The Holidays will be here before we know it. Santa may have to team up with the FAA when gifting to “big kids” if their wish list includes something more substantial than a model airplane. In all seriousness, however, Part 107 is the FAA’s continued effort to maintain the safety of the National Airspace System and must be strictly adhered to.
The new Small Unmanned Aircraft Systems (UAS) Rule, Part 107, takes effect today. The Rule governs unmanned aircraft weighing less than 55 pounds and does not apply to UAS’s flown strictly for hobby or recreational purposes, so long as they are flown in accordance with the Special Rule for Model Aircraft.
The newly-titled “Remote Pilot in Command” must hold either a Remote Pilot Airman Certificate with a Small UAS rating or be under the direct supervision of one who holds such a Certificate. To qualify, the Certificate candidate must (1) demonstrate aeronautical knowledge by either passing an aeronautical test at one of the FAA-approved knowledge testing centers; or hold a Part-61 Pilot Certificate, have completed a flight review within the last 24 months, and complete a small UAS online FAA training course; (2) be vetted by the Transportation Security Administration; and (3) be at least 16 years old. An FAA airworthiness certification is not required, but the Remote Pilot in Command must complete a preflight check of the small UAS to ensure that it is in a condition safe for operation.
Among other things, Part 107 dictates that the Remote Pilot in Command not operate the Small UAS during daylight and civil twilight (30 minutes before official sunrise and 30 minutes after official sunset, local time) and that the Small UAS be operated with appropriate anti-collision lighting. The Small UAS may not operate over any persons not directly participating in its operation, and may not be operated under a covered structure, nor inside a stationary vehicle. Other requirements include yielding the right of way to other aircraft and not exceeding the maximum groundspeed of 100 mph (87 knots) or maximum altitude of 400 feet. The Rule permits a Small UAS to carry an external load so long as it does not adversely affect the aircraft’s characteristics or controllability. Most of the operational restrictions are waivable if the Remote Pilot in Command demonstrates that the proposed operation can be conducted safely under the waiver.
Click here for the complete text of the Small UAS Rule.
Sikkelee v. Precision Airmotive Corporation: Another Nail in the Coffin of Field Preemption for Aviation Product Liability ClaimsMay 3, 2016 | John Patterson
The doctrine of implied federal preemption, which is rooted in the Supremacy Clause of the United States Constitution, comes in two general forms – conflict preemption and field preemption. Conflict preemption, the less potent of the two, arises when a particular state law makes compliance with a particular federal law impossible. Field preemption is of a more sweeping variety. If Congress intended to preempt the entire field of a particular subject matter, then state law must give way, regardless of whether a conflict exists. Field preemption can be one of the most potent tools in a defense attorney’s arsenal.
Recently, the United States Court of Appeals for the Third Circuit took a decisive step in removing this arrow from the quiver those who practice in the field of aviation products liability defense. In Sikkelee v. Precision Airmotive Corporation, No. 14-4913, 2016 U.S. App. LEXIS 7015 (3rd Cir. April 19, 2016), the court comprehensively ruled that issuance of a type certificate by the Federal Aviation Administration (‘FAA”), which essentially provides federal governmental confirmation that an aviation product meets FAA design standards, does not preempt the field when a plaintiff asserts a state law products liability claim alleging that the aviation product was defectively designed or manufactured.
Plaintiff/appellant in Sikkelee was the widow of a man who died in an airplane crash. Her wrongful death petition alleged that there was a defect in the aircraft’s carburetor which allowed for fuel leaks, and further asserted state law product liability claims premised upon the alleged defects in design and/or manufacture of the carburetor. The carburetor had been type-certificated by the FAA prior to its installation in 2004. Defendant/appellee, the manufacturer of the engine to which the carburetor was attached, moved for summary judgment on the grounds that issuance of the type certificate preempted plaintiff’s state law product liability claims. According to defendant, the fact that Congress provided the FAA with broad and sweeping powers to regulate all aspects of air safety meant that the entire field of air safety had been preempted by federal law. The District Court granted summary judgment in defendant’s favor, apparently based upon the Third Circuit’s decision in Abdullah v. American Airlines, 181 F.3d 363 (3rd Cir. 1999).
As should be apparent already, the Third Circuit reversed the District Court’s summary judgment and remanded the action. In reaching its conclusion that field preemption was not applicable, the Third Circuit considered and rejected a whole host of bases on which field preemption could be premised.
First, the court scuppered appellee’s argument that Abdullah, supra, provided a platform for field preemption. The court held that the broad pronouncement in Abdullah that the Federal Aviation Act “preempted the field of aviation safety” actually referred only to “in-air operations,” and did not apply to the manufacture and design of aircraft. Sikkelee, 2016 U.S. App. Lexis 7015, at *16-20.
Next, the court looked to indicia of congressional intent, specifically the Federal Aviation Act, the Federal Aviation Regulations (“FARs”) and the statute of repose found in the General Aviation Revitalization Act of 1994 (“GARA”). In rather cursory fashion, the court found that the Federal Aviation Act provided no support for field preemption, because it sets forth only “minimum standards” and provides that its remedies are “in addition to any other remedies provided by law.” Id. at *25-27 (citing 49 U.S.C. § 44701 and 49 U.S.C. § 40120). Likewise, the court found that the FARs do not support field preemption because they are not sufficiently comprehensive with respect to the design and manufacture of aircraft. Id. at *28-36. The court went on to note the minute detail with which some aspects of aircraft manufacture and design are regulated, which may on first blush seem inconsistent with its position regarding the non-comprehensiveness of the FARs, but logically can be reconciled. Id. at *32 (citing 14 CFR 33.69). The court’s view of GARA was more straightforward and thus more compelling. If Congress had intended to preempt the field of aircraft design and manufacture, asked the court, why would it have enacted a statute of repose for state law causes of action, thereby implicitly recognizing that state law causes of action based upon state law standards of care are viable? According to the Third Circuit, Congress would not have done so, as it would have rendered GARA superfluous. Id. at *37-43.
Next, the court examined United States Supreme Court preemption jurisprudence generally, in addition to various other Circuit Court decisions specifically addressing the issue of whether state law causes of action for defective manufacture/design of aviation products are subject to field preemption. Regarding the former, the Third Circuit noted that the Supreme Court has been reluctant to extend the doctrine of field preemption in the transportation context. Id. at *50-51. As to the latter, the court noted that various other federal circuits have either wholly refused to find that the entire field of aviation safety is preempted, have carved product liability claims out from preemption as applied to other aspects of aviation safety, or, at the very least, have indicated a willingness to approach preemption of aviation safety issues on an area by area basis. Id. at *61-67.
Finally, the court considered the appellee’s argument that aircraft manufacturers would be exposed to tremendous potential liability and unpredictable, non-uniform standards without the protection afforded by field preemption. The court dismissed these concerns, expressing that the federal statutory and regulatory regime had struck an adequate balance between protecting air commerce and promoting safety. Id. at *67-71.
While the defeat of appellant’s field preemption argument was thorough and complete by any measure, the court did note that the doctrine of conflict preemption is alive and well with respect to product liability claims. Id. at *56-57. Thus, where “a manufacturer’s compliance with both the type certificate and a state law standard of care is a physical impossibility,” state law product liability claims may be conflict preempted. Id., citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963). The court did not provide any examples of the requisite “physical impossibility” that would invoke conflict preemption, however.
From an absolute standpoint, the Sikkelee decision does not wholly foreclose field preemption arguments in aviation products liability cases, at least in circuits that have not yet considered the issue. However, Sikkelee presents a huge practical hurdle to any such argument, given the thoroughness with which the Third Circuit put it to the sword. Going forward, aviation product manufacturers should continue to expect exposure to state law products liability claims, save for those elusive cases where conflict preemption arises when a “physical impossibility” prevents compliance with both the type certificate and state law standards of care.
The Montreal Convention, a treaty which became effective in the United States on November 4, 2003, governs the rights and liabilities of international air carriers and passengers. Among its more important provisions, Article 29 of the Montreal Convention states that “[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention.” Many courts have held that Article 29 completely preempts state law claims by passengers, although there is a split of authority on the topic. See, e.g. Hoffman v. Alitalia-Compagnia Aerea Italiano, S.P.A., No. Civ. A. 14-5201, 2015 U.S. Dist. LEXIS 55790, 21015 WL 1954461 (D.N.J. April 28, 2015).
Obviously, the language of Article 29 is broad, as it applies to “any action for damages, however founded.” However, Article 29 has some limitations. Specifically, it applies only to “carriage” of passengers. One question that arises is the definition of “carriage.” Need a passenger be in transit and on the aircraft for Article 29 to apply, or is “carriage” construed more loosely than this? Just how important is location under Article 29?
Not very, according to the relatively recent case of Lee v. AMR Corp., No. 15-2666, 2015 U.S. Dist. LEXIS 78930, 2015 WL 3797330 (E.D. Pa. June 18, 2015). In Lee, Plaintiff purchased a ticket to fly from New York to Belize, with multiple stops along the way. During one stop-over in Miami, Plaintiff approached the carrier’s ticket counter to obtain a boarding pass for the next leg of her flight. The ticketing agent determined that Plaintiff did not have the required visa to board the onward flight to Belize (although it appears the agent may have been mistaken in this belief). Consequently Plaintiff missed her flight, and brought suit in state court to recover for the damages caused by the delay. Carrier removed her claim to federal court on the basis of federal question jurisdiction, asserting that the claim was preempted by Article 29.
Plaintiff sought remand to state court on the grounds that the Montreal Convention was inapplicable. Specifically, she argued that her claim did not involve “carriage” as required by the Convention, as she was never actually allowed to board the flight to Belize, but instead remained on the ground during the events that formed the basis for her lawsuit.
Finding no cases which interpreted this issue under the Montreal Convention, the court explored a number of cases decided under Montreal’s predecessor, the Warsaw Convention. These cases held that “carriage” extends beyond “actual travel” and into the realm of pre-boarding activities, including activities at the ticketing stage. Having noted that that the Montreal Convention is generally interpreted using case law construing the Warsaw Convention, the court followed the logic of these earlier cases and held that Plaintiff’s interaction with the ticketing agent constituted “carriage” under the Montreal Convention. Thus, plaintiff’s claim was covered by the Montreal Convention, and her motion to remand was denied.
This case is interesting for a number of reasons. First, it clearly affirms that the boundaries of a delay claim under the Montreal Convention are the same as those under the Warsaw Convention. Specifically, a plaintiff need not literally be on the aircraft in order for the Montreal Convention to apply to a delay claim
Additionally, the scope of the holding is just ambiguous enough that it may be ammunition for a Montreal Convention preemption argument beyond the area of delay claims. While this is far from a sure bet, as the plaintiff in Lee was only asserting a delay claim, this case warrants a review from anyone considering such an argument.
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