Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS

AS 405 - Part C

Accident Notification, Reporting & Investigation

Every operator of business or commercial aircraft should have an accident response plan in place for guidance in the event of an aircraft accident

Statements made and actions taken in the minutes, hours, and days following the accident by all of those involved will have far-reaching consequences in many areas

Develop that portion of your accident response plan now, before the accident happens

 

Controlling the release of information - damage containment effort

- rescue survivors

 - secure and preserve accident scene and wreckage

- notify those who must be notified in a timely manner

- assure that any facts released are accurate

 

Excited utterancesUnder the Federal Rules of Evidence, an excited utterance is defined as a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event. An excited utterance is admissible under an exception to the hearsay rule.

The law bestows a special aura of truthfulness on excited utterances made by persons involved in the accident immediately after the accident.

Anything you say at this point may be used later by the FAA, a plaintiff, or prosecuting attorney with devastating effect as an admission against your interest (and your employer's) in an FAA enforcement action, civil litigation, and even criminal prosecutions which may arise out of the accident. 

 

Admissions against your interestAn out-of-court statement by a party that, when uttered, is against the party's pecuniary, proprietary, or penal interest and that is admissible under both an exclusion (admission by a party-opponent) and an exception (statement against interest) to the rule against hearsay. Such a statement is admissible even if the declarant is available, because an admission by a party-opponent is non-hearsay and, thus, does not require unavailability.

 

Although rare in the US, state or local prosecuting attorneys may even bring criminal charges such as murder or manslaughter against individual crew members or others involved in the accident, seeking imprisonment.

 

Your accident response plan should initially focus on precluding people under your influence or control, such as employees, from making any initial statements about what happened, then assuring that only verified facts, not speculation, are released.

Required notices and reports should be given no sooner and in no greater detail than required.

How to deal with the media, spoken in a patient response: "the accident is being investigated by the NTSB, who are the federal government's experts in aircraft accident investigation and who will determine the probable cause."

 

Notifications and reports required

Accident: DO NOT file a NASA report - as immunity benefits DO NOT apply if an aircraft accident was involved - if NASA receives a report of an aircraft accident, the report is NOT held in confidentiality but immediately forwarded to the NTSB, where it becomes a matter of public record that can then be used against you in FAA enforcement action and civil litigation

 

Your accident response plan should designate a specific person or office in the company to be notified first in the event of an accident and a person to whom all inquiries about that accident are to be directed - this enables the company to put its accident response plan into effect immediately

 

YOU ARE NOT REQUIRED TO REPORT ACCIDENTS OR INCIDENTS TO THE FAA 

NOR ARE YOU REQUIRED TO NOTIFY THE NTSB OF EVERY MISHAP INVOLVING AN AIRCRAFT

THE NTSB SHOULD BE NOTIFIED AND WRITTEN REPORTS FILED ONLY WHEN REQUIRED BY LAW

FAA - AOPA - Yodice

Valerie H. Saks, Plaintiff-appellant, v. Air France, a Corporation, et al., Defendants-appellees,

724 F.2d 1383 (9th Cir. 1984)

Air France v. Saks, 470 U.S. 392 (1985)

 

49 CFR PART 830

 

- operator of a civil aircraft (including public aircraft operated by a federal or state agency) is required by law to notify the nearest NTSB field office immediately and by the most expeditious means available

after an accident or certain types of incidents - the operator is required to file a written report with the NTSB on a form provided by the board within 10 days after an accident BUT ONLY if requested for one of the incidents listed - crewmembers are required to attach a statement setting forth the facts, conditions, and circumstances of the accident or incident at the same time if they are physically able - if incapacitated then as soon as they are able

 

Aircraft accident means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage. For purposes of this part, the definition of “aircraft accident” includes “unmanned aircraft accident,” as defined herein.

 

Serious injury means any injury which:

(1) Requires hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received;

(2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose);

(3) causes severe hemorrhages, nerve, muscle, or tendon damage;

(4) involves any internal organ; or

(5) involves second- or third-degree burns, or any burns affecting more than 5% of the body surface.

 

Substantial damage means damage or failure which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and which would normally require major repair or replacement of the affected component. Engine failure or damage limited to an engine if only one engine fails or is damaged, bent fairings or cowling, dented skin, small punctured holes in the skin or fabric, ground damage to rotor or propeller blades, and damage to landing gear, wheels, tires, flaps, engine accessories, brakes, or wingtips are not considered “substantial damage” for the purpose of this part.

 

Fatal injury means any injury which results in death within 30 days of the accident.

 

Incident means an occurrence other than an accident, associated with the operation of an aircraft, which affects or could affect the safety of operations.

 

§830.5   Immediate notification.

The operator of any civil aircraft, or any public aircraft not operated by the Armed Forces or an intelligence agency of the United States, or any foreign aircraft shall immediately, and by the most expeditious means available, notify the nearest National Transportation Safety Board (NTSB) office1 when:

1NTSB regional offices are located in the following cities: Anchorage, Alaska; Atlanta, Georgia; West Chicago, Illinois; Denver, Colorado; Arlington, Texas; Gardena (Los Angeles), California; Miami, Florida; Seattle, Washington; and Ashburn, Virginia. In addition, NTSB headquarters is located at 490 L'Enfant Plaza, SW., Washington, DC 20594. Contact information for these offices is available at http://www.ntsb.gov.

(a) An aircraft accident or any of the following listed serious incidents occur:

(1) Flight control system malfunction or failure;

(2) Inability of any required flight crewmember to perform normal flight duties as a result of injury or illness;

(3) Failure of any internal turbine engine component that results in the escape of debris other than out the exhaust path;

(4) In-flight fire;

(5) Aircraft collision in flight;

(6) Damage to property, other than the aircraft, estimated to exceed $25,000 for repair (including materials and labor) or fair market value in the event of total loss, whichever is less.

(7) For large multiengine aircraft (more than 12,500 pounds maximum certificated takeoff weight):

(i) In-flight failure of electrical systems which requires the sustained use of an emergency bus powered by a back-up source such as a battery, auxiliary power unit, or air-driven generator to retain flight control or essential instruments;

(ii) In-flight failure of hydraulic systems that results in sustained reliance on the sole remaining hydraulic or mechanical system for movement of flight control surfaces;

(iii) Sustained loss of the power or thrust produced by two or more engines; and

(iv) An evacuation of an aircraft in which an emergency egress system is utilized.

(8) Release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact;

(9) A complete loss of information, excluding flickering, from more than 50 percent of an aircraft's cockpit displays known as:

(i) Electronic Flight Instrument System (EFIS) displays;

(ii) Engine Indication and Crew Alerting System (EICAS) displays;

(iii) Electronic Centralized Aircraft Monitor (ECAM) displays; or

(iv) Other displays of this type, which generally include a primary flight display (PFD), primary navigation display (PND), and other integrated displays;

(10) Airborne Collision and Avoidance System (ACAS) resolution advisories issued either:

(i) When an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or

(ii) To an aircraft operating in class A airspace.

(11) Damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s);

(12) Any event in which an operator, when operating an airplane as an air carrier at a public-use airport on land:

(i) Lands or departs on a taxiway, incorrect runway, or other area not designed as a runway; or

(ii) Experiences a runway incursion that requires the operator or the crew of another aircraft or vehicle to take immediate corrective action to avoid a collision.

(b) An aircraft is overdue and is believed to have been involved in an accident.

Initial notification to NTSB should contain no more information than is required - see below!

§830.6   Information to be given in notification.

The notification required in §830.5 shall contain the following information, if available:

(a) Type, nationality, and registration marks of the aircraft;

(b) Name of owner, and operator of the aircraft;

(c) Name of the pilot-in-command;

(d) Date and time of the accident;

(e) Last point of departure and point of intended landing of the aircraft;

(f) Position of the aircraft with reference to some easily defined geographical point;

(g) Number of persons aboard, number killed, and number seriously injured;

(h) Nature of the accident, the weather and the extent of damage to the aircraft, so far as is known; and

(i) A description of any explosives, radioactive materials, or other dangerous articles carried.

§ 830.15Reports and statements to be filed.(a) Reports. The operator of a civil, public (as specified in § 830.5), or foreign aircraft shall file a report on Board Form 6120.1/2 (OMB No. 3147-0001) 2 within 10 days after an accident, or after 7 days if an overdue aircraft is still missing. A report on an incident for which immediate notification is required by § 830.5(a) shall be filed only as requested by an authorized representative of the Board.


Footnote(s):2 Forms are available from the Board field offices (see footnote 1), from Board headquarters in Washington, DC, and from the Federal Aviation Administration Flight Standards District Offices.


(b) Crewmember statement. Each crewmember, if physically able at the time the report is submitted, shall attach a statement setting forth the facts, conditions, and circumstances relating to the accident or incident as they appear to him. If the crewmember is incapacitated, he shall submit the statement as soon as he is physically able.(c) Where to file the reports. The operator of an aircraft shall file any report with the field office of the Board nearest the accident or incident.

§91.3   Responsibility and authority of the pilot in command.

(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. 

(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency. 

(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.

§91.123   Compliance with ATC clearances and instructions.

(a) When an ATC clearance has been obtained, no pilot in command may deviate from that clearance unless an amended clearance is obtained, an emergency exists, or the deviation is in response to a traffic alert and collision avoidance system resolution advisory. However, except in Class A airspace, a pilot may cancel an IFR flight plan if the operation is being conducted in VFR weather conditions. When a pilot is uncertain of an ATC clearance, that pilot shall immediately request clarification from ATC.

(b) Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised. 

(c) Each pilot in command who, in an emergency, or in response to a traffic alert and collision avoidance system resolution advisory, deviates from an ATC clearance or instruction shall notify ATC of that deviation as soon as possible.

(d) Each pilot in command who (though not deviating from a rule of this subpart) is given priority by ATC in an emergency, shall submit a detailed report of that emergency within 48 hours to the manager of that ATC facility, if requested by ATC. 

(e) Unless otherwise authorized by ATC, no person operating an aircraft may operate that aircraft according to any clearance or instruction that has been issued to the pilot of another aircraft for radar air traffic control purposes.

Nearest NTSB field offices

 

Outside the US - notify the NTSB-equivalent officials of the country in which the accident occurred - required under international agreements as well as local law

ICAO Annex 13 - provides general framework for aircraft accident investigations worldwide

 

Flight crew who are members of a union should immediately notify their union of the accident - union personnel can be of tremendous assistance in diplomatically protecting crew members from the press and preventing uncontrolled release of rumors, speculation, potentially damaging admissions, and inaccurate statements of fact

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The operator's aircraft insurance policy must be consulted to determine the required time and procedure for reporting the accident to the insurer

 

Sample Accident Response Plans

- Corporate Aircraft Accident Response Plan - United States Aircraft Insurance Group (USAIG)

- Emergency Response Manual - Air Charter Safety Foundation (ACSF)

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NTSB additional tasks from Congress:

- coordinator between federal government and other organizations (like Red Cross)

- family counseling

- victim identification and forensic services

- communicating with foreign governments

- translation services 

Joint Family Federal Support Operations Center (JFSOC)

Buying & Selling Aircraft

Aircraft Purchasing - starts out with finding the aircraft that's best for you - deciding what to buy - often hard to diferentiate between what you want and what you need -  look to mission, as in what you will need 80-85% of the time - consider:

* where you will fly

* how often you will fly

* will you carry passengers

* VFR or IFR

* cost to fly and maintain

* aircraft range

- the purchase process

  * inspections

  *paperwork

  * title services

- insurance

- finalizing the deal 

 

Sharing the cost -

* co-ownership  

* flying clubs (more than cost savings, encouragement and information, family activities, AOPA flying club resources)

 

Where to look -

* Airport Bulletin Boards

* Popular Websites

Trade-a-Plane

Aircraft Shopper Online

Barnstormers

Controller

* Type Club websites (classifieds)

American Bonanza Society

Cessna Pilots Association

Cardinal Flyers Online

 

RED FLAGS - beware of 

* aircraft that do not meet your defined mission

* logbooks and ownership records that do not agree

* unmanaged corrosion

* aircraft beyond your financial or piloting means 

 

Vref (aircraft value reference)

* for piston equipment

* sales/use tax info

* comprehensive information on most aircraft

* each aircraft is different

* view online or call AOPA - 800-USA-AOPA - 800-872-2672 

 

Financing

* interest rate depends on amount of loan and type of aircraft

* larger loans get lower rates

* AOPA Aviation Finance - monthly payment calculator - 15-20 year amortization rate - 15% down - 4.75% rate over $100K

6.5% rate under $100K

(roughly equates to $250 a month)

* continuing ownership costs - aircraft operating costs calculator

1. monthly loan payment

2. Maintenance (contact local mechanic) - guide to aircraft inspections - Fly Mechanic

3. Hangar

4. Inspections

5. Fuel/hour

6. Oil change (50-hour interval)

7. additional oil

8. overhaul reserve

9. Maintenance reserves

10. Annual inspection

11. Insurance

12. Database updates

13. Tie-down rental

(Note: ask to see seller's last 2 years for annual inspections breakdowns)

Pre-purchase inspection typically lasts 3-4 hours at $100 an hour

ADS-B units - $2,000 - $5,000 plus installation at 10-15 hours for $100 an hour

 

Before you buy

* talk with experienced owners

* have a mechanic do a pre-purchase inspection and flight

* ideally, the mechanic should have experience with that type of aircraft

* thorough logbook review

 

Pre-purchase inspection

* not necessarily an annual - can vary widely in scope and cost - make it clear what you want done

* review of logbooks and other records including - FAA Form 337 - AD list

* written report of aircraft and logbook review

* decide how to handle discoveries

* schedule a final inspection prior to delivery

 

Legal issues

* get your agreement in writing before pre-purchase inspection (sale of goods $5000 or more)

* use an aviation attorney in state of delivery/aircraft will reside

* AOPA PPS legal services plan includes a 1-hour consultation, which can be used for your purchase agreement - $49/year (PPS plus includes 2 hours for $99)

* include in the sales contract:

1. Identification of parties

2. Aircraft description

3. Price

4. Deposits (refundable or not)

5. Closing (use title and escrow services - have parties split cost

6. Contingencies

7. Delivery of aircraft

8. Transfer of title/risk of loss

9. Taxes

10. Title warranties

11. Pre-Purchase Inspection

12. Aircraft condition (as is - with all faults)

13. Agreement modifications

14. Dispute resolution and governing law

 

Pitfalls to avoid

* names must exactly agree on bill fo sale and registration

* Aircraft registration - Form 8050-1 - must be original - no copies

* PO Box must include a physical location

* possible title liens

* risk of fraud without escrow service

 

Aircraft Title and Escrow Services - Aero Space Reports 

* title search package includes title search - complete aircraft records - accident/incident history

* $95/AOPA members - 2-day turn-around

* title clearing, if necessary

* title insurance

* closing - escrow instructions - document filings

* aircraft title and escrow services

 

Insurance

* limits of liability and hull

liability: highest you can reasonably afford

hull: replacement value of aircraft

* named and approved pilots (unless open pilot clause)

* be aware of terms particular to your operation (e.g. business and pleasure, industrial aid, etc.)

* know sublimits or per passenger or smooth

 

AOPA Insurance Services

* for over 20 years have insured more GA aircraft - including light sport, turbine, and experimental planes -  than anyone else in the world

* have access to all major carriers with "A" ratings and will provide you with coverage options to fit your needs

 

Bill of Sale

FAA Form 8050-2

complete blue areas

seller must sign in ink

FAA does not care about amount

 

Sales and Use Tax

* laws vary by state - aircraft is taxed in the state where it is based - take delivery - NOT PURCHASED - look for flyaway exemption 10-15 days)

* personal property tax in some states - can vary by county and city as well

* State use tax could be as high as 8-9%

Note: states regularly check FAA registry and FBO-based aircraft list

Arizona DOT - aircraft services

AOPA Pilot's Guide to Taxes

 

Federal Income Tax

* business use - profit motive - ordinary, necessary, and reasonable - actual deductions are for % of hours that are business

 

Final Inspection

* visually inspect the aircraft before signing

* no damage since the pre-purchase inspection

* all contract conditions fulfilled

* transfer necessary documents

 

FAA paperwork to send - aircraft certification

* 8050-1 - Registration application - takes 3-6 weeks - temporary registration good for 90 days

* 8050-2 - Bill of Sale

* 8050 -3 - Existing registration from aircraft (previous owner signs the back of the form)

* $5 recording fee - check made out to FAA

Note: airworthiness certificate stays in aircraft

For LLCs or Corps: Have statement of support of the Registration of US civil aircraft in name of LLC

 

 

Most litigation over aircraft purchases arises because:

1. Buyer and Seller did not come to a clear agreement on all aspects of the transaction and failed to properly document the deal, especially aircraft condition

2. Buyer failed to commission an adequate pre-purchase inspection and title search before buying the aircraft, and/or

3. transaction was not properly documented and recorded with the FAA Aircraft Registry and the new International Registry

 

State law largely governs the buying and selling of aircraft, with federal law only peripherally involved

Fortunately, the law of all 50 states is now virtually identical with the adoption of the Uniform Commercial Code (UCC)

Where a federal statute provides a system for recording documents of ownership and security interests in a specific class of products, federal law prevails

e.g. with aircraft under the Federal Aviation Act of 1958, as amended

 

Sale of an aircraft raises legal considerations not only for the buyer and seller but also for any lender who may be financing the purchase for the buyer and any person/business that may already hold a security interest in the aircraft

 

Buyer: state law - law of warranty covered by UCC - as to product and law of security interests as to title

 

Security Interest: legal interest in an item of personal property that secures the payment of a debt - person/business may acquire a security interest in an aircraft by loaning money to the purchaser and obtaining a written security agreement signed by the purchaser, by performing work or furnishing goods/services to the aircraft (mechanics' and materialmen's liens or artisans' liens) or by providing storage for the aircraft (warehousemen's liens)

If the aircraft owner does not pay the debt when due, the holder of a security interest has the right to take possession of the aircraft (or to retain possession e.g. repair station) even without resorting to judicial process, so long as no breach of peace

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Perfection and Priority

Except for aircraft and engines covered by the Cape Town Treaty, filing the security agreement with the FAA Aircraft Registry perfects a non-possessory security interest in an aircraft

If a lienholder who is not in possession of the aircraft fails to record a security agreement with the FAA Aircraft Registry, a buyer who is not otherwise aware of that security interest (aka a good faith purchaser without notice) takes clear title, and the lienholder's security interest is unenforceable

In the event of several security interests in an aircraft having a total value that may exceed the value of the aircraft - if the aircraft owner is unable or unwilling to pay these debts, the question of priority among the holders of these security interests becomes important

Any unpaid lienholder may repossess the aircraft and dispose of it per the UCC - in any commercially reasonable manner, with notice of sale to the aircraft's registered owner required before the sale can take place

If proceeds of sale are greater than total of all possessory and recorded security interests, all lienholders receive entire amounts owed and surplus goes to pre-repossession aircraft owner

If proceeds of sale are less than total of all possessory and recorded security interests, order of priority set forth below applies:

- person having possession of aircraft under possessory lien for parts, labor, materials, or services has first priority - entitled to be paid in full (pssession 9/10s of law!)
- between holders of recorded security interests (filed with FAA Aircraft Registry) priority runs from date and time of filing (first in time, first in right) - first entitled to be paid in full, then next in line etc.

 

Release of Liens

If for some reason an FBO, mechanic, or repair station releases an aircraft after being worked on but before the bill is paid, then it may have the aircraft owner sign a promissory note for the amount due, secured by a security agreement, giving the creditor a security interest in the aircraft  -  these documents should be filed with the FAA Aircraft Registry

If aircraft is released without these, lien is extinguished

If this procedure is followed, lien is preserved (at lower priority behind other previously recorded security interests)

If a lien does exist the buyer should ensure lienholders are paid out of proceeds of sale and provide buyer a lien release which can then be filed with FAA Aircraft Registry to clear that security interest off aircraft's records

Cape Town Treaty

Added additional filing requirements for security interests and leases in certain aircraft and components

Physically located in Dublin - Ireland

Operates entirely via secured transactions online - 24/7/365

Facilitates financing

Reduces financing costs for international aircraft transactions

Creates international legal process for repossession that enables a secured lender, following a default, to deregister the aircraft and obtain its export from a country that has ratified the treaty, to take possession or control of the aircraft or sell or grant a lease of the aircraft, and to collect and receive income or profits from the management or use of the aircraft

Requirements are not retroactive - apply only to transactions on or after the treaty's effective date

Interests that can be registered under the treaty:

* security agreements

* conditional sales contracts

* lessor's interest under a lease

* assignments

* bills of sale

* subordination agreements

* subrogation agreements

* amendments

* discharges (terminations and releases)

* extensions of any of the above

* prospective interests - eg transaction to accomplish any such listed interest that has not yet closed

As adopted in the United States by The Cape Town Treaty Implementation Act of 2004 - August 9, 2004 which:

  • Recognizes the International Registry as an additional place for the filing of interests, including prospective interests, in certain airframes, helicopters, and aircraft engines.
  • Establishes the right for owners of these aircraft to grant an Irrevocable De-Registration and Export Request Authorization (IDERA) to a secured party.
  • Reduces from 750 to 550 rated take-off shaft horsepower the size threshold for aircraft engines eligible to be recorded as collateral in security instruments.
  • Establishes the Civil Aviation Registry as the Authorizing Entry Point.

The effective date of these changes is March 1, 2006.

Aircraft and Aircraft Engines Eligible for International Registry Recording:

  • Airframes that are type certificated to transport:
    • At least eight (8) persons including crew; or
    • Goods in excess of 2750 kilograms (6050 pounds)
  • Helicopters that are type certificated to transport:
    • At least five (5) persons including crew; or
    • Goods in excess of 450 kilograms (990 pounds)
  • Jet propulsion aircraft engines with at least 1750 pounds of thrust or its equivalent.
  • Turbine-powered or Piston-powered aircraft engines with at least 550 rated take-off horsepower or its equivalent.

Perfection

 - by filing - 2 steps 

1. file with FAA Aircraft Registry

2. file with International Registry (must file with FAA first to be accepted)

 

Priority

Whoever files first has priority over all others

e.g. a lender that files its security agreement with the FAA but fails to also register it with the International Registry  risks losing its priority to a subsequent creditor that registered its interest with the International Registry even if the subsequent creditor was aware of the prior lien

Prospective interest is effective from the date of filing assuming the transaction is later completed

 

Searching the International Registry

search both FAA and international registries

for International Registry - person must first obtain a priority search certificate from registry for particular aircraft or engine that is subject of inquiry

title search companies routinely perform searches of both for their clients

 

Warranty: Statement or representation made by seller regarding year of manufacture, make and model, equipment, condition, and title - state law under UCC governs - 2 categories:

1. Express Warranties - not required to be in writing - may be created verbally - need not be in any particular form - highly suggested that you do in fact put them in writing to avoid litigation later

UCC 2-313:

(1) Express warranties by the seller are created as follows:

  • (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
  • (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
  • (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.

Affirmation of fact: statement of fact or promise made as part of a bargain

Mere commercial puffery: exaggerated or extravagant statement made for the purpose of attracting buyers to a particular product/service - commonly used with advertising and promotional sales testimonials - does not create a warranty - some stuff is allowed e.g."it's a fantastic little airplane; you won't find a better one anywhere!"

2. Implied Warranties (2 kinds)

- Implied warranty of merchantability

To be airworthy, an aircraft must be in its original or properly altered (in accordance with FARs) condition, as verified by the logbooks and maintenance records - the fact that the aircraft will fly is NOT proof enough!

UCC 2-314

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as

  • (a) pass without objection in the trade under the contract description; and
  • (b) in the case of fungible goods, are of fair average quality within the description; and
  • (c) are fit for the ordinary purposes for which such goods are used; and
  • (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
  • (e) are adequately contained, packaged, and labeled as the agreement may require; and
  • (f) conform to the promise or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade.

- Implied warranty of fitness for a particular purpose

UCC 2-315

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

Disclaimer of Warranties

UCC does permit sellers to disclaim some warranties

Written express warranties CANNOT be disclaimed

Oral express warranties and implied warranties MAY be disclaimed - must be in writing and conspicuous

Implied warranties CAN be disclaimed by use of:

- "there are no warranties which extend beyond the description of the aircraft on the face of this agreement, including, but not limited to, any implied warranty of merchantability" or

- "the aircraft is delivered and accepted as is, with all faults" or

- other language that in common understanding calls the buyer's attention to the exclusion of warranties and makes it plain that there is no implied warranty

 

When the buyer before purchasing the aircraft has examined it thoroughly (or had the opportunity to examine it but refused to) there is no implied warranty covering defects that such an examination ought ot have revealed

 

Breach of warranty claims

If warranty is breached, buyer must notify seller and give him an opportunity to correct ("cure") the problem

If seller fails or refuses to fix the problem, buyer may sue for breach of warranty seeking:

- specific performance (court order for seller to correct the deficiency at its expense) or

- damages (judgment ordering seller to reimburse buyer cost of repairs) or

- rescission (judgment ordering seller to refund purchase price and take back aircraft)

How to Avoid Litigation

Contract of sale: in the interest of both buyer and seller to have a written purchase contract clearly expressing the warranties agreed to or excluded from the deal, written by a lawyer or negotiated between parties both represented by lawyers

Conditional sale contract: unique form of secured transaction typically providing that title to the aircraft does not pass to buyer until the debt is paid in full - if buyer misses a payment or is late in submitting a payment, seller still holding title can legally repossess the aircraft and buyer gets nothing back

 

Prepurchase Inspection

hire an aircraft mechanic to perform a prepurchase inspection - someone you know and trust or who has an excellent reputation - A&P with IA having special experience and familiarity with  particular make and model - with access to ADs and SBs

nothing less than an annual inspection (C check for turbine-powered aircraft)

 

Title Search

Performing title searches at both the FAA Aircraft Registry and the International Registry should reveal not only who owns an aircraft but also all recorded security interests outstanding against the aircraft

AOPA Aircraft Title and Escrow Services will also perform a title search for a modest fee - typically backed up with title insurance protecting you against any error in their report

If you are borrowing to purchase the aircraft, the lender will require that you purchase a title search as a precondition of making the loan

The International Registry requires that the party performing the search first register (may take several days) and pay a fee for access

One type of security interest that a title search may not reveal is the possessory lien

 

Aircraft title insurance 

Most appropriate for corporate aircraft

 

Closing the sale

Good practice is to have a formal closing - where buyer, seller, lending institution, and lienholders (or reps) present

Distant lienholders often arrange for the buyer's lending institution to serve as their escrow agent, sending lien releases to that institution to be recorded only after the funds to pay off the lien have been forwarded to the lienholder

At closing, the buyer should receive a signed bill of sale from the seller.

Note: If the signature is incomplete, the FAA Aircraft Registry will reject the document and refuse to re-register the aircraft to its new owner until a proper signature is obtained.

14 CFR 47.3(b) prohibits you from operating an aircraft that has not been registered to its owner - if the paperwork on the transaction is not perfect this operates to ground the aircraft until the imperfection is corrected

The buyer should also receive a lien release signed by all lienholders who are executing these releases in exchange for that portion of the sale proceeds covering the balance of the debt still owed them

If the contract of sale has not been signed it must be signed by both buyer and seller at the closing

If you are financing the purchase of the aircraft the lender will require you to sign a promissory note and a security agreement giving the lender a security interest in the aircraft to secure payment of the loan 

Filings Required

Bill of sale, lien releases, and security agreement should then be filed with the FAA Aircraft Registry (by mail or in person) together with the FAA Aircraft Registration Application signed by the new owner

A street addres or other physical location is required

The pink copy (pink slip) must be kept in the aircraft as the temporary registration certificate until the FAA Aircraft Registry issues a new Aircraft Registration Certificate in the new owner's name

The pink slip is legally adequate for flights in the US but international agreements require that you have the permanent registration on board before crossing international borders

An application for aircraft radio station license in the new owner's name must be filed with the Federal Communications Commission (FCC) if you intend to operate the aircraft across any international border

If a 406MHz emergency locator transmitter (ELT) is installed, that must be registered with the National Oceanic and Atmospheric Administration (NOAA) to facilitate search and rescue efforts in the event of activation

 

Tax and State Registration Requirements

The purchaser of the aircraft will have to pay either a sales tax or a use tax in their state of residence

If sale took place in that state of residence, then that state's goods sales tax applies

If sale took place out of state, and aircraft brought into that state, use tax applies

But these two taxes are pretty similar

In most states, the aircraft will also be subject to some form of annual personal property tax

The purchaser will have to pay a registration fee (typically based on aircraft weight) and a specific ownership tax (form of personal property tax based on aircraft blue book value)

Under most states' law, state revenue authorities automatically acquire a tax lien on aircraft for which these taxes have not been paid - this provides that upon request of state tax authorities, law enforcement officials may seize the aircraft and sell them in a sheriff's sale to satisfy the owners' unpaid tax liability

In many states, failure to register and pay state taxes on aircraft is also a misdemeanor (minor crime)

punishable by fines or jail sentences of up to one year

 

Depreciation recapture is the USA Internal Revenue Service (IRS) procedure for collecting income tax on a gain realized by a taxpayer when the taxpayer disposes of an asset that had previously provided an offset to ordinary income for the taxpayer through depreciation. In other words, because the IRS allows a taxpayer to deduct the depreciation of an asset from the taxpayer’s ordinary income, the taxpayer has to report any gain from the disposal of the asset (up to the recomputed basis) as ordinary income, not as a capital gain. Any gain over the recomputed basis will be taxed as a capital gain in accordance with section 1231 of the Internal Revenue Code (IRC). Depreciation recapture in the USA is governed by sections 1245 and 1250 of the IRC.

 

capital gain is a profit that results from a disposition of a capital asset, such as stock, bond or real estate, where the amount realised on the disposition exceeds the purchase price. The gain is the difference between a higher selling price and a lower purchase price. Conversely, a capital loss arises if the proceeds from the sale of a capital asset are less than the purchase price. Capital gains may refer to "investment income" that arises in relation to real assets, such as property; financial assets, such as shares/stocks or bonds; and intangible assets. 

The IRS carefully scrutinizes aircraft-related deductions to verify that they are:

- ordinary - common in the business the taxpayer is engaged in

- necessary - appropriate and helpful in the development of the taxpayer's business

- reasonable - amount must bear a "reasonable and proximate relation to the production or collection of taxable income, or to the management, conservation, or maintenance of property held for the production of income"

 

Helicopter Association International - Helis for sale

 

AOPA Buyer's Guide for used aircraft

 

AOPA Tips on Starting a Flying Club

April 4, 2016 - Petition of the Aircraft Owner and Pilots Association (AOPA) To Amend FAA Policy Concerning Flying Club Operations at Federally Obligated Airports

 

AOPA Sample Aircraft Purchase/Sales Agreement

 

Feb 2016 - Flying Magazine - Cutting the Cost of Airplane Ownership

 

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Flying Magazine articles dealing with aircraft ownership:

How to Save Big on a Used Airplane

 

Aircraft Leasing, Co-Ownership & Fractional Ownership

US airline fleet is now composed of far more aircraft leased than owned by the airlines operating them

Much of the litigation arising out of aircraft leases results from inadequate diligence in negotiating and documenting the details of the lease agreement

Leaseback: hybrid composite of sale and lease - where as part of the same wrap-around business deal the buyer purchases the aircraft from the seller then turns around and leases it back to the seller for the seller's use 

Lease: an agreement, a contract that permits someone else to use an owner's aircraft - aka lease forward

In any lease: (forward or back) the aircraft owner is referred to as lessor and the user as the lessee

Lessor: should check prospective lessee's credit rating before deciding to lease the aircraft to him

If lessee operates or has previously opreated aircraft from others, inquire about their experiences with the lessee, especially timely payment and aircraft care and maintenance

Check also the potential for seizure of aircraft by law enforcement agencies if the aircraft is used for illegal purposes - even if aircraft owner is not directly involved in the scheme the aircraft may be seized and forfeited to the government if its owner fails to take reasonable measures to ensure that the aircraft is not being used for such unlawful activities

 

Netjets

 

Aircraft Lease Checklist

- description of aircraft

- name and address of registered owner

- name and address of lessee

- maximum certificated gross takeoff weight of the aircraft

- who is the operator responsible for compliance with FARs governing aircraft operations

- exclusive or non-exclusive use

- inspections and maintenance

- other expenses

- insurance

- crew expenses

- lease payments

- duration, renewal, and termination

Aircraft leasebacks developed primarily as an aircraft sales tool, the leaseback being offered as an incentive to encourage a person to purchase an aircraft she might not feel she could otherwise afford

Sales pitch: under the leaseback, buyer is told she will receive income from FBO's use of the aircraft (rental, charter or flight instruction) - this income will help cover monthly payments for aircraft's financing, inspections, and maintenance - buyer is told she can deduct as business expenses depreciation, insurance, inspection, maintenance, and storage expenses associated with aircraft ownership

BUT

Some dealers are required to purchases a set amount of aircraft annually whether or not they sell them - floor plan financing - so dealers have been known to sell below cost just to relieve the burden of the monthly payments of principle and interest - but in a leaseback the sales price becomes non-negotiable 

When the seller presents the leaseback it usually states that seller/lessee does not guarantee any minimum monthly use or payment - usually is either for one year or without a fixed duration - provides that either party may terminate the lease on relatively short notice (10-30 days) without having to show good cause for cancellation - provides that all maintenance will be done by seller/lessee's maintenance shop at seller/lessee's discretion but at owner's cost - maintenance costs can be deducted from rental payments due and if they exceed amount of rental payments due to the owner then the owner must pay the difference

Seller/lessee is continually faced with competitive incentive to keep newest aircraft on the flight line - meaning only keeping aircraft under leaseback for a max of 2 years (regular use by non owner pilots tends to age the aircraft fast!) - incentive to make more deals to make more commissions - if unscrupulous seller/lessee will defer needed maintenance when leased aircraft is in high demand for flight operations (especially when warranty is good) then attempt to catch up during slow periods or falsely bill owners for maintenance not performed (hard for owner to prove)

If owner backs out of leaseback she may find she has recaptured depreciation in the sale and now must file amended income tax returns and pay additional income taxes for the years the aircraft was owned

 

Beware of wet lease: aircraft owner leases aircraft with flight crew - too much like charter operation

 

Co-ownership: NOT A PARTNERSHIP - owners are co-owners not partners - recall the risk of vicarious liability with partners - should sign a legal document clearly setting out:

- responsibilities for costs

- means for resolving scheduling conflicts

- and other problems

 

Fractional Ownership: special kind of co-ownership - economical for users who will need aircraft for between 50 hours and 200 hours annually

For large and turbine-powered multi-engine - 14 CFR 91.501(c)(1) and (3) provide a very narrowly drawn exception permitting operation under Part 91 under a joint ownership or a time-sharing agreement

However only certain itemized expenses of the flight may be charged - meticulous documentation of these charges must be maintained to show compliance with the rule

 

A true fractional ownership program includes four interlocking primary agreements:

1. the aircraft purchase agreement (between seller and buyers)

2. A joint ownership agreement (among buyers/owners)

3. An aircraft management agreement (between buyers/owners and an aircraft management company)

4. A master interchange agreement (between buyers/owners of all aircraft owned by participants in the management company's fractional ownership program)

 

Each owner gets access to an appropriate aircraft without the associated management responsibilities for scheduling, crew (not included in light piston fractional ownership), hangar, insurance, inspection and maintenance, at a cost  that may be more favorable than either charter rates or full ownership

 

1/16 (1/32 for helicopters) are the smallest shares - 14 CFR 91.1001(b)(10)

To address safety concerns, the FAA created Fractional Ownership Aviation Rulemaking Committee (FOARC) through an Order in 1999.

The objective of the FOARC was to propose such revisions to the FARs and associated guidance material as may be appropriate with respect to fractional ownership programs.

FOARC was comprised of 27 members representing at least:

- 9 Part 135 operators

- 7 fractional ownership program managers

- 4 airframe manufacturers

- 3 traditional Part 91 corporate flight departments

- 9 traditional aircraft management companies

- 5 industry trade associations

In 2000, the committee presented its recommendations to the FAA

FOARC reached consensus that fractional ownership program operations should continue to be regulated under 14 CFR Part 91

However the committee unanimously recommended FAA adoption of a new subpart K to Part 91 to ensure adequate FAA oversight and surveillance of fractional ownership program managers equal to that experienced by Part 121 or Part 135 operators

 

Key features include:

1. clarification of responsibility for operational control

2. crew flight and duty time limitations

3. crew training comparable to Part 135 requirements

4. requirement for a drug and alcohol abuse recognition program for all personnel performing safety-related functions

5. aircraft equipment requirements by size, type and class of aircraft (cockpit voice recorder, flight data recorder, ground proximity warning system, thunderstorm detection equipment or airborne weather radar, TCAS) 

6. establishment of minimum runway length requirements

7. weather reporting requirements for instrument approaches

8. requirement for an FAA approved maintenance and inspection program

 

December 22, 2015 - Court decides that flight-sharing websites are illegal - re AirPooler and Flytenow

January 1, 2016 - FAA claims that airplane ride-arranging sites violate federal regulations

June 24, 2016 - Flytenow Flight-sharing Case Seeks Supreme Court Hearing

Air Charter Brokerage

 

ARGUS

Wyvern

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Airports & Terminal Airspace

Sources of power available to federal, state, and local governments to deal with the problems created by airport development and operation

Safety is a major concern of those living near an airport as a preponderance of aircraft accidents occur within a mile of the airport

Most aviation litigation in the area of airports and airspace has focused on 2 main areas:

1. aircraft noise and

2. keeping the airport's approaches clear of obstacles

 

Sources of Power: US - all public airports that receive scheduled airline passenger service are owned and operated by state or local (city or county) governments or regional authorities having governmental powers

These governments have relied upon sources of power derived from both the US Constitution and their inherent powers as proprietors of these airports (which are considered public utilities)

Eminent Domain: governments have the right to take private land within their jurisdiction for public use (whether or not the owner wishes to sell)

5th Amendment: requires that when government takes private property for public use, it must pay the landowner just compensation

If landowner is unwilling to sell or if the two parties cannot agree on a fair price the government files a condemnation lawsuit, which seeks a court order establishing the price to be paid and ordering transfer of title to the government upon payment

 

Police Power: government’s right to adopt and enforce laws to protect the public health, safety, and welfare – this is the power relied upon by state, regional and local governments as authority for adoption of land use zoning and height zoning ordinances in the vicinity of airports as well as noise ordinances

 

Commerce Clause of US Constitution: gives federal government exclusive right to regulate interstate and foreign commerce – source of authority for all federal regulation of aviation

 

Supremacy Clause of US Constitution: provides that where federal government has adopted statutes or regulations governing some activity that it is authorized to regulate (like aviation) then state, regional or local governments may not enact or enforce laws conflicting with federal law

 

Proprietary Powers: governmental entity that owns and operates the airport has a measure of authority as proprietor to regulate the use of that airport, much as the owner of a private airport would

 

Power to tax: all governments have the inherent power to impose taxes on persons, property, and transactions within their jurisdiction

 

Power of the Purse: proceeds of federal taxes on airline passenger tickets and aviation fuels have built up a multi-billion dollar Aviation Trust Fund

Congress – with FAA’s advice – budgets expenditure of this money for airport planning, development, and improvement through a program of grants – Airport Improvement Program

This may include providing funds to acquire land and aviation easements for noise abatement purposes and to soundproof existing buildings near the airport – federal funds may be allocated to cover up to 95% of a project’s cost – grants come with strings attached

Many states have similar programs – funded by state aircraft fuel taxes, registrations fees and specific ownership taxes  - may provide funds to cover that portion of project not covered by federal funds

August 8, 2016 - Airport Fund Lost Up To $2 Billion

 

Military Airport Program (MAP) – additional federal funds – can cover costs of converting closed military airfields to civilian airport use

 

CASES

- Power of eminent domain

United States v. Causby

First aviation case to be decided by US Supreme Court – case of first impression

Continuous stream of 4-engine bombers spaced a minute or two apart roared over the Causby’s property day and night

Landing approach brought them as low as 30 feet over the Causbys’ rooftop

At night the landing lights illuminated the Causbys’ bedroom brighter than day

Causbys’ were farmer of chickens in North Carolina

Brain of chicken is programmed to react to anything flying overhead

Chickens flew into frenzy at the noise and 150 of them crashed around in their coops

Judges having no precedent referred back to centuries-old facet of common law – ad coelum (to the sky) doctrine (cujus est solum, ejus est usque ad coelum), which states that a person who owns a parcel of land owns not only the surface but also the airspace above it

Relying upon the commerce clause and Congress’s pronouncements in the Civil Aeronautics Act of 1938 (precursor to Federal Aviation Act of 1958), the Court held that navigable airspace is a public highway within the public domain and that at least as it would affect the passage of aircraft, the ad coelom doctrine has no place in the modern world

But in this situation, the flights by aircraft owned and operated by the federal government were “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land” and the value of the land was diminished as a result – so the Court held that these air operations constituted a taking of private property (in the nature of an aviation easement) for a public use so that the Constitution required the federal government to pay the landowner just compensation for that taking

In an ordinary condemnation action, the government initiates suit to take property and determine price

Here in Causby the farmers initiated suit thus making it an inverse condemnation suit

 

Griggs v. Allegheny County

Griggs’ home near Greater Pittsburgh Airport

County extended one of the runways almost to Griggs’ property line so that airliners on approach to landing passed as low as 11 feet over Griggs’ chimney

Noise and vibration caused plaster walls and ceilings to crack and items to fall off shelves and china cabinets

The Griggs filed an inverse condemnation suit

Like in Causby, the court held that the county, as operator of this public airport, had taken an aviation easement over the Griggs’ property through inverse condemnation requiring the county to pay compensation for the taking, measured by the appraised fair market value of the property before and after the runway extension

Additionally, airlines that were actually generating the noise had NO LIABILITY to landowners

 

- Police Power

Pacific Northwest – Seattle-Tacoma – new regional airport to be built

To avoid inverse condemnation suits – legislature drafted statute authorizing the airport to include an elaborate recital creating the airport under the police power in the interest of public welfare

BUT

Adjacent landowner filed suit – court held that although building a public use airport is certainly a proper exercise of police power, if the effect is to take private property rights for a public use, that exercise of police power is also an exercise of power of eminent domain so governmental entity owner must pay just compensation

 

Riverside, California

County was building a new general aviation airport  - Ryan Field

In the exercise of its police power the county adopted height zoning restrictions that applied to property near each end of the runway to prevent landowners from building obstructions into the landing glide path

Maximum heights permitted proceeded outward and upward in a stair step fashion – only very low structures were permitted close to the runway and progressively higher structures permitted farther away

 

Sneed v. County of Riverside

Sneed owned 234 acres immediately adjacent to the runway threshold

Under the new height zoning ordinance, the tallest structure that could be built on that portion of his property farthest from the runway end was 24 feet and at the closest end a mere 3 inches

Although the zoning was a valid and permissible exercise of the police power at least in Sneed’s case, the height zoning ordinance also constituted a taking of his private property for a public use through the power of eminent domain requiring the county to pay him just compensation

 

Santa Barbara, California

Smith v. Santa Barbara County

Smith owned land in residentially zoned subdivision

County government wishing to build an airline airport nearby used its police power to enact a new land use zoning ordinance governing the uses to which property in the vicinity of the new airport could be put

Smith’s land was thus rezoned to industrial use

Smith sued

Court found that the ordinance was a valid exercise of county’s police power and did not involve the power of eminent domain so county was not liable to pay compensation

 

Land use zoning is now a very popular tool used nationwide in new airport planning

In the planning process airport planners predict the airport’s noise footprint, as it will fall on surrounding land

Sound level measurement method used today – DNL (Day-Night Sound Level) – developed by the US Environmental Protection Agency to permit comparison of noise levels from all types of urban sources  - measures ambient noise including aircraft noise and imposes penalty for night time (10pm to 7am) operations – generally accepted that 65 DNLs or higher is incompatible with noise-sensitive land uses (homes, schools, churches, hospitals)

 

Humans perceive an increase of 10 decibels as a doubling of the noise level

Use zoning is a two-edged sword that may be used not only to protect airports from the encroachment of noise sensitive residential communities but also to protect residential communities from the encroachment of noisy airports

 

Garden State Farms, Inc., New Jersey

Garden State Farms, Inc. v. Bay

Court held that state and local governments might also exercise their police power to protect the public health, safety and welfare by land use zoning to exclude aircraft landing areas

 

Injunctions for nuisance

Sometimes residents who are annoyed by the proximity of an airport seek to obtain an injunction from a court to declare the operation of the airport a nuisance and order it to cease operation

Nuisance: intentional tort – generally a continuing one rather than an isolated incident – private nuisance is a non-trespassory interference with an individual plaintiff’s use or enjoyment of his property

If a court finds an activity a nuisance the option is either to award the plaintiff money damages or to issue an injunction prohibiting continuation of the activity that constitutes the nuisance

 

American law – mostly follows law of England

At time of Declaration of Independence – England had 2 separate sets of courts each with its own body of laws and powers:

  1. Courts of Law – judges trained in common law applied the law – entered judgments for money damages
  2. Courts of Chancery – judges selected for Solomonic wisdom “did equity” meaning issued orders that simply seemed fair – entered orders for people to do or refrain from doing something

 

US law today combines the two – as a general rule though courts consider equitable remedies (like injunctions) to be extraordinary remedies that should be awarded only if there is no adequate remedy at law

 

Loma Portal Civic Club v. American Airlines

No court has ever enjoined the operation of a publicly owned airport in the US

Privately owned airports however have not been so lucky – some have been found to be nuisances and have been enjoined against continuing operations

 

The Power to Tax

Local governments have also effectively used their power to impose taxes on real property to force out private airports – while the airport will still have grandfather rights to continue operation, as a nonconforming use despite the rezoning, property taxes will increase dramatically

 

Noise ordinances

The onset of a nationwide epidemic of aircraft noise related litigation was triggered by the introduction into airline service of the first generation of jets:

  • Boeing 707
  • Douglas DC-8
  • Convair 880

These aircraft were far noisier than the propeller-driven aircraft before them or even the later jets after them

 

Allegheny Airlines v. Village of Cedarhurst

In response to citizen rage over the new noise level the village government adopted a municipal ordinance that prohibited flying over the village at less than 1000 feet AGL

FAA mandated flights over the village below 1000 feet AGL in direct conflict with the ordinance – Federal law preempts the ordinance due to Supremacy Clause so municipal ordinance was rendered unenforceable

 

Airlines v. Town of Hempstead

The court found that the ordinance, as applied against aircraft, was in direct conflict with the federal regulatory scheme – supremacy clause would prohibit the town from enforcing a noise ordinance against aircraft

 

Parachutes, Inc. v. Township of Lakewood

Federal government exercised little control over the flight pattern \s of these aircraft  - no control tower at airport – only contact these aircraft had with ATC was to report to NY Center 1 minute before each jump and then later when last jumper had landed

Court found that he enforcement of the township’s ordinance against the aircraft did not conflict with any regulatory scheme, so the supremacy clause did not come into play – so enforcement against these aircraft legally valid

 

 

Proprietary Powers: Curfews and Restrictions on Airport Use

West Coast, Santa Monica – SMO – Santa Monica Municipal Airport

Acting in its capacity as the proprietor of the airport, the city imposed a curfew on jet aircraft operations at the airport between the hours of 11pm and 7am

The validity of the curfew was challenged in court

Stagg v. Santa Monica – Santa Monica 1

Court found that the jet curfew did not conflict with any federal regulatory scheme so that the supremacy was no barrier, and that it was a valid exercise of the police power since it was intended to protect the public health and welfare by affording citizens a better night’s sleep

 

Lockheed Air Terminal, Inc. v. City of Burbank

Arose out of attempts by the Cities of Burbank and Glendale to regulate the noise of aircraft coming and going from an airport privately owned and operated by Lockheed Aircraft Corp.

Footnote 14: a governmental entity that owns and operates an airport may be legally able, acting as proprietor, to deny use of the airport to aircraft on the basis of noise considerations, as long as the exclusion does not discriminate against aircraft traveling in interstate or foreign commerce

 

City of Santa Monica as proprietor of its municipal airport adopted 5 more restrictions in form of airport use regulations:

  1. Curfew: engine starts and takeoffs by any aircraft were prohibited between 11pm and 6am
  2. Fixed wing flight training: touch-and-go landings, stop-and-go landings and low approaches were prohibited on weekends and holidays
  3. Helicopter flight training: prohibited at all times
  4. Noise limit: aircraft operations exceeding a 100-decibel single0event noise level (SENEL) were prohibited (and noise meters were installed off both runway ends)
  5. Jet prohibition: all jets were prohibited from using the airport at all times

 

Santa Monica Airport Association v. Santa Monica – Santa Monica 2

Court held that the constitutional validity of regulations limiting the use of a public airport adopted by a governmental entity in its capacity as proprietor of that airport depends upon a 3-step test:

  1. if the regulation does not affect interstate commerce, it is constitutionally valid so move to next question
  2. if the governmental entity acted within its jurisdiction and the regulation is reasonable, it is enforceable so move to next question
  3. if the regulation does not discriminate between interstate and intrastate commerce and it has only a slight effect on interstate commerce it is valid

Using this line of reasoning, Santa Monica’s first 4 regulations were legally valid and enforceable – BUT the fifth was void because it imposed an impermissible burden on interstate commerce and was unreasonable

 

The city of Santa Monica reduced the level from 100 decibels to 85, which virtually no powered aircraft could meet

 

Santa Monica 3

Amicus curiae – friend of the court

Grant agreement: FAA notified the city that unless it backed off to a more reasonable single-event noise limit on aircraft, the FAA would consider the city to be in breach of its grant agreements and would take legal action to compel the city to repay all federal funds it had obtained

City increased noise limit to 95 decibels

In 2003 the city imposed a new landing fee schedule at the airport as part of funding stream for its maintenance program for runways, taxiways and ramps – fees were a sliding scale based on aircraft weight (ranging from 29cents to $5.81 per pound)

The FAA investigated and in 2005 sided with aircraft operators finding the fee schedule to be unreasonable and to result in unjust enrichment against one group of aviation users, in violation of the grant agreement

Santa Monica then tried to evict or keep out larger jets – when the FAA found that a violation of the grant agreement – the city tried to accomplish the same thing by proposing to shorten runway and put in engineered material arresting system beds to prevent overrun – FAA also found that a violation of the grant

 

Feb 2, 2017: HUERTA EXPLAINS SANTA MONICA DEAL

 

March 23, 2017: American Flyers to exit Santa Monica in April - Deal to close airport in 2028 was "last straw"

 

 

Santa Monica history of issue

July 28, 2016 - Santa Monica Eyes June 2018 Closure Date for SMO

April 28, 2016 - Settlement Reached with One Plaintiff in SMO Fight

March 22, 2016 - District Court Hears Santa Monica Airport Appeal

November 6, 2014 - Measure Granting Voters Approval of SMO Redevelopment Fails

August 1, 2014 - Santa Monica Airport Proponents File FAA Part 16 Complaint

July 5, 2014 - Airport Particle Emissions More Widespread Than Previously Believed

June 24, 2014 - SMO Airport Officials Accused of Conflict of Interest

June 1, 2014 - Emissions Limits Are Santa Monica’s Latest Effort to Curtail SMO Flying

May 6, 2014 - Airport Commission Revisits Emissions Limits at SMO

May 1, 2014 - Santa Monica City Council Votes On Plan To Restrict Aviation At SMO

February 18, 2014 - FAA Wins Latest Battle over Santa Monica Airport

Februay 14, 2014 - Santa Monica Loses Airport Lawsuit In Victory For GA Proponents

February 11, 2014 - Amicus Brief Seeks Dismissal of Santa Monica Complaint

February 4, 2014 - Santa Monica Airport Case Headed to Judge for Hearing

January 14, 2014 - U.S. Government Wants Santa Monica Airport Suit Tossed

January 11, 2014 - U.S. Government Files Motion to Dismiss Santa Monica Airport Lawsuit

December 1, 2013 - Precedent May Be Set by Santa Monica Case

November 5, 2013 - Santa Monica Lawsuit May Determine Airport’s Fate

October 10, 2013 - Airport2Park Seeks To Close Santa Monica Airport

June 1, 2013 - SMO Facing Further Efforts at Airport Closure

May 1, 2013 - AIN Blog: Goodbye SMO

August 9, 2012- Santa Monica Airport Commission Seeks Daily Ops Limit

June 29, 2011 - Santa Monica Drops Efforts To Ban Large Aircraft

June 7, 2011 - Santa Monica Drops Efforts To Ban Large Aircraft at SMO

January 25, 2011 - Court Backs FAA Rejection of SMO Big-jet Ban

August 3, 2010 - AOPA Opposes Santa monica Airport Jet Ban

January 28, 2010 - Touching Bases: Santa Monica Friends to Testify

January 26, 2010 - SMO foes find new tool in anti-airport battle

November 24, 2009 - AOPA seeks status in SMO noise dispute

July 28, 2009 - Santa Monica ban cannot stand, FAA rules

June 2, 2009 - Santa Monica Large Aircraft Ban Blocked

May 19, 2009 - Santa Monica Ban Blocked; Van Nuys Phasing Out?

May 1, 2009 - Santa Monica Airport Part 16 Hearings Held

March 26, 2009 - Santa Monica Airport Part 16 Hearings Held

October 9, 2008 - SMO brief appeals reversal of ban

September 2, 2008 - City Brief Says FAA Wrong about SMO Limits

August 29, 2008 - California Urges FAA To Bar SMO Jets

August 12, 2008 - California Legislature Reignites SMO Ban Controversy

July 7, 2008 - FAA: SMO cannot ban large-airplane operations

May 27, 2008 - SMO Ban Repealed, Pending Further FAA Action

May 8, 2008 - Touching Bases: FAA investigating SMO's conformance program

May 6, 2008 - Santa Monica access restrictions proposed

April 28, 2008 - Santa Monica nixes large jet ban

April 24, 2008 - FAA: Santa Monica Airport Ban ‘Unlawful’

December 11, 2007 - NBAA Commends FAA Decision on SMO

November 29, 2007 - Santa Monica Proposes Category C/D Jet Ban at SMO

September 26, 2007 - FAA, Santa Monica go head-to-head

August 1, 2007 - Santa Monica Airport dodges monitoring mandate

July 5, 2007- NATA warns of more SMO problems

June 5, 2007 - Santa Monica neighbors want shorter runway

April 17, 2007 - NBAA Sees Santa Monica Landing Fees as Good News

September 13, 2006 - Engine emissions draw ire from airport neighbors

 

 

British Airways v. Port of New York Authority

Court held that regulation of commercial aviation in the US is a 2-tiered system:

  1. exclusive control of airspace allocation and use is concentrated at the national level, and state, regional, and local government entities are preempted from trying to regulate planes in flight
  2. task of protecting local population from airport noise falls on the government operating the airport – may use property acquisition and easements, zoning and issuance of reasonable non-arbitrary and non discriminatory rules that do not burden interstate commerce

 

Country Aviation, Inc. v. Tinicum Township

Court struck down a local government’s attempt to use its police power to enforce an aviation noise control ordinance against glider-towing aircraft operating at the privately owned Van Zant Airport

 

Banner Advertising, Inc. v. City of Boulder

Colorado Supreme Court struck down the City of Boulder’s attempt to purge the city’s skies of aircraft towing commercial advertising messages by a provision in the city’s sign code

 

Gustafson v. City of Lake Angelus

all state and local regulation of the noise of aircraft in flight is preempted by pervasive federal regulations governing airspace management and aviation noise control

 

The Power of the Purse, Strings attached: Grant Agreement Constraints

Where the airport proprietor has accepted federal AIP airport planning and improvement grants, the assurances in the grant agreement further limit the proprietor’s latitude to regulate and restrict the use of the airport

The airport proprietor must agree to keep the airport open for the use and benefit of the public and “all types, kinds, and classes of aeronautical use on fair and reasonable terms without discrimination between such types, kinds, and classes unless prohibition or limitation of any given type, kind, or class of aeronautical use of the airport is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public.”

 

These obligations typically continue for at least 20 years from the date of the last acceptance of federal aid

 

Courts have uniformly held that only the FAA can sue to enforce these grant agreement assurances – persons denied access to the airport do not have legal standing to sue as 3rd party beneficiaries

The only available recourse is to file a written complaint of discrimination with the local FAA Airports District Office (ADO)

The ADO is required to investigate all complaints and determine whether the airport proprietor is in compliance with grant agreement assurances

During the investigation the FAA usually withholds any additional grant funds – if FAA finds breach of grant agreement assurances future aid will be withheld and US may initiate litigation for specific performance (court order that proprietor comply with grant agreement) or to recover federal funds previously disbursed

Recently FAA has demonstrated both the will to aggressively enforce grant agreements as needed to protect recipient airports and admirable flexibility and creativity in working with airport authorities to amend the requirements of grant agreements where needed to foster and promote airport development  

 

The Complication of Political Boundaries

A government may exercise its power of eminent domain and police power only within its geographical boundaries - airport noise and required clear zones frequently cross political boundaries

In such a case the cooperation of surrounding county or municipal governments must be obtained and nurtured

Through an intergovernmental agreement (IGA) the airport proprietor may obtain the commitment of surrounding governments to use their police powers – in exchange the surrounding governments ma exact a price – seats on airport’s governing board, say in operations, layout and preferential runway use, even a guarantee of public sector jobs for their residents

 

Environmental impact

Airport development and its funding is considered a major federal action that may affect the quality of the environment, bringing into play the National Environmental Policy Act of 1969 (NEPA)

NEPA requires preparation of an environmental impact statement (EIS) for projects that could effect the environment

Airports also require storage capacity for aviation fuels – airport planners must take into account federal underground storage tank (UST) regulations promulgated under the federal Resource Conservation and Recovery Act (RCRA)

Concern over potential impacts of the global warming trend so clearly depicted in former vice president Gore’s movie An Inconvenient Truth have focused worldwide attention on the need to drastically reduce the emission of the so-called greenhouse gases attributable to human activities that are deemed largely responsible for the trend

 

Some other solutions

The FAA has been very actively involved in the noise problem through regulation, funding, and procedures

Congress’ enactment of the Airport Noise and Capacity Act of 1990 (ANCA) - the first comprehensive federal statute addressing airport noise, required new air transport aircraft designs to be quieter and the phasing out of older, noisier jet transports or their silencing through engine replacement or “hush kits”

 

14 CFR Part 77

requires that before constructing anything that could be an obstacle to aircraft, the sponsor must notify the FAA

upon receipt of such a notice, the FAA performs an obstruction analysis to determine the effects of the project on flight operations at the airport

the FAA then issues 1 of 3 determinations:

  1. that it has no objection to the proposal
  2. that it has no objection to the proposal if certain conditions are met
  3. that the proposal is objectionable because it would adversely affect air navigation

the FAA neither permits nor prohibits the proposed construction leaving that decision to local government having jurisdiction over zoning and the issuance of building permits in the area

 

14 CFR Part 91.129(e)(3)

requires that when operating in Class D airspace an airplane approaching to land on a runway served by a visual approach slope indicator (VASI) or precision approach path indicator (PAPI) shall maintain an attitude at or above the glideslope until a lower altitude is necessary for safe landing

Santa Monica - SMO has installed a PAPI-cam where PAPI is set to a 4 degree glideslope – incorporates a video camera and theodolite that record and measure the descent profile of every VFR approach to runway 21

Pilot receives a warning letter from the airport manager – second violation is referred to the FAA for enforcement action or counseling

Teterboro – TEB – 3 strikes and you’re out! – airport manager sends the operator a violation letter – if operator receives 3 violations in a 2-year period the aircraft is banned from the airport forever

 

CDA – continuous descent approaches now being widely used for fuel saving and airport area noise reduction – aircraft meeting Required Navigation Performance standards are able to begin a smooth and stable descent at reduced power from cruise altitude up to 120 miles from the airport and all the way to landing, eliminating the throttle jockeying necessitated by step down approach procedures

Publicly Owned Airports

The governmental entity that owns the airport can:

  1. as proprietor, impose curfews and other reasonable limitations on the use of the airport as long as these limitations are not discriminatory against or unduly burdensome on interstate or foreign commerce and are reasonable
  2. condemn and purchase land and aviation easements within their jurisdiction in the vicinity of the airport, through the power of eminent domain and seek federal airport improvement funds to aid financing those purchases
  3. impose land use zoning and height zoning on land within their jurisdiction in the vicinity of the airport under the police power but may have to pay just compensation to some landowners if height zoning diminishes their property values
  4. add soundproofing requirements to building codes applicable to construction in areas impacted by airport noise and pay to soundproof existing structures in that area and impose passenger facility charges and seek federal airport improvement funds to aid in financing that soundproofing
  5. enter into Intergovernmental Agreements with other local governments to accomplish items 2 – 4 above beyond the jurisdiction of the airport-owning government
  6. close the airport, unless federal airport aid funds have been received, in which case they may have to be repaid, unless a Denver-style deal can be struck with the FAA, or the FAA may seek court-ordered specific performance to require the owner to keep the airport open to the public

 

Even the airport proprietor has no control of overflights by aircraft not using the airport

 

Citizens can file Causby suits in inverse condemnation for taking of an aviation easement over their property or suits for damages in tort (nuisance) and can recover money damages in the amount by which the value of the property was reduced by virtue of the airport operations but cannot obtain an injunction to close or restrict the airport

 

Governments can also use-zone airports out of their jurisdiction

 

Adjacent governments that do not own the airport can do nothing!

Privately Owned Airports

The private airport owner can:

  1. purchase adjacent lands or aviation easements over them, but only if the owners are willing to sell – private landowners do not have the power of eminent domain and therefore cannot condemn and take the property of other private landowners
  2. impose limitations on use of the airport without limit unless federal airport development funds have been accepted which is now possible for private airports open to the public where the FAA has designated the airport as a general aviation reliever airport needed to draw general aviation traffic away from a busy airline hub airport in the area

 

Citizens can bring suit against the airport owner for nuisance and obtain a judgment for money damages or an injunction compelling the airport to cease operations

The local government having jurisdiction over the property can preclude construction of an airport by land use zoning or render the continued operation of an established private airport uneconomical by raising property taxes

 

Adjacent governments not having jurisdiction over the property can do nothing!

 

If you are an AOPA member you have free access to the Air Safety Institute courses for WINGS credit. I highky suggest you watch the one entitled, "ASN Volunteer Orientation" to learn about the demise of general aviation airports around the nation primarily die to what has been discussed in this chapter.

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June 15, 2016 - The FAA’s final policy on the non-aeronautical use of airport hangars appears in today’s Federal Register and will take effect on July 1, 2017. The FAA is issuing the policy to clarify how aviation facilities – including hangars can be used on airports that receive federal funds. The final policy strikes a balance between hangar use for aviation and non-aviation purposes. The policy ensures hangars are available when there is an aviation need, and if demand is low, allows hangars to be used for non-aviation activities. The FAA recognizes that non-aviation hangar space rental allows airport sponsors to be economically independent when hangars are not being used to fulfill aviation needs. Airport sponsors must receive approval from the FAA before hangars can be used for non-aviation purposes. In addition, the policy outlines the type of aircraft that can be built in a hangar, the equipment and items that can be stored in hangars, and the role of the airport sponsors to ensure tenants pay fair market value for hangar space.

Click here for 81 FR 38906 to read the Policy on the Non-aeronautical Use of Airport Hangars

NOTE: Airport/FBO "landlords" had felt compelled by the FAA to impose hangar-storage restrictions based on the so-called Glendale case. Several tears ago, after FAA inspections found hangars that contained automobiles, boats, large recreational vehicles, and the like, the FAA found the city of Glendale, Arizona, in violation of an FAA grant agreement by allowing use of airport hangars for storing such nonaviation items. This final policy still contains the overarching principle that airports that have accepted federal grants (and certain surplus property airports) may use airport property only for aeronautical purposes, unless otherwise approved by the FAA. Airport sponsors should continue to manage the use of hangars through an airport leasing program that requires a written lease agreement or permit, and should continue to take steps to prevent unapproved uses. Overall, the policy is prompted by the realization that so-called 'non-aeronautical' storage or uses in hangars could interfere with or displace aeronautical use of a hangar. At the same time, the FAA recognizes that storage fo some items in a hangar may nmot have s significant effect on the aeronautical utility of the hangar. The final policy attempts to balance the two. The policy expressly permits "maintenance, repair, or refurbishment of aircraft," although it continues to bar the indefinite storage of nonoperational aircraft. It permits "storage of aircraft handling equipment, e.g., towbars, glider tow equipment, workbenches, and tools and materials used in the servicing, maintenance, and repair or outfitting of aircraft." In general, "provided the hangar is used primarily for aeronautical purposes [housing an aircraft], an airport sponsor may permit nonaeronautical items to be stored in hangars provided the items do not interfere with the aeronautical use of the hangar." A vehicle parked in the hangar while the vehicle owner is using the aircraft is permitted. The policy allows typical pilot resting facilities and aircrew quarters, although a hangar may not be used as a residence. And of importance to the homebuilt community, the policy now more expansively permits noncommercial construction of amateur-built or kit-built aircraft in a hangar, including the final assembly of aircraft under construction. With respect to the many privately constructed and owned hangars on an airport ground lease, the form of property interest - be it a leashold or ownership of a hangar - does not change the applicability of the policy. However, the policy does not apply to privately owned facilities located off the airport. This final policy technically does not apply to airports that have never received federal Airport Improvement Program grants or are not restricted by surplus property conveyances, but the policy likely will continue to be utilized by virtually all airports offering hangar facilities. 

 

FAA Regulation of Airspace

Federal Aviation Act of 1958

Congress empowered the FAA Administrator to regulate the use of navigable airspace as he or she in the exercise of his or her discretion deems necessary in order to assure the safety of aircraft and the efficient utilization of such airspace

FAA accomplished this with 14 CFR Part 71 which establishes the airspace 

14-1-2. DEFINITIONS

 

a. CONTROLLED AIRSPACE. An airspace of defined dimensions within which ATC service is provided to IFR flights and to VFR flights in accordance with the airspace classification. 

 

1. Controlled airspace is a generic term that covers Class A, Class B, Class C, Class D, and Class E airspace areas. 

 

2. Controlled airspace is also that airspace within which all aircraft operators are subject to certain pilot qualifications, operating rules, and equipment requirements in 14 CFR part 91 (for specific operating requirements, please refer to 14 CFR part 91). For IFR operations in any class of controlled airspace, a pilot must file an IFR flight plan and receive an appropriate ATC clearance. Each Class B, Class C, and Class D airspace area designated for an airport contains at least one primary airport around which the airspace is designated (for specific designations and descriptions of the airspace classes, please refer to 14 CFR part 71). 

 

3. Controlled airspace in the United States is designated as follows: 

 

(a) CLASS A AIRSPACE AREA. Generally, that airspace from 18,000 feet MSL up to and including FL 600, including the airspace overlying the waters within 12 nautical miles (NM) of the coast of the 48 contiguous States and Alaska. Unless otherwise authorized, all persons must operate their aircraft under IFR. 

 

(b) CLASS B AIRSPACE AREA. Generally, that airspace from the surface to 10,000 feet mean sea level (MSL) surrounding the nation's busiest airports in terms of airport operations or passenger enplanements. The configuration of each Class B airspace area is individually tailored and consists of a surface area and two or more layers, and is designed to contain all published instrument procedures. An ATC clearance is required for all aircraft to operate in the area, and all aircraft that are so cleared receive separation services within the airspace. The cloud clearance requirement for VFR operations is “clear of clouds." 

 

(c) CLASS C AIRSPACE AREA. Generally, that airspace from the surface to 4,000 feet above the airport elevation (charted in MSL) surrounding those airports that have an operational control tower, are serviced by a radar approach control, and that have a certain number of IFR operations or passenger enplanements. Although the configuration of each Class C area is individually tailored, the airspace usually consists of a surface area with a 5 NM radius, an outer circle with a 10 NM radius that extends from no lower than 1,200 feet up to 4,000 feet above the airport elevation. Each person must establish two-way radio communications with the ATC facility providing air traffic services prior to entering the airspace and thereafter maintain those communications while within the airspace. 

 

(d)CLASS D AIRSPACE AREA. Generally, that airspace from the surface to 2,500 feet above the airport elevation (charted in MSL) surrounding those airports that have an operational control tower. The configuration of each Class D airspace area is individually tailored and when instrument procedures are published, the airspace will normally be designed to contain the procedures. Arrival extensions for instrument approach procedures may be Class D or Class E airspace. Unless otherwise authorized, each person must establish two-way radio communications with the ATC facility providing air traffic services prior to entering the airspace and thereafter maintain those communications while in the airspace. No separation services are provided to VFR aircraft. 

 

(e) CLASS E AIRSPACE AREA. Generally, if the airspace is not Class A, Class B, Class C, or Class D, and it is controlled airspace, it is Class E airspace. The types of Class E airspace areas are:

 

(1)  Surface Area Designated for an Airport - When designated as a surface area for an airport, the airspace will be configured to contain all instrument procedures.

 

(2) Extension to a Surface Area - There are Class E airspace areas that serve as extensions to Class B, Class C, Class D, and Class E surface areas designated for an airport. Such airspace provides controlled airspace to contain standard instrument approach procedures without imposing a communications requirement on pilots operating under VFR. 

 

(3) Airspace Used for Transition - There are Class E airspace areas beginning at either 700 or 1,200 feet AGL used to transition to/from the terminal or en route environment. 

 

(4) En Route Domestic Areas - There are Class E airspace areas that extend upward from a specified altitude and are en route domestic airspace areas that provide controlled airspace in those areas where there is a requirement to provide IFR en route ATC services but the Federal airway system is inadequate. 

 

(5) Federal Airways - The Federal airways are Class E airspace areas and, unless otherwise specified, extend upward from 1,200 feet to, but not including, 18,000 feet MSL. The colored airways are green, red, amber, and blue. The VOR airways are classified as Domestic, Alaskan, and Hawaiian.

 

(6) Unless designated at a lower altitude, Class E airspace begins at 14,500 feet MSL to, but not including 18,000 feet MSL overlying: the 48 contiguous States including the waters within 12 miles from the coast of the 48 contiguous States; the District of Columbia; Alaska, including the waters within 12 miles from the coast of Alaska, and that airspace above FL 600; excluding the Alaska peninsula west of long. 160°00'00"W., and the airspace below 1,500 feet above the surface of the earth unless specifically so designated. 

 

(7) Offshore/Control Airspace Areas. Airspace areas beyond 12 NM from the coast of the United States, wherein ATC services are provided. 

 

b. UNCONTROLLED AIRSPACE

 

1. CLASS G AIRSPACE AREA. Airspace that has not been designated as Class A, Class B, Class C, Class D, or Class E airspace.

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The FAA may impose Temporary Flight Restrictions (TFRs) by Notice to Airmen (NOTAM)

 

The FAA may establish Special Flight Rules Areas (SFRAs) where restrictions to flight apply

 

Security Control of Air Traffic and Air Navigation Aids (SCATANA)

September 9, 1950

Congress directed the FAA’s forerunner, the CAA, to develop and implement plans for security control of air traffic whenever US security is endangered

Developed in cooperation with the Department of Defense (DoD)

Updated over the years

Not used until 9-11 when the President and Congress declared the entire US airspace a National Security Airspace and implemented SCATANA

National Security and Interception Procedures

 

FAA airspace allocation regulations, like all other FARs and other federal regulations are subject to requirements of the federal Administrative Procedure Act (APA) which requires that the agency first establish a proposed regulatory change as a Notice of Proposed Rulemaking (NPRM) in the Federal Register and provide a reasonable opportunity for public comment before adoption (except for emergencies)

If topic is highly controversial FAA may first issue an Advance Notice of Proposed Rulemaking (ANPRM) to help focus issues

APA allows citizens to petition the FAA to change existing regulations

AOPA often weighs in

The FAA often provides for public hearings if topic is controversial

 

Wilderness Airspace

All aircraft are requested to maintain an altitude no lower than 2,000 feet above

1987 FAA and Department of the Interior deemed Special Federal Aviation Regulations (SFARs) over the Grand Canyon imposing flight free zones

 

Dispute Resolution

Resort to court is rarely useful in controversies

If FAA fails to follow procedures court may set aside agency’s decision until the agency follows proper procedure

Unless the decision was arbitrary or capricious abuse of the agency’s discretion, and there was some rational basis for the decision, the court will not reverse the decision

Once the agency announces its final decision the courts are unlikely to overturn it and only recourse may be to petition Congress

 

Crimes & Aviation Security

First reported crime against aviation

France 1784

Early gas balloonist accosted by sword-wielding young man who forced his way into the basket of the balloon and demanded the aeronaut take him aloft

 

Federal laws

State laws so long as under the doctrine of federal pre-emption they do not conflict with federal law

Crimes – government must prove its case beyond a reasonable doubt – tougher standard than civil preponderance of evidence standard

 

Jurisdictional issues: complex when crimes committed aboard aircraft in flight

Title 18 of the United States Code, Crimes and Criminal Procedure

Title 49 of the United States Code, Transportation

 

Special Aircraft Jurisdiction of the United States

49 USC 46501

 

Congress enacted legislation providing for the special aircraft jurisdiction of the US

Extends to crimes committed aboard

  1. any civil aircraft of US registry
  2. US military aircraft
  3. Any other aircraft within the US and any aircraft outside the US that has either its next scheduled destination or last point of departure in the US

Where the crime is committed while the aircraft is on the ground state government may have concurrent jurisdiction – so federal and state prosecutors must confer on who shall prosecute

In flight crimes fall exclusively within federal jurisdiction

 

Violence at International Airports

18 USC 37

Congress has provided for jurisdiction enabling the US to prosecute individuals for certain crimes of violence occurring at international airports even where the international airport is on foreign soil in certain circumstances

 

(a) Offense.— A person who unlawfully and intentionally, using any device, substance, or weapon—

(1) performs an act of violence against a person at an airport serving international civil aviation that causes or is likely to cause serious bodily injury (as defined in section 1365 of this title) or death; or

(2) destroys or seriously damages the facilities of an airport serving international civil aviation or a civil aircraft not in service located thereon or disrupts the services of the airport,

if such an act endangers or is likely to endanger safety at that airport, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the prohibited activity in subsection (a) if—

(1) the prohibited activity takes place in the United States; or

(2) the prohibited activity takes place outside the United States and 

(A) the offender is later found in the United States; or 

(B) an offender or a victim is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22))).

(c) Bar to Prosecution.— It is a bar to Federal prosecution under subsection (a) for conduct that occurred within the United States that the conduct involved was during or in relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was committed. For purposes of this section, the term “labor dispute” has the meaning set forth in section 2(c)  [1] of the Norris-LaGuardia Act, as amended (29U.S.C. 113 (c)), and the term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

 

 

[1]  So in original. Probably should be section “13(c)”.

 

Aviation-specific federal crimes

2 kinds:

  1. Security-Related Crimes

- Violation of national defense airspace49 USC 46307

Not only a FAR violation but also a federal crime to knowingly or willfully violate national defense airspace – ADIZNational Security AreaProhibited areasTFR

Violators are subject to fines (unless otherwise indicated max of $10,000), imprisonment of up to 1 year or both

 

- Destruction of aircraft or aircraft facilities18 USC 32

 

(a) Whoever willfully—

(1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;

(2) places or causes to be placed a destructive device or substance in, upon, or in proximity to, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any such aircraft, or any part or other materials used or intended to be used in connection with the operation of such aircraft, if such placing or causing to be placed or such making or causing to be made is likely to endanger the safety of any such aircraft;

(3) sets fire to, damages, destroys, or disables any air navigation facility, or interferes by force or violence with the operation of such facility, if such fire, damaging, destroying, disabling, or interfering is likely to endanger the safety of any such aircraft in flight;

(4) with the intent to damage, destroy, or disable any such aircraft, sets fire to, damages, destroys, or disables or places a destructive device or substance in, upon, or in proximity to, any appliance or structure, ramp, landing area, property, machine, or apparatus, or any facility or other material used, or intended to be used, in connection with the operation, maintenance, loading, unloading or storage of any such aircraft or any cargo carried or intended to be carried on any such aircraft;

(5) interferes with or disables, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft;

(6) performs an act of violence against or incapacitates any individual on any such aircraft, if such act of violence or incapacitation is likely to endanger the safety of such aircraft;

(7) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any such aircraft in flight; or

(8) attempts or conspires to do anything prohibited under paragraphs (1) through (7) of this subsection;

shall be fined under this title or imprisoned not more than twenty years or both.

(b) Whoever willfully—

(1) performs an act of violence against any individual on board any civil aircraft registered in a country other than the United States while such aircraft is in flight, if such act is likely to endanger the safety of that aircraft;

(2) destroys a civil aircraft registered in a country other than the United States while such aircraft is in service or causes damage to such an aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight;

(3) places or causes to be placed on a civil aircraft registered in a country other than the United States while such aircraft is in service, a device or substance which is likely to destroy that aircraft, or to cause damage to that aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight; or

(4) attempts or conspires to commit an offense described in paragraphs (1) through (3) of this subsection;

shall be fined under this title or imprisoned not more than twenty years, or both. There is jurisdiction over an offense under this subsection if a national of the United States was on board, or would have been on board, the aircraft; an offender is a national of the United States; or an offender is afterwards found in the United States. For purposes of this subsection, the term “national of the United States” has the meaning prescribed in section 101(a)(22) of the Immigration and Nationality Act.

(c) Whoever willfully imparts or conveys any threat to do an act which would violate any of paragraphs (1) through (6) of subsection (a) or any of paragraphs (1) through (3) of subsection (b) of this section, with an apparent determination and will to carry the threat into execution shall be fined under this title or imprisoned not more than five years, or both. (a) Whoever willfully—

(1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;

(2) places or causes to be placed a destructive device or substance in, upon, or in proximity to, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any such aircraft, or any part or other materials used or intended to be used in connection with the operation of such aircraft, if such placing or causing to be placed or such making or causing to be made is likely to endanger the safety of any such aircraft;

(3) sets fire to, damages, destroys, or disables any air navigation facility, or interferes by force or violence with the operation of such facility, if such fire, damaging, destroying, disabling, or interfering is likely to endanger the safety of any such aircraft in flight;

(4) with the intent to damage, destroy, or disable any such aircraft, sets fire to, damages, destroys, or disables or places a destructive device or substance in, upon, or in proximity to, any appliance or structure, ramp, landing area, property, machine, or apparatus, or any facility or other material used, or intended to be used, in connection with the operation, maintenance, loading, unloading or storage of any such aircraft or any cargo carried or intended to be carried on any such aircraft;

(5) interferes with or disables, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft;

(6) performs an act of violence against or incapacitates any individual on any such aircraft, if such act of violence or incapacitation is likely to endanger the safety of such aircraft;

(7) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any such aircraft in flight; or

(8) attempts or conspires to do anything prohibited under paragraphs (1) through (7) of this subsection;

shall be fined under this title or imprisoned not more than twenty years or both.

(b) Whoever willfully—

(1) performs an act of violence against any individual on board any civil aircraft registered in a country other than the United States while such aircraft is in flight, if such act is likely to endanger the safety of that aircraft;

(2) destroys a civil aircraft registered in a country other than the United States while such aircraft is in service or causes damage to such an aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight;

(3) places or causes to be placed on a civil aircraft registered in a country other than the United States while such aircraft is in service, a device or substance which is likely to destroy that aircraft, or to cause damage to that aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight; or

(4) attempts or conspires to commit an offense described in paragraphs (1) through (3) of this subsection;

shall be fined under this title or imprisoned not more than twenty years, or both. There is jurisdiction over an offense under this subsection if a national of the United States was on board, or would have been on board, the aircraft; an offender is a national of the United States; or an offender is afterwards found in the United States. For purposes of this subsection, the term “national of the United States” has the meaning prescribed in section 101(a)(22) of the Immigration and Nationality Act.

(c) Whoever willfully imparts or conveys any threat to do an act which would violate any of paragraphs (1) through (6) of subsection (a) or any of paragraphs (1) through (3) of subsection (b) of this section, with an apparent determination and will to carry the threat into execution shall be fined under this title or imprisoned not more than five years, or both.

 

- Aircraft Piracy49 USC 46502

Congress enacted this law to criminalize hijacking aka aircraft piracy

A failed attempt at aircraft piracy is also a crime

Punishment is at least 20 years imprisonment or if someone dies, then death or life imprisonment

Statute extends special aircraft jurisdiction of the US to any hijacking in which either

  1. a national of the US was aboard the aircraft
  2. an offender is a US national or
  3. an offender is afterwards found in the US

“aircraft piracy” means seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent.

 

- Interference with cabin or flight crew49 USC 46504 - aka air rage

An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.  

 

 - Carrying a weapon or explosive on an aircraft49 USC 46505
 
(a) Definition.— In this section, “loaded firearm” means a starter gun or a weapon designed or converted to expel a projectile through an explosive, that has a cartridge, a detonator, or powder in the chamber, magazine, cylinder, or clip.
(b) General Criminal Penalty.— An individual shall be fined under title 18, imprisoned for not more than 10 years, or both, if the individual—
(1) when on, or attempting to get on, an aircraft in, or intended for operation in, air transportation or intrastate air transportation, has on or about the individual or the property of the individual a concealed dangerous weapon that is or would be accessible to the individual in flight;
(2) has placed, attempted to place, or attempted to have placed a loaded firearm on that aircraft in property not accessible to passengers in flight; or
(3) has on or about the individual, or has placed, attempted to place, or attempted to have placed on that aircraft, an explosive or incendiary device.
(c) Criminal Penalty Involving Disregard for Human Life.— An individual who willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life, violates subsection (b) of this section, shall be fined under title 18, imprisoned for not more than 20 years, or both, and, if death results to any person, shall be imprisoned for any term of years or for life.
(d) Nonapplication.— Subsection (b)(1) of this section does not apply to—
(1) a law enforcement officer of a State or political subdivision of a State, or an officer or employee of the United States Government, authorized to carry arms in an official capacity;
(2) another individual the Administrator of the Federal Aviation Administration or the Under Secretary of Transportation for Security by regulation authorizes to carry a dangerous weapon in air transportation or intrastate air transportation; or
(3) an individual transporting a weapon (except a loaded firearm) in baggage not accessible to a passenger in flight if the air carrier was informed of the presence of the weapon.
(e) Conspiracy.— If two or more persons conspire to violate subsection (b) or (c), and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as provided in such subsection.

 

 - False information49 USC 46302

(a) Civil Penalty.— A person that, knowing the information to be false, gives, or causes to be given, under circumstances in which the information reasonably may be believed, false information about an alleged attempt being made or to be made to do an act that would violate section 46502 (a)4650446505, or 46506 of this title, is liable to the United States Government for a civil penalty of not more than $10,000 for each violation.
(b) Compromise and Setoff.— 
(1) The Secretary of Homeland Security and, for a violation relating to section 46504, the Secretary of Transportation, may compromise the amount of a civil penalty imposed under subsection (a) of this section.
(2) The Government may deduct the amount of a civil penalty imposed or compromised under this section from amounts it owes the person liable for the penalty.
 - Entering aircraft or airport area in violation of security requirements – 49 USC 46314
(a) Prohibition.— A person may not knowingly and willfully enter, in violation of security requirements prescribed under section 4490144903 (b) or (c), or 44906 of this title, an aircraft or an airport area that serves an air carrier or foreign air carrier.
(b) Criminal Penalty.— 
(1) A person violating subsection (a) of this section shall be fined under title 18, imprisoned for not more than one year, or both.
(2) A person violating subsection (a) of this section with intent to evade security procedures or restrictions or with intent to commit, in the aircraft or airport area, a felony under a law of the United States or a State shall be fined under title 18, imprisoned for not more than 10 years, or both.
(c) Notice of Penalties.— 
(1) In general.— Each operator of an airport in the United States that is required to establish an air transportation security program pursuant to section 44903 (c) shall ensure that signs that meet such requirements as the Secretary of Homeland Security may prescribe providing notice of the penalties imposed under section 46301 (a)(5)(A)(i) andsubsection (b) of this section are displayed near all screening locations, all locations where passengers exit the sterile area, and such other locations at the airport as the Secretary of Homeland Security determines appropriate.
(2) Effect of signs on penalties.— An individual shall be subject to a penalty imposed under section 46301(a)(5)(A)(i) orsubsection (b) of this section without regard to whether signs are displayed at an airport as required by paragraph (1).
  1. Safety and Drug-related Crimes

- Pilots operating in air transportation without an airman's certificate - 49 USC 46317

(a) General Criminal Penalty.— An individual shall be fined under title 18 or imprisoned for not more than 3 years, or both, if that individual—
(1) knowingly and willfully serves or attempts to serve in any capacity as an airman operating an aircraft in air transportation without an airman’s certificate authorizing the individual to serve in that capacity; or
(2) knowingly and willfully employs for service or uses in any capacity as an airman to operate an aircraft in air transportation an individual who does not have an airman’s certificate authorizing the individual to serve in that capacity.
(b) Controlled Substance Criminal Penalty.— 
(1) Controlled substances defined.— In this subsection, the term “controlled substance” has the meaning given that term in section 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21U.S.C. 802).
(2) Criminal penalty.— An individual violating subsection (a) shall be fined under title 18 or imprisoned for not more than 5 years, or both, if the violation is related to transporting a controlled substance by aircraft or aiding or facilitating a controlled substance violation and that transporting, aiding, or facilitating—
(A) is punishable by death or imprisonment of more than 1 year under a Federal or State law; or
(B) is related to an act punishable by death or imprisonment for more than 1 year under a Federal or State law related to a controlled substance (except a law related to simple possession (as that term is used in section 46306(c)) of a controlled substance).
(3) Terms of imprisonment.— A term of imprisonment imposed under paragraph (2) shall be served in addition to, and not concurrently with, any other term of imprisonment imposed on the individual subject to the imprisonment.

- Lighting violations involving transporting controlled substances by aircraft not providing air transportation - 49 USC 46315

 

(a) Application.— This section applies only to aircraft not used to provide air transportation.
(b) Criminal Penalty.— A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if—
(1) the person knowingly and willfully operates an aircraft in violation of a regulation or requirement of the Administrator of the Federal Aviation Administration related to the display of navigation or anticollision lights;
(2) the person is knowingly transporting a controlled substance by aircraft or aiding or facilitating a controlled substance offense; and
(3) the transporting, aiding, or facilitating—
(A) is punishable by death or imprisonment for more than one year under a law of the United States or a State; or
(B) is provided in connection with an act punishable by death or imprisonment for more than one year under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance).

- Interference with air navigation - 49 USC 46308

 

A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if the person—
(1) with intent to interfere with air navigation in the United States, exhibits in the United States a light or signal at a place or in a way likely to be mistaken for a true light or signal established under this part or for a true light or signal used at an air navigation facility;
(2) after a warning from the Administrator of the Federal Aviation Administration, continues to maintain a misleading light or signal; or
(3) knowingly interferes with the operation of a true light or signal.
 

- Aircraft Registration violations - 49 USC 46306

 

(a) Application.— This section applies only to aircraft not used to provide air transportation.
(b) General Criminal Penalty.— Except as provided by subsection (c) of this section, a person shall be fined under title 18, imprisoned for not more than 3 years, or both, if the person—
(1) knowingly and willfully forges or alters a certificate authorized to be issued under this part;
(2) knowingly sells, uses, attempts to use, or possesses with the intent to use, such a certificate;
(3) knowingly and willfully displays or causes to be displayed on an aircraft a mark that is false or misleading about the nationality or registration of the aircraft;
(4) obtains a certificate authorized to be issued under this part by knowingly and willfully falsifying or concealing a material fact, making a false, fictitious, or fraudulent statement, or making or using a false document knowing it contains a false, fictitious, or fraudulent statement or entry;
(5) owns an aircraft eligible for registration under section 44102 of this title and knowingly and willfully operates, attempts to operate, or allows another person to operate the aircraft when—
(A) the aircraft is not registered under section 44103 of this title or the certificate of registration is suspended or revoked; or
(B) the owner knows or has reason to know that the other person does not have proper authorization to operate or navigate the aircraft without registration for a period of time after transfer of ownership;
(6) knowingly and willfully operates or attempts to operate an aircraft eligible for registration under section 44102 of this title knowing that—
(A) the aircraft is not registered under section 44103 of this title;
(B) the certificate of registration is suspended or revoked; or
(C) the person does not have proper authorization to operate or navigate the aircraft without registration for a period of time after transfer of ownership;
(7) knowingly and willfully serves or attempts to serve in any capacity as an airman without an airman’s certificate authorizing the individual to serve in that capacity;
(8) knowingly and willfully employs for service or uses in any capacity as an airman an individual who does not have an airman’s certificate authorizing the individual to serve in that capacity; or
(9) operates an aircraft with a fuel tank or fuel system that has been installed or modified knowing that the tank, system, installation, or modification does not comply with regulations and requirements of the Administrator of the Federal Aviation Administration.
(c) Controlled Substance Criminal Penalty.— 
(1) In this subsection, “controlled substance” has the same meaning given that term in section 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802).
(2) A person violating subsection (b) of this section shall be fined under title 18, imprisoned for not more than 5 years, or both, if the violation is related to transporting a controlled substance by aircraft or aiding or facilitating a controlled substance violation and the transporting, aiding, or facilitating—
(A) is punishable by death or imprisonment of more than one year under a law of the United States or a State; or
(B) that is provided is related to an act punishable by death or imprisonment for more than one year under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance).
(3) A term of imprisonment imposed under paragraph (2) of this subsection shall be served in addition to, and not concurrently with, any other term of imprisonment imposed on the individual.
(d) Seizure and Forfeiture.— 
(1) The Administrator of Drug Enforcement or the Commissioner of Customs may seize and forfeit under the customs laws an aircraft whose use is related to a violation of subsection (b) of this section, or to aid or facilitate a violation, regardless of whether a person is charged with the violation.
(2) An aircraft’s use is presumed to have been related to a violation of, or to aid or facilitate a violation of—
(A) subsection (b)(1) of this section if the aircraft certificate of registration has been forged or altered;
(B) subsection (b)(3) of this section if there is an external display of false or misleading registration numbers or country of registration;
(C) subsection (b)(4) of this section if—
(i) the aircraft is registered to a false or fictitious person; or
(ii) the application form used to obtain the aircraft certificate of registration contains a material false statement;
(D) subsection (b)(5) of this section if the aircraft was operated when it was not registered under section 44103 of this title; or
(E) subsection (b)(9) of this section if the aircraft has a fuel tank or fuel system that was installed or altered—
(i) in violation of a regulation or requirement of the Administrator of the Federal Aviation Administration; or
(ii) if a certificate required to be issued for the installation or alteration is not carried on the aircraft.
(3) The Administrator of the Federal Aviation Administration, the Administrator of Drug Enforcement, and the Commissioner shall agree to a memorandum of understanding to establish procedures to carry out this subsection.
(e) Relationship to State Laws.— This part does not prevent a State from establishing a criminal penalty, including providing for forfeiture and seizure of aircraft, for a person that—
(1) knowingly and willfully forges or alters an aircraft certificate of registration;
(2) knowingly sells, uses, attempts to use, or possesses with the intent to use, a fraudulent aircraft certificate of registration;
(3) knowingly and willfully displays or causes to be displayed on an aircraft a mark that is false or misleading about the nationality or registration of the aircraft; or
(4) obtains an aircraft certificate of registration from the Administrator of the Federal Aviation Administration by—
(A) knowingly and willfully falsifying or concealing a material fact;
(B) making a false, fictitious, or fraudulent statement; or
(C) making or using a false document knowing it contains a false, fictitious, or fraudulent statement or entry.

- Transporting hazardous material - 49 USC 46312

 

(a) In General.— A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if the person, in violation of a regulation or requirement related to the transportation of hazardous material prescribed by the Secretary of Transportation under this part or chapter 51—
(1) willfully delivers, or causes to be delivered, property containing hazardous material to an air carrier or to an operator of a civil aircraft for transportation in air commerce; or
(2) recklessly causes the transportation in air commerce of the property.
(b) Knowledge of Regulations.— For purposes of subsection (a), knowledge by the person of the existence of a regulation or requirement related to the transportation of hazardous material prescribed by the Secretary under this part or chapter 51 is not an element of an offense under this section but shall be considered in mitigation of the penalty.
 

- Fraud involving aircraft or space vehicle parts in interstate or foreign commerce - 18 USC 38

 

(a) Offenses.— Whoever, in or affecting interstate or foreign commerce, knowingly and with the intent to defraud—

(1)

(A) falsifies or conceals a material fact concerning any aircraft or space vehicle part;

(B) makes any materially fraudulent representation concerning any aircraft or space vehicle part; or

(C) makes or uses any materially false writing, entry, certification, document, record, data plate, label, or electronic communication concerning any aircraft or space vehicle part;

(2) exports from or imports or introduces into the United States, sells, trades, installs on or in any aircraft or space vehicle any aircraft or space vehicle part using or by means of a fraudulent representation, document, record, certification, depiction, data plate, label, or electronic communication; or

(3) attempts or conspires to commit an offense described in paragraph (1) or (2),

shall be punished as provided in subsection (b).

(b) Penalties.— The punishment for an offense under subsection (a) is as follows:

(1) Aviation quality.— If the offense relates to the aviation quality of a part and the part is installed in an aircraft or space vehicle, a fine of not more than $500,000, imprisonment for not more than 15 years, or both.

(2) Failure to operate as represented.— If, by reason of the failure of the part to operate as represented, the part to which the offense is related is the proximate cause of a malfunction or failure that results in serious bodily injury (as defined in section 1365), a fine of not more than $1,000,000, imprisonment for not more than 20 years, or both.

(3) Failure resulting in death.— If, by reason of the failure of the part to operate as represented, the part to which the offense is related is the proximate cause of a malfunction or failure that results in the death of any person, a fine of not more than $1,000,000, imprisonment for any term of years or life, or both.

(4) Other circumstances.— In the case of an offense under subsection (a) not described in paragraph (1), (2), or (3) of this subsection, a fine under this title, imprisonment for not more than 10 years, or both.

(5) Organizations.— If the offense is committed by an organization, a fine of not more than—

(A) $10,000,000 in the case of an offense described in paragraph (1) or (4); and

(B) $20,000,000 in the case of an offense described in paragraph (2) or (3).

(c) Civil Remedies.—

(1) In general.— The district courts of the United States shall have jurisdiction to prevent and restrain violations of this section by issuing appropriate orders, including—

(A) ordering a person (convicted of an offense under this section) to divest any interest, direct or indirect, in any enterprise used to commit or facilitate the commission of the offense, or to destroy, or to mutilate and sell as scrap, aircraft material or part inventories or stocks;

(B) imposing reasonable restrictions on the future activities or investments of any such person, including prohibiting engagement in the same type of endeavor as used to commit the offense; and

(C) ordering the dissolution or reorganization of any enterprise knowingly used to commit or facilitate the commission of an offense under this section making due provisions for the rights and interests of innocent persons.

(2) Restraining orders and prohibition.— Pending final determination of a proceeding brought under this section, the court may enter such restraining orders or prohibitions, or take such other actions (including the acceptance of satisfactory performance bonds) as the court deems proper.

(3) Estoppel.— A final judgment rendered in favor of the United States in any criminal proceeding brought under this section shall stop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States.

(d) Criminal Forfeiture.—

(1) In general.— The court, in imposing sentence on any person convicted of an offense under this section, shall order, in addition to any other sentence and irrespective of any provision of State law, that the person forfeit to the United States—

(A) any property constituting, or derived from, any proceeds that the person obtained, directly or indirectly, as a result of the offense; and

(B) any property used, or intended to be used in any manner, to commit or facilitate the commission of the offense, if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property on the offense.

(2) Application of other law.— The forfeiture of property under this section, including any seizure and disposition of the property, and any proceedings relating to the property, shall be governed by section 413 of the Comprehensive Drug Abuse and Prevention Act of 1970 (21 U.S.C. 853) (not including subsection (d) of that section).

(e) Construction With Other Law.— This section does not preempt or displace any other remedy, civil or criminal, provided by Federal or State law for the fraudulent importation, sale, trade, installation, or introduction into commerce of an aircraft or space vehicle part.

(f) Territorial Scope.— This section also applies to conduct occurring outside the United States if—

(1) the offender is a natural person who is a citizen or permanent resident alien of the United States, or an organization organized under the laws of the United States or political subdivision thereof;

(2) the aircraft or spacecraft part as to which the violation relates was installed in an aircraft or space vehicle owned or operated at the time of the offense by a citizen or permanent resident alien of the United States, or by an organization thereof; or

(3) an act in furtherance of the offense was committed in the United States.

 

- Obstruction of justice - 18 USC 1519

 
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Search of Airline Passengers

 

- Pre-boarding screening

Courts have consistently held that the screening of airline passengers and their baggage by magnetometers and other devices constitutes a search within the meaning of the 4th Amendment of the US Constitution

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

US Supreme Court has inferred a general right to privacy - not limited to homes but also travel with us to the airport

TSA can legally search us and our luggage without a warrant because the court has deemed some searches as reasonable:

1. searches carried out with the consent of the person being searched

2. emergency administrative searches

- Before reaching the secured area

e.g. video cameras

1. searches on reasonable suspicion - law enforcement can stop, question and frisk an individual whose behavior or appearance gives rise to reasonable suspicion - Terry Stop - Terry v. Ohio 

profiling: officer's prejudices may lead to suspicion the officer deems reasonable but that are based upon factors e.g. race, color, religion, national origin, sex

American Civil Liberties Union (ACLU): profiling is ineffective and counterproductive

1996 - Computer Assisted Passenger Screening System (CAPS)

Terrorist watch list: the federal government has also given the airlines secure access to its list of individuals suspected of having terrorist connections

Baggage resolution programs: airlines have implemented these programs to assure that no checked bag is carried aboard an airliner unless the passenger who checked it has also boarded – match every bag to a passenger 

 

- Airport entry security checkpoints

Control vehicular access to the terminal’s parking structures and curbside passenger pickup and drop-off areas

 

- General Aviation Security and Passenger Screening

General Aviation Airport Security Working Group: provide input to TSA’s Aviation Security Advisory Committee (ASAC)

Made up of:

Aircraft Owners and Pilots Association (AOPA)

Airport Consultants Council (ACC)

American Association of Airport Executives (AAAE)

Experimental Aircraft Association (EAA)

General Aviation Manufacturers Association (GAMA)

Helicopter Association International (HAI)

National Air Transport Association (NATA)

National Association of State Aviation Officials (NASAO)

National Business Aviation Association (NBAA)

US Parachute Association (USPA)

 

National Response Center: operates (866) GA SECURE hotline

 

AOPA Airport Watch system: includes airport warning signs – feeds reports to National Response Center – educational literature – training video

 

GAMA and Treasury Department: Guidelines for Establishing Anti-Money Laundering Procedures and Practices Related to the Purchase of General Aviation Aircraft

 

National Agricultural Aviation Association: produced educational program – Professional Aerial Applicators Support System (PAASS)

 

National Association of Flight Instructors (NAFI): developed series of security recommendations and best practices for flight schools and flight instructors

 

- Large Aircraft Security Program (LASP)

 

2013 - Bill Stokely, Flagstaff Resident and Oklahoma Ad-Man, Agrees to Forfeit Chopper and Plead Guilty In Tail-Number Ruse

Plea Agreement

  

Take the AOPA course on GA SECURITY

Alien Flight Student Program and AOPA Guide 

 

04-2-087x_guidelines.pdf
Adobe Acrobat document [1.6 MB]
SecurityContactsCard.pdf
Adobe Acrobat document [287.3 KB]

Labor & Employment Law, Generally

Labor law principles under the National Labor Relations Act (NLRA) apply to all American businesses, including aviation and aerospace businesses

EXCEPT for railroads and air carriers (including charter and emergency medical air service operators), which are governed by the Railway Labor Act of 1926 (RLA)

Employment law: law applicable to all employment situations regardless of whether the employees are represented by a union

Labor law: the organization, election, representation, and collective bargaining of labor unions

 

Employment-at-will: unless a collective bargaining agreement (contract) between the employer and employees’ union is in force, employers have the right to terminate (fire) employees for any reason (or for no apparent reason) and employees have the right to quit their jobs for any reason (or for no apparent reason)

 

Exceptions: employers have been found liable in civil suits for wrongful discharge where:

  1. the action is in violation of a law prohibiting discrimination or
  2. the  action is contrary to public policy e.g. employee has been discharged for
    1. missing work because summoned to serve on a jury or
    2. in retaliation for refusing to give false testimony to a court or administrative agency or
    3. in retaliation for reporting illegal conduct of an employer to law enforcement or administrative agencies (whistleblower protection) or
    4. in retaliation for engaging in union activity protected by law or
  3. the employment is deemed not really at will because the company’s personnel policy or oral or written statements promising job tenure, relied upon by the employee in good faith, are found by the court to have created an implied contract of long-term employment

 

Hiring: employer must comply with federal anti-discrimination laws

 

Civil Rights Act of 1964: amended by Equal Employment Opportunities Act of 1972

Prohibits employers from discriminating in employment and compensation against any individual because of the person’s race, color, religion, sex, or national origin (protected classes)

 

Title VII: requires both the company and the union to assure that any collective bargaining agreement provides for fair representation and equal opportunity for employees regardless of race, color, religion, sex or national origin

 

Equal Employment Opportunity Commission (EEOC)

Federal administrative agency primarily responsible for enforcing compliance with these laws

 

1991 – Civil Rights Act amended to allow victims of unlawful discrimination to recover compensatory and punitive damages up to $300,000 each in addition to job reinstatement and back pay

 

Equal Pay Act: administered by EEOC – prohibits employers from paying different rates of pay for the same job based on gender or race

 

The Age Discrimination in Employment Act (ADEA) – prohibits employment discrimination against individuals over age 40 – also prohibits employers from imposing a mandatory retirement age

 

Americans with Disabilities Act (ADA) – applies to public and private employers having more than 15 employees – prohibits employment discrimination against qualified individuals with disabilities

Disability: if he or she has a physical or mental impairment that substantially limits one or more major life activities – e.g. caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working

Disabled person is protected by ADA only if otherwise qualified for the job

Qualified individual: one who can accomplish the essential functions of the job with or without reasonable accommodation

Essential functions: generally those included in a written job description

ADA requires employer to provide accommodations within reason – at least a good faith best effort – does not require the employer to do the impossible or suffer an undue hardship

Factors to determine whether proposed accommodations would impose undue hardship on employer:

  • nature and cost of accommodation
  • size and resources of the facility affected
  • size and financial resources of employer overall
  • type of operation, composition, and structure of work force (non-financial)
  • impact of accommodation on operation

If employee’s disability is obvious, the employer has an affirmative duty to provide reasonable accommodations even if employee has not requested it

If employer believes individual with disability cannot perform the job without creating a direct threat to his own safety or the safety of others the employer is not required to hire the person

 

Immigration Reform and Control Act (IRCA) – makes it illegal for an employer to hire, recruit, refer for a fee, or continue to employ an alien who the employer knows is not eligible to work in the US – requires employers to verify and maintain records of each new employee’s identity and work eligibility – records kept for 3 years after employment or 1 year after termination (whichever is longer)

 

Government contracts – Executive Order 11246 – requires contractors to develop affirmative action programs – order administered by Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP)

Vocational Rehabilitation Act of 1973 and Disabilities Act of 1990 – require holders of federal government contracts in excess of $2,500 to develop affirmative action programs to employ and advance individuals with disabilities

The Vietnam Era Veteran Readjustment Assistance Act – requires employers with government contracts of $10,000 or more to take affirmative action to employ and promote qualified and disabled veterans who served during that era

Military Selection Act – mandates that employers reemploy veterans to the position they held before entering the armed forces at the same seniority status and pay

 

Wages – Hours – Benefits – Working conditions

Occupational Safety and Health Act (OSHA) – requires all employers to provide a safe and healthy workplace – regulations impose stiff fines on employers for violations – employee may refuse to work if a reasonable person would conclude he faced an immediate risk of death or serious injury

 

Fair Labor Standards Act (FLSA) – outlaws employment of children under age 16 – provides a federal minimum wage (Congress periodically increases) – stipulates certain non-exempt employees must receive overtime pay of 1½ times normal pay rate when they work over 40 hours/week

Time off – compensatory or comp time – cannot be used as a substitute for overtime pay

Exempt employees:

-executive

-administrative

-professional (learned and creative)

-computer

-outside salespeople

For overtime: workweek is 168 consecutive hours or 7 consecutive days – not calendar week

Compliance with FLSA overtime is complex – employers in restaurant, agricultural, tourist, and medical industries are exempt from FLSA overtime

Department of Labor – good source of FLSA law

 

Walsh-Healey Act – requires employers with federal contracts over $10,000 to pay overtime anytime an employer works more than 8 hours a day

 

Davis-Bacon Act – requires employers holding federal construction projects of $2,000 or more to pay the prevailing wage rate for that particular geographic area

 

Sexual harassment – EEOC declared it a form of sex discrimination by Civil Rights Act – 2 categories – both prohibited if they are unwelcome AND of a sexual nature

1.quid pro quo – “this for that” – involves demands or suggestions of sexual favors in exchange for such benefits  as a job or promotion or to avoid adverse actions e.g. firing or laying off

2.hostile work environment – may be created by verbal abuse, sexist remarks, touching, leering or ogling

Businesses are liable if sexual harassment done by co-workers, customers vendors and others – even if employer unaware

 

Discipline – Suspension – Termination

Employers should document every disciplinary action including counseling taken against an employee including reason for discipline in the worker’s personnel file

 

Insuring against wrongful discharge claims – employers are well advised to purchase employment practices liability insurance

 

Layoffs and reductions in force

Worker Adjustment and Retraining Notification Act (WARN) aka Plant Closing Act – 1989 – most private sector employers that employ 100 or more full-time employees are required to give employees at least 60 days advance notice of impending closing of a facility or layoff of 50 or more employees in one location

 

Non Air Carrier Labor Law

National Labor Relations Act (NLRA) aka Wagner Act

Applies to most private sector employers except railroads and air carriers

Gave employees the right to organize without interference by the employer and to bargain collectively through a union of their choice with the employer

Created the National Labor Relations Board (NLRB) to adopt and enforce regulations implementing the act

 

Taft-Hartley Amendments to NLRA enacted to correct an imbalance in labor’s favor added more provisions

 

Federal Government Employees

Executive Orders extended collective bargaining rights to most federal government employees

Replaced by Civil Service Reform Act – 1978 – affords federal government employees rights virtually identical to private sector employees covered by NLRA with 2 exceptions:

1. federal government employees do not have the right to strike and

2. all collective bargaining agreements with federal employees must contain a grievance procedure providing for final resolution by binding arbitration

Office of Personnel Management (OPM) – establishes rules regulating federal civilian employment procedures and practices

Federal Labor Relations Authority (FLRA) – oversees unionization and collective bargaining of federal employees

Merit System Protection Board (MSPB) – hears appeals of federal employee grievances e.g. those filed by terminated air traffic controllers

 

Professional Air Traffic Controllers’ (PATCO) – 1981 – decertified - dissolved

National Air Traffic Controllers Association (NATCA) – affiliate of powerful AFL-CIO

Air Carrier Labor Law

Airline Labor Law.pptx
Microsoft Power Point presentation [4.5 MB]
Airline Labor Law - short version APR 20[...]
Microsoft Power Point presentation [4.5 MB]
Airline Labor Law - DEC 2016.pptx
Microsoft Power Point presentation [1.9 MB]
Airline Labor Law supplement.pdf
Adobe Acrobat document [6.9 MB]

Air Line Pilots Association (ALPA)

The Railway Labor Act (RLA) of 1926 – governs labor relations in the air carrier industry as of 1936 – to minimize interference in interstate commerce caused by labor disputes in the mass transportations industries while insuring transportation employees’ right to engage in collective bargaining and collective action

Railway Labor Act - Full text

Jurisdiction: 

§ 181. Application of subchapter I to carriers by air

All of the provisions of subchapter I of this chapter except section 153 of this title are extended to and shall cover every common carrier by air engaged in interstate or foreign commerce, and every carrier by air transporting mail for or under contract with the United States Government, and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service.

 

National Mediation Board (NMB) applies a 2-pronged test to determine whether a company fits the definition of "common carrier by air engaged in interstate or foreign commerce:

1. function test - whether the work is of a nature traditionally performed by employees of air carriers

2. control test - whether a common carrier exercises direct or indirect control over the work 

NMB has jurisdiction over:

  • companies providing scheduled air service
  • air charter companies
  • air ambulance services
  • fractional aircraft operator also holding a 14 CFR Part 135 operating certificate
  • FBOs providing air taxi, charter and on-demand air transport along with aircraft rental, refueling, and aircraft maintenance

 

General characteristics of the RLA:

  • union or agency shops
  • compulsory mediation and opportunity for binding arbitration
  • postponement of right to strike

 

 2 types of air carrier labor law cases:

  1. representation
  2. disputes

 

Representation cases

  • to raise interest union distributes information and air carrier may not interfere
  • union circulates authorization cards to prospective members
  • if 35% of employees eligible to vote sign authorization cards an election is justified
  • union petition NMB to hold an election
  • NMB investigates workers to determine who are “labor” (and can vote) and who are “management” (and cannot vote)
  • Election is held under NMB supervision
  • If simple majority of those who cast ballots, cast them in favor of union, then NMB certifies union as official collective bargaining representative
  • Once union is certified it has exclusive authority to represent all of air carrier’s employees
  • Union has duty of fair representation of all of air carrier’s employees
  • Upon certification, union will enter into negotiations with company management for an employment contract
  • Both sides have a legal duty to bargain in good faith
  • Once a new contract is negotiated union must present contract to affected members for ratification or rejection
  • If simple majority rejects the union returns to bargaining table and resumes negotiations

 

Dispute cases

2 categories:

1. minor disputes – grievances – disputes over interpretation and application of employment contract e.g. employee discipline

RLA requires that employment contract provide for creation of System Board of Adjustment to resolve minor disputes – minor disputes cannot be brought in front of court except in rare exceptional cases

Due process of law guarantees these rights:

  • to have a hearing before a fair and impartial decision maker
  • to have adequate notice of the nature of the charges and of the time and place of the hearing to allow one to prepare
  • to be represented by legal counsel if one chooses
  • to testify and present witnesses and evidence on your behalf
  • to cross-examine witnesses for the opposition

2. major disputes – involve negotiation of either a new employment contract or a change to the existing contract – aka Kabuki Theater – until procedure completed RLA requires status quo be maintained

Collective bargaining agreements do not expire – they have an amendable date

Kabuki Theater procedure:

  • party desiring change must notify the other side in writing aka Section 6 notice
  • both sides must then confer within 30 days and bargain in good faith – trade offs and counter proposals at this stage which continues until impasse
  • if impasse then either side can request mediation by NMB
  • if mediator declares impasse NMB will offer the opportunity for binding arbitration
  • panel of 3 arbitrators – decision is final and cannot be appealed
  • if either party rejects arbitration as a method of dispute resolution there is a mandatory 30-day cooling off period during which parties must keep the status quo
  • not uncommon for supermediation at this point: meeting with 1 of 3 presidential appointees to NMB designed to bring visibility and political pressure to bear on the parties to reevaluate their positions one last time
  • after cooling off period and still no resolution parties are free to resort to self-help – strikes etc

 

Presidential Emergency Board (PEB) – last effort to aid parties in reaching agreement without disruptions of a strike

 

Wildcat strikes – employees acting independently of the union – injunction compelling workers to go back to work – back to work order – if not then held in contempt of court and fined and/or imprisoned

 

In proceedings for reorganization of companies under Chapter 11 of the Bankruptcy Code bankruptcy judges are empowered to order modification or termination of collective bargaining agreements and often wild that power in their efforts to restructure the company to improve its chances of survival

 

American Federation of Government Employees (AFGE) 

 

TSA_vs_AFGE_(FLRA).doc
Microsoft Word document [51.0 KB]

Personal Jurisdiction

 

Walden v. Fiore - specific jurisdiction - 3 part test:

1. non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or a forum resident, or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws

2. claim must be one which arises out of or relates to non-resident defendant's forum-related activities

3. exercise of jurisdiction must comport with fair play and substantial justice (must be reasonable)

 

Terracom v. Valley Nat. Bank - 7 reasonableness factors

 

Rice Aircraft Services, Inc. v. Soars

 

Everett v. BRP-Powertrain, GmbH, & Co. KG

 

Sutcliffe v. Honeywell Intern., Inc. 

 

Daimler AG v. Bauman - Court nearly eliminates general jurisdiction

 

Goodyear Dunlop Tires Operations, SA v. Brown - Court nearly eliminates general jurisdiction

 

Williams v. MD Helicopters Inc. - Court restricts use of general jurisdiction

 

Brady v. Southwest Airlines Co. - both general and specific jurisdiction

 

Mullen v. Bell Helicopter Textron

 

ITL Int'l, Inc. v. Consenla, SA

 

Davidson v. Honeywell Intern. Inc.

 

Carpenter v. Sikorsky Aircraft Corp.

 

Lothrop v. North American Charter Inc.

 

JB Aviation v. R Aviation Charter Services, LLC

 

Broadus v. Delta Air Lines

 

Seegar v. Anticola

 

Kedrowski v. Lycoming Engines

 

Luvin v. Delta Airlines, Inc.

 

Subject Matter Jurisdiction

 

Flylux, LLC v. Aerovias de Mexico, SA de CV

 

Williams v. Perez

 

Removal

 

A. Federal Officer removal under 28 USC 1442

 

Lu Junhong v. Boeing Co. - based on admiralty jurisdiction

 

Watson v. Philip Morris Companies, Inc.

 

Executive Jet Aviation v. Cleveland

 

Offshore Logistics, Inc. v. Tallentire

 

Brokaw v. Boeing Co.

 

Boyd v. Boeing Co.

 

B. Removal based on Preemption

 

Crown v. PHI Air Medical LLC - complete preemption

 

Baugh v. Delta Airlines, Inc.

 

Sangmi Lee v. AMR Corporation

 

Batteries R US Co. v. Fega Express Corp.

 

C. Fraudulent Joinder

 

Reynolds v. The Boeing Co.

 

D. Other

 

Bullar v. US Specialty Ins. Co.

 

Forum non Conveniens

 

Lumenta v. Bell Helicopter Textron, Inc.

 

Bjorkstam v. MPC Products Corp.

 

Preemption

 

A. Field Preemption

 

Cleveland v. Piper Aircraft Corp.

 

Sikkelee v. Precision Automotive Corp.

 

Abdullah v. American Airlines

 

Cleveland v. Piper Aircraft Co.

 

Estate of Becker v. Forward Technologies, Inc.

 

Ahmadi v. United Continental Holdings, Inc.

 

Gilstrap v. United Airlines

 

Spadoni v. United Airlines, Inc.

 

Blackwell v. Panhandle Helicopter Inc.

 

B. Foreign Sovereign Immunities Act (FSIA) - 28 USC 1605

- affords the "sole basis" for obtaining jurisdiction over a foreign state in the United States - if plaintiffs fail to satisfy the terrorism exception to the FSIAthe claim requires dismissal

 

OBB Personenverkehr AG v. Sachs

 

Saudi Arabia v. Nelson

 

Abdel-Karim v. EgyptAir Airlines

 

Flanagan v. Islamic Republic of Iran

 

Aureus Asset Managers, Ltd. v. United States

 

Mohammadi v. Islamic Republic of Iran

 

C. Airline Deregulation Act (ADA)

 

National Federation of the Blind v. United Airlines, Inc.

 

Charas v. Trans World Airlines, Inc.

 

Rowe v. New Hampshire Motor Transport Ass'n

 

Northwest, Inc. v. Ginsberg

 

Geier v. Am. Honda Motor Co.

 

Xiaoyun Lu v. AirTran Airways, Inc. - 49 USC 44902(b) absolves air carriers of liability for refusal to transport to a passenger if the carrier decides the passenger is, or might be, inimical to safety

inimincal: tending to obstruct or harm 

 

Overka v. American Airlines

 

Valencia v. SCIS Air Security Corp.

 

Grupp v. DHL Express (USA) Inc.

 

Morales v. Trans World Airlines Inc.

 

American Airlines, Inc. v. Wolens

 

Pac Anchor Transp., Inc. v. California ex rel. Harris

 

Glisan v. United Airlines

 

David v. United Continental Holdings, Inc.

 

Segalman v. Southwest Airlines Co.

 

Aviation and Transportation Security Act (ATSA)

 

Baez v. JetBlue Airways Corp.

 

Montreal Convention (and Warsaw)

 

A. Limitations of Actions

 

Cattaneo v. American Airlines, Inc.

 

D'engle v. City of New York

 

B. Defendants subject to Convention

 

Baillee v. Medaire Inc.

 

C. Venue

 

Avalon Technologies Inc. v. Emo-Trans, Inc.

 

Atlantic Marine Const. v. U.S. District Court for W. Dist. of Texas 

 

D. Bodily Injury

 

Doe v. Etihad Airways P.J.D.C

 

E. Delay

 

Sangmi Lee v. AMR Corporation

 

Smith v. American Airlines, Inc.

 

F. Accident

 

Naqvi v. Turkish Airlines, Inc.

 

Nguyen v. Korean Air Lines Co. Ltd

 

Olympic Airways v. Husain

 

Blansett v. Continental Airlines, Inc.

 

Plonka v. US Airways

 

G. Cargo

 

Batteries R US Co. v. Fega Express Corp.

 

Han v. FedEx Express

 

Yoly Farmers Corp. v. Delta Air Lines, Inc.

 

H. Other

 

Narkiewicz-Laine v. Aer Lingus Limited

 

Sangmi Lee v. AMR Corporation

 

Product Liability

 

A. Proof of Defect

 

Lewis v. Lycoming

 

Tincher v. Omega Flex Inc.

 

Schwarz v. Abex Corp.

 

City of New York v. Bell Helicopter Textron, Inc.

 

Sikkelee v. Precision Automotive Corp.

 

Crouch v. John Jewell Aircraft Inc. - challenges to qualifications or methodology of experts

 

 

B. GARA/Statute of Repose

 

Linfoot v. McDonnell Douglas Helicopter Co.

 

SOCAR (Societe Cameroonaise d'Assurance et de Reassurance) v. Boeing Co.

 

Hutton v. Boeing Co.

 

Federal Tort Claims Act 

 

A. Limitations of Actions

 

United States v. Kwai Fun Wong

 

Menominee Tribe of Wis. v. United States

 

B. Air Traffic Control

 

Tuturro v. U.S.

 

C. Federal Employees

 

Vanderklok v. U.S. 

 

D. FECA

 

Krogen v. U.S.

 

Class Actions

 

Volodarskiy v. Delta Airlines Inc.

 

Berkson v. Gogo LLC

 

Ranbarran v. Dynamic Airways LLC

 

Insurance

 

A. Compulsory Insurance Doctrine

 

Northwest Airlines, Inc. v. Professional Aircraft Line Service (PALS)

 

B. Ripeness of Declaratory Judgment Action 

 

Quest Aviation, Inc. v. Nationair Insurance Agencies, Inc.

 

C. Life Insurance

 

Williams v. National Union Fire Ins. Co. of Pittsburgh

 

Florida Tube Corp. v. Metlife Ins. Co. of Connecticut

 

Punitive Damages

 

Johnson v. United States

 

Manufacturers Collection Co. LLC v. Precision Airmotive LLC

 

Airports/Nuisance

 

City of Dallas v. Delta Airlines, Inc.

 

Lewis v. Bell Helicopter Textron, Inc.

 

City of Burbank v. Lockheed Air Terminal Inc.

 

Anne Arundel County v. Bell

 

Friends of the East Hampton Airport, Inc v. Town of East Hampton

 

In re Flyboy Aviation Properties, LLC

 

Pofolk Aviation Hawaii, Inc. v. Department of Transp. for State

 

DBT Yuma LLC v. Yuma City Airport Authority

 

Civil Procedure

 

A. Twiqbal

 

Cheramine v. Panther Helicopters Inc.

 

B. Discovery

 

Tyre v. Southwest Airlines, Co.

 

C. Post-Trial Motions

 

Bouret v. Echevarria v. Caribbean Aviation Maintenance Corp.

 

Evidence

 

A. Other Incidents

 

Wells v. Robinson Helicopter Co. Inc.

 

B. Experts

 

Dudley Flying Serv. Inc. v. AG Air Maint. Servs. Inc.

 

Lewis v. Lycoming

 

Birtciel v. XL Specialty Ins.

 

C. NTSB Reports

 

Helicopters Inc. v. National Transportation Safety Board

 

Paulsboro Derailment Cases

 

Seegar v. Anticola

 

D. Judicial Notice

 

Rowe v. Gibson

 

Administrative Law

 

Flytenow, Inc. v. FAA

 

Ege v. US Department of Homeland Security

 

Huerta v. Ducote

 

Joshi v. NTSB

 

Res Judicata

 

Medina-Padilla v. Piedmont Aviation Services, Inc.

 

Conflict of Laws

 

Manufacturers Collection Co. LLC v. Precision Airmotive LLC

 

Bell Helicopter Textron Inc. v. Arteaga

 

Linfoot v. McDonnell Douglas Helicopter Co.

 

Breach of Contract 

 

Coulier v. United Airlines, Inc.

 

Opper v. Delta Air Lines, Inc.

 

False Claims Act 

 

US ex rel. Gage v. Davis S. R. Aviation LLC

 

Integrative bargaining (also called "interest-based bargaining," "win-win bargaining") is a negotiation strategy in which parties collaborate to find a "win-win" solution to their dispute. This strategy focuses on developing mutually beneficial agreements based on the interests of the disputants.

 

Distributive bargaining is the approach to bargaining or negotiation that is used when the parties are trying to divide something up--distribute something. It contrasts with integrative bargaining in which the parties are trying to make more of something. This is most commonly explained in terms of a pie.

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Legal disclaimer 

The information on this website is for educational purposes only and DOES NOT constitute legal advice. While the author of this website is an attorney, she is not your attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

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