RECENT DEVELOPMENTS IN AVIATION LAW AIA CONFERENCE May 2014 Donald R. Andersen Taylor English Duma LLP Atlanta, Georgia 404.291.3429 [email protected] . 2 TABLE OF CONTENTS Page A. MONTREAL CONVENTION .............................................................................. 1 B. FOREIGN SOVEREIGN IMMUNITIES ACT..................................................... 5 C. FEDERAL AVIATION ACT OF 1958 ................................................................. 9 D. AIRLINE DEREGULATION ACT (“ADA”) – FEDERAL PREEMPTION .................................................................................................... 15 E. FEDERAL PREEMPTION – OTHER FEDERAL STATUTES ........................ 24 1. Air Carrier Access Act of 1986 – Discrimination in Boarding ............... 24 2. FAA Authorization Act of 1994 .............................................................. 28 3. 49 U.S.C. § 44112 .................................................................................... 30 F. FEDERAL TORT CLAIMS ACT ....................................................................... 31 G. PRODUCT LIABILITY ...................................................................................... 38 1. Flight Training ......................................................................................... 38 2. General Aviation Revitalization Act ........................................................ 43 H. JURISDICTION AND PROCEDURE ................................................................ 52 1. Personal Jurisdiction ................................................................................ 52 2. Federal Jurisdiction – Removal ............................................................... 69 3. Forum Non Conveniens ........................................................................... 81 I. CHOICE OF LAW .............................................................................................. 88 J. INSURANCE COVERAGE ................................................................................ 89 K. EVIDENCE AND DISCOVERY ........................................................................ 96 1. Admissibility of Government Reports ..................................................... 96 2. Admissibility of Expert Testimony ........................................................ 100 3. Admissibility of Evidence of Other Accidents ...................................... 110 -i- A. MONTREAL CONVENTION “The Montreal Convention is not an amendment to the Warsaw Convention. Rather, the Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention.”1 The Convention “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft by an air transport undertaking.”2 The Convention was ratified by the United States on November 4, 2003.3 In Razi v. Qatar Airways, U.S. District LEXIS 14680 (S.D. Tex. 2014), the district court held that for purposes of venue, the destination depends on the ticket and not on the particular flight. In the case of round trip tickets, the “destination” is the same as the point of departure. In Narayanan v. British Airways, 2914 U.S. App. LEXIS 5173 (9th Cir. 2014), the Ninth Circuit Court of Appeals held that the Montreal Convention limitation of actions starts to run at the time the passenger arrives at the destination. Theoretically, this means that for an “accident” on a flight that has not yet caused injury, the limitation period starts to run before the injury occurs. Nevertheless, the action must be brought within 2 years of the arrival at the destination. In a case involving a death six months after the arrival at the destination, a suit brought more than 2 years from the date of arrival at the destination, but within 2 years from the death, was barred. 1 Erlich v. American Airlines, Inc., 360 F.3d 366 (2d Cir. 2004), quoted in Gardner and McSharry, “The Montreal Convention: The scram jet of aviation law,” Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (April 2006). 2 Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999, (entered into force November 4, 2003), reprinted in S. Treaty Doc. No. 106-45, at 27 (2000), 2242 U.N.T.S. 350 (“Montreal Convention”), Art. 1, available at http://www.state.gov/e/eb/rls/othr/ata/114157.htm. 3 Id. 1 The tension between the Montreal Convention and the interest expressed by some courts in the United States in having “localized controversies decided at home” and their desire not to burden already crowded U.S. courts with litigation having no relationship to the forum and its citizens, was strongly evidenced in the most recent decision of the U.S. District Court for the Southern District of Florida in In re West Caribbean Airways.4 This case presented numerous substantial legal obstacles to a forum non conveniens dismissal, however, the U.S. District Court for the Southern District of Florida remained focused on the absence of any relationship between the litigation and the United States. In re West Caribbean Airways is a consolidated action on behalf of representatives or heirs of a subset of deceased passengers on an aircraft that crashed in 2005 in Venezuela. The aircraft was operated by defendant West Caribbean Airways. All of the decedents were residents of either France or Martinique, and all, with one exception, were French citizens. None of the passengers were United States citizens or residents. The only connection to the United States was the presence of two Florida corporations that had entered into a “charter contract” with West Caribbean to provide travel to the passengers. The lawsuit was originally filed in November, 2006, pursuant to the Montreal Convention. Pursuant to the venue provisions of the Montreal Convention, the claims could be asserted in the Southern District of Florida because Florida was the principal place of business of the defendant that had arranged the air travel. The original suit was dismissed by the District Court on the basis of forum non conveniens, and that decision was affirmed by the Eleventh Circuit Court of Appeals in 2009.5 That Eleventh Circuit decision conflicts with “a [more] 4 2012 U.S. Dist. LEXIS 74149 (S.D. Fla. 2012). 5 Id. at *11-12. 2 recent ruling by the French Supreme Court rejecting the application of the doctrine of forum non conveniens in Montreal Convention cases.”6 Following the French Supreme Court ruling, plaintiffs filed a Rule 60(b) motion for reconsideration of the prior Florida federal District Court dismissal. The U.S. District Court for the Southern District of Florida first reconsidered its original forum non conveniens dismissal in view of the French Supreme Court decision, and restated its opinion that the forum non conveniens venue defense survives the venue provisions of the Montreal Convention because Article 33 Section 4 of the Convention states that all “matters of procedure shall be governed by the law of the court handling the case.”7 Noted the court, “[b]ecause forum non conveniens has been firmly rooted in the procedural law of the United States since before the Montreal Convention was written, and the Convention is silent on the doctrine, the court found that the doctrine can continue to be applied to deny a plaintiff his choice of forum so long as another forum is available and can more conveniently adjudicate the claim.”8 The court noted that the plaintiffs also attacked the forum non conveniens dismissal of their cases on the grounds that a companion case involving the crewmembers’ claims against domestic U.S. corporations involved in the manufacture, maintenance, repair, ownership and operation of the aircraft and its component parts had been allowed to proceed in the United States. The court noted that under the Montreal Convention, “[t]he airlines’ fault is presumed and the only issue is damages, [whereas] the crewmembers had asserted claims under theories of negligence, willful misconduct, and strict-liability, where ‘complicated issues of product defect and causation’”9 6 Id. at *12. 7 Id. at *13. 8 Id. at *13-14. 9 Id. at *18. 3 would have to be resolved by reference to evidence most probably located in the United States. The plaintiffs had also sought to intervene in the crewmembers’ cases, however, those efforts were more than four years after the crash, and therefore were too late. In view of the District Court’s continued forum non conveniens analysis, the most significant factor was the plaintiffs’ challenge to the jurisdiction of the Martinique Court as an adequate alternative forum under the recent French Supreme Court ruling. The plaintiffs themselves had sought dismissal of their own claims in Martinique, which was granted because, under French law, “Articles 33, 45 and 46 of the Montreal Convention establish that jurisdiction is determined solely by the plaintiff’s choice.”10 Ultimately, this issue was presented to the French Supreme Court, which agreed that the choice of forum was “at the option of the plaintiff” under the Montreal Convention, and that no national court under any internal rule of procedure “can strip the plaintiff of that right.”11 Thus, the French Supreme court declared the “current unavailability of the French venue [in Martinique].”12 The plaintiffs here sought relief under Rule 60(b), by contending that “a party [may seek relief] from a final order based on ‘any other reason that justifies relief.’”13