Aircraft Accident Reconstruction and Litigation, Fourth Edition

USA: Aviation Law 12222
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Fraenkel has litigated numerous international and domestic airline, commuter, military and general aviation crash cases. Fraenkel was one of the lead attorneys in the landmark Silk Air matter. The military accidents Mr. Fraenkel is also often called upon to participate as an aviation and legal source by numerous media, radio and television companies worldwide and has been quoted in various publications on numerous occasions. An article featuring Mr. The FAA psychiatrist also concluded that plaintiff should be issued a Class I Medical Certificate on the condition that he submit to semi-annual psychiatric reports.

The Senior AME noted in his report:. In returning Capt. Witter to the cockpit, the major concern is the possibility of a recurrence of this type of behavior reaction, especially while flying…. If it did occur again, even in the cockpit, I do not believe that it would be incapacitating from a safety point of view. However, he does not have a psychiatric disorder at the present time. If any future unusual behavior indicates the occurrence of another adjustment disorder, Capt. Witter should be grounded permanently. Until then, he is qualified to fly.

Based on the report, Witter returned to line flying status in August, In November, , plaintiff flew a European rotation, during which he had a conflict with two other crew members which resulted in the crew refusing to follow his instructions. After further evaluation, the Senior AME diagnosed plaintiff with Narcissistic Personality Disorder and possible Cyclothymia, and memorialized the findings in an April, report. In response, Delta grounded plaintiff.

The FAA then convened a panel of six psychiatrists, who reviewed the case and concluded that plaintiff should not be returned to flight status. Delta refused to reinstate plaintiff to flight status without further medical evaluation. Plaintiff filed suit, alleging violation of the ADA. In McDonnell Douglas Corp. Green , U. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the employment action. The court noted that the regulations under 29 C.

Witter , F. The court also noted that the impact of the emotional disturbance was not long-term, since the NTSB had concluded that the First Class Medical Certification should be returned. The court also noted that plaintiff was a resident of the Atlanta area, a large metropolitan area with substantial job opportunities. The court also reasoned that there were many other pilots in management, training and administration, and while plaintiff may not be able to fly commercially, he did not even argue that he was impaired from holding any other job.

As discussed above, McDonnell Douglas requires the establishment of three conditions to move forward with a case of discrimination. If the plaintiff in Witter had established that his mental condition was a disability for purposes of the first element, he still would have had to establish that he was a qualified individual, and that he was subject to unlawful discrimination for purposes of establishing a prima facie case of discrimination under the ADA.

Although he was subjected to testing after the domestic incident and European rotation, it is unlike that those actions constitute unlawful discrimination. Under the ADA, an employer is prohibited from conducting a medical examination after the commencement of employment unless such an examination is job-related and consistent with business necessity. Moreover, pursuant to 14 C.

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In Martin v Lennox Intern. After informing his employer that there would be a delay in the re-certification process while he awaited his medical certificate he was fired. He then brought several claims, including discrimination under the ADA. Therefore, it is highly unlikely that a pilot with a mental illness that would not allow him or her to hold a medical certificate would not be able to satisfy the qualification element of a prima facie case of discrimination under the ADA.

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Sullivan v. River Valley Sch. Plaintiff in Witter also brought state tort claims for intentional infliction of emotional distress and negligent hiring and retention, which were dismissed. AME and Delta were also dismissed. The BEA and ARC reports both recommend the development and implementation of a unified, coordinated system of national mental health reporting.

However, the confidentiality of medical records arises through a complicated morass of federal and state statute and common law. By Scott Brooksby — June 21, Foreign aviation disasters very often result in litigation in the United States. Many cases arising from foreign crashes brought by foreign plaintiffs against foreign defendants are dismissed based on forum non conveniens.

Siswanto v. Airbus S. The Montreal Convention Before considering the MMTJA in the context of an aviation disaster, it is important to recall that claims against air carriers, in contrast to claims against manufacturers, are governed by the Montreal Convention. The Montreal Convention of was ratified by the United States in September and went into effect in November It limits the forums in which foreign plaintiffs can file lawsuits against air carriers. The Montreal Convention is a successor to the Warsaw Convention of and, in addition to important new provisions, consolidates and clarifies prior provisions of the Warsaw Convention.

When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier. In El Al Israel Airlines v. Tseng , U. In light of the holding in Tseng , other federal courts have held that the damages available under the convention are the sole cause of action.

See, e. Airlines , F. For purposes of forum non conveniens motions, Article 33 of the Montreal Convention provides that there are five forums in which a plaintiff may bring claims against a carrier:. Under the fifth jurisdiction principle, a plaintiff may bring the lawsuit for personal injuries in the forum in which he or she has his or her principal and permanent place of residence, and to or from which the carrier operates flights, and in which the carrier leases or owns commercial premises by itself or by another carrier with which it has a commercial agreement.

Montreal Convention, supra , art. The permissible lawsuits include both wrongful death and personal injury. Lawsuits were filed throughout New England in state and federal courts. Passa v. Derderian , F. The MMTJA widely broadens federal jurisdiction in mass disaster cases and provides that the district courts will have original jurisdiction wher. Corporations are deemed to be a citizen of any state in which it is incorporated, or has its principal place of business, and is deemed to be a resident of any state in which it is licensed to do business or is doing business.

Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U. During flight, a rudder system malfunctioned. All passengers and 7 crewmembers were killed. The investigation was handled by the Indonesia National Transportation Safety Committee, which released its final report on December 1, The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus. Global Traffic Techs. Washington , U. Judge Blakey reasoned that when defendants are domiciled in the United States, the due process analysis under a nationwide service of process is straightforward.

OTP Bank , F. There was no dispute that Airbus was incorporated and had its principal place of business in France. For at least the five previous years, Airbus had not maintained any offices or employees or owned or rented property in the United States.

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Editor John P Janka. English Choose a language for shopping. The Intellectual Property and Antitrust Review. Papadakis , M. As a result, Midcon had to sell its dealership to the approved buyers for a significantly lower amount of money. About 5, bird strikes were reported by the Air Force in Madole, Steven R.

The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the United States, and the aircraft had never been flown in the United States. First, the plaintiffs pointed to aircraft sales in the United States, which amounted to aircraft, or 6.

Air Crash Investigation 2017 Japan Airlines Flight 123 Haneda Airport to Osaka

Bauman , S. Second, the plaintiffs argued that Airbus spends 42 percent of its aircraft-related procurement in the United States. Hall , U.

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The court rejected this argument on the basis that the general rule is that jurisdiction contacts of a subsidiary are not imputed to the parent. Fourth, the plaintiffs cited a article showing that the FAA certified another aircraft model, the Airbus A The court also rejected this argument, finding that the isolated fact of the certification of another model aircraft had no special significance as far as personal jurisdiction is concerned.

The court rejected that argument, noting that establishing venue does not establish jurisdiction and that there was no legal basis for the court to conflate jurisdiction and venue. Thus, on December 30, , the court granted Airbus S. Conclusion The significance of Siswanto and the MMTJA is that jurisdiction is analyzed on a nationwide basis, and not merely on a state-by-state basis or by looking at any particular state.

Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts. The topics discussed included the following issues:. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks. More than 7, laser strikes were reported to the FAA in This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.

The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines. Scott Brooksby was a featured speaker on a panel discussing District Litigation after Air France Using examples from aviation-related MDLs, and specifically after the groundbreaking MDL involving Air France , the panel discussed key aspects of establishing personal jurisdiction over foreign corporate defendants.

Moderator: Ann C. Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage. According to Boeing, the first bird strike was recorded by the Wright Brothers in Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over people and destroyed more than aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.

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The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U. Code of Federal Regulations requires that Part certificated airports experiencing hazardous wildlife conditions as defined in 14 C. The certificated airports must develop wildlife hazard management plans as part of the certification standards.

Airports are required to employ professional biologists trained in wildlife-hazard management. Failure to comply with the regulations can give rise to liability for airport operators. Data Sampling According to Boeing, the relevant wildlife-strike facts include :. Between and , bird and small and large mammal strikes have cost U. The North American non-migratory Canada goose population increased from 1 million birds in to 4 million birds in Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.

A pound Canada goose struck by an airplane moving at miles per hour during takeoff generates the kinetic energy of a pound weight dropped from a height of ten feet. Nesting populations of bald eagles increased from pairs in to 13, pairs in Between and , bald eagle strikes were reported. The body mass of a bald eagle is 9.

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Finally, the population of European starlings is now the second most prevalent bird in America, numbering over million. Prevention In January , U. Airways Flight landed on the Hudson River after multiple Canada goose strikes in flight. Although the Montreal Convention, and its predecessor the Warsaw Convention, are the subject of frequent litigation, there is limited case law interpreting the Geneva and Cape Town Conventions. The US has an extensive network of income tax treaties for the minimisation of double taxation, the application of which will depend on the particulars of each transaction.

There is no blueprint to follow to maximise tax benefits. In general, however, if the aircraft owner or operator has unpaid debts and is not under bankruptcy court protection, a creditor may obtain a court judgment enforceable in accordance with the relevant state laws and procedures.

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In addition, if a creditor is able to meet certain criteria, it may be able to obtain a pre-judgment restraining order or injunction preventing the debtor from moving the aircraft. The Uniform Commercial Code, which has been adopted in some form by all 50 states, permits a lessor to repossess leased equipment or render the equipment unusable, if it can do so without causing a breach of the peace. Upon seizure, the lessor may then retain, sell, lease, or otherwise dispose of the aircraft and apply the proceeds to satisfy the debt. Does this depend on the value of the dispute? For example, is there a distinction in your jurisdiction regarding the courts in which civil and criminal cases are brought?

Civil and criminal cases are brought in both state and federal courts. State courts have broad jurisdiction and can hear almost any civil or criminal case, as long as it is not preempted by federal law. Which is the correct state court can depend on the amount in controversy, and whether the claims are civil or criminal. Civil claims may only be filed, but are not required to be filed, in federal court: 1 when the claim involves a federal question i.

Each state has its own procedural rules that govern service of process. In the federal courts, service of process is governed by the Federal Rules of Civil Procedure and may vary depending on the type of defendant. Typically, a summons and complaint must be personally served on a defendant or an agent of the defendant. However, in this digital age, if a plaintiff cannot with due diligence effectuate personal service, courts are increasingly permitting alternative forms of service, such as by email or social media platforms.

See, e. Siew Yee Chew , F. Francis Assisi v. Courts and arbitral tribunals both have broad authority to award interim and final relief. A Temporary Restraining Order and Preliminary Injunction, two types of interim relief, are generally limited to situations where the party seeking such relief can demonstrate that it will be irreparably harmed if interim relief is not granted. In a court proceeding, a final judgment follows a decision on the merits — by motion or, if necessary, after trial.

In arbitration, after the issuance of a final award, the successful party may bring a court proceeding to confirm the award and convert it into a judgment. Conversely, the aggrieved party can seek to vacate the award in whole or in part. In state court, the rights of appeal vary from state to state, with potentially no right of appeal until there is a final judgment.

Some states permit interlocutory appeals either as of right or by permission, which can dramatically affect the length and outcome of the proceedings. In arbitral proceedings, obtaining interim court review is extremely difficult, and the Federal Arbitration Act severely curtails judicial review of arbitration awards. In the US, there is a strong presumption for enforcement of agreements to arbitrate and the courts are very deferential to arbitration decisions. It is also noteworthy that New York courts, a venue commonly specified in commercial contracts, strongly favours enforcement of arbitration awards.

The relevant product market is typically defined by the line of commerce being offered, such as scheduled passenger or cargo flights from Point A to Point B, or control or ownership of landing rights or slots. The relevant geographic market is typically defined by where the companies involved compete, often based on routes or city-pairs. The DOJ will analyse the effect in all city-pair markets served by both of the carriers involved in terms of: 1 non-stop service; and 2 non-stop and connecting service.

The DOJ recognises that non-stop service between cities is important because business travellers are less likely to regard connective service as a reasonable alternative. The initial HSR Act filing must contain basic information, which the DOJ will use to determine whether a more extensive review is appropriate. As described in question 4. Depending on the size of the parties involved and the value of the proposed merger or joint venture agreement, parties seeking to merge or acquire another carrier must notify the DOJ and FTC prior to closing.

See question 4. By agreement with the FTC, the DOJ reviews mergers, acquisitions, and joint ventures under the HSR Act to determine whether the transaction will or may lessen competition and to determine whether the transaction should be approved, modified, or rejected.

The first three criteria require that the day-to-day operations be vested in US citizens. The fourth and fifth criteria require an analysis of the actual ownership structure of the company. With respect to the corporate structure, the DOT has approved foreign ownership of up to Further, there can be no indicia of foreign control, or even the ability of a non-US citizen to exert control or influence on the day-to-day management decisions of the air carrier, e. The agencies will determine whether additional information is needed or whether they want to challenge the transaction or allow the transaction to close 16 CFR Parts , , and The DOT must provide notice to the Attorney General and the Secretary of State and an opportunity to comment, and a hearing if required.

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The DOT must make a final decision within six months of receipt if there is no hearing, or 12 months if there is a hearing. The US government does not provide direct financial support to US airlines, with the exception of the programs set forth in question 4. Under the Airline Deregulation Act, the government may not enforce a law, regulation, or other provision related to a price, route, or service of an air carrier providing transportation. Projects related to airport operations and revenue-generating improvements are generally not eligible for funding.