Thursday, March 17, 2016
The following is a guest post by Daniel L. Spivey, a 2nd-year J.D. student at DePaul University College of Law.
For the first time since the Civil Aeronautics Board was in existence, an airline has been challenged on whether it is allowed to place a blanket embargo on a particular type of cargo. Conservation Force et al v. Delta Airlines, is a case that was filed in the Northern District of Texas challenging Delta's ban on the Big Five hunting trophies (lion, leopard, elephant, rhino, and buffalo).
In July 2015, one of Africa's most well known lions, Cecil the Lion, was shot and killed by Dr. Walter Palmer while he was on a hunting expedition. In response to public pressure, all three major U.S. airlines – American, United, and Delta – decided to ban the transport of big game hunting trophies across their respective fleets. Delta is the only airline named in the complaint because Delta is the only airline that flies directly from the United States to Johannesburg, South Africa and through its alliance partner to Tanzania and Zimbabwe. There are several plaintiffs named in the complaint. Plaintiff Conservation Force is a non-profit 501(c)(3) public foundation formed for purposes of conserving wildlife and wild places. Both Dallas and Houston Safari Clubs, the Community Areas Management Programme for Indigenous Resources ("CAMPFIRE"), Mr. Core Knowlton (a hunter), and the Tanzania Hunting Operators Association ("TAHOA") are also named.
Plaintiffs allege that Delta's discrimination violates its duty as a common carrier under federal common-law and the Federal Aviation Act, specifically 39 U.S.C. §41310. Plaintiffs also allege tortious interference with business relations – claiming that Plaintiffs' businesses will suffer because hunters will be discouraged from going to Africa. Plaintiffs also put forth a public policy argument claiming that conservation efforts will be harmed in Africa because the money used to obtain hunting permits is instrumental in conservation efforts.
Courts have not dealt with this issue since the case of Delta Airlines, Inc. v. Civil Aeronautics Board in 1976. In that case, the court held that airlines could not create a blanket ban on hazardous materials because Congress had already set out the guidelines for transporting such goods and deemed them safe. In the present day, where the FAA is now the aviation regulatory agency, there have been no cases challenging an airline's ban on cargo based on discrimination.
Plaintiffs will face an interesting challenge in convincing the court that they are being discriminated against unreasonably. Delta argues that as a common carrier the common-law only requires it to treat all shippers alike not all cargo. Delta argues that because this ban applies to anybody trying to ship a big game hunting trophy then it is allowed under common-law. A separate but interesting topic is whether there is an implied private cause of action under the Federal Aviation Act. Courts have actually decided this issue both ways. However, even if there is an implied private cause of action under the Federal Aviation Act then the Plaintiffs still must show that they were unfairly discriminated against. Plaintiffs argue they are being discriminated against because it a certain class of people, from a certain part of the world, trying to ship a particular item that are being treated differently. This is an interesting argument and it will be fascinating to see how the court responds.
Plaintiffs' claim for tortious interference with business relations is expressly preempted under the Airline Deregulation Act because it relates to an airline's service. The case law is clear on this issue.
Wednesday, March 2, 2016
The U.S. Department of Transportation has issued a final rule prohibiting the use of electronic cigarettes on scheduled and charter flights. Like the broader smoking ban, the rule applies to both domestic and foreign carriers despite past criticisms that applying smoking bans to foreign airlines oversteps U.S. regulatory authority. Passengers are also barred from packing electronic smoking devices in their luggage out of concern for the fire risk presented by the devices' lithium ion batteries.
Tuesday, March 1, 2016
Late last week news reports confirmed that U.S. House of Representatives Transportation Committee Chairman Bill Shuster's ambitious, but controversial version of the FAA Reauthorization bill has been abandoned. The Senate still intends to introduce a bill this month, but it is unlikely to include some of the far-reaching changes contemplated for the House Bill, most notably the privatization of air traffic control. FAA authorization expires March 31, and it is almost certain that a short-term extension will be required.
New York Senator Chuck Schumer announced plans to introduce an amendment to the forthcoming Senate Bill that would establish minimum seating requirements for passenger aircraft. The details of Senator Schumer's proposal are not yet known, but presumably they would include minimums for leg room and seat pitch. There is no identifiable market failure present that would make it necessary to regulate passenger comfort, passengers who desire increased leg room can easily express that preference by paying extra for a higher class seat, but measures like this are often politically popular. Nonetheless, I would be surprised to see the amendment included in the final bill.
Wednesday, February 24, 2016
A controversial new report emerged today, accusing Russian military forces of firing the missile that downed Malaysian Airlines Flight MH17 in 2014. The report's conclusions have not been confirmed or endorsed by other experts or representatives of the Joint Investigation Team responsible for investigating culpability for the incident, and at this point it would be premature to make assumptions about the accuracy of the analysis. If true, however, it would dramatically change the international law implications of the tragedy. The operating theory until now has been that the aircraft was downed by Ukrainian separatists, non-State actors who would likely prove difficult to bring to justice. If this was an act of representatives of the Russian state new possibilities will be introduced, including reparations, sanctions, and international tribunals.
Tuesday, February 16, 2016
The U.S. Department of Transportation announced this morning the finalization of an agreement to permit the operation of scheduled air services between the United States and Cuba for the first time in approximately half a century. Beginning March 2, U.S. carriers will have the opportunity to apply to operate the 110 daily round trip flights between the two countries permitted under the new agreement.
Tuesday, February 9, 2016
The Committee on Aviation Environmental Protection (CAEP) yesterday recommended that the ICAO Council adopt a new standard that has been prepared with regard to CO2 emissions from aircraft. It would be the first international standard concerning CO2 emissions, though standards exist for other types of aircraft emissions and engine noise. The standard is intended to apply to all aircraft designs beginning in 2020 and to deliveries of in-production aircraft types beginning in 2023, with production of non-compliant aircraft to be phased out entirely by 2028. This is a major step for international efforts to reduce aviation emissions, though it is not to be confused with ICAO's ongoing efforts to draft a global plan for emissions reduction that applies to airline operations as opposed to aircraft design and manufacture.
Thursday, January 28, 2016
In a somewhat unexpected development, the Wall Street Journal is reporting that ICAO's air navigation commission will recommend to the ICAO Council that lithium ion batteries be banned from cargo holds of passenger aircraft. The decision is surprising because it runs contrary to the recommendations of ICAO's dangerous goods panel which advised against such a ban late last year.
Wednesday, January 20, 2016
Europe has a new lobbying group, Airlines for Europe (A4E), which hopes to replace the Association for European Airlines (AEA) as the primary trade association for European carriers. AEA was beset by defections last year over the association's opposition to the growth of middle eastern carriers in the European market. The new association includes remaining members of AEA such as Lufthansa and Air France-KLM, along with some of the association's most significant defectors, such as IAG, and major LCCs such as Ryanair and easyJet. A4E's first campaign is targeting airport charges, an area of agreement for all carriers.
Friday, January 15, 2016
Air Transport World is reporting that LATAM will seek antitrust immunity for joint ventures with American Airlines and IAG. Competition authorities in South America, the European Union, and the United States will all need to acquiesce. The prospects for success will be analyzed in a future post. For now, it is simply worth calling attention to this potentially significant development. This would be the first extension of the immunized, metal-neutral joint ventures to include an airline outside of Europe or North America.
Wednesday, January 13, 2016
Vietnam has filed a complaint with ICAO about recent Chinese flights to the Fiery Cross Reef in the hotly contested South China Sea, to which Brunei, China, Vietnam, Malaysia, Taiwan and the Philippines all register territorial claims. Vietnam is responsible for supervision of international flights in the area, and complains that China has recently conducted dozens of flights through the region without properly notifying Vietnamese aviation authorities.
China contends that because these are state flights, they are not subject to the same air traffic requirements as civil aviation. The characterization of the test flights to the Fiery Cross air strip as state flights appears reasonable despite the use of State-owned commercial airliners. The flights did not transport ticketed passengers, and given that the islands in question are primarily uninhabited, commercial services to the area are unlikely. Vietnam's complaints are not limited, however, to the question of state or civil operations, as Vietnam asserts the island area comprises part of Vietnam's sovereign airspace, through which even state flights are prohibited absent prior approval by Article 3 of the Convention on International Civil Aviation (the Chicago Convention). ICAO will have no interest in getting drawn into the larger question of which State has sovereignty over the islands and surrounding areas. Should ICAO take a position, it is likely to be sufficiently narrow to be read as neutrally as possible on the sovereignty question.
Wednesday, January 6, 2016
Etihad appears poised to increase its ownership stake in India's Jet Airways to 49%, the maximum amount permitted by Indian law. India only recently relaxed its restrictions on foreign investment of airlines and Etihad is taking advantage. The rule changes are, of course, benefiting Jet Airways as well, as the carrier is desperate for the capital Etihad is providing. Despite the newly relaxed rules, Indian government officials retain the authority to scrutinize the transaction and may decide against approval. This latest investment, if approved, will be the last equity infusion of this type that Etihad will be able to provide Jet for the foreseeable future. Not only do India's national laws prohibit Etihad from acquiring a majority ownership in Jet, but Jet's ability to serve international routes under most bilateral air services agreements would be jeopardized should it become majority foreign-owned.
Tuesday, January 5, 2016
A recently published study on the effects of the U.S. Department of Transportation's 2010 Tarmac Delay Rule is receiving considerable media attention. The study by researchers at Dartmouth and MIT found that the rule has been successful in its intended goal of reducing the number of delays in which passengers are stranded on the tarmac for an excessive period of time, but that flight cancellations and non-tarmac delays have increased as a consequence of airlines' attempts to comply with the rule. The study's authors propose alterations to minimize the rule's negative effects, such as increasing the tarmac delay threshold from 3 to 3.5 hours and exempting evening flights from the rule to reduce cancellations that strand passengers overnight.
Wednesday, December 16, 2015
The EU General Court today struck down €790 million in fines levied by the European Commission against 11 airlines in a 2010 antitrust decision. The Commission had accused the airlines of colluding on prices for fuel surcharges and security measures, but the court found the Commission's case wanting. It is not yet known whether the Commission will appeal the ruling to the European Court of Justice.
Monday, December 14, 2015
The FAA issued a press release announcing the new registration process for drone hobbyists, meeting its goal of having a registration system in place before Christmas. The process follows closely the task force recommendations released last month. A few notable additions involve the registration deadlines. Current small drone operators have until February 19, 2016 to register, while drones purchased after December 21 will need to be registered prior to use. The FAA is also hoping to entice early registration by waiving the $5 registration fee for operators who register before January 20, 2016. For now, the online registration system is only intended for recreational users, and for aircraft that fall within the specified size dimensions for small UAS.
Monday, December 7, 2015
Reuters reports today that China plans to reform slot allocation at some of its major airports in 2016. Interestingly, China will test out different methods of slot allocation, including sale and random drawing, at different airports, offering a potentially useful natural experiment for scholars and economists. Under the current system, State-owned airlines have been granted the most attractive slot times at the expense of private carriers. Unfortunately, it appears the reforms will only apply to domestic flights, leaving in place the current system for international services, which is reportedly an obstacle to amending the China/U.S. Air Services Agreement.
Thursday, December 3, 2015
The Russian government is reportedly transferring some key aviation responsibilities, including incident investigation and aircraft type certification away from the Interstate Aviation Committee. Neither the reason for the shakeup nor the new assignment of duties are yet publicly known, but the Ministry of Transport and Federal Air Transport Agency (Rosaviatsiya) are both expected to assume increased responsibilities.
Tuesday, December 1, 2015
The U.S. Federal Aviation Administration (FAA) became the latest external agency to publicly express a lack of confidence in the safety of Thai aviation by downgrading Thailand from Category 1 to Category 2 status under the U.S. International Aviation Safety Assessment program. Earlier this year, China, South Korea, and Japan had curtailed Thailand's ability to operate flights to their markets, and the International Civil Aviation Organization pronounced Thailand non-compliant with international safety standards. Because Thai airlines are not currently operating to the United States, the latest downgrade lacks any direct commercial consequences, aside from reputational damage. Thailand clearly has work to do to regain the confidence of the international community.
Monday, November 23, 2015
The U.S. Federal Aviation Administration's (FAA) Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee released its final report earlier today. The recommendations contained within the report are non-binding, but the FAA is not expected to significantly deviate from the plan outlined in the report. There is very limited time remaining if the FAA is to meet its objective of having a working registration process in place prior to the Christmas holiday, but the Task Force's recommendations may be manageable. The key recommendations were to require owners of small Unmanned Aircraft Systems (under 55 pounds) to register their drones with the federal government online prior to operation, as opposed to at the point-of-sale. The Task Force recommends that registration be free of charge, and open to any person, citizen or not, as long as he or she is at least 13 years of age. Owners would only be required to provide their name and street address when registering. After registration is complete, each drone will be assigned a registration number which the owner will be required to affix to the drone. There is little to object to in the report, as the registration process described should hardly inconvenience drone operators. This hasn't prevented some drone enthusiasts from objecting on principle to the notion that the FAA has the statutory authority to mandate registration of non-commercial drones, which remains a live question, though one that the FAA likely won't have to litigate until 2016. On the pro-regulatory side, there is concern that not requiring registration at the point-of-sale will lead to widespread non-compliance with the registration requirement. The Task Force recommended the imposition of monetary penalties for non-compliance but did not include specific amounts.
Wednesday, November 18, 2015
The Russian government has now acknowledged that the recent explosion of a charter jet departing from Egypt's Sharm el Sheikh airport was almost certainly caused by an act of terrorism. The Egyptian government had disputed the bomb theory in recent weeks, but without Russian support Egypt appears likely to eventually concede on this point as well. Should individuals be located and apprehended in connection with the bombing, prosecution of their actions would be covered by the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation and its 1988 Supplemental Protocol.
Monday, November 16, 2015
As we await the results of the investigation into the midair explosion of a Russian airliner two weeks ago, tension has arisen between authorities in Egypt and countries such as the United States, which are used to playing a more active supporting role in investigating such incidents. In addition, the suspected connections to terrorism, combined with the tragic events in Paris last week, have prompted a renewed focus on airport security.