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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:


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

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