FAA Reauthorization Act of 2018

  • Tracey Cheek posted an article
    FAA Reauthorization Act Confirms Pre-emptive Effect of Statute Protecting Aircraft Lessors see more

     

    NAFA members, Marc L. Antonecchia and John M. Toriello, Partners at Holland & Knight, discuss the FAA Reauthorization Act of 2018. 

    The FAA Reauthorization Act of 2018, enacted on Oct. 5, 2018,1 has clarified and confirmed the pre-emptive effect of the federal statute intended to shield from liability owners, lessors and secured parties not in operational control of an aircraft for injuries to persons on board an accident aircraft. This clarification comes by way of an amendment to the federal statute, 49 U.S.C. §44112(b). 

    The Federal Statute Prior to Amendment

    Prior to the amendment, 49 U.S.C. §44112(b), provided, in relevant part: 

    Liability.-- A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of --
    (1) the aircraft, engine, or propeller; or
    (2) the flight of, or an object falling from, the aircraft, engine, or propeller.

    The majority of courts had held, or suggested in dicta, that the statute provided immunity to owners, lessors and secured parties not in actual possession or control of the aircraft for state law claims arising out of injuries to persons, regardless of whether or not they were on board the accident aircraft.2

    Courts in a minority of jurisdictions, however, had limited the pre-emptive effect of the statute depending on whether the injured party was on the ground or a passenger on board the aircraft. Most notably, in Vreeland v. Ferrer, the Florida Supreme Court found that the "limitation on liability would apply only to individuals and property that are underneath the aircraft during its flight, ascent, or descent."3 Under the Vreeland approach, there was no pre-emption for claims made by or on behalf of persons on board the accident aircraft.

    The FAA Reauthorization Act Amends 49 U.S.C. §44112(b) 

    Section 514 of the FAA Reauthorization Bill, titled "Aircraft Leasing," removes any uncertainty cast by Vreeland and its progeny. It amends 49 U.S.C. §44112(b) by striking "on land or water" and inserting "operational" before "control." As a result, the statute now reads:

    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 --
    (1) the aircraft, engine, or propeller; or
    (2) the flight of, or an object falling from, the aircraft, engine, or propeller.

    The effect of the amendment is twofold. First, the deletion of "on land or water" abolishes the minority view expressed in Vreeland that there is a distinction based on the location of the injured persons. A court will no longer be able to subscribe to the Vreeland approach that the injured person must be "underneath" the aircraft. Second, the addition of "operational" before "control" serves as a further bar to arguments that certain types of activities by owners, lessors or secured parties – other than operation of the aircraft – could be deemed "control." 

    The amendment furthers the full purpose and original objectives of Congress in enacting a statute limiting liability for financiers, owners and long-term lessors4 of aircraft. The amendment ensures a uniformity of result by confirming that in all instances the pre-emptive scope of the statute is very broad, subject only to the express limitation of "actual possession or operational control."   

    Notes

    1 H.R. 302, Pub.L. 115-254, Oct. 5, 2018, 132 Stat 3186.

    2 See, e.g., Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir. 1994) (predecessor statute to 49 U.S.C. §44112 and Illinois bailment law precluded liability against aircraft owner because owner did not retain possession or control of aircraft and did not have knowledge of alleged defects); In re Lawrence W. Inlow Accident, 2001 WL 331625 (S.D. Ind. Feb. 7, 2001) (49 U.S.C. §44112 precluded liability of sublessor of helicopter following death of passenger hit in head with rotor while disembarking); Mangini v. Cessna Aircraft Co., 2005 WL 3624483 (Conn. Super. Dec. 7, 2005) (49 U.S.C. §44112 pre-empted negligence claims on behalf of deceased passenger against owner whose aircraft made emergency landing and crashed); Esheva v. Siberia Airlines, 499 F. Supp. 2d 493, 499 n.4 (S.D.N.Y. 2007) (stating indictathat aircraft lessor would be "absolutely immune for such liability in the United States" for claims of derivative liability brought on behalf of passengers of airplane that crashed); Escobar v. Nevada Helicopter Leasing LLC, 2016 WL 3962805 (D. Haw. July 21, 2016); Lu v. Star Marianas Air, Inc., 2015 WL 2265464 (D.N.Mar.I. May 12, 2015). 

    3See Vreeland v. Ferrer, 71 So. 3d 70 (Fla. 2011), reh'g denied (Sept. 13, 2011), cert denied, 132 S. Ct. 1557 (U.S. 2012); see also Storie v. Southfield Leasing, Inc., 282 N.W.2d 417 (Mich. Ct. App. 1979), aff'd sub nomSexton v. Ryder Truck Rental, Inc. 320 N.W. 843 (1982). 

    4 49 U.S.C. §44112(a) defines "lessor" as "a person leasing for at least 30 days a civil aircraft, aircraft engine, or propeller."

    This article was originally published by Holland & Knight on October 31, 2018.

  • Tracey Cheek posted an article
    GAMA and AIA Call for Commitment to Implement Key Reforms see more

    NAFA member, GAMA, shares statement regarding the historic opportunity of the FAA Reauthorization Act of 2018 being signed into law.

    Washington, DC –– The Aerospace Industries Association (AIA) and the General Aviation Manufacturers Association (GAMA) today issued the following joint statement after the Federal Aviation Administration (FAA) Reauthorization Act of 2018 was signed into law by President Trump:

    “This is the first time since 1982 that the U.S. government has enacted a five-year FAA reauthorization. This new law contains key reforms that can help to transform the U.S. aerospace industry and the FAA, and secure America’s position as a global aviation leader into the future. 
     
    “This new law provides direction, training, and tools for the FAA to be able to aggressively implement critical reforms that will enable new aircraft and technologies such as urban air mobility, commercial space, unmanned aerial systems, supersonics, and additive manufacturing. It will also provide our industry the budget stability and certainty we need to deliver on our extensive research and development investments.
     
    “At their core, these reforms will help to drive important progress on safety, efficiency, investment, competitiveness and the effective use of taxpayer and industry resources. We appreciated the Congress’ focus on improving the certification process, and including measures to bolster the future aviation workforce, including by increasing the diversity and inclusion of underrepresented groups, so that workforce limitations are not an impediment as our industry continues to expand. 
     
    “The signing of this legislation into law is an historic opportunity. The FAA’s implementation of these mandated reforms can accelerate change and innovation at the agency. Without them, the pace of new technology will continue to overwhelm the regulatory system. We call on all members of the government and industry to commit to this transformational timeline and work together to implement this legislation.”

    For additional information, please contact Sarah McCann, GAMA Director of Communications, at +1 (315) 796-1560 or smccann@gama.aero, or AIA Director of Communications Dan Stohr, at (703) 358-1078 (office), (703) 517-8173 (mobile), or dan.stohr@aia-aerospace.org.

    This article was originally published by GAMA on October 5, 2018.