United States: Recent Developments In Aviation And Space Law

Co-authored by Marissa N. Lefland

This paper provides an overview of important developments in aviation and space law from October 1, 2015, through September 30, 2016. We selected some of the most significant cases in the areas of federal preemption; forum non conveniens; international treaties, including the Montreal Convention and EU 261; and federal jurisdiction.

I. FEDERAL PREEMPTION

A. Federal Aviation Act

Whether and to what extent the Federal Aviation Act (FAAct),¹ and the regulations promulgated pursuant to it, preempt state law has recently been addressed by courts in the Third and Ninth Circuits.

1. Sikkelee v. Precision Airmotive Corp.

In Sikkelee v. Precision Airmotive Corp., the Third Circuit reversed the holding of the U.S. District Court for the Middle District of Pennsylvania, which granted partial summary judgment in favor of the appellant engine manufacturer Lycoming on the grounds that the Federal Aviation Regulations (FARs) preempt aircraft design and manufacturing claims.²

The case arose out of a 2005 accident wherein the plaintiff claimed that an aircraft, piloted by her husband, crashed as a result of a defect in the engine's carburetor.³ The plaintiff filed suit against seventeen defendants, including the engine manufacturer, asserting numerous state tort law causes of action.⁴ The district court, relying on the Third Circuit's holding in Abdullah v American Airlines, Inc.,⁵ held that the plaintiff 's state law claims, which were based on state law standards of care, were preempted by the FAAct, which exclusively occupied the "field of air safety."⁶ The plaintiff subsequently filed an amended complaint and asserted state law causes of action premised on federal standards of care, i.e. violations of the FARs.⁷

The district court granted summary judgment in favor of Lycoming and held that "the federal standard care was established in the type certificate itself." As a result, and because the Federal Aviation Administration (FAA) had issued a type certificate for the engine at issue, the court concluded that "the federal standard of care had been satisfied as a matter of law."⁸

The Third Circuit granted interlocutory review of the district court's decision because the district court's order "raised novel and complex questions concerning the reach of Abdullah and the scope of preemption in the airlines industry."⁹ The issue, as framed by the court, was to determine the extent to which the FAAct preempts state law product liability design defect claims.¹⁰ The court held that products liability claims are not preempted by federal law and such claims "may proceed using a state standard of care."¹¹

In reaching its decision, the court first determined that Abdullah "does not govern product liability claims" because the scope of the "field of aviation safety" preemption addressed in that case was limited to "in-air operations."¹² The court further found that the catch-all federal standard of care discussed in Abdullah does not apply to product liability claims.¹³ As a result, the FAAct preempts state standards of care only with respect to "in-air operations," but it does not preempt state standards of care that govern the design or manufacture of aircraft.¹⁴

Next, and consistent with its prior holding in Elassaad v. Independent Air, Inc.,¹⁵ the court concluded that the presumption against preemption applies to aviation product liability claims because these claims have traditionally and consistently been governed by state law.¹⁶ "With that presumption in mind," the court reviewed the FAAct, and the regulations promulgated pursuant to it, and concluded that Congress did not express a "clear and manifest intent to preempt aviation products liability claims."¹⁷

The court found that it was "significant" that the FAAct contains no express preemption provision and instead only establishes "minimum standards" for aviation safety.¹⁸ The court also noted that the FAAct's savings clause appears to contemplate that the states would continue to exercise regulatory power over certain aspects of aviation.¹⁹

Similarly, the FARs contain no indication of a congressional intent to preempt state products liability law.²⁰ The court distinguished the regulations at issue from those addressed in Abdullah, noting that the regulations governing "in-flight operations" are comprehensive and specifically prescribe rules governing the operation of aircraft. The regulations thus establish a general standard of care, whereas design and manufacturing regulations do not govern "manufacture generally" and only "establish procedures for manufacturers to obtain certain approvals and certificates from the FAA."²¹ Further, the court concluded that "Congress has not created a federal standard of care for persons injured by defective airplanes; and the type certification process cannot as a categorical matter displace the need for compliance in this context with state standards of care."²²

The court also found that the General Aviation Revitalization Act's (GARA) statute of repose would be superfluous if state law aviation products liability claims were automatically preempted.²³ GARA's text and legislative history makes clear that congressional intent was to preserve state law products liability claims.²⁴

Last, the court held that the issuance of a type certificate does not "foreclose all design defect claims" and that "state tort suits using state standards of care may proceed subject only to traditional conflict preemption principles."²⁵ In so holding, the court recognized that there may be situations where it is impossible for a manufacturer to comply with both the type certificate specifications and a duty imposed by state law. In those cases, the state law would be conflict preempted.²⁶ The court declined to decide whether the plaintiff 's claims were subject to conflict preemption, leaving that issue for the district court to decide on remand.²⁷

2. Escobar v. Nevada Helicopter Leasing, LLC

In Escobar v. Nevada Helicopter Leasing, LLC, following the crash of a Eurocopter EC130 B4 helicopter into mountainous terrain, the plaintiff, whose husband piloted the accident aircraft, asserted state law causes of action for negligence and strict liability against both the aircraft owner and the manufacturer.²⁸ The aircraft owner²⁹ filed a motion for summary judgment, arguing that the plaintiff 's state law tort claims against it were preempted by 49 U.S.C. § 44112, a provision of the FAAct that limits the liability of aircraft lessors, owners, and secured parties for personal injury, death, or property loss on land or water when they are not "in the actual possession or control" of the aircraft at the time of the accident.³⁰

The U.S. District Court for the District of Hawaii analyzed the applicability of both express and implied preemption to the plaintiff 's claims.³1 The court dismissed express preemption, noting that the FAAct does not contain an express preemption clause.³² The court then discussed implied preemption and its two subsets: field preemption and conflict preemption. The court determined that field preemption was inapplicable.³³ After reviewing the legislative history of the statute, the court concluded that conflict preemption was at issue because the state causes of action asserted by the plaintiff "interfere with the intent of Congress in enacting 49 U.S.C. § 44112 of the FAAct" to shield aircraft owners, lessors, and secured parties that did not exercise actual possession or control of the aircraft from liability.³⁴ In reaching its decision, the court dismissed the decisions of several state law courts that have found conflict preemption to be inapplicable to state law causes of action filed by crewmembers and passengers,³⁵ noting that the holdings in those cases were "inconsistent with the legislative history of 49 U.S.C. § 44112 and contrary to the holdings of the majority of courts who have considered the issue."³⁶

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Footnotes

1. 49 U.S.C. § 40120(c).

2. 822 F.3d 680, 683 (3d Cir. 2016).

3. Id. at 685.

4. Id.

5. 181 F.3d 363 (3d Cir. 1999).

6. Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 685–86 (3d Cir. 2016). Only two claims remained against Lycoming, the sole defendant: defective design and failure to warn. Id. at 685–86.

7. Sikkelee, 822 F.3d at 685 (citing Sikkelee v. Precision Airmotive Corp., 45 F. Supp. 3d 431, 435 (M.D. Pa. 2014)).

8. Id. at 686.

9. Id. at 687.

10. Id. at 688.

11. Id. at 683.

12. Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 689 (3d Cir. 2016).

13. Id.

14. Id. at 709.

15. 613 F.3d 119, 127 (3d Cir. 2010).

16. Sikkelee, 822 F.3d at 690–93.

17. Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 696 (3d Cir. 2016).

18. Id. at 692.

19. Id. at 692–93.

20. Id. at 693.

21. Id. at 694.

22. Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 696 (3d Cir. 2016).

23. Id. at 696–97.

24. Id. at 696–99.

25. Id. at 695.

26. Id. at 704.

27. Id. at 702.

28. 2016 WL 3962805, at *1 (D. Haw. July 21, 2016). Wilson, Elser, Moskowitz, Edelman & Dicker LLP represented the aircraft owner/lessor in this matter.

29. The aircraft owner leased the helicopter to the operator pursuant to a long-term lease. Id. at *2.

30. Id. at *1, *5; see also 49 U.S.C. § 44112(b).

31. Escobar, 2016 WL 3962805, at *5–6. Hawaii law would arguably have imposed liability on the aircraft owner, regardless of whether the owner was in actual possession or control of the helicopter at the time of the accident. See, e.g., Stewart v. Budget Rent-a-Car Corp., 470 P.2d 240 (Haw. 1970); Acoba v. Gen. Tire, Inc., 986 P.2d 288 (Haw. 1999).

32. Escobar, 2016 WL 3962805, at *5 (citing Martin v. Midwest Express Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009)).

33. Escobar v. Nev. Helicopter Leasing, LLC, 2016 WL 3962805, at *1 (D. Haw. July 21, 2016). As a result, the court also found that the Third Circuit's reasoning in Sikkelee v. Precision Air Motive Corp., 822 F.3d 680 (3d Cir. 2016), did not apply. Escobar, 2016 WL 3962805, at *5 n.4.

34. Escobar, 2016 WL 3962805, at *6.

35. See Vreeland v. Ferrer, 71 So. 3d 70, 84–85 (Fla. 2001) (interpreting the statute's "on land or water" requirement to mean that an owner, lessor, or secured party is not exempt from liability for crewmember and passenger claims and is exempt only from claims brought by persons who were "underneath" the aircraft at the time of the accident; thus finding that the statute does not preempt state law tort causes of actions asserted by those persons onboard the aircraft at the time of the accident); Storie v. Southfield, 282 N.W.2d 417, 420– 21 (Mich. Ct. App. 1979) (finding that the predecessor version of the statute did not prevent states from imposing liability on aircraft owners for injuries that occurred inside of the aircraft.)

36. Escobar, 2016 WL 3962805, at *10; see also Lu v. Star Marianas Air, Inc., 2015 WL 2265464 (D. N.M.I. May 12, 2015); In re Lawrence W. Inlow Accident Litig., 2001 WL 331625 (S.D. Ind. Feb. 7, 2001); Matei v. Cessna Aircraft Co., 1990 WL 43351 (N.D. Ill. Mar. 30, 1990).

Originally published in the Winter 2017 issue of the Tort Trial & Insurance Practice Law Journal.

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