Journal of Air Law and Commerce Volume 57 | Issue 1 Article 2 1991 Aviation Liability Law Developments in 1990 Randal R. Craft rJ . Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Randal R. Craft rJ ., Aviation Liability Law Developments in 1990, 57 J. Air L. & Com. 1 (1991) https://scholar.smu.edu/jalc/vol57/iss1/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. AVIATION LIABILITY LAW DEVELOPMENTS IN 1990 RANDAL R. CRAFT, JR.* INTRODUCTION .................................. 3 I. GENERAL LEGAL ISSUES .................. 3 A. IN PERSONAM JURISDICTION ....... 3 B. SUBJECT MATTER JURISDICTION ... 10 C. VENUE AND FORUM NON CONVENIENS .......................... 15 D. CHOICE OF LAW ...................... 25 E. DISCOVERY ........................... 36 F. EVIDENCE ............................. 41 II. LIABILITY OF AIR CARRIERS IN WARSA W CONVENTION CARRIAGE .................. 50 A. EXCLUSIVITY ......................... 50 B. INJURIES AND EVENTS WITHIN THE SCOPE OF THE CONVENTION ....... 52 C. DAMAGES RECOVERABLE ........... 58 D. CARGO AND BAGGAGE .............. 64 E. LIMITATIONS OF ACTION ........... 67 II. LIABILITY OF OPERATORS OF AIRCRAFT IN NON- WARSA W CARRIAGE ............... 68 A. GENERAL AIRLINE LIABILITY ....... 68 * Partner, Haight, Gardner, Poor & Havens, New York City. B.S., Aerospace Engineering, University of Texas (Austin), 1964; J.D., Georgetown University Law Center, 1968. This paper reflects the significant contributions of, among others, Leonard L. Fleisig, Virginia A. Harper, Michael S. Mitchell, Patrick E. Bradley, and Louis R. Martinez, all of whom are attorneys in the New York office of Haight, Gardner, Poor & Havens. The author gratefully acknowledges their assistance. 2 JOURNAL OF AIR LA WAND COMMERCE [57 B. DENIED BOARDING, EXCLUSION, OR REMOVAL FROM AIRCRAFT ..... 80 C. CARGO AND BAGGAGE .............. 84 D. LIMITATIONS OF ACTIONS ......... 91 E. GENERAL LIABILITY OF OTHER OPERATORS AND OWNERS OF AIRCRAFT ............................. 92 IV. LIABILITY OF MANUFACTURERS AND SUPPLIERS ................................. 93 A. GENERAL .............................. 93 B. ALLOCATION OF FAULT ............. 98 C. DISCLAIMERS ......................... 103 D. GOVERNMENT CONTRACTOR DEFENSE .............................. 110 E. DAMAGES .............................. 122 V. LIABILITY OF THE UNITED STATES: THE FEDERAL TORT CLAIMS ACT .............. 125 A. GENERAL .............................. 125 B. DISCRETIONARY FUNCTION EXCEPTION ........................... 131 C. PROCEDURAL REQUIREMENTS ..... 132 D. LIABILITY OF STATES OF THE UNITED STATES ...................... 139 VI. LIABILITY OF FOREIGN STATES: THE FOREIGN SOVEREIGN IMMUNITIES ACT.. 140 A. GENERAL .............................. 140 B. SUBJECT MATTER JURISDICTION... 143 C. FORUM SELECTION CLAUSES ....... 148 D. JURY TRIAL ........................... 149 E. DAMAGES .............................. 150 VII. LIABILITY OF AIRPORTS ................... 151 VIII. LIABILITY OF INSURERS ................. 154 A. COVERAGE ............................ 154 B. EXCLUSIONS .......................... 160 IX. MISCELLANEOUS .......................... 164 A. AIRPORT AIRSPACE AND EMINENT DO M AIN ............................... 164 B. DRUG AND ALCOHOL ABUSE ....... 169 1991] DEVELOPMENTS C. ADVERTISING ......................... 170 D. OTH ER ................................ 171 INTRODUCTION THE YEAR 1990 has been marked by the usual assort- ment of court decisions, some lucid and some abstruse, on the various issues that make aviation law constantly in- teresting. This extensive survey covers those 1990 and late 1989 aviation law decisions that are considered most significant, along with some other decisions that may indi- rectly affect aviation law. I. GENERAL LEGAL ISSUES A. In PersonamJurisdiction In Charlie Fowler Evangelistic Association v. Cessna Aircraft, Inc. ,' the plaintiff Association instituted a diversity action, in a Florida federal district court, against the Cessna Air- craft Company and Dean Aircraft Service, Inc. (Dean), a Mississippi airplane repair facility, seeking damages aris- ing from the crash of the plaintiffs' Cessna aircraft in Florida. Charles A. Fowler flew the Association's Cessna air- plane on a business trip from Florida to Key Field in Me- ridian, Mississippi. While preparing the aircraft for the return trip, Fowler discovered that the starboard engine would not start. Fowler was referred to Dean, and Dean repaired the engine so that it would operate. On the re- turn trip, the starboard engine quit while Fowler was at- tempting to land at Bay County Airport in Panama City, Florida, and the Cessna crashed. The plaintiff alleged that Dean's negligent repairs caused the crash. Dean was a Mississippi corporation with its principal place of business in Mississippi. It had no offices, employ- ees, or agents in Florida and did not conduct any business in that state. Nevertheless, the plaintiff contended that , 911 F.2d 1564 (11 th Cir. 1990). 4 JOURNAL OF AIR LA WAND COMMERCE [57 Dean was subject to personal jurisdiction in Florida be- cause Fowler told Dean that he was from Florida and that the aircraft was heading back to that state and also be- cause Dean was listed in "The Aviation Telephone Direc- tory" for the Southeastern and Gulf States, which includes Mississippi and Florida. The district court dismissed the action against Dean for lack of personal jurisdiction. The district court held that these two contacts were not enough to show that Dean "purposely directed" activities at Florida residents. Plain- tiff appealed Dean's dismissal.2 The Eleventh Circuit affirmed the dismissal of Dean. In so doing, the court noted that Dean's limited contacts with Florida were principally the result of Fowler's actions and stated that, "unilateral acts by the plaintiff cannot supply the necessary minimum contacts, or show that a defendant has purposefully availed itself of the benefits and protections of the forum state's laws.' 3 In Macario v. Pratt & Whitney Canada, Inc. and Beech Air- craft Corp.,4 plaintiff instituted a federal diversity action in Pennsylvania against Pratt & Whitney (Pratt) for breach of contract and against Beech Aircraft (Beech) for inten- tional interference with contractual relations. The plain- tiff was the administrator for the estate of Matthew Macario, who was killed when his Beech King Air crashed in Cedarville, New Jersey. This action was the third commenced against Pratt as the result of the crash. The first lawsuit, a wrongful death action, was settled after Pratt agreed to pay plaintiff $6,000,000 and to issue a service bulletin informing own- ers of aircraft equipped with PT-6 engines of the potential for engine rollback due to contamination of the automatic fuel control, along with the availability of filters that would prevent or reduce the likelihood of such contami- nation. In the present action, the plaintiff claimed that 2 Id. 3 Id. at 1566. 4 No. 90-3906 (E.D. Pa. Sept. 6, 1990) (LEXIS, Genfed library, Dist File). 1991] DEVELOPMENTS 5 Pratt had breached its obligation to issue a service bulle- tin.5 Plaintiff also alleged that Beech had persuaded Pratt to renege on the settlement agreement and to refrain from issuing the service bulletin by threatening that Beech would inform owners of Beech aircraft equipped with PT-6 engines that the service bulletin would impair the operation of the aircraft. Beech moved to dismiss, claiming that the court lacked personal jurisdiction over it because it did not do business in Pennsylvania. Beech claimed: (1) it was a Delaware cor- poration with its principal place of business in Wichita, Kansas; (2) it was not authorized, registered, or qualified to do business in any state other than Kansas and Colo- rado; and (3) it did not maintain any place of business in Pennsylvania or have any officers or employees in Penn- sylvania. Beech also argued that the sale of its airplanes and parts is negotiated, completed, and performed in Kansas and that the delivery of all airplanes and parts oc- curs there. Finally, Beech contended that any contacts that it had with Pratt regarding the service bulletin in question occurred outside of Pennsylvania. The plaintiff argued that the court had both specific and general jurisdiction over Beech because Beech did busi- ness in Pennsylvania and because the cause of action arose, or the harm occurred, in Pennsylvania. In support of his position, the plaintiff submitted several affidavits showing that Beech had continuous and substantial con- tacts with Pennsylvania sufficient to bring him within Pennsylvania's long-arm jurisdiction. The district court agreed with the plaintiff, and denied Beech's motion to dismiss. The court held that it was not necessary to determine whether the court had "general" jurisdiction over Beech because there were sufficient facts to support "specific" jurisdiction. The court stated: The essence of plaintiff's (third) lawsuit is that Pratt has breached a settlement agreement entered into before this - Id. at 2. 6 JOURNAL OF AIR LA WAND COMMERCE [57 court in the first lawsuit, and Beech acted improperly in inducing Pratt to breach that agreement. The settlement agreement was made in the Commonwealth of Penn- sylvania, the harm caused by Beech's alleged inducement of