On May 18, 2018, a 39-year-old Boeing 737 aircraft leased by a Mexican company and operated by Cuba's flagship carrier, Cubana, crashed shortly after takeoff near Havana; 112 people were killed in this tragic accident.

In addition to suing the airline and the aircraft manufacturer, among others, the plaintiffs sued a former owner of the aircraft, Wells Fargo Trust Company. Wells Fargo had purchased the aircraft in 2005, and sold it to a Mexican company in 2008, approximately ten years before the accident. Wells Fargo asserted that it had not possessed or controlled the aircraft during the three years of its ownership, between 2005 and 2008.

The plaintiffs alleged that when Wells Fargo sold the aircraft in 2008, it was "defective and unreasonably dangerous" and "had defects in the flight control surfaces, the rudder and rudder control system, the rudder power control unit rods, the aircraft stabilizer, and more generally, the engine." The plaintiffs also alleged that Wells Fargo "bought and sold the plane without including any warnings about the effect of aging on the plane," and was liable because of "failure to correct, remedy and repair the dangerous and defective conditions," for selling the aircraft "in an unsafe condition," and for "negligent failure to inspect and discover" the alleged defects and dangerous conditions.

Wells Fargo filed a Federal Rule 12(b)(6) motion to dismiss on various grounds, including its contention that the plaintiffs' state common law tort claims were preempted under a provision of the Federal Aviation Act, 49 U.S.C. § 44112, which in a section entitled "Limitation of Liability" shields "owners and lessors from personal-injury liability if they did not have actual possession or operational control of the plane." Specifically, the statute provides as follows:

(b) Liability.—A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage only when a civil aircraft, aircraft engine or propeller is in the actual possession or operational control of the lessor, owner, or secured party, and the personal injury, death or property loss or damage occurs because of—

  • the aircraft, engine, or propeller; or
  • the flight of, or an object falling from, the aircraft, engine or propeller.

In granting the motion to dismiss and finding that the plaintiffs' state common law claims were preempted and barred under federal law, the court rejected the plaintiffs' contention that the statute did not apply because the plaintiffs purportedly were suing Wells Fargo "as a seller of the plane – not as an owner or lessor." The court held that "as a matter of law, affixing the 'seller' label to Wells Fargo makes no substantive difference," reasoning that if "non-possessory, non-operating owners, lessors or security interest holders of an aircraft could be held liable after selling it, then that would shrink the supply of financiers for aircraft."

Finally, in granting the motion to dismiss without prejudice, the court stated that the plaintiffs "may propose an amendment to the complaint if they believe that preemption can be avoided with new allegations."

J.A.G.P. v. Aerolineas Damojh, S.A/ de C.V., 2022 U.S. Dist. LEXIS 24858 (N.D. Ill. Feb. 11, 2022).

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