May 10 2018

Morrison Mahoney Aviation Update – May 10, 2018

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Montreal Convention

Personal Jurisdiction

Royal & Sun Alliance Ins. PLC. V. UPS Supply Chain Solutions, Inc., 2018 WL 1888483 (S.D. N.Y. 2018)

Addressed issue of personal jurisdiction over a third party defendant in action involving damage to cargo shipments. Defendant asserting third party jurisdiction argued that personal jurisdiction could be found under the Montreal Convention even if no such jurisdiction under local law. Court rejected contention and reaffirmed rule that while Montreal Convention confers subject matter jurisdiction it does not provide for personal jurisdiction. Court otherwise applied New York state’s personal jurisdiction rule applicable to foreign defendant. Specifically, a federal district court may exercise personal jurisdiction over a foreign defendant only if (1) the defendant is subject to jurisdiction under the laws of the forum status, i.e. New York, and (2) the exercise of personal jurisdiction comports with the Due Process Clause of the United States Constitution.

In applying New York’s long-arm statute and particularly whether the act at issue caused injury in New York, the Court held no viable jurisdiction existed over the foreign defendant. Were a third party indemnification claim is being sought the relevant injury for jurisdictional evaluation is the injury complained of in the primary action. Since the damage to the Cargo was determined to have happened somewhere between Puerto Rico and Miami there was no basis for jurisdiction in New York. Notably, the Court rejected the argument that the jurisdiction was proper because the relevant injury is the prospective judgment for indemnification/contribution in such third-party indemnification claims. According to the Court, “taken to its logical conclusion, [the proffered contention] would render the injury requirement a nullity in the impleader context as it would always be satisfied if such prospective liability were sufficient.”

Preemption

Thede v. United Airlines, Inc., 2018 WL 1569836 (N.D. Ca. 2018)

Airline’s motion to dismiss breach of contract and malicious prosecution claims brought by passenger allowed.

Passenger complained repeatedly about lack of food aboard delayed flight. The lead flight attendant informed pilot that plaintiff was being disruptive. Plaintiff denied he was disruptive and only wanted to pursue a complaint for poor customer service. Flight was diverted where plaintiff was removed by armed officers. He subsequently was prosecuted for assault and endangering an aircraft. After a seven day trial, he was acquitted. Passenger commenced civil action against airline claiming breach of contract and malicious prosecution. The breach of contract claim was that the airline had failed to transport him to San Francisco while the malicious prosecution claim was based on the flight attendants statements made at the criminal trial.

The issue before the Court was whether the claims were preempted by the Montreal Convention. Determinative was whether “the events giving rise to the claim occurred in the course of the international carriage of passengers and baggage.” The Court likewise noted that preemption applied “not only for claims premised directly on events that occurred during international carriage by air, but also for all claims that cannot be ‘artificially separated’ from the damaging event covered by the Convention.”

Preemption was found as to the malicious prosecution claim as the flight attendant’s statements and the prosecution itself arose directly from the event that took place during the international flight. As to the breach of contract claim, it was asserted by the passenger that there could be no preemption because the claims were based on non-performance not delay. The Court rejected the argument holding that since the Convention covers incidents that occur during international carriage regardless of the type of claim asserted, preemption applied. There were no facts underlying the contract claim that were different from the inflight events.

NOTE:  Court relied heavily on the assertion that the liability provisions and the Convention’s scope is not coterminous. It likewise recognized that at least two other decisions have held there was no preemption of a breach of contract claim under similar facts although noting that in those cases the courts failed to discuss when the alleged contract was breached. See, e.g. Atia v. Delta Airlines, Inc., 692 Supp. 2d 693, 696 (E.D. N.Y. 2010)(non-performance claim not preempted where plaintiff de-boarded and was later banned from flying with the defendant).

Article 17

Shiwbodh v. Carribean Airline, Lmt., 2018 WL 1514242 (D. Conn. 2018)

Passenger sought damages under the Montreal Convention for physical and emotional damages stemming from an airline crash in July, 2011. The aircraft overran the runway on landing in Guyana resulting in the rupture of the plane’s fuselage. Court held damages were not limited to the 100,000 SDRs as there was no evidence that “(a) the damage to the passenger was not due to the negligence or other wrongful act or omission of the carrier or its servants or agent; or (b) that such damage was solely due to the negligence or other wrongful act or omission of a third party.”

The primary issue was whether the crash was the proximate cause of the claimed injuries and the extent of those injuries with the Court noting that Article 17 only requires that the passenger be able to prove that some link in the chain was an accident. Court proceeded to find ankle injury and certain surgery was causative but held the causation between the crash and the ankle injury ended or was broken when the plaintiff failed to follow the recommended proper post-operative care after her third ankle surgery in July 2014. As to the asserted knee injury, the Court held that the plaintiff failed to meet her burden that any problems with her knee after September, 2012 was causally related to crash. The Court otherwise found the plaintiff did not meet her burden of proof as to causation as to the asserted back injury given her prior history. As to the claimed head injury, the Court found causation as to the laceration but not for any headache after 2012.

Court proceeded to award $55,000 in medical expenses; $12,000 in lost wages; and $204,279 for pain and suffering (three times economic damages).

NOTE: Case is noteworthy for factual analysis applied to the element of causation and the Court’s limitation as to its reach.

Garrett v. Emirates Which Will Do Business in California As Emirates Airline, 2018 WL 1316976 (E.D. Cal. 2018).

Court denied summary judgment motion brought by airline where plaintiff asserted injury under Article 17. Plaintiff was injured when he fell while using a portable metal stairway used for disembarkation. It was undisputed that there was nothing wrong with the stairway. Passenger asserted that there otherwise were various issues with the stairway including the airline's decision to use the stairway instead of a jetway; the failure to provide a warning; and the lack of traction strips and adequate lighting.

The Court rejected contention that incident was not an Article 17 accident.The Court found that after considering the totality of the circumstances “the use of the stairway in the manner it was employed and the conditions of the evening, including the lack of warning about the landing, the illumination, plaintiff’s testimony she only fell when she came to the landing and her foot hit an unexpected protuberance on what she expected to be a stair, and that she did not fall due to losing her balance or dizzinesss—Plaintiff has shown a reasonable jury could find Plaintiff’s injury was caused by an accident.”

NOTE: The Court rejected the contention that the accident definition under Saks no longer applies or is otherwise inconsistent with the consumer protection purpose of the Convention.

Article 19-Delay

Pumputyte v. United Airline, Inc., 2018 WL 1240314 (N.D. Ill. 2018).

Federal District Court in Illinois granted summary judgment for airline on damage delay claim under Article 19. Court reiterated and applied established rule that “to satisfy Article 19’s requirement that all reasonable measures required to avoid the delay be taken, the defendant carrier must show that, on the whole, it took measures reasonably available and reasonably calculated to prevent the subject loss.” A carrier is not obligated to show it took “every possible precaution” only that it ‘took all precautions that, in sum, were appropriate to the risk.” Summary judgment was appropriate as there was no evidence to rebut airline’s showing that because its pilots were obligated to follow the orders of the air traffic control, the airline was not responsible for the 56 minute delay. The Court noted that the eight minute delay in leaving the gate at O’Hare was the airline’s fault but that it more than made up for it during flight and that the responsibility for the remaining delays were attributable to air traffic control whose directions the airline was required to follow. As such, no reasonable juror could find the airline could have taken reasonable measures to avoid the delay.

Two Year Condition Precedent

Mughal v. Pakistan Int’l Airline, Corp., 2018 WL 1135474 (E.D. N.Y 2018)

Action was brought for injuries sustained by passenger who alleged he sustained injuries from a fall in the lavatory of a transit lounge in an airport during an international flight. Court dismissed action as it was not filed within two years of the incident. Court rejected argument that New York tolling provisions applied as the two year time period is a condition precedent to filing suit and is therefore not subject to tolling.

Embarking

Monti v. Aarestup, 2018 WL 1863754 (S.D. Fla. 2018)

Defendant airline employees were claimed to have failed to provide requested assistance to passenger at ticket counter despite request and medical condition and otherwise “berated, screamed at, threatened, and intimidated them” as well as caused them to wait in a long line and miss their scheduled flights. Court ordered remand as the Montreal Convention did not apply. Court applied long-standing three part test announced in Day v. Trans World Airlines, Inc., 528 F. 2d 31 (2d Cir. 1975) requiring examination of (a) what the plaintiffs were doing (activity); (b) at whose direction (control); and (c) the location where the injury occurred.

While initial encounter involved approach of defendants at ticket counter and involved request for assistance and thus related to the process of embarkation, they were removed from the actual action of boarding a flight. As to control, the assertion that plaintiffs were caused to stand in long lines and wait indicates some indicia of control, plaintiffs had not surrendered their travel documents, nor were their movements restricted other than being told to wait in line. As to location, the furthest point plaintiffs reached in the airport was the airline’s ticket counter which was otherwise not proximate in location to the point of embarkation with plaintiffs not having gone through the security check point to the point of embarkation at the time of the incident.

Air Carrier Access Act

Stokes v. Southwest Airlines, Inc., 2018 WL 1633551 (5th Cir. 2018)

Fifth Circuit Court of Appeals affirmed dismissal of claim under Air Carrier Access Act (ACAA). Mother of young airline passenger with autism brought action against airline for violation of state law and federal ACAA. It was alleged that airline gate agents prevented her from boarding flight because they considered her child’s behavior disruptive.

The Fifth Circuit joined all other circuit that have addressed the issue holding that there is no private right of action under the ACAA. Although the ACAA prohibits .airlines from discriminating on the basis of disability, it “does not expressly provide a right to sue the air carrier.” To the contrary, the ACAA combines with other federal aviation statutes to form a comprehensive administrative scheme “designed to vindicate fully the rights of disabled persons.” Those statutes likewise instruct that ACAA enforcement lies primarily with the Department of Transportation (“DOT”), leaving private litigants only carefully circumscribed roles.

Federal Aviation Act-Preemption

Luggage Alatortev v. JetBlue Airways, Inc., 2018 WL 784434 (N.D. Cal. 2018)

Passengers asserted various claim including breach of contract on behalf of putative class based on luggage fees charged by airline including reliance on federal regulation (14 C.F.R. 259.5) providing: Delivering baggage on time, including making every reasonable effort to return mishandled baggage within twenty-four hours, compensating passengers for reasonable expenses that result due to delay in delivery, as required by 14 CFR part 254 for domestic flights ... and reimbursing passengers for any fee charged to transport a bag if that bag is lost.

North District of California Court granted motion to dismiss based on preemption. Court found that the state-law claims (breach of contract and violation of good faith and fair dealing) were expressly preempted by the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1), and impliedly preempted by principles of field and conflict preemption because they relate to an area pervasively regulated by the federal government under the Federal Aviation Act, 49 U.S.C. §§ 40101 et seq.

Court noted the rule that “an otherwise preempted claim may remain viable under the ADA if it falls within the two-prongs of the Wolens exception: 1) the claim alleged only concerns a self-imposed obligation; and 2) no enlargement or enhancement of the contract occurs based on state laws or policies external to the agreement.” However, the applicable conditions of carriage did not obligate airline to a guaranteed time of delivery of luggage only that it would “endeavor” to do so and, as such, plaintiff was seeking to impose an absolute obligation based on external law. Accordingly, the court found that the breach of contract claim depended on an “enlargement or enhancement” of the parties' agreement and was therefore preempted by the ADA.

Personal Injury

Estate of Becker v. Avco Corp. et al., 387 P.3d 1066 (Wash. 2017)

This case arose out of a plane crash that killed a retired physician. The physician’s estate asserted a number of tort claims, alleging that a poorly made carburetor caused the aircraft’s engine to stall. Summary judgment was filed, arguing that federal law (FAA regulations) occupied the entire field of aviation safety and plaintiff’s tort claims were thus preempted. The trial court agreed and entered summary judgment on the defendant’s behalf. The appellate court affirmed.

The Washington Supreme Court reversed. Citing Sikkelee v. Precision Airmotive Corp., the court found that Federal law and the FARs were not intended to create federal standards of care for manufacturing and design defect claims. The court further stated that even though there are minimum safety standards promulgated under Federal law/regulations, they were not intended to regulate the actual manufacture and design of aircraft. Instead, they were only baseline requirements for aircraft manufacturers, not limits to state court remedied.

In its opinion, the Washington Supreme Court relied significantly on the fact that Congress had twice rejected efforts to pass legislation which sought to preempt state tort law arising out of aviation accidents (in 1989 and in the very limited scope of preemption upon the passing of GARA in 1994). The Court noted that these two failed efforts by Congress to pass sweeping field preemption in aviation accidents was evidence that it did not intend to create broad preemption under the current statutory/regulatory scheme.

Safety

Register v. United Airlines, Inc. 2017 WL 784288 (S.D. Cal. March 1, 2017)

A passenger sued United Airlines after becoming involved in a verbal altercation with a flight attendant prior to takeoff. Plaintiff alleged a crewmember complained to the captain, who decided to return the aircraft to the gate due to the “situation” on the aircraft.

Plaintiff sued, alleging various state and Federal claims including racial discrimination. United moved for judgment on the pleadings, arguing that plaintiff’s state law claims were preempted by the Federal Aviation Act. The court allowed the motion for judgment on the pleadings, finding that the Act preempts state law claims when an air carrier removes a passenger for safety reasons. The court held that it was not reasonable to conclude that the captain did not consider the safety of the passengers when he decided to return to the gate. Plaintiff unsuccessfully argued that the captain did not specifically announce that the return to the gate was due to a safety concern. The court found that the return of the aircraft to the gate after a verbal altercation between a passenger and flight attendant was in consideration of passenger safety, despite not specifically citing a safety concern during his announcement to the cabin that the aircraft was returning to the gate. As such, because the decision to return to the gate involved passenger safety, the Act preempted state law tort remedies.

General Aviation Revitalization Act (GARA)

Theobald v. Piper Aircraft, Inc., 2018 WL 1571187 (S.D. Fla. 2018)

Aircraft sought summary judgment in aircraft product liability claim based on state (Florida) statute of repose and the provisions of GARA. Aircraft had been sold in 1978 with the claim brought it 2016.

The Federal District Court in Florida held that the Florida repose statute barred the claim as the state statute of repose established repose period of either 12 or 20 years and either precluded the claim. Court rejected the contention that tolling applied as there was insufficient evidence that manufacture of aircraft had actual knowledge of any problem with stabilator in its aircrafts and prior accident did not show that manufacturer had actual knowledge of any problems with its aircrafts. Court also found action to be barred by the 18 year statute of repose provision of GARA. It rejected that any of the statutory exceptions to the 18 repose period applied including the misrepresentation exception and/or the medical emergency exception. It likewise rejected the assertion that the Rolling Provision of GARA applied.

As to the misrepresentation exception which precludes the application of the 18 year repose period where the manufacture concealed or withheld the cause of the accident, the Court found that there was no evidence of such concealment. The Court found that the record did not support any finding that the manufacturer knowingly misrepresented, concealed or withheld from the FAA required information that is material, relevant and causally related to the harm. The fact that plaintiff’s expert reports provided that the manufacture should have been on notice that its stabilator-equipped aircrafts were susceptible to in-flight breakups was not sufficient.

As to the medical emergency exception to GARA which provides the 18 year repose period does not apply “if the person for whose injury or death the claim is being made is a passenger for purposes of receiving treatment for a medical or other emergency.” The Court found the exception could not apply to the pilot claimant only to passengers. Further, it found that while a passenger had cancer and was traveling for treatment, it was not for emergency treatment. Court rejected contention that exception was not limited to emergency medical treatment but any medical treatment.

As to claimant’s reliance on GARA’s Rolling Provision which restarts the 18 year statute of repose period when there is a replacement or addition to the aircraft and that is alleged to have caused death, injury or damage, the Court found the exception inapplicable. Court found that plaintiff had failed to offer evidence that manufacturer manufactured the replacement parts or that the replacement parts caused the accident. It also agreed that plaintiffs had failed to identify any new defective instructions and that a failure to correct a manual or instructions issued more than 18 years before the incident cannot restart the repose period.

Snider v. Sterling Airways, Inc. et al., 2017 WL 2813223 (E.D. Pa. June 29, 2017)

Plaintiffs sued Continental Motors (“CMI”) and others after plaintiffs’ decedents were killed during a crash of a Cessna T210L following engine failure. The case went to trial, with the jury returning a verdict against CMI. CMI thereafter moved to set the verdict aside citing that the plaintiffs’ claims were time barred under GARA. CMI argued that the engine in question had been manufactured over 18 years before the accident and that no reasonable juror could have concluded otherwise.

The appellate court found that the plaintiffs produced sufficient evidence that CMI had manufactured a replacement part for the engine 6 years prior to the crash when the engine was overhauled. The court specifically cited evidence at trial that all 6 cylinders had been replaced with new parts manufactured by CMI and that the failure of one of the cylinders caused the engine failure resulting in the crash.

Here, the Appeals Court ruled that sufficient evidence was raised by the plaintiffs which put in motion GARA’s rolling provision which extends the repose period as a result of the replacement cylinders, one of which was the cause of the engine failure. (A new limitation period begins when a component is replaced, but a new period does not necessarily begin for an entire system just becuase one component was replaced).

Personal Jurisdiction

Rolls-Royce PLC v. Spirit Airlines, Inc., 2018 WL 1110439 (4th Dist. Fla. 2018)

Airline brought action against United Kingdom contractor to recover for explosion of engine over Texas. Contractor moved to dismiss for lack of personal jurisdiction. Court denied motion remanding for evidentiary hearing to resolve conflict as to contractor’s connection to delivery of engine in Florida.

Court noted that Florida courts have personal jurisdiction over a non-resident defendant if that defendant committed a tortious act within the state. Airline asserted that engine manufacture delivered “the sinister engine to Florida for installation on the subject aircraft in Florida” and that the jurisdictional discovery in the record “establishes that such return to service was accomplished via manufacture’s Maintenance Release and other records which were prepared by manufacture, packaged with the subject engine and sent by manufacture directly to airline in Florida where they were received and relied upon by airline’s technicians in reinstalling the engine.” However, evidence at hearing demonstrated or supported finding that there were no contractual agreements between manufacture and airline and that airline made no direct payments to manufacture. Court likewise noted that the accident in question occurred in the sky, shortly after takeoff, from Dallas/Fort-Worth International Airport. Such facts, if true, would result in the lack of jurisdiction.

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