FAA Releases Notice of Proposed Rulemaking Regarding Drones - written by Deborah Elsasser

On February 15, 2015, the FAA finally released its Notice of Proposed Rulemaking ("NPRM") for the commercial use of "Small Unmanned Aircraft Systems" ("UAS").  The proposed rule would create a new part in Title 14 of the Code of Federal Regulations ("CFR"). The proposed Part 107 encompasses rules governing airman certification and registration of civil small UAS for operation within the United States.  These proposed rules would replace generally the airworthiness provisions of Part 21, the airman certification provisions of Part 61 and the operating limitations of Part 91 in respect of small UAS operations.  The proposed rule sets forth operational limitations, which are summarized as follows:

The UAS:

  • Must weigh less than 55 pounds
  • Must remain within the visual line of sight of the operator or visual observer
  • Must remain close enough to the operator to be capable of seeing the aircraft
  • May not operate over any persons not directly involved in the operation
  • Must be operated during local daylight hours
  • May not be operated in Class A airspace
  • May be operated in Class B,C, D, and E airspace with ATC permission
  • May be operated in Class G airspace without ATC permission
  • Must yield right of way to other aircraft
  • Can be operated at a maximum airspeed of 100 mph
  • Can be operated at a maximum altitude of 500 feet above ground level
  • Can be operated in weather conditions with minimum visibility of 3 miles from control station
  • May not be operated from a moving vehicle or aircraft except from a watercraft on the water
  • May not be operated in a careless or reckless manner
  • Pre-flight inspection must be done by operator

The proposed rule would require an operator of a small UAS to be at least 17 years old, pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center (and a recurrent test every 24 months), undergo vetting by the TSA, and obtain an unmanned aircraft operator certificate with a small UAS rating.  Commercial uses outside the parameters of the rule would require an exemption from the regulations.  The proposed rule would not apply to:  air carrier operations; external load and towing operations; international operations; foreign-owned aircraft that are ineligible to be registered in the United States; public aircraft; certain model aircraft; and moored balloons, kites, amateur rockets, and unmanned balloons.  In addition to the proposed Part 107, the FAA is considering including a "micro UAS" classification, such as exists in Canada.  The micro UAS classification would apply to unmanned aircraft made out of frangible material, weighing 4.4 pounds or less, and which would operate at an airspeed of 30 knots or less and a maximum altitude of 400 feet AGL.  The public will have 60 days from the date of publication of the NPRM in the Federal Register to comment on the proposed rule.  Official publication of the NPRM is pending, but it may be found on the FAA's website at http://www.faa.gov/regulations_policies/rulemaking.

Florida Federal Court Rules That, On Particular Facts of the Case, Slip on Trash on Aircraft Aisle Did Not Constitute Montreal Convention Article 17 "Accident" - written by Nicholas Magali

William Lynne Vanderwall ("plaintiff") and her husband brought an action seeking damages for injuries allegedly sustained when plaintiff slipped in the aisle of an overnight United Airlines, Inc. ("United") flight from Houston, Texas to London.  The incident occurred during the time the cabin lights had been dimmed to allow passengers to sleep, and more specifically approximately one to one and a half hours before landing.  Plaintiff left her seat to use the lavatory in the rear of the aircraft.  When she was returning the short distance to her seat, she stepped on a piece of "trash" in the aisle, causing her to fall to the side and tear the anterior cruciate ligament of her right knee.  She described the trash as a translucent piece of plastic.  The Court granted United's motion for summary judgment, finding that the incident did not constitute an "accident" within the meaning of Article 17 of the applicable Montreal Convention because it was not an "unusual or unexpected" occurrence.  The Court specifically concluded that "the facts presented here establish that it is not unusual or unexpected for there to be a single item of trash on the aisle of an aircraft while in flight—at the very least not during the purported fifteen minute intervals in between the usual nighttime flight attendant walks through the aisles."  Plaintiff's state-law negligence claims and her husband's derivative claim were preempted by the Convention.  Vanderwall v. United Airlines, Inc., 2015 WL 309094 (S.D. Fla. Jan. 26, 2015).

California Federal Court Dismisses Action Because No Montreal Convention Article 33 Subject Matter Jurisdiction—U.S. Was Not Plaintiff's Principal and Permanent Residence - written by Philip Weissman

Article 33 of the Montreal Convention provides that a plaintiff can bring an action under the Convention in certain territories, including, in respect of damage resulting from the death or injury of a passenger, the territory in which, at the time of the accident, the passenger has his or her principal and permanent residence.  In a case in California federal court against Asiana Airlines involving a plaintiff who allegedly suffered injuries due to severe turbulence while travelling from Honolulu to South Korea in 2012, the Court granted Asiana's motion to dismiss for lack of Article 33 subject matter jurisdiction.  The Court determined that plaintiff's principal and permanent residence was in South Korea, not the United States, even though, at the time of the alleged accident, plaintiff was a U.S. "permanent resident", possessed a California driver's license and a U.S. Social Security Card, maintained U.S. bank accounts and had a son who lived and attended school in the U.S.  Plaintiff had a residence and worked in Korea, and only visited the U.S. sporadically.  During the relevant years, the plaintiff never spent more than 8 weeks in the U.S., typically for one to three weeks at a time.  Boo Ja Choi v. Asiana Airlines, Inc., 2015 WL 394198 (N.D. Cal. January 29, 2015).

Negligence and Implied Contract Claims against Transportation Broker for Non-Delivery of Goods Preempted by Federal Aviation Administration Authorization Act - written by Philip Weissman

Plaintiff brought negligence and breach of contract claims against a transportation broker that arranged for transportation by another company of plaintiff's goods from California to Missouri when the goods were not delivered.  Plaintiff alleged that the broker breached two "implied" duties: (1) "a duty [to] act in accordance with the standards of a professional freight [broker]" and (2) "a duty that defendant would retain only competent, honest and reliable motor carriers to transport plaintiff's goods."  Defendant moved to dismiss the negligence claims as preempted by the Federal Aviation Administration Authorization Act ("FAAAA"), 49 U.S.C. § 14501, which provides that "a State... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier... broker or freight forwarder with respect to transportation of property."  The Court held that plaintiff's negligence claims were preempted because they "related to the service of the broker."  Furthermore, as plaintiff's claims for fraudulent inducement / misrepresentation / breach of the covenant of good faith and fair dealing involved "implied" agreements outside the confines of the parties' express agreement, they also were  preempted.  Marx Companies, LLC v. Western Trans Logistics, Inc., 2015 WL 260914 (D. N.J. Jan. 21, 2015).

Supreme Court Rules that Federal Whistleblower Statute Protected Disclosure of Information Despite TSA Regulation Prohibiting Disclosure- written by Philip Weissman

The U.S. Supreme Court recently held that a federal whistleblower statute protected a federal air marshal who was fired after disclosing that the Transportation Security Administration ("TSA"), as a cost-cutting measure, decided to remove air marshals from certain flights.  This information was considered "sensitive security information" ("SSI") under TSA regulations promulgated under the Homeland Security Act.  The TSA regulations prohibit the unauthorized disclosure of certain SSI, including the information disclosed in this case.  The air marshal sought the protection of a federal whistleblower statute, which provides protection unless the disclosure was "specifically prohibited by law."  The Supreme Court held that, for purposes of the whistleblower statute, being specifically prohibited by a regulation did not amount to being "specifically prohibited by law."  The Court further held that the Homeland Security Act, by authorizing the TSA to prohibit the disclosure of certain information, did not specifically prohibit disclosure of the information disclosed by the air marshal.  Dep't. of Homeland Security v. Maclean, 2015 WL 248560 (Jan. 21, 2015).

DOT Consent Order—Unfair and Deceptive Trade Practices—Advertising - written by Daniel Correll

As previously reported, Lufthansa was found to be in violation of 49 U.S.C. §41712 for advertising fares on its website that could not be purchased on that website.  In mitigation, Lufthansa stated that it was fully committed to compliance with respect to aviation consumer protection laws and advised the DOT that it has "been at the forefront of customer satisfaction and voluntarily implemented many of the policies contained in the Enhanced Airline Passenger Protection regulations and Part 382 before their enactment."  Lufthansa stated that at no point in time were there "no seats available" for purchase at the listed fares.  Instead, Lufthansa advised the DOT that there were in fact numerous seats at the lowest fare booking class readily available for purchase but due to an inadvertent technical error, the fare sale was not available on the website for a limited time.   Upon learning of the technical problem, Lufthansa took immediate corrective action to fix the problem.  Lufthansa did not receive any consumer complaints and the DOT received only one consumer complaint concerning the lack of availability of the fares.  Lufthansa contacted the passenger and honored the quoted fare.  Lufthansa disagreed with the Enforcement Office's view that a technical malfunction of its website constituted a violation of 49 U.S.C. § 41712, but agreed to settle the proceeding without conceding that a violation occurred.  The DOT issued a fine of U.S. $30,000, with U.S. $15,000 due and payable within thirty (30) days.  The remaining U.S. $15,000 would become due and payable immediately if, within one year of the date of issuance of this order, Lufthansa violated the consent order's cease and desist provisions.

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