared its validity of user fees have been brought the Traditional Method of a Contract ugly head in the recent debt debate forward since the early 1970s.7 Rarely Historically, user fees have been negotiations in Congress. Under the do any of these cases make it past the established by a mutual agreement Commerce Clause of the United States procedural level since no one including between the airport authority and the Constitution, Congress has the power the courts, have a clue of which entity user.11 For example, an airline will to levy user fees and harm an already has the proper jurisdiction over such negotiate a contract for a lease with fragile economic sector. On the other cases and controversies.8 an airport authority.12 A lease contract hand, under the Supremacy Clause, Second, without a contract, in most will include provisions for the payment Congress has the power to unify the jurisdictions, the user is not legally obli- of user fees.13 In addition, a covenant law of user fees and usurp state law. I gated to pay a user fee. Airlines, taxicab regarding user fees should be set to a really do not think anyone in Congress companies, rental car companies, and fixed amount and be very specific in has figured this out yet, which in this even private airplane owners have detail.14 political climate could be extremely challenged the legality of user fees As this is basic contract law, courts harmful to General Aviation. without any success.9 Courts have sim- will enforce the express terms of a Federal and state laws are the two ply granted summary judgment in favor contract. For example, in the County main sources for user fees. of San Francisco v. Western Under federal law, tax dollars Airlines,15 Western Airlines are available through federal protested the increase in user grants offered by the Fed- fees arguing that the two eral Aviation Administration other airlines did not pay the (hereinafter, the FAA), but increased fee.16 The court held are insufficient to support the the new schedule of rates for continual maintenance and the airport was valid since the development of the aviation court reasoned the fees were infrastructure.2 As a result, legally and properly made.17 user fees have been a means Western was put on notice, to this end.3 Under federal law, of the impending fee when the only legal limitation placed upon of airport authorities on the grounds that it received and retained the new fee airport user fees is that they must be such user fees are statutorily permit- schedule.18 In this agreement, West- related to aviation safety.4 ted.10 ern only stipulated that it would pay Under state law, user fees serve to Third, this problem has created a a user fee and both parties did not fix regulate air traffic by charging higher chilling effect on general aviation. It the amount of this fee.19 On the other fees during peak times at busy airports imposes an extraneous expense in an hand, two other competing airlines had and statutory authority grants local economic sector that is already very ex- already entered into leases with the airport authorities the power to create pensive. Young people are discouraged airport authority and fixed their pay- and levy use fees.5 As we are all aware, from developing a vocation in aviation ments for a number of years. Western aviation law is extremely complex and and people who have an interest in it did not specifically set the amount of disorganized. The mix of many differ- are deterred by an unnecessary and ex- the user fee.20 The court examined the ent federal and state statutes, local traneous expense. Finally, the user fee specific covenant and did not observe and municipal ordinances, and the statutes and the confusion surrounding a fixed fee. The court then turned to the haphazard application of case law have enforcement have empowered air- statutory authority, which permitted the created a body of law that is unpredict- port authorities to charge whomever, airport authority to fix the user fees.21 able, unintelligible and unmanageable.6 whenever, for whatever amount they Therefore, courts will normally use This legal labyrinth has three areas of arbitrarily deem as important. When statutory authority as a gap-filler if a concern, as related to the legality and the user fee debate rears its ugly head, contract does not specifically state the implementation of user fees. we as a lawyers have a duty to ensure amount of the user fee. Consequently, First, these legal layers have cre- that Congress does not do something the increased user fee is valid and Continued on next page 7 Don’t Pay the Landing Fee! enforceable since Western expressly cannot pay multiple taxes on the same “self-sustaining” is not defined in this agreed to it.22 Thus, the lesson to take piece of land.37 The court held that regulation. Congress unsuccessfully from this case is, any monetary value of under the state tax regulations, there tried to address some of the problems the user fee should be set to a specific could be multiple exclusive concurrent of airport user fees by establishing the dollar amount. yet independent users of the same Federal Administration Authorization Federal law, state law and even property.38 The court reasoned since an Act of 1994.49 This act tried to correct local ordinances grant a local airport aircraft can land, and clear the runway, some of the problems that many courts authority the right to set the rates for that same land is then available to the unsuccessfully attempted to solve.50 user fees.23 These laws also provide a next plane.39 As a result, the interest in This act states that although an right to the airport authority to charge a land is possessory and subject to a tax airport authority is considered the pro- user fee. On the other hand, a federal assessment.40 The rational is that the prietor of an airport and must maintain statute does not force the user to pay taxation of commercial aircraft supports it as such, the airport sponsor will the fee.24 As stated above, this duty the state policy of charging those who operate the airport as such for the use is only created through an express use government land for revenue pro- and benefit of the public.51 The sponsor contract. For example, in Bowling ducing purposes.41 In this instance, the may establish such fair, equal, and not Green-Warren County Airport Board v. user fee should have been defined in unjustly discriminatory conditions to be Bridges Aircraft Sales & Service, Inc.,25 the agreement so that it would not have met by all users of the airport as may the airport board arbitrarily imposed a been considered a taxable interest in be necessary for the safe and efficient charge of 2.5 cents per gallon on all land. A reasonable conclusion is that operation of the airport.52 The airport aviation fuels delivered by the Stan- any negotiated covenant on the user operator or owner will maintain a fee dard Oil Company to Bridges Aircraft fee must be carefully crafted to avoid and rental structure for the facilities and for sale to the customers on the airport an unnecessarily expensive result. In services being provided by the airport property.26 The trial court held the board addition, both the airport authority and users which will make the airport as has no legal authority to impose this the airport user should carefully define self-sustaining as possible under the charge.27 The appellate court upheld the scope of the user fee. circumstances existing at the airport, this decision since the airport authority Under federal law, as it pertains taking into account such factors as the imposed a 2.5 cents per gallon charge to landing fees, the general aviation volume of traffic and economy of col- unilaterally.28 The “plain terms” of the public is entitled to land at a public lection.53 This section does not provide lease agreement did not provide for this airport regardless of whether they pay any remedies to the airport authority if charge nor did Bridges Aircraft Sales the landing fee or not.42 Public airports a user refuses to pay a user fee. The & Service, Inc. agree to this charge.29 owned by the government are consid- FAA regulations state that the airport Consequently, the appellate court ered public utilities.43 Furthermore, an authority and the user should normally found the board violated its contract.30 airport may not condition the use of its establish the fee, but a sponsor can The board had ignored its own regula- landing area and related facilities on the establish a fee only after the users have tory requirement for the determination payment of landing fees.44 An airport been consulted. It also states, that a of any such charge by agreement when authority cannot bar access to the user user cannot be barred from using the it unilaterally announced the imposition even if that user refuses to pay the user airport since it is government property.54 of the charge.31 fee.45 A user must voluntarily agree to The law presumes that local authori- Since a court will strictly enforce a pay the fee. Federal law does not make ties, such as municipalities that own contract, the agreement between the a provision for the enforcement of user and operate airports, have far more airport user and the airport authority fees absent a contract.46 regulatory power over airport opera- must be carefully crafted and if it is II. Statutory Authority for the Right tions.55 The rationale is the local author- not, this may result in further extrane- to Charge a User Fee: The Florida ity is in the best position to protect its ous costs for the user. For example, in Context legitimate interest in avoiding trespass, United Airlines, Inc. v. County of San A court will try to determine what nuisance and inverse condemnation Diego,32 United Airlines entered into an specific statute governs an airport liability.56 As such, the local airport au- agreement with the Port District of San authority’s right to establish a user thority is the most appropriate entity to Diego to pay landing fees.33 The court fee. Three statutory sources exist that establish user fees. These regulations held this user fee created a possessory authorize user fees. First, a court will give a great amount of deference to the interest in the land used by the airlines34 begin its analysis by examining 49 local airport authority. The negative im- making this interest in land is subject U.S.C. 40116, the “Anti-Head Tax.” 47 plications are many airport users may to taxation.35 The court reasoned that Second, a court will examine 14 not be willing to pay any user fees. landing permits might result in a taxable C.F.R. 152 (Appendix D), which au- Third, a court will examine the spe- possessory interest and be subject to thorizes an airport authority to estab- cific state statute governing user fee. the payment of property taxes.36 The lish user fees in order for the field to Florida’s “user fee” statute-F.S. Stat. airlines argued that multiple users become self-sustaining;48 however, 329.40 (2011) states: Continued on next page 8 Don’t Pay the Landing Fee!

(1) The governing body of a publicly a second degree misdemeanor. contract theory of user fees prevails. owned and operated airport has a As you see, the language gives In re Menier,63 the Federal Bankruptcy lien upon all aircraft landing upon the Florida statute some legal “teeth.” Court held that user fees must be vol- any airport owned and operated by Yet, it can still be challenged because untary and therefore only enforceable it for all fees and charges for the the payment of the user fee has to be under contract law.64 However, if a use of the facilities of such airport voluntarily and agreed to by the user user fee is imposed involuntarily, they by any aircraft when payment of and the airport authority. Notably, the are considered taxes and the airport such charges and fees is not made Florida statute does not address the authority does not have taxing author- immediately upon demand to the “contract theory” that is required to le- ity.65 Therefore, although the airport operator or owner of the aircraft by gitimize a user fee. This element is lack- authority has the power to create a user an authorized employee of the air- ing in the Florida context and should fee, the user is obligated to pay it only port. The lien for the full amount of be challenged. Most other jurisdictions if a contract exists between the airport the charges and fees due attaches require the establishment of an agree- authority and the airport user. In the to any aircraft, at the airport, which ment between the user and the airport Florida statue, the statute is not clear is owned or operated by the person authority. on the basic element that a valid user owing such charges and fees. Such For example, in North Carolina the fee needs to be agreed upon by both lien may be enforced as provided contract theory of user fees prevails. the airport authority and the user and by law for the enforcement of ware- In Raleigh-Durham Airport Authority v. this can be viewed as a “tax.” This is housemen’s liens. Delta Airlines, Inc.57 an agreement was one way that the user fee statue may (2) A person may not remove or established between the airport author- potentially be challenged in the Florida attempt to remove from the airport ity and the airline users.58 The contract context. any aircraft owned or Courts do not have operated by the person any problem stating that owing such charges or an airport authority has fees after service of the authority to establish notice of the lien upon a user fee. On the other the owner or operator or hand, courts have had after the posting of such great difficulty in requir- notice upon the aircraft. ing the user to pay a fee Any person who unlaw- absent a contract. When fully removes or at- crafted or dealing with tempts to remove from user fees, a contract can the airport any aircraft take many different forms, owned or operated by to address the user fee is- a person owing such sue charges or fees after Another way user service or posting of the notice of lien was in the form of a lease-landing fee fees can be enforced is if they are in and before payment of the amount agreement. The contract stipulated contracts for land, easements or even due to the airport is guilty of a mis- that the airline would pay a landing fee in covenants running with the land. In demeanor of the second degree, of thirteen cents per thousand pounds Poats v. Nelson,66 a person purchased punishable as provided in s. 775.082 of airplane weight.59 The airline would two lots in an airpark on which they or s. 775.083. also pay three dollars per year per could build a home and an airplane Not much, if any litigation has oc- square foot for rental space.60 After hangar.67 The buyer was told at the time curred under this statute in Florida. the contract had expired, the airport of the purchase that airport access was Under federal law, the airport authority authority increased the landing fees to not granted but the seller reassured the does not have a remedy, but under the thirty-four cents per thousand pounds buyer that access to the airport would Florida statue an airport authority has a and six dollars per square foot for eventually be granted.68 To the buyer’s remedy against a delinquent user. First, rental.61 The court held that under the dismay, the county commissioners a lien can be placed upon the aircraft North Carolina General Statute §63- denied the seller’s request for private only after an authorized employee of 53(5) (1945), the airport authority may access to the public airport.69 Ulti- the airport makes a demand. Second, determine the charge or rental for the mately, the buyers was required to rent if a person attempts to remove that air- use of any properties under its control hangar space at the airport.70 The buyer craft after service of notice of lien and/ provided the public is not deprived of its brought an action against the seller for or posting of that lien on the aircraft, rightful, equal and uniform use of such a breach of contract. The court held that the person attempting to remove the property.62 approval of the county commissioners aircraft can be charged criminally with In Ohio, case law is clear that the was not a certainty. Furthermore, the Continued on next page 9 Don’t Pay the Landing Fee! assurances of the seller did not rise to Furthermore, the airport authority and land owner was trespassing on airport land by the level of a guarantee or warranty.71 an airport user must carefully examine using his expired access licensee); The City of Crystal Lake v. La Salle Nat’l Bank, 459 N.E.2d The law presumes that a party wishing other ways where agreements may cre- 643 (Ill. App. Ct. 1984) (this court held that the to have access to the airport will negotiate enforceable user fees. These might first municipality to condemn the land will have ate and purchase the rights of access.72 be hidden in land contracts or even in rights in that property). 7 See Durkes et. al. v. Town of Converse, 572 In this case, the seller or buyer should covenants running with the land. In the N.E.2d 530 (Ind. Ct. App. 1991); Standridge Fly- have negotiated an agreement with Florida context, the user fee statute has ing Serve et al. v. United States Dep’t of Transp., the county commissioners to secure potential criminal ramifications if the Federal Aviation Admin., 712, F.2d 1228 (8th Cir. 73 1983); Town of Fairview v. U.S. Dep’t. of Transp., access to the airport. Moreover, since user is served with notice. Neverthe- Federal Aviation Admin., 201 F.Supp. 2d 64 an airport authority is considered pro- less, with the ongoing Congressional (D.D.C. 2002). prietary in nature, the right offer by the debate over the budget crisis, this issue 8 See generally Town of Fairview, supra note seller to the airport authority with mon- will rear its ugly head and act as an un- 9. etary benefits, such as the payment of necessary and far-reaching cash grab 9 See generally Closs v. Sorbora, 1991 Ohio App. LEXIS 4168 (Ohio Ct. App., 1991). user fees, would have ensured access that could possibly disable General 10 See 14 C.F.R. § 152 Appendix D (2005); See 74 to the airport. Nevertheless, through Aviation. also Oxley v. City of Tulsa, 794 P.2d 742 (1989); statutory authority, an airport is given Endnotes Cf. The City and County of Denver v. Continental * Jason Lorenzon is a licensed Attorney in Airlines, Inc. and United Airlines, Inc., 712 F. the power to negotiate these elements Supp. 834 (D.Col.1989); Town of Fairview, supra with an airport user.75 Florida and Ohio. He holds and FAA Commer- cial License, Instrument, Multi-Engine and CFI, note 9; Closs, supra note 11. For example, in Berthard Joint Ven- CFII and MEI ratings. He is a panel attorney for 11 See generally, County of San Francisco ture v. W. Houston Airport Corp.,76 a lot AOPA, member of the NTSB Bar. He has also v. Western Air Lines, Inc., 22 Cal. Rptr. 216 owner used the airport’s facilities after been named a 2011 Ohio Rising Star Super Law- (1962) (two other airlines had entered into lease yer, recipient of the Community Service Award for agreements with the airport authority and fixed his license and easement agreement Attorneys 40 & Under for District 11 (Ohio State their payments for a number of years); Bowling allowing such use expired.77 Further- Bar Foundation), 2009 and recipient of the Pro Green-Warren County Airport Board v. Bridges more he stopped paying a fee for the bono Service Award for the Community Legal Aid Aircraft Sales & Service, Inc., 460 S.W. 2d 18 (Ky. Society of Akron, 2009. He can be reached at Ct. App. 1970) (establishing that the only way 78 use of the easement. The appellate [email protected]. to raise user fees is by agreement between the court held the airport’s declaration 1 John F. Puner, The $100 Hamburger: A Guide airport authority and the airport user); Southern that it was a public access airport for to Pilots’ Favorite Fly-In Restaurants (2d ed. Airways, Inc. v. City of Atlanta, 428 F.Supp. 1010 2003) (this resource has developed secondary (N.D.Ga. 1977) (airline cannot permit another property tax purposes do not prevent meaning with general aviation pilots who wish airline from entering into a lease agreement with it from charging a user fee for services to build time, keep current or simply go flying the airport authority). provided to the lot owner.79 The court somewhere and grab something to eat). 12 United Airlines, Inc. v. County of San Diego, 2 Cal. Rptr. 2d 212 (1991); See also Rocky ordered a permanent injunction for the 2 Id. at 220. (arguing that these federal grants may not be enough to help the continual develop- Mountain Airways, Inc. v. The County of Pitkin, private lot owner’s repeated trespass ment of the aviation infrastructure, which includes 674 F.Supp. 312 (D.Colo. 1987). on the airport’s property since the prior airports, runways, taxiways, terminal facilities, 13 See United Airlines, supra note 14 (the agree- agreement between the lot owner and airways, navigational facilities, GPS satellites ment included an imposition of user fees on the and air traffic control services). airport user for each landing and takeoff). the airport had expired and was not 3 Id. at 220. 14 See Rise J. Peters, Case Comment: North- 80 renegotiated. This agreement allowed 4 See generally V. FOSTER ROLLO, AVIATION west Airlines v. County of Kent Michigan: More the private landowner access to the LAW: AN INTRODUCTION (5th Ed. 2000) at 185. Than You Ever Wanted to Know About Airport Ratesetting, Part One (Pricing in the Courts), airport. In return, the airport authority 5 See generally Aircraft Owners and Pilots’ 22 Transp. L.J. 291 (1994) (this author purports Ass’n v. Port Authority of New York, 305 F.Supp. charged the landowner a user fee for the proposition that airport authorities and users 93 (E.D.N.Y. 1969). this access.81 Consequently, since the have abandoned negotiations and have left the 6 See, e.g., Hensel v. Board of County Com- airport user refused to pay a user fee, setting of user fees up to courts. However, this missioners, 79 N.E.2d 698 (Ohio Ct. App. 1947) author is wrong since most courts have refused to he was barred from continued use of (citizen tried to stop a municipality from con- set their own user fee rates. Rather, if a contract the easement.82 demning land for an airport); Toledo v. Jenkins, does not specify a fixed amount, courts will set 143 N.E.2d 141 (Ohio 1944) (holding that an Conclusion the rate at what ever the statute allows the airport airport is a public utility); Sneed v. County of authority to set). Riverside, 32 Cal. Rptr. 318 (Cal. Ct. App. 1963) The only way a user fee can be 15 See County of San Francisco v. Western Air enforced is through a contract. Absent (an avigation easement can be acquired through eminent domain proceedings); Yara Eng’g Corp. Lines, Inc., 22 Cal. Rptr. 216 (1962). a contract, a user fee can only be con- v. City of Newark, 40 A.2d 559 (N.J. 1945) (a 16 Id. at 220. summated if the user voluntarily pays municipal government cannot restrict heights of 17 Id. at 243. the fee. In order for a court to enforce building without purchase or by exercise of the 18 Id. at 243. power of eminent domain); Hagerman v. Board 19 Id. at 221. the user fee, the court has to look for of Tr.s of Wayne Twp., 251 N.E.2d 507 (Ohio Ct. the many different ways identify an App. 1969) (holding that an air force base must 20 Id. at 221. alternative means by which a contract acquire an avigation easement by compensating 21 County of San Francisco, 22 Cal. Rptr. at 221. the owners of private property); Bethard Joint 22 Id. at 221. might be formed between the airport Venture v. W. Houston Airport Corp., 72 S.W.3d 23 See 49 U.S.C. § 40116 (2005); Cf. 14 C.F.R. user and the airport sponsor. The clear- 426 (Tx. Ct. App. 2002) (holding that without § 152 Appendix D (2005); Cf. Ohio Rev. Code est way is through an express contract. paying for the contractually agreed fees the ac- Ann. § 308.06 (E) (West 2005). cess to the airport as revoked and the private 24 See generally 49 U.S.C § 40116; See also 14 Continued on page 15 10 and that the airman reserves all privileges, examined. Additionally, if the inspector ob- The Dreaded 709 Ride rights and remedies with respect to the cer- serves any deficient areas other than those Continued from page 4 tificate and any potential adverse action the that are the subject of the re-examination at code for which airport they want you to be FAA may decide to take. An aviation attorney any time during the re-examination, those at); and (6) a time limit for accomplishing can help to draft this letter and/or assist with deficiencies could also be the basis for the re-examination (you’ve got till high noon, the logistics of the surrender. Most attorneys failure of the test. and if you don’t show up, you can kiss your will try to avoid cuffs and the embarrassment If the airman successfully completes pilots certificate goodbye). of an arrest, especially at your office. the re-examination, one of three things After the airman receives the letter, he/ The 709 ride does not necessarily have will happen: (1) if the airman’s certificate she usually has 15 days within which to to be scheduled with the FSDO that issues was suspended pending completion of the complete the re-examination, although this the request. If the accident or incident oc- re-examination, the inspector will issue a is not always the case. If an airman was curred somewhere other than the airman’s letter of results and may issue a temporary injured in an accident and their physical home area, such as flying low over Disney certificate that bears all ratings and limita- condition precludes completion of the re- World to get a closer look at Minnie topless tions from the original certificate; (2) if the examination, or if the airman needs more sunbathing on top of the Castle, the airman airman’s certificate was not suspended than 15 days to practice/prepare for the ride, can request the re-examination be admin- pending completion of the re-examination, the re-examination may be postponed. This istered by the airman’s home FSDO. In this the inspector will simply issue a letter of is really big of the government. They will give situation, the airman’s home FSDO would results and the airman may then continue you an extra 15 days time if you have lost an contact the FSDO issuing the letter request- to exercise the privileges of his or her cer- arm, a leg, or an eye; 30 days extra if you ing the re-examination and coordinate the tificate and/or ratings; or (3) if you exceed lost both eyes.3 Under these circumstances, tasks to be re-examined, and advising if any the examiners expectations, you will go on the FAA will require the airman surrender his further enforcement action is necessary after to the bonus round. or her airman certificate and the FAA will is- the actual ride. If the airman fails to successfully complete sue a 30-day temporary certificate for them If the airman fails or refuses to submit to the re-examination, the inspector will inform to operate under, until the re-examination. a re-examination within a reasonable period the airman in detail of each deficiency. Ad- If the FAA believes the airman will be of time, the FAA will initiate an emergency ditionally, if the airman’s original certificate operating commercially while carrying pas- enforcement action, including, but not limited was surrendered in exchange for a tempo- sengers, the FAA may demand that the to, suspending the airman’s certificate, and rary certificate and the term of the temporary re-examination occur within less than 15 flattening their tires. Although the airman certificate has time left on it, the inspector will days. In this situation, if the airman is unable, has the ability to respond to, or appeal the decide whether to suspend the certificate or refuses to submit to the re-examination emergency suspension, if the FAA has or to extend the temporary certificate for an within the specified timeframe, he/she may a reasonable basis (remember, “reason- additional 30 days. In the latter instance, if surrender their certificate and obtain dual able basis” is whatever the FSDO says it the inspector believes the airman could suc- instruction from a certificated flight instruc- is) for the request and the airman has no cessfully complete another re-examination tor in preparation for the ride. If the airman other defenses, they will likely end up with if he or she obtained additional instruction, finds it necessary to conduct solo practice, a suspension of their certificate, pending another 30-day temporary certificate will be the FAA may issue a temporary airman submission to and successful completion issued with a limitation against carrying pas- certificate, valid for 30 days instead of 120 of the re-examination. sengers. The airman will then have to submit days bearing all ratings previously held by What happens during the 709 ride? Is it to an additional re-examination within that the airman. However, in the latter situation, worse then the Tower of Terror? 30-day period. In the first instance, when the ratings for which the airman is to be The re-examination is similar to a check- the inspector determines the airman is not re-examined will have the limitation, “For ride, except that the airman is not typically qualified to hold the certificate or rating, the Student Pilot Purposes Only-Passenger subject to examination on all of the required airman can expect to be the subject of en- Carrying Prohibited.” tasks in the practical test standards (PTS) for forcement action seeking revocation of his The problem with the 709 letter, is that it the certificate upon which they are being re- or her certificate and/or ratings. doesn’t completely set out exactly what they examined (but you had better be prepared). In the End will expect on the reexamination. Rather, Rather, the re-examination involves the If you are involved in an accident or inci- you are provided only general guidance of tasks that were called into question by the dent in which pilot error is a possible cause a broad nature. The result is that you may occurrence of the accident or incident and and the FAA finds out, don’t be surprised if find yourself preparing for all sorts of pos- is conducted in accordance with the PTS for you receive a certified letter requesting that sibilities. the certificate or rating involved. The tasks you submit to re-examination. Also, remem- And just to make your life a bit more may include components of the knowledge ber that filing a NASA report won’t normally complicated, an airman who wants to sur- test, the skill or flight test, or both. get you out of the problem. Many things render his or her certificate cannot simply The inspector can fail the airman for you might think should be excused, are show up at the FSDO and hand it over. If the any maneuver, procedure or knowledge looked at by the FAA as just poor planning. certificate is to be surrendered, it must be deficiency in which the airman is found to be We really can’t confuse “lack of judgment” accompanied by confirming the certificate is unqualified (you had better know your light with “lack of knowing better”. Playing dumb, only being surrendered on a temporary basis signals). This includes any of the specific or not doing your research, doesn’t cut it tasks upon which the airman is being re- here. Flying over the President’s ranch and Continued on next page 11 evidence 30 days prior to a proceeding The Dreaded 709 Ride The Rest of the Story with enforcement action.34 It goes on to Continued from previous page Continued from page 5 say this is currently not done and often claiming that it just looked like another farm This statement appears to be made in leaves the pilot grossly uninformed of his 35 house, won’t get you out of having a gun response to his frustration to not fully violation and recourse. pointed at you when you land. Really... the understanding the charges brought by The bill also seeks to amend section 36 FBI takes that kind of thing very seriously. the FAA and his inability to obtain ATC 44703(d)(2) as it applies to appeals “Sorry, I was looking at that cute heifer” isn’t voice recordings.29 However, whatever brought before the National Transpor- a good excuse. his motivation, the proposed bill becomes tation Safety Board (NTSB/Board). It The first thing you need to do, when a political reality. strikes the language of the second sen- facing a 709 ride, is review the scope of the The bill begins by addressing the tence of regulation, and the distinct lan- re-examination request and objectively de- FAA’s responsibility to grant an individual guage “is not bound,” by inserting… [T]he termine whether the FAA has a reasonable who is the subject of an investigation ac- Board may consider (emphasis added) basis for making the request. Often, it will, cess to relevant information.30 It specifies the interpretation and guidance of the and they are not obligated to provide you a person shall be advised of the nature Administrator in its review in accordance with any details so that you can question or of the investigation, that a response to with general administrative law principles review their probable cause findings. an Letter of Investigation Next, you need to decide how you want (LOI) is not required, no to respond. Although the request for re- adverse inference or ac- examination can be intimidating and frus- tion can be taken against trating, especially if it follows an accident or an individual for declining incident in which your aircraft and/or your to respond to the LOI, pride has been damaged, it is possible to any response to an LOI treat it as a positive experience and use it may be used as evidence as an opportunity to improve your skills as against the individual and an aviator. This is especially true if you take the releasable portions the ride with an inspector who approaches of an investigative report the situation from a similar perspective. will be available to the If you find yourself facing a 709 ride individual.31 In effect, as with an inspector who does not approach it pertains to responses 37 the ride from this perspective, or if you to LOIs being used as evidence, the of deference. To Inhofe’s credit, this have questions regarding the basis for the bill effectually creates Miranda warn- would be a substantive change to a policy request or the procedures that should be ings. In the past respondents to an LOI that has allowed the FAA to be the sole followed, an aviation attorney can certainly were never aware they could possibly interpreter of its regulations, and more assist you in the process. After all, you incriminate themselves with their state- often than not, allows them unbridled worked hard to obtain your certificate(s) ments, no matter how well intended and authority. Senator Inhofe attests, “it would and/or rating(s).4 cooperative their actions. require the NTSB to stop rubber stamp- Endnotes In the section addressing access ing appeals pilot make to the Board over * Dennis R. Haber is the principal in the firm of to air traffic data, the bill says the FAA FAA penalties against them; continuing Dennis R. Haber P.A. in Miami, Florida. His firm shall provide a person relevant air traffic he claims, a small fraction of the appeals practices Aviation, Business, and Real Estate result in the Board overturning the FAA’s law as well as commercial litigation in Florida, communication tapes, radar information, 38 New York, and Washington D.C. He has been ATC statements, flight data, investigative findings.” a member of COPA for 7 years, flying for over reports and any other pertinent data to This issue has also been a major 42 and has never pulled the chute in order to point of contention and has garnered effectuate a successful landing... yet. He can be help a person facilitate their ability to reached at 305/256-3002 or by e-mail at Den- productively participate in the investiga- legal scrutiny in the aviation law com- 39 [email protected]. tion.32 Aviation attorneys, as a matter of munity. The issue for aviation attorneys 1 See FAA Order 8700.1 Vol. 2, Chap. 26, Sec. has been the Board can only lay aside a 2. Conduct a reexamination Test of an Airman Un- standard practice, routinely request such der Title 49 of the United States Code. Retrieved information; however, it is in the context FAA’s interpretation of its own rules if the from http://fsims.faa.gov/WDocs/8700.1%20 of the next part of the bill that makes this interpretation was arbitrary, capricious, or GA%20Ops%20Insp%20Handbk/Volume%20 otherwise not according to law.40 The bill 2/2_026_00.htm. Additionally, this Order serves as section more significant. The Timing por- the basis for the substantive portions of this article. tion of the bill prohibits the Administrator then deals with the same basic concern 2 Id. Additionally, this Order serves as the basis from taking action against an individual of the Board being bound by the FAA’s in- 41 for large potions of the substantive information subject to an investigation for at least 30 terpretations in 44709(d)(3) as it relates included in this article. days after the required air traffic data is to appeals pertaining to amendments, 3 Note: There are numerous times in this article 33 modifications, suspensions, and revoca- I use humor and sarcasm, which hopefully, is made available to the individual. The obvious. press release describing the Timing portions of certificates, by proposing the may 42 4 Many thanks to the FAA and other sources tion interprets this by saying that in an consider verbiage referred to above. It from which the information for this article was then continues the “is not bound” and gleaned, including the Federal Regulations and FAA enforcement action against a pilot, my own bizarre perspective on life. the FAA must grant the pilot all relevant may consider theme and applies it to Continued on next page 12 sion by the Administrator.47 As an aside, a format that is more useable, (3) prove The Rest of the Story should this bill pass, it will be interesting a full set of NOTAM results in addition Continued from previous page to see the effect on the strategy of the to the specific information requested, 44710(d)(1)43 of title 49,44 as it impacts FAA and aviation bar relative to bringing (4) provide a document that is easily airman appeals related to certificate ac- and defending certificate action cases. searchable and (5) to provide a filtering tions for controlled substance violations. Based on Inhofe’s landing experience mechanism similar to that provided to the Next, the bill proposes to let a person and his comments on the use/non use Department of Defense NOTAMs.51 To use the forum of their choice when ap- of NOTAMS,48 the next proposal the bill facilitate the implementation and goals pealing an order or final decision related advocates should come as no surprise. of the program, the bill would establish to a certificate action under 44703(d), or Stating the process by which NOTAMS an advisory panel consisting of general for the imposition of a fine or emergence are provided, Inhofe’s press release de- aviation pilot groups and to be done not order of revocation under 44709(d) and scribes the bill’s intention to require the later than one year after enactment of (e).45 At their option, they could either FAA to simplify and archive NOTAMS in the Act.52 elect to file an appeal in the United States a central location and to ensure the most Another area that has caused angst district court in which they reside, or use relevant information reaches the pilots.49 amongst aviators and those defending the administrative process and appeal to The bill proposes to do this by establish- them in certificate action cases has the NTSB.46 For those who are unfamiliar ing a Notice to Airmen Improvement Pro- been the inability to get discoverable with the appellate process, an airman’s gram to improve the system of providing information from Lockheed Martin, the current recourse when faced with certifi- airmen pertinent and timely information, current contract provider to the FAA for cate actions under the above sections is archiving the original content and form of pilot weather briefing services. Prior to to appeal to a NTSB administrative law notices, the original date of publication the FAA contracting out these services, judge, then NTSB Board, then to a U.S. and each amendment thereof, and apply recorded and otherwise discoverable Circuit Court of Appeal. As such, this pro- filters so pilots can prioritize critical flight information was obtainable through a posal would give an individual the ability safety information from other airspace Freedom of Information Act (FOIA) re- to by-pass the NTSB administrative law system information.50 It then goes on to quest. In the current system, Lockheed process by using the court system. The state the specific goals of (1) decreasing claims and the FAA concurs, Lockheed bill also provides for a full independent the overwhelming volume of NOTAMs is not subject to a FOIA request as they review or a denial, suspension or revo- an airman receives prior to a flight in are a non-government, independent en- cation…[i]ncluding substantive indepen- the national air system, (2) make them tity, thus any information is work product dent and expedited review of any deci- more specific to an airman’s route and in Continued on next page

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13 though the bill has its support, the cir- are recommendations for “systemic corrective The Rest of the Story cumstances under which it evolved has action” that include publishing NOTAMS in plain Continued from previous page English and making sure UNICOMs are manned it detractors. Aviation commentators and while people or equipment are on the runways. pilots familiar with the Inhofe’s actions The report states that “NOTAMS are sometimes over which they claim is proprietary. Sec- find it ironic how the bill originated from difficult to read and understand” and “pilots may tion 4 of the proposed bill would require be more apt to check” them if they were easier to questionable decision making and flying understand. For reference and link to the report Lockheed Martin, specifically named, skills.63 Ultimately, it will be interesting to see note 3. or any other government contractor to track the bill’s progress as it makes its 12 Id. provide Flight Service Station briefings 13 Id. way through the legislative process and 14 Id. and other air traffic services they provide see if it garners additional support not 15 Supra, see note 2. 53 available to under the FOIA. According only from general aviation, but the avia- 16 Id. to the press release, information is de- 17 Supra, see note 5. tion legal community. Of interest as well 18 Supra, see note 2. nied the requester under the FOIA since will be to see how the FAA responds. 19 91.13(a) Careless or Reckless Operations. Lockheed Martin is not the government, After all that, it appears there will be… 91.103(a) Preflight Action per se; however, they are performing an 20 Supra see note 1 for website with link to PDF the rest… of the rest… of the story! file. Letter dated January 4, 2011, FAA File No. inherently governmental function and this Endnotes: 2011SW170014. information should be available to pilots * S.V.(Steve) Dedmon is an Associate Profes- 21 Id. who need it to defend themselves in an sor at Embry-Riddle Aeronautical University in 22 Inhofe claimed the available runways were not adequate for the size of the airplane and it enforcement proceeding.54 Daytona Beach Florida where he teaches various aviation law related courses. He has a Bachelor appears the FAA never made it a subject of an The last section proposes changes of Science degree in Professional Aeronautics inquiry. He also made a statement to the Wash- to medical certification standards and from Embry- Riddle Aeronautical University and a ington Post that he notified an airport official of his intent. See Closed Runways Can’t Stop forms. These include, revising the form Juris Doctor from Nova Southeastern University. He may be reached at Stephen.Dedmon@erau. Pilot-Senator James Inhofe to provide greater clarity and guidance, edu. By Al Kamen retrieved from http://voices.wash- to provide questions that are appropri- 1 Pew, Glenn. (February 11, 2011). Senator ingtonpost.com/44/2010/10/closed-runways- cant-stop-pilot.html. ate without being overly broad, leading Inhofe Letter From the FAA. AVweb. Retrieved from http://www.avweb.com/avwebflash/news/ 23 See Senator Inhofe Senate home page to reduced misinterpretation-thus mis- inhofe_remedial_training_legal_faa_investiga- located at http://inhofe.senate.gov/public/, taken responses.55 The bill goes on to tion_204106-1.html. See additional link to PDF then access Press Release link, then click on 07/06/2001, Inhofe Introduces Pilot’s Bill necessitate asking questions that allow file. 2 Pew, Glenn. (October 29, 2011). FAA Inves- of Rights, taking you to http://inhofe.senate. for consistent treatment and responses tigating Senator Inhofe’s Closed Runway Land- gov/public/index.cfm?FuseAction=PressRoom. that avoid unnecessary allegations of in- ing, AVweb Retrieved from http://www.avweb. PressReleases&ContentRecord_id=018d2b10- e736-c509-be28-11227b914847. tentionally falsifying answers, to provide com/avwebflash/news/inhofe_senator_closed_ runway_texas_faa_investigate_203537-1.html. 24 Access http://www.govtrack.us/congress/ questions that elicit information relevant Additionally, the yellow Xs painted on the runway bill.xpd?bill=s112-1335, click on Full Text taking to determining an applicant’s medical were 60 feet by 10 feet. you to http://www.govtrack.us/congress/billtext. xpd?bill=s112-1335. On July 5, 2011 Senator qualifications, to ensure the information 3 Pew, Glenn. (April 13, 2011). FOIA Re- quest Yields Inhofe Landing Details (With Au- Inhofe gave a preview of the bill which can be requested aligns with present-day medi- dio). AVweb. Retrieved from http://www.avweb. heard on YouTube at http://www.youtube.com/ cal judgments and prove the standards com/avwebflash/news/FOIA_inhofe_audio_re- watch?v=roXiaGt4qek. 25 Id. ensure an appropriate and fair evaluation cording_landing_closed_runway_new_informa- tion_204485-1.html. The actual MP3 recording 26 Id. 56 of an individual’s qualifications. Finally, can be found at http://www.avweb.com/other 27 Myers, Jim. (July 06, 2011. Inhofe to Intro- the questions should be of such a nature inhofeaudiw.mp3. duce Pilots Bill of Rights. Tulsa World. Received from http://www.tulsaworld.com/site/printer- that an individual understands the basis 4 Id. 5 Van Geffen, John T. (Spring 2011). Landing friendlystory.aspx?articleid=20110706_16_A11_ for determining the medical qualifications on Closed Runway, FAA Departs from Sanction CUTLIN890205. to which they are accountable.57 As with Guidance Table. National Transportation Safety 28 Id. 29 Id. Inhofe’s continues by adding, that is just the advisory panel suggested above for Board Bar Association Newsletter. Retrieved from Newsletter link at http://www.ntsbbar.org/. a matter of fairness and if a person is going to be oversight of the NOTAM revisions, the 6 Supra see note 3. accused of something, he has to know what he is same suggestion for the formation of a 7 A NOTAM is an acronym for Notice to Air- being accused of. Inhofe said that before his own recent experience with the FAA, he believed that panel of general aviation groups as well man. See Federal Aviation Administration’s Pilot/ Controller Glossary (P/CG), effective 3/10/11. air traffic controller recordings had to be kept and as aviation medical examiners and other The P/CG is an addendum to the Aeronautical made available to pilots, founding out that isn’t qualified medical experts is proposed Information Manuel. true. Concluding he said, when I tried to get the voice recording, it took me four months, and I’m here as well.58 The bill concludes by 8 Supra see note 3. 9 Continuing that theme, Inhofe said an airport a United States senator. specifying a one-year completion time- official “hates me, I don’t know why.” See Myers, 30 Pilots Bill of Rights, see page 2. table after enactment of the bill.59 Jim. (October 28, 2010). FAA to Review Inhofe’s 31 Id. §2(b)(1)(A), (B), (C), (D) and (E) pages 2-3. In regards to a Letter of Investigation, le- After its introduction, the bill received Landing on Closed Runway. Tulsa World. Re- trieved from gally, in a civil or criminal court it would be consid- favorable support from the Airplane Own- http://www.tulsaworld.com/site/printerfriendly- ered hearsay evidence and thus be inadmissible. ers and Pilots Association (AOPA)60 and story.aspx?articleid=20101028_16_A1_CUT- However, in an administrative action, hearsay is admissible see 49 C.F.R. § 821.38. the Experimental Aviation Association LIN124592. 10 Myers, Jim. (October 31, 2010). Inhofe De- 32 Id. §2(b)(2)(A), (B), (C), (D), (E) and (F) (EAA) who are asking its members to fends His Piloting Ability, Tulsa World. Retrieved pages 3-4. rally around its passage.61 Additionally, is from http://www.tulsaworld.com/news/article.as 33 Id. §2(b)(3), see page 4. 34 Supra, see note 23. has already been supported by individual px?subjectid=16&articleid=20101031_16_A21_ CUTLIN512142 35 Id. Also see Inhofe’s statements regarding 62 general aviation pilots. However, even 11 Id. Additionally, listed in the incident report this subject in note 29.

Continued on next page 14 53 Pilots Bill of Rights, §4, see page 8. Addi- 27 Id. at 21. The Rest of the Story tionally, the Freedom of Information Act is under 28 Id. at 19. Continued from previous page Title 5 §552 of the United States Code. 29 Id. at 20. 54 Supra, see note 23. 30 Id. at 20. 36 Pilot Bill of Rights, §2(c)(1), page 4. 55 Pilots Bill of Rights, §5(a), see pages 8-10. 31 Id. at 21. 37 Airmen Certificates: Title 49 §44703(d)(2) 56 Pilots Bill of Rights, §5(b), see page 10. The current language is as follows…The Board 57 Id. 32 United Airlines, Inc. v. County of San Diego, shall conduct a hearing on the appeal at a place 58 Pilots Bill of Rights, §5(c), page 10. 2 Cal. Rptr. 2d 212 (1991). convenient to the place of residence or employ- 59 Pilots Bill of Rights, §5(d), page 10. 33 Id. at 217. 60 “AOPA applauds Senator Inhofe for intro- ment of the applicant. The Board is not bound by 34 Id. at 217. ducing the Pilot’s Bill of Rights legislation giving findings of fact of the Administrator of the Federal 35 Id. at 217. Aviation Administration but is bound by all validly the aviation community much greater certainty adopted interpretations of laws and regulations about the process of enforcing the regulations 36 Id. at 218 (this section outlines the courts the Administrator carries out unless the Board by which we fly. We look forward to working with reasoning of how the use of a runway from many finds an interpretation is arbitrary, capricious, Senator Inhofe and others in the Congress who different users can become possessory in nature or otherwise not according to law. At the end of have already stepped forward with their support,” and therefore subject to a tax). the hearing, the Board shall decide whether the said AOPA President Craig Fuller. Retrieved 37 Id. at 221. individual meets the applicable regulations and from AOPA webpage, located at http://www.aopa. 38 United Airlines, Inc., 2 Cal. Rptr. at 218. org/advocacy/articles/2011/110707inhofe_pro- standards. The Administrator is bound by that 39 Id. at 218. decision. poses_pilots_bill_of_rights.html. 40 Id. at 225. 38 Goyer, Robert, (July 6, 2011). Senator In- 61 “It is always our goal to keep pilots flying hofe Proposes Pilot Bill of Rights, Flying Maga- and to lower barriers to aviation, whether they 41 Id. at 225. zine. Retrieved from http://www.flyingmag.com/ are regulatory, legislative, or economic,” said Rod 42 Id. at 216. Hightower, EAA president/CEO. “EAA supports any news/senator-inhofe-proposes-pilot-bill-rights. 43 Id.; see also Toledo, supra note 6; Hensel, legislative actions that enhance pilots’ opportunities 39 Alan Armstrong, Call For a Congressional supra note 6. for legal due process in FAA enforcement cases.” Inquiry Into the Arbitrary and Capricious De- 44 United Airlines, Inc., 2 Cal. Rptr. At 216. cisions of the National Transportation Safety Retrieved from EAA website located at http://eaa. Board, 75 J. Air L. & Com. 3. org/news/2011/2011-07-07_billofrights.asp. 45 Id. at 216. 40 Supra, see notes 37, 42 and 43 for the lan- 62 See AVwebbinsider, aviation’s most informa- 46 See generally 14 C.F.R. § 152 Appendix guage binding the Board unless the interpretation tive blog. Comments include… [T]he Pilot Bill D. is arbitrary, capricious or otherwise not according of Rights being introduced by Senator Inhofe is 47 See 49 U.S.C. § 40116. long overdue and should be strongly supported to law. 48 See 14 C.F.R. § 152 Appendix D. 41 Pilot Bill of Rights, §2(c)(2), pages 4-5. by the aviation community. The FAA enforcement 49 Id. 42 Amendments, modifications, suspen- process is heavily slanted in favor of the FAA, sions and modifications of certificates: Title 49 and often results in excessive or inappropriate 50 Id. §44709(d)(3) The current language is as follows… penalties against aviation personnel. It seems 51 14 C.F.R § 152 Appendix D. strange that, for as important an issue as this When conducting a hearing under this subsec- 52 Id. is, how quiet aviation organizations and media tion, the Board is not bound by findings of fact 53 Id. of the Administrator but is bound by all validly have been on this subject for the past decade. adopted interpretations of laws and regulations Without condoning Senator Inhofe’s actions, it 54 Id. the Administrator carries out and of written agency would behoove the aviation community to take 55 See generally, Peters, supra note 6. policy guidance available to the public related to advantage of this window of opportunity, and 56 14 C.F.R. § 152 Appendix D. stand behind this bill as well as other similar sanctions to be imposed under this section un- 57 See Raleigh-Durham Airport Auth. v. Delta changes to policies and regulations…[I]f there’s less the Board finds an interpretation is arbitrary, Airlines, Inc., et al., 429 F.Supp. 1069 (E.D.N.C. bright spot in this dismally poor example of air- capricious, or otherwise not according to law. 1976). 43 Revocation of airman certificates for con- manship, maybe it’s this: If Inhofe’s bill passes 58 Id. at 1069. trolled substance violations: §44710(d)(1) The into law, perhaps people truly maligned by the current language is as follows…Appeals - An FAA’s enforcement system will benefit. Given the 59 Id. at 1070. individual whose certificate is revoked by the state of general aviation, I suppose we should 60 Id. at 1071. Administrator under subsection (b) of this section be happy with support from any quarter, even 61 Id. at 1071. if bumbling incompetence inspired it. Retrieved may appeal the revocation order to the National 62 Id. at 1088. Transportation Safety Board. The Board shall from http://www.avweb.com/blogs/insider/AVwe- 63 In re Menier, 59 B.R. 588 (Bankr. D. Ohio affirm or reverse the order after providing notice bInsider_BillofRights_204944-1.html. and an opportunity for a hearing on the record. 63 Id. Comments include…[W]hat does bother 1986). When conducting the hearing, the Board is not me is that Inhofe never conceded that he did 64 Id. at 594. bound by findings of fact of the Administrator but anything wrong and insisted that no one ever 65 Id. at 594. checks closed-runway NOTAMs anyway. This shall be bound by all validly adopted interpreta- 66 Poats v. Nelson, 1997 Tenn. App. LEXIS 747 was rightly taken as an affront by those of us tions of laws and regulations the Administrator (Tenn. Ct. App. 1997). who duly check NOTAMS before every flight carries out and of written agency policy guidance 67 Id. at *1. available to the public related to sanctions to be and who would take swishing a work crew very imposed under this section unless the Board seriously…[T]he simple fact is that Senator In- 68 Id. at *5. finds an interpretation is arbitrary, capricious, or hofe’s arrogant, noncompliant attitude towards 69 Id. at *4. otherwise not according to law. his preflight responsibilities as PIC, as well as 70 Id. at *4. his refusal to acknowledge or apologize for the 44 Pilot Bill of Rights, §(2)(c)(3), page 5. 71 Id. at *8. 45 Id. §(2)(d), page 5. hazards he created in this incident, are shameful 72 Poats, 1997 Tenn. App, LEXIS at *8. 46 Id. See pages 5-6. and reflect poorly on the general aviation piloting 47 Pilot Bill of Rights, §(2)(e), page 6. community. 73 Id. at *8. 48 Supra see note 7. Additionally, ICAO also 74 14 C.F.R. § 152 Appendix D. introduced new NOTAM standards on June 30, Don’t Pay the Landing Fee! 75 See Bethard Joint Venture, supra note 6 at 2011. See AOPA ONLINE, Government Advo- Continued from page 10 426. cacy, NOTAM system revisions take effect June 76 Id. at 427. 30, by Dan Namowitz. C.F.R. § 152 Appendix D (both differing sets of 77 Id. at 430. 49 Supra see note 23. statutory authority only confer a right to collect a 50 Pilot Bill of Rights, §3(a)(2)(A), (B), and (C), user fee but do not impose a duty on the user to 78 Id. at 430. pages 6 and 7. pay the fee). 79 Id at 431. 51 Id. §(3)(b)(1), (2), (3), (4), (5), pages 7 and 25 Bowling Green-Warren County Airport Board, 80 Id. at 432. 8. supra note 13. 81 Bethard, supra note 6 at 430. 52 Id. §(3)(c) and (d), page 8. 26 Id. at 20. 82 Id. at 426.

15 Contracts of Carriage

From page 1 in question. Second, courts examine Accordingly, some courts have held it is whether the circumstances surrounding not necessary to differentiate between minimum limit of liability prescribed the passenger’s purchase and subse- the two standards with regard to the every two years (currently $3,300).4 quent retention of the ticket permitted notice requirement.13 Importantly, provisions in airlines’ con- the passenger to become meaning- In Florida, the Third District Court of tracts of carriage limiting the amount of fully informed of the contractual terms Appeals recently held in a case involv- liability to $3,300 are valid and binding at stake. The factors weighed by the ing a contract for air cargo that “provi- on passengers only where the pas- court include, but are not limited to, sions limiting an air carrier’s liability for senger receives adequate notice of the the passenger’s familiarity with the lost cargo are valid and enforceable if limitations of liability.5 they provide the shipping party a rea- The Legal Tests to Determine ticket, the time and incentive to study the ticket, the passenger’s prior expe- sonable notice of limited liability and Adequate Notice riences with the airline, and any other a fair opportunity to purchase higher The issue of adequate notice is a 14 notice the passenger received outside liability.” Applying that law to the question of law to be determined by the facts of a baggage case such as the 6 of the ticket. court. In order to determine whether 15 Under the released valuation doc- ones discussed below, Florida courts a passenger has been provided with trine, courts have held a commercial would likely apply the reasonable com- adequate notice, several courts have municativeness test and the released applied the “reasonable communica- air carrier may limit its liability for loss, injury or destruction of baggage if “(1) valuation doctrine to determine whether tiveness” test, while other courts have a passenger had adequate notice of applied the “released valuation doc- the carrier gives the shipper a fair opportunity to pay a higher price for baggage liability limitations. trine.” Simply stated, the test for rea- Airlines’ Success with sonable communicativeness is whether greater coverage and does not choose the air carrier did all it reasonably could to pay for higher coverage; (2) the ship- Enforceability of Contracts of to inform the passenger that the terms per is on notice of the opportunity to Carriage on Paper Tickets and conditions incorporated in the ticket pay a higher price for greater coverage In Casas v. American Airlines, Inc., were important matters of contract af- and does not choose to pay for higher the passenger sued American Airlines fecting his or her rights.7 The released coverage; and (3) the carrier does not for his lost video camera even though valuation doctrine recognizes that in appropriate the property of the shipper American disclaimed liability for video 16 exchange for a low rate, a customer is for its own use.”10 At least one court cameras in its contract of carriage. deemed to have released the carrier has indicated the released valuation The Fifth Circuit Court of Appeals ap- from liability beyond the plied the reasonable com- $3,300 limit if the carrier municativeness test to gives the passenger a determine adequate no- fair opportunity to choose tice. As to the first prong, between higher and lower the court reviewed the liability by paying a cor- plaintiff’s airline ticket respondingly greater or and attachments and lesser charge.8 Some found a page with the courts look to both tests heading “NOTICE” and to determine adequate “CONDITIONS OF CON- notice.9 TRACT.” According to Courts apply a two- the court, the ticket was prong test to determine physically adequate to reasonable communica- give the plaintiff reason- tiveness. First, the courts able notice. Thus, the assess whether the phys- first prong was satisfied. ical characteristics of the The court then looked ticket reasonably commu- to surrounding circum- nicates to the passenger the existence doctrine only applies to claims relating stances such as the fact of important terms and conditions that to freight or cargo and not to airline that the plaintiff was an attorney and affect the passenger’s legal rights. baggage claims by passengers.11 Even a seasoned traveler. The court also These physical characteristics include if that were the case, what is deemed found the value of the video camera the size of the type, conspicuousness reasonable notice under the reason- gave the plaintiff a strong incentive to and clarity of the notice on the face able communicativeness test is likely scrutinize the baggage liability limita- of the ticket, and the ease with which to also constitute reasonable notice tions provisions of his travel documents a passenger can read the provision under the released valuation doctrine.12 including the contract of carriage before Continued on next page 16 Contracts of Carriage entrusting the camera to American. evidence the passenger had adequate Time was another factor, and the court notice of Delta’s contract of carriage found that plaintiff had adequate time limiting liability on baggage claims. to review the documents. Lastly, the The passenger submitted his e-ticket court weighed the fact that American’s printed directly from the Priceline. disclaimer of liability as to camera com21 website into evidence which equipment and similarly valuable did not contain information concern- items was included in signage at the ing Delta’s baggage liability limitation. ticket counters and at the gate in the Conversely, the ticket jacket submitted airport. The court ultimately held the into evidence by Delta contained the plaintiff was contractually bound by baggage liability limitation but it was American’s contract of carriage and in small font. There was no evidence could not recover for the loss of his the passenger ever received the ticket camera.17 jacket. Regardless, the court found In Harger v. Spirit Airlines, Inc., Courts applying the reasonable that Delta failed the first prong of the a passenger sued Spirit seeking communicativeness test to e-tickets reasonable communicativeness test. have seemingly made it more difficult recovery of value of lost jewelry con- In weighing the second prong, the for commercial air carriers to prove tained in checked luggage.18 Spirit court weighed the fact that the there that a passenger had reasonable no- disclaimed liability for jewelry in its was no evidence of signage advertis- tice of the baggage liability limitations contract of carriage as do most, if not ing the baggage liability limitation at in the carriers’ contracts of carriage. all, commercial air carriers. Applying the airport or adjacent to Delta’s ticket In Demel v. American Airlines, Inc., the the reasonable communicativeness counter. Even though the passenger district court in and for the Southern test, the court found the ticket physi- was an experienced air traveler, the District of New York held the mere cally satisfied the first prong because court found the passenger appeared mention of the existence of American’s the hard copy ticket incorporated the to have had no incentive to familiarize contract of carriage on the “Passenger contract of carriage in standard-sized, himself with Delta’s baggage liability Ticket and Baggage Check” and the readable type and referred passen- limitation. Lastly, the court determined referral of the passenger to the web- gers to “important legal notices” such that even if the passenger was provid- site for the specific limiting terms and as the “Notice of Baggage Liability ed with the ticket jacket, he would only conditions did not constitute an effort Limitations.” The factors considered have had a few moments to review by American to provide “clear and for the second prong included: (1) the its contents before checking his bag. conspicuous” notice to the passenger passenger was an experienced com- The court determined the passenger of the baggage liability limitation.20 In mercial air traveler; (2) she admitted did not have adequate notice. While other words, no travel document pro- at deposition her familiarity with the not a factor in its holding, the court vided by American gave the passen- relevant exclusions in the ticket jacket, noted Delta would have failed the ger “clear and conspicuous” notice of released valuation doctrine because baggage claim check, and the ticket; the baggage liability limitation. Accord- there was no evidence they informed and (3) she had sufficient time to read ingly, American failed the first prong of the passenger he had the option of the exclusions within the contract of the reasonable communicativeness purchasing excess insurance. carriage while waiting two hours at test. As to the second prong, the court the gate. The court stated these facts determined the passenger’s purchase The Trend Toward Unen- alone do not create an issue of fact. of insurance on the lost item did not forceable Contracts of Car- However, the passenger argued Spirit provide the passenger with adequate riage in the Smartphone knew there was expensive jewelry notice. The court also noted American Era? in the bag and still accepted it, that was unable to show it was the policy If it is becoming more difficult for Spirit never gave her an opportunity to of American to orally inform the pas- commercial air carriers to enforce a purchase insurance to cover the value senger of any limiting provisions or to contract of carriage liability limitation in of the jewelry, and that the passenger post the liability limitation at the desk situations where the passenger prints did not receive adequate notice. The where insurance is purchased. There- an e-ticket from a home computer, court rejected the latter argument but fore, both prongs of the test weighed then it would follow that enforcing a found a slight issue of fact as to the in favor of the passenger not having liability limitation on a passenger using first two arguments precluding sum- adequate notice. a smartphone to purchase a ticket and 19 mary judgment in Spirit’s favor. In Bary v. Delta Airlines, Inc., the board a plane without any paper trail Carriers’ Difficulty Enforcing passenger purchased an e-ticket on would be practically impossible. Fol- Contract of Carriage on Priceline.com.21 At summary judg- lowing the precedent set forth above, E-Tickets ment, the court found there was no to enforce the contract of carriage Continued on next page 17 Aviation Expert Contracts of Carriage Continued from page 6 liability limitation on a passenger us- sufficient time to review the liability Expert witnesses are a vital part in ing a smartphone, air carriers should limitations and visible signage stating the litigation chain, choose them care- consider the following. First, get the the list of items the airline has dis- fully and use them properly to ensure contract of carriage in the hands of claimed liability would also favor the they are the strongest, not the weakest the passenger in as many ways as passenger’s lack of adequate notice. link. possible, including in an e-mail im- Therefore, airlines must be extremely Endnotes mediately after the purchase of a vigilant when informing passengers * This is an updated version of an expanded article printed in a Vectors Volume1, Issue 2, ticket, and refer passengers to the of the contractual obligation and ac- April 2008. highlighted, bold, and UPPERCASE companying limitations of liability they 1 Donald M. Maciejewski is a partner in the liability limitations in the contract of will be subject to when purchasing law firm of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A. in Jacksonville, Florida. His carriage such as those for damaged an airline ticket on a smartphone and plaintiffs’ practice focuses primarily on aviation, or lost baggage. Second, set up the using that smartphone as a boarding airplane and helicopter crash litigation, personal smartphone purchase application so pass. injury and complex product liability suits. He holds a commercial instrument rating in heli- passengers must acknowledge by Endnotes: copters with extensive flight experience in UH1, checking a box that they have read * Adam G. Wasch is an associate in the Ft. OH58 and Hughes 300 aircraft. Mr. Maciejewski Lauderdale office of Wicker, Smith, O’Hara, Mc- the liability limitations and are bound received his Bachelors degree from John Carroll Coy & Ford, P.A, and concentrates his practice University (biology & chemistry) and his Masters by them before they can complete the on aviation litigation. He serves as a member degree from The University of Southern Califor- purchase. Third, post adequate sig- of the Florida Bar Aviation Law Committee and nia (safety engineering). He earned his Juris can be reached at [email protected] or nage at the curbside check-in kiosks Doctor degree at the University of Baltimore (954) 847-4800. School of Law. He is a member of the American and at the check-in counters giving 1 Demel v. American Airlines, Inc., 2011 WL Bar Association, State Bar of Maryland, Florida, passengers adequate time to review 497930 (S.D.N.Y. Feb. 10, 2011) (internal citation Georgia and the District of Columbia. He is omitted). the signs and make the appropriate admitted to practice before the United States 2 Id. (internal citation omitted). Court of Appeals for the Eleventh Circuit and adjustments to their luggage. The 3 49 U.S.C. § 1551(a)(2)(A)(1982) (eliminating the United States Court of Military Appeals. He courts have made it abundantly clear the requirement that airlines file a tariff with the may be reached at One Independence Drive, CAB pursuant to the Airline Deregulation Act of that simply publishing the air carriers’ Suite 3306 Jacksonville, Florida 32202 (904) 1978). 353-3222 FAX: (904) 353-8808 or by e-mail at contracts of carriage on an air carrier’s 4 See 14 C.F.R. §254.4 (2001); 14 C.F.R. [email protected] website does not provide adequate §254.5 (2001); 14 C.F.R. § 254.6. . 5 See, e.g., Demel, supra; Bary v. Delta Airlines, 2 S.V.(Steve) Dedmon is an Associate Profes- notice to passengers that would con- 2009 WL 3260499 (E.D.N.Y. Oct. 9, 2009); Deiro sor at Embry-Riddle Aeronautical University tractually bind them to the limitations v. American Airlines, Inc., 816 F.2d 1360 (9th Cir. in Daytona Beach Florida where he teaches various aviation law related courses. He has of liability. 1987). 6 Id. a Bachelor of Science degree in Professional Conclusion: Vigilance by 7 Gluckman v. Am. Airlines, Inc., 844 F.Supp. Aeronautics from Embry- Riddle Aeronauti- Airlines Required to Meet 151, 161 n.5 (S.D.N.Y.1994) (holding passenger cal University and a Juris Doctor from Nova had insufficient notice of liability limitations for his Southeastern University. He may be reached at Test for Notice pet dog under the reasonable communicative- [email protected]. As airlines continue to move toward ness test). paperless check-in and boarding, they 8 Huang v. Int’l Total Services, 1997 WL 33377508 (E.D.Mich. Apr.17, 1997). will likely face increased exposure to 9 See Deiro, supra. legal actions based on passengers’ 10 Id. lack of adequate notice of liability 11 Gluckman, 844 F.Supp. at 161 n. 5. 12 Bary, 2009 WL 3260499 at *14 n.22 (citing limitation provisions. In an era where Deiro v. Am. Airlines, Inc., 816 F.2d 1360, 1365 it is commonplace for passengers to n.4 (9th Cir.1987)). get in a taxi, purchase a ticket while in 13 See, e.g., Bary, supra. 14 Jumbo Cargo, Inc. v. Lan Chile, S.A., 63 So. ? the taxi on their smartphone, arrive at 3d 38 (Fla. 3d DCA 2011). the terminal, drop a checked bag off 15 See also Wackenhut Corp. v. Lippert, 609 (if any) at a curbside kiosk and walk So. 2d 1304 (Fla. 1992) (holding by the Florida Supreme Court that Delta’s baggage liability If you’ve got questions, straight onto the plane without talking limitation was enforceable without discussion as to anyone from the airline or printing to the passenger’s notice). we’ve got answers. out a single piece of paper, it would 16 304 F.3d 517 (5th Cir. 2002). 17 See also Mauseth v. American Airlines, Inc., seem to be a daunting task for an air- 24 Fed.Appx. 809 (9th Cir. 2001) (holding that line to provide “clear and conspicuous” passenger was contractually bound by Ameri- notice of liability limitations to those can’s contract of carriage after considering such factors as adequate signage of American’s bag- The Law Office Management passengers. In fact, the first prong of gage liability limitations and the passenger was Assistance Service of The Florida Bar the reasonable communicativeness an experienced traveler). test for adequate notice would appear 18 2003 WL 21218968 (N.D.Ill. May 22, 2003). 19 Harger, supra. CALL Toll-Free 866/730-2020 to automatically favor the passenger. 20 2011 WL 497930. [email protected] The second prong factors such as 21 2009 WL 3260499 (E.D.N.Y. Oct. 9, 2009).

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