United States: US Aviation And Aerospace Newsletter - July 2015

Last Updated: August 20 2015
Article by Clyde & Co LLP

Asiana Airlines Flight 214—U.S. Seventh Circuit Reverses Remand Order in Lawsuits Filed against Boeing

The accident involving Asiana Airlines Flight 214 led to the filing of lawsuits against Asiana Airlines in various federal district courts, which were subsequently consolidated as a Multidistrict Litigation ("MDL") in the Northern District of California. In addition to those lawsuits against the airline, some passengers filed suit against Boeing in Illinois state court alleging product liability and negligence claims relating to the autothrottle, autopilot, and low-speed warning systems of the aircraft. In an effort to have those lawsuits consolidated with the federal multi-district litigation, Boeing removed the state court actions to federal court alleging admiralty and federal officer jurisdiction. Boeing alleged that admiralty jurisdiction existed because the accident was caused by events that occurred over navigable water. Boeing also alleged that federal subject matter jurisdiction existed under 28 U.S.C. § 1442 based on its status as a "person acting under a federal officer" because the FAA has granted Boeing authority to use FAA-approved procedures to conduct analysis and testing required for the issuance of type, production and airworthiness certificates. The U.S. District Court for the Northern District of Illinois rejected Boeing's arguments and remanded the cases to Illinois state court, thus preventing the consolidation of the cases with the federal MDL proceedings. While remand orders are generally not reviewable on appeal, an exception exists in cases where removal is based federal officer jurisdiction. Because Boeing removed on this basis as well as admiralty jurisdiction, it had the right to appeal the remand order. On appeal, the Seventh Circuit Court of Appeals flatly rejected Boeing's argument that it qualified for federal officer jurisdiction. The court, however, went on to review the district court's ruling regarding admiralty jurisdiction, notwithstanding the fact that the remand order based on lack of admiralty jurisdiction would not, on its own, be reviewable. The Seventh Circuit reasoned that it had authority under the statutory exception to review the entire order, and reversed the district court's remand order on the ground that admiralty jurisdiction exists. The Court of Appeals based its finding of admiralty jurisdiction on the allegation by plaintiffs regarding the disengagement of the autothrottle, which occurred 4.5 nautical miles from the seawall (i.e. over navigable waters), and the fact that the trans-ocean flight acted as a substitute for an ocean-going vessel and thus, bore a "significant relationship to a traditional maritime activity." The Court of Appeals instructed the district court to rescind the previously issued remand orders and transfer the cases for consolidated pretrial proceedings in the Northern District of California. Lu Junhong v. The Boeing Company, No. 14-1825 (7th Cir. July 8, 2015).

U.S. District Court—Eastern District of Pennsylvania—Plaintiff Delay Allegedly Caused by Misreading of Immigration Laws—Remand Denied—Montreal Convention Governs Despite No Actual Travel

Plaintiff Sangmi Lee filed suit in Philadelphia Municipal Court against American Airlines for financial damages allegedly caused by the airline's employees' refusal to allow her to board a flight from Miami to Belize, the second segment of a multi-leg trip originating and ending in New York. The plaintiff was refused boarding as the airlines' employees believed that she did not have the required visa. After being denied boarding, the plaintiff bought a flight to Guatemala and went on to fly from Guatemala to Belize. The plaintiff sought compensation for extra travel expenses and attorney's fees and costs. American Airlines removed the suit to federal court arguing that the Montreal Convention applied and preempted all state law claims. The plaintiff filed a motion to remand on the basis that the Montreal Convention did not apply because she was not actually transported by the airline and consequently there was no international carriage in this case. The Court held "international carriage" to "include activities beyond actual travel" in accordance with the mainstream interpretation of the term. It found that the matter at issue was a delay under article 29 of the Montreal Convention rather than contractual non-performance and denied the plaintiff's motion to remand. Lee v. AMR Corp. d/b/a American Airlines, 2015 WL 3797330 (E.D. Pa. June 18, 2015).

U.S. Environmental Protection Agency—Notice—Proposed Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution

On July 1, 2015, the U.S. Environmental Protection Agency ("EPA") issued a proposed finding that greenhouse gas emissions from aircraft cause or contribute to air pollution that may reasonably be anticipated to endanger public health and welfare within the meaning of § 231(a) of the Clean Air Act ("CAA") and published an advance notice of proposed rulemaking ("ANPR"). The EPA issued this finding further to a 2011 order issued by the District Court for the District of Columbia. The Court found that § 231(a)(2)(A) of the CAA created a duty upon the EPA to make findings regarding the endangerment caused by greenhouse gas emissions from aircraft, contrary to the EPA's understanding of the section. Despite this finding, the EPA had not made a finding by mid-2014 and plaintiffs put the EPA on notice that they intended to enforce the order by filing suit for unreasonable delay or resolution. If the proposed finding that aircraft greenhouse emissions contribute to air pollution becomes final, § 231 requires the EPA to promulgate domestic aircraft emissions standards. The ANPR provides an overview of issues relating to setting an international CO2 standard for aircraft by ICAO, ICAO's progress at establishing global aircraft standards that achieve meaningful reductions in CO2 emissions and the potential use of section 231 of the CAA to adopt and implement these aircraft engine greenhouse gas emissions standards domestically. There will be a public hearing on August 11, 2015 in Washington DC, and the deadline for public comment is August 31, 2015.

U.S. Department of Transportation—Notice of Final Rule—Nondiscrimination on the Basis of Disability in U.S. Airports Receiving Federal Financial Assistance

On July 29, 2015, the U.S. Department of Transportation ("DOT") published the final rule to amend its rules implementing section 504 of the Rehabilitation Act of 1973, which requires that no person be excluded from participation in or denied the benefits of any program or activity receiving federal financial assistance by sole reason of their handicap. The final rule relates to the non-discrimination on the basis of disability by U.S. airports receiving federal financial assistance with 10,000 or more annual enplanements. The rule amends 49 CFR § 27.71 and 27.72 to reflect the 2008 amendments to the requirements placed on domestic and foreign carriers by the Air Carrier Access Act ("ACAA"). Specifically, the final rule requires that (1) one wheelchair accessible service animal relief area be established in each airport terminal within a year following publication, (2) airport operators enable or ensure high-contrast captioning at all times on television and audio visual displays capable of displaying captions located in any gate area, ticketing area, first-class or other passenger lounge provided by a U.S. or foreign carrier or any common area in the terminal to which passengers have access, and (3) airport operators negotiate with foreign carriers as well as domestic carriers to ensure the use of lifts, ramps and other devices for emplaning and deplaning passengers on aircraft with a capacity of 19 or more passenger seats when level entry loading bays are not available and sign a written agreement with foreign carriers allocating responsibility for meeting the boarding and deplaning assistance requirements within 90 days after publication. The DOT simultaneously published a guide on the ACAA and 14 CFR Part 382 for air travelers with developmental disabilities focusing on these passengers' legal rights under this legislation.

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