FOUNDATIONS OF AVIATION LAW This page has been left blank intentionally Foundations of Aviation Law MICHAEL W. PEARSON Arizona State University DANIEL S. RILEY © Michael W. Pearson and Daniel S. Riley 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Michael W. Pearson and Daniel S. Riley have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the authors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East 110 Cherry Street Union Road Suite 3-1 Farnham Burlington, VT 05401-3818 Surrey, GU9 7PT USA England www.ashgate.com British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library The Library of Congress has cataloged the printed edition as follows: Pearson, Michael W., author. Foundations of aviation law / By Michael W. Pearson and Daniel S. Riley. pages cm Includes bibliographical references and index. ISBN 978-1-4724-4560-5 1. Aeronautics--Law and legislation--United States. I. Riley, Daniel S., 1979- author. II. Title. KF2400.P43 2015 343.7309'7--dc23 2014028897 ISBN 9781472445605 (hbk) ISBN 9781472445636 (pbk) ISBN 9781472445612 (ebk – PDF) ISBN 9781472445629 (ebk – ePUB) II Printed in the United Kingdom by Henry Ling Limited, at the Dorset Press, Dorchester, DT1 1HD Contents List of Figures vii List of Tables ix Preface xi List of Cases xiii List of Acronyms xv PART I FUNDAMENTAL PRINCIPLES OF LAW 1 Jurisprudence and US Legal History 3 2 The US Legal System 19 3 Types and Sources of Law 39 PART II ADMINISTRATIVE AVIATION LAW 4 Aviation Regulation 59 5 Enforcement Actions 81 6 Medical Certification 137 PART III AVIATION AND THE LAW 7 Aviation Accident Law 161 8 Aviation Criminal Law 191 9 Aviation Labor Law 223 PART IV AiRPORT LAW 10 Airport Zoning and Noise 235 11 Airport Ownership and Operation 251 12 Airport Development and Funding 261 VI FOUNDATIONS OF AVIATION LAW PART V AVIATION BUSINESS AND INSURANCE 13 Business Entities and Aircraft Transactions 275 14 Aviation Insurance 287 PART VI INTERNATIONAL LAW 15 International Aviation Law 307 Selected Bibliography 327 Index 329 List of Figures 2.1 The three levels of the federal court system 22 4.1 The FAA rulemaking process 66 5.1 Sample warning notice 90 5.2 Sample letter of correction 91 5.3 Remedial training letter and syllabus 93 5.4 Enforcement action flowcharts 98 5.5 Certificate of waiver or authorization 105 5.6 Letter of investigation 109 5.7 Enforcement decision process 114 8.1 ValuJet Flight 592 criminal indictment article 192 8.2 Criminal convictions for violating safety rules article 198 8.3 Pilots have limited privacy interest in FAA medical data article 218 9.1 Minor disputes 225 9.2 Major disputes 225 10.1 Apportionment of zoning authority between the city council, planning and development commission, zoning administrator, and the board of adjustment 236 11.1 Typical airport organizational structure 257 15.1 Organizational structure of the ICAO 310 This page has been left blank intentionally List of Tables 5.1 Risk assessment and action matrix 115 6.1 Medical certificate duration guide 140 12.1 Project eligibility for AIP funding 266 This page has been left blank intentionally Preface The ever-changing society in which we live requires a basic understanding of the law. Students who anticipate employment in the aviation field should have a working knowledge of the law as applied to aviation topics. We have writtenAviation Law in order to present the unique interaction of the law and aviation. While we speak to rudimentary international aviation law subjects, we suggest those interested in an in-depth study of international law refer to International Aviation Law: A Practical Guide, which is also published by Ashgate. Our primary goal is the publication of a textbook that provides an introduction to aviation law appropriate for the education of college-level students at the undergraduate and graduate levels as well as practitioners interested in a basic primer on aviation law subjects. The structure of the text provides the instructor with many options. The book starts with foundational legal material and then delves into specific aviation legal topics. In the event that the instructor is teaching a class of students with limited legal knowledge, a serial approach is suggested. For those only interested in the aviation subjects, we suggest starting at Chapter 4: Aviation Regulation. Law is dynamic and changes over time. However, the fundamentals remain remarkably stable. The US legal system has evolved over several hundred years and is rooted in concepts and processes that are thousands of years old. This text combines explanatory material and case opinions that serve to illustrate legal concepts as applied to aviation. Each chapter presents cases that have been selected in order to expand upon and illustrate the principles of law considered in the text. Cases are in an abbreviated format. In the event that a student or instructor would like to view the full opinion, case titles and citations have been provided. Contributing authors include practitioners in the field who lend a pragmatic flavor to the book. In particular, Gregory A. Pinnell, MD has added a practitioner’s view of medical certification in Chapter 6; Chris Bernard, Esq., a former student, helped immensely with the aviation insurance information found in Chapter 14; Cameron Cloar, Esq. and Laurel Lorenzini, Esq. former students and aviation lawyers, assisted with research and proofreading. Additional students contributed research and writing to various chapters. Finally, our family members, friends, and law partners made a sacrifice in allowing us to take valuable time away from the important things in life to draft this text. We owe them great thanks that cannot be adequately expressed through words alone. We welcome comments and criticism regarding the content and presentation of this book. Deciding content when writing a text is extremely difficult. We hope future editions take the reader’s wants and needs in mind. Please send any comments to Michael.pearson@ asu.edu or [email protected]. This page has been left blank intentionally List of Cases 1.1 Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803) 9 1.2 Guille v. Swan, 1 AVI 1 (NY Sup. Ct. 1822) 13 1.3 Greenman v. Yuba Power Products, Inc., 59 C2d 57 (1963) 14 2.1 American Airlines, Inc. v. City of Audubon Park, 297 F.Supp. 207 (1968) 25 2.2 Abdullah v. American Airlines, Inc., 181 F.3d 363 (1999) 26 2.3 Elassaad v. Independence Air, Inc., 613 F.3d 119 (2010) 27 2.4 Ickes v. Federal Aviation Administration, 299 F.3d 260 (2002) 29 2.5 A.L.A. Schechter Poultry Corp. v. US, 295 U.S. 495 (1935) 31 2.6 Pinney v. National Transportation Safety Board, 993 F.2d 201 (1993) 33 2.7 City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) 35 2.8 British Airways Bd. v. Port Authority of New York, 558 F.2d 75 (1977) 35 3.1 New Hampshire Motor Transport Association v. Rowe, 448 F.3d 66 (2006) 43 3.2 Hadley v. Baxendale, 156 Eng. Rep. 145 (1854) 45 3.3 Aquila, L.L.C. v. City of Bangor, 2009 WL 902071 (2009) 46 3.4 Howell v. Alaska Airlines, Inc., 994 P.2d 901 (2000) 48 3.5 Abourezk v. New York Airline, Inc., 705 F.Supp. 656 (1989) 49 3.6 Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928) 50 3.7 Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (1972) 51 3.8 Hughes v. Attorney General of Florida, 377 F.3d 1258 (2004) 54 4.1 Mistretta v. US, 488 U.S. 361, 372 (1989) 63 5.1 Smith v. Helms, Aviation Cases 16 Avi 18,307 (1982) 82 5.2 Go Leasing, Inc. v. National Transportation Safety Board, 800 F.2d 1514 (1986) 88 5.3 Garvey v. National Transp. Safety Bd., 190 F.3d 571 (1999) 100 5.4 Aerial Banners v. FAA, 547 F.3D 1257 106 5.5 Ferguson v. NTSB, 678 F.2d 821 126 5.6 Mendenhall v. NTSB, 92 F.3d 871 131 6.1 Petition of Paul H. Reder 146 6.2 Joseph Weiss, Jr. 147 6.3 United States of America v. James M. Culliton, 328 F.3d 1074 (2003) 152 7.1 Erie v. Tompkins, 304 U.S. 64 (1938) 162 7.2 Catchings v. City of Glendale, 154 Ariz. 420 (1987) 165 7.3 U.S. v. Johnson, 481 U.S. 681 (1987) 170 7.4 Baxley v. US, 767 F.2d 1095 (1985) 172 7.5 Ingham v Eastern Air Lines, Inc., 373 F.2d 227 (1967) 173 7.6 Getz v. Boeing, 654 F.3d. 852 (2011) 178 XIV FOUNDATIONS OF AVIATION LAW 7.7 Gilding v. Carr, 608 F.Supp.2d 1147 180 7.8 Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 186 8.1 US v. Parker, 553 F.3d 1309 (2009) 213 10.1 Chanceford Aviation Properties, L.L.P. v. Chanceford Township Board of Supervisors, 923 A.2d 1099 (2007) 238 10.2 Kelo v. City of New London, 545 U.S. 469 (2005) 240 10.3 County of San Diego v. Bressi, 229 Cal. Rptr. 44 (1986) 242 10.4 City of Atlanta v. Watson, 475 S.E.2d 896 (1996) 245 11.1 Safeco Ins.