Gregory J. Reigel
Serving clients throughout the U.S.
Tel (214) 780-1482
Email: info@aerolegalservices.com

 
[Top Background]
Aviation Law Discussions Subscribe XML

A site devoted to aviation law, safety and security.

May 28, 2008

FAA To Update Medical Application

According to a recent article by Dr. Fred Tilton, Federal Air Surgeon, in the Federal Air Surgeon's Medical Bulletin, the FAA is updating FAA Form 8500-8, Application for Medical Certificate, to include potentially significant changes. For more information on the changes and their implications, please read my article on the topic here.

Posted by Greg

May 20, 2008

NTSB Accepts Untimely Responsive Pleading In the Absence Of Prejudice

In a footnote to a recent case, Administrator v. Martz, the NTSB distinguished its standard for accepting untimely responsive pleadings from its standard for accepting untimely notices of appeal, appeal briefs, and petitions for reconsideration. As you may recall, the NTSB strictly construes the timing requirements for the latter and will reject untimely filings unless the party submitting the untimely filing can show good cause and a lack of prejudice to the opposing party. However, a party submitting an untimely responsive pleading (e.g. a pleading responding or replying to another party's initial pleading) need only show that the opposing party did not suffer prejudice as a result of the untimely filing. This is a much less stringent standard than the "good cause" standard.

In this case, the FAA filed its response to an airman's motion for reconsideration late. The FAA also filed a motion to accept its response out of the time. The airman did not oppose the FAA's motion or allege that he was prejudiced by the untimely filing. In granting the FAA's motion and accepting its untimely responsive pleading, the Board held that "we will reject responsive pleadings only if the opposing party can demonstrate that prejudice would result from our acceptance of the late-filed reply." The Board then went on to request that counsel who find themselves in that situation should file one document for each purpose (e.g. each motion, reply or response would be a separate document, rather than all combined into one document).

This seems reasonable. However, the obvious question is "what will constitute sufficient prejudice for the NTSB to reject an untimely responsive pleading?" Is it based upon time? Presumably filing of the responsive pleading a day before the opposing party's reply is due would constitute prejudice. But what if the responsive pleading is only a couple of days late? Regardless of where the NTSB draws the line, one would hope that this standard will be applied equally to both the FAA and to certificate holders in enforcement proceedings.

Posted by Greg

May 19, 2008

6th Circuit Court Of Appeals Affirms FAA's Decision To Allow Airport Operator To Charge Maintenance Fee To Resident Users But Not Transient Users

In R/T 182, LLC v. FAA, the 6th Circuit Court of Appeals affirmed the FAA's decision to "allow a local airport to charge a maintenance fee to airport users who store their aircraft at the airport, while charging no fee to those who merely land at the airport." The fees at issue were charged by the Portage County Regional Airport Authority on an annual basis depending upon the weight of the aircraft and the frequency of usage. The fee ranged from $4.17/mo. for the lightest aircraft used the fewest times up to $35.00/mo. for the largest aircraft used the most times. Aircraft that landed at the airport, but were not based at the airport, were not charged the fee (although these aircraft were subject to other fees charged by the airport authority).

The complainant filed a complaint with the FAA charging that the airport authority's fee structure unjustly discriminated between airport users by discriminating between based-users and transient users in violation of 49 U.S.C. § 47107(a). The FAA dismissed the complaint finding that assessment of the fee was not unjust, but rather, was reasonable in light of the costs that would be associated with identifying, billing and collecting from transient users (which the airport authority claimed would exceed the fees generated). The FAA also noted that that the airport was open to the public and, thus, transient users did not have a business relationship with the airport. The complainant then appealed.

On appeal, the complainant again argued that the fee was unjust because it was similarly situated to transient users who were not charged. However, the Court affirmed the FAA's finding that the two groups were not similarly situated and observed that the distinction "is statutorily relevant: 49 U.S.C. § 47107(a)(13)(A) recognizes the efficiency of billing and collection as legitimate reasons for differentiating among users." As a result, the airport authority was justified in assessing a fee against based-aircraft and not transient aircraft.



Posted by Greg

May 15, 2008

California Court Of Appeals Affirms Dismissal Of Case Against Air Tour Operator Based Upon Release Agreement

The California Court of Appeals has affirmed a trial court's dismissal of a personal injury claim against an aerial sightseeing tour operator. In Booth v. Santa Barbara Biplane Tours, LLC, the Plaintiffs asserted claims against the operator arising from an emergency landing after the Waco biplane in which the Plaintiffs were riding suffered a power loss. The Plaintiffs sued for common law negligence and breach of implied warranty. In its defense, the operator argued that the Plaintiffs' claims were barred by the release and waiver of liability agreement signed by the Plaintiffs 30 minutes before the flight. The release stated:

"High Risk Activity Release, Waiver and Assumption of Risk Agreement” before riding in the plane. The release stated in pertinent part that “I UNDERSTAND THAT PARTICIPATION IN BIPLANE OR OTHER AIRCRAFT TOURS IS A HIGH RISK ACTIVITY AND THAT SERIOUS INJURY OR DEATH MAY OCCUR. [¶] 8. I VOLUNTARILY ASSUME ALL RISK, KNOWN AND UNKNOWN, OF INJURIES, HOWEVER CAUSED, EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION, INACTION, OR NEGLIGENCE OF THE RELEASED PARTIES TO THE FULLEST EXTENT ALLOWED BY LAW.”

The trial court determined that the release agreement barred the Plaintiffs' claims. The trial court observed that the release was very clearly worded, and was not ambiguous in conveying its purpose and intent and was not pre-empted by the Federal Aviation Act. The court also concluded that operator did not provide an essential service that would prevent enforcement of the release. As a result, the trial court granted the operator's summary judgment motion and dismissed the case.

On appeal, the Court of Appeals concurred with the trial court and noted that the Plaintiffs had not cited any authority that a recreational airplane ride is an essential service affecting the public interest. In response to the Plaintiffs 'argument that the Federal Aviation Act pre-empted the operator's reliance upon the release agreement, the Court noted that the Plaintiffs could not create a “strict liability” standard of care based upon FAR 91.13(a) (careless and reckless) because that regulation "is reserved for serious misconduct where the potential for harm is incontestably high" and "should be reserved only for serious, more flagrant pilot misconduct."

The Court observed that state law causes of action for personal injury resulting from negligence in aviation are not pre-empted and, accordingly, state law defenses thereto may also be invoked. Thus, the operator could assert the release agreement as an affirmative defense. However, the Court also noted that the release would not have been a bar to recovery if the Plaintiffs had included claims for gross negligence or recklessness.

Posted by Greg

Ninth Circuit Court Of Appeals Upholds Assertion Of GARA By U.S. Aircraft Manufacturer In U.S. Court Against Claims From Crash Outside The U.S.

The Ninth Circuit Court of Appeals has upheld a U.S. aircraft manufacturer's assertion of the General Aviation Revitalization Act's ("GARA") statute of repose in a U.S. court case arising from a crash that occurred outside the U.S. In Blazevska v. Raytheon Aircraft Co., the Plaintiff and other survivors of a plane crash that occurred in Macedonia brought suit in U.S. District Court against Raytheon Aircraft Company, the manufacturer of the Beechcraft Super King Air 200 involved in the accident. The Plaintiff asserted three causes of action under Macedonian law that alleged that the aircraft was defective. In response, Raytheon argued that the claims were barred by GARA's eighteen year statute of repose. The District Court agreed and granted summary judgment to Raytheon on the basis of the statute of repose, and Blazevska appealed.

On appeal, the Court observed that GARA precludes claims against aircraft manufacturers eighteen years after an aircraft has been delivered. However, the issue before the Court was whether the application of GARA implicated any issue of extraterritoriality that would limit a defendant's ability to assert the GARA statute of repose. The Court determined that since the aircraft was delivered in the U.S. and the case was filed in the U.S. court, the application of GARA did not result in an improper regulation of conduct abroad. The Court went on to note that GARA only terminates the ability of a claimant to bring an action in U.S. courts, which is an entirely domestic act. As a result, the Plaintiff's claims in the U.S. court were barred by GARA.



Posted by Greg

May 14, 2008

International Flight With The "Pink Copy" Of The Aircraft Registration Application?

A pilot who recently acquired a new Cessna 206 on floats asked me whether he could fly the aircraft into Canada while he was still operating using the "pink copy" of the aircraft registration application. The short, but incomplete, answer is "no". In order to operate a U.S. registered aircraft internationally, the aircraft must have a valid Certificate of Registration on board during the flight(s). The "pink copy" is not valid for border crossing flights.

However, if a new aircraft owner wants to use his or her aircraft in international flight, when he or she submits the required registration documents (e.g. aircraft registration application, bill of sale or other evidence of ownership, etc.), a request for expedited processing of the registration may also be submitted to the FAA. The FAA will then issue (usually within 72 hours) a temporary authorization or "fly wire" that will allow the aircraft to be operated internationally before the new certificate of aircraft registration is received. For more information on the requirements for obtaining a "fly wire", check out the FAA's webpage on the subject here.



Posted by Greg

Aviation Law Discussions - Archives

12/01/2003 - 12/31/2003
01/01/2004 - 01/31/2004
02/01/2004 - 02/29/2004
03/01/2004 - 03/31/2004
04/01/2004 - 04/30/2004
05/01/2004 - 05/31/2004
06/01/2004 - 06/30/2004
07/01/2004 - 07/31/2004
08/01/2004 - 08/31/2004
09/01/2004 - 09/30/2004
10/01/2004 - 10/31/2004
11/01/2004 - 11/30/2004
12/01/2004 - 12/31/2004
01/01/2005 - 01/31/2005
02/01/2005 - 02/28/2005
03/01/2005 - 03/31/2005
04/01/2005 - 04/30/2005
05/01/2005 - 05/31/2005
06/01/2005 - 06/30/2005
07/01/2005 - 07/31/2005
08/01/2005 - 08/31/2005
09/01/2005 - 09/30/2005
10/01/2005 - 10/31/2005
11/01/2005 - 11/30/2005
12/01/2005 - 12/31/2005
01/01/2006 - 01/31/2006
02/01/2006 - 02/28/2006
03/01/2006 - 03/31/2006
04/01/2006 - 04/30/2006
05/01/2006 - 05/31/2006
06/01/2006 - 06/30/2006
07/01/2006 - 07/31/2006
08/01/2006 - 08/31/2006
09/01/2006 - 09/30/2006
10/01/2006 - 10/31/2006
11/01/2006 - 11/30/2006
12/01/2006 - 12/31/2006
01/01/2007 - 01/31/2007
02/01/2007 - 02/28/2007
03/01/2007 - 03/31/2007
04/01/2007 - 04/30/2007
05/01/2007 - 05/31/2007
06/01/2007 - 06/30/2007
07/01/2007 - 07/31/2007
08/01/2007 - 08/31/2007
09/01/2007 - 09/30/2007
10/01/2007 - 10/31/2007
11/01/2007 - 11/30/2007
12/01/2007 - 12/31/2007
01/01/2008 - 01/31/2008
02/01/2008 - 02/29/2008
03/01/2008 - 03/31/2008
04/01/2008 - 04/30/2008
05/01/2008 - 05/31/2008
06/01/2008 - 06/30/2008
07/01/2008 - 07/31/2008
08/01/2008 - 08/31/2008
09/01/2008 - 09/30/2008
10/01/2008 - 10/31/2008
11/01/2008 - 11/30/2008
12/01/2008 - 12/31/2008
01/01/2009 - 01/31/2009
02/01/2009 - 02/28/2009
03/01/2009 - 03/31/2009
04/01/2009 - 04/30/2009
05/01/2009 - 05/31/2009
06/01/2009 - 06/30/2009
07/01/2009 - 07/31/2009
08/01/2009 - 08/31/2009
09/01/2009 - 09/30/2009
10/01/2009 - 10/31/2009
11/01/2009 - 11/30/2009
12/01/2009 - 12/31/2009
01/01/2010 - 01/31/2010
02/01/2010 - 02/28/2010
03/01/2010 - 03/31/2010
04/01/2010 - 04/30/2010
05/01/2010 - 05/31/2010
06/01/2010 - 06/30/2010
07/01/2010 - 07/31/2010
08/01/2010 - 08/31/2010
09/01/2010 - 09/30/2010
10/01/2010 - 10/31/2010
11/01/2010 - 11/30/2010
12/01/2010 - 12/31/2010
01/01/2011 - 01/31/2011
02/01/2011 - 02/28/2011
03/01/2011 - 03/31/2011
05/01/2011 - 05/31/2011
06/01/2011 - 06/30/2011
07/01/2011 - 07/31/2011
08/01/2011 - 08/31/2011
09/01/2011 - 09/30/2011
10/01/2011 - 10/31/2011
11/01/2011 - 11/30/2011
12/01/2011 - 12/31/2011
01/01/2012 - 01/31/2012
02/01/2012 - 02/29/2012
03/01/2012 - 03/31/2012
04/01/2012 - 04/30/2012
05/01/2012 - 05/31/2012
06/01/2012 - 06/30/2012
07/01/2012 - 07/31/2012
08/01/2012 - 08/31/2012
10/01/2012 - 10/31/2012
11/01/2012 - 11/30/2012
12/01/2012 - 12/31/2012
02/01/2013 - 02/28/2013
04/01/2013 - 04/30/2013
05/01/2013 - 05/31/2013
06/01/2013 - 06/30/2013
07/01/2013 - 07/31/2013
08/01/2013 - 08/31/2013
11/01/2013 - 11/30/2013
12/01/2013 - 12/31/2013
01/01/2014 - 01/31/2014
02/01/2014 - 02/28/2014
05/01/2014 - 05/31/2014
07/01/2014 - 07/31/2014
08/01/2014 - 08/31/2014
10/01/2014 - 10/31/2014
12/01/2014 - 12/31/2014
01/01/2015 - 01/31/2015
03/01/2015 - 03/31/2015
04/01/2015 - 04/30/2015
06/01/2015 - 06/30/2015
07/01/2015 - 07/31/2015
08/01/2015 - 08/31/2015
10/01/2015 - 10/31/2015
12/01/2015 - 12/31/2015
03/01/2016 - 03/31/2016
07/01/2016 - 07/31/2016
08/01/2016 - 08/31/2016
10/01/2016 - 10/31/2016
01/01/2017 - 01/31/2017
02/01/2017 - 02/28/2017
03/01/2017 - 03/31/2017
04/01/2017 - 04/30/2017
05/01/2017 - 05/31/2017
06/01/2017 - 06/30/2017
07/01/2017 - 07/31/2017
08/01/2017 - 08/31/2017
09/01/2017 - 09/30/2017
10/01/2017 - 10/31/2017
11/01/2017 - 11/30/2017
12/01/2017 - 12/31/2017
01/01/2018 - 01/31/2018
02/01/2018 - 02/28/2018
03/01/2018 - 03/31/2018
05/01/2018 - 05/31/2018
07/01/2018 - 07/31/2018
08/01/2018 - 08/31/2018
09/01/2018 - 09/30/2018
10/01/2018 - 10/31/2018
12/01/2018 - 12/31/2018
01/01/2019 - 01/31/2019
02/01/2019 - 02/28/2019
04/01/2019 - 04/30/2019
05/01/2019 - 05/31/2019
07/01/2019 - 07/31/2019
08/01/2019 - 08/31/2019
09/01/2019 - 09/30/2019

< ? law blogs # >

The information contained in this web-site is intended for the education and benefit of those visiting the Aero Legal Services site. The information should not be relied upon as advice to help you with your specific issue. Each case is unique and must be analyzed by an attorney licensed to practice in your area with respect to the particular facts and applicable current law before any advice can be given. Sending an e-mail to Aero Legal Services or Gregory J. Reigel does not create an attorney-client relationship. Advice will not be given by e-mail until an attorney-client relationship has been established.

© Gregory J. Reigel-Aero Legal Services 2002-Present. All rights reserved.