Thursday, April 30, 2015
The list of articles for the Spring 2015 edition of Issues in Aviation Law & Policy has been released. Titles and authors are listed below.
- Pai Zheng, Justifications and Limits of ADIZs under Public International Law
- Úna McLaughlin, Identifying Three Waves in the European Commission’s Increasingly Strict Approach to Airline Remedies
- Philip Donges Snodgrass, Aviation Flags of Convenience: Ireland and the Case of Norwegian Airlines International
- Benjamyn Ian Scott, International Suborbital Passenger Transportation: An Analysis of the Current Legal Situation of Transit and Traffic Rights and its Appropriate Regulation
- Adejoke O. Adediran, States’ Responsibility Concerning International Civil Aviation Safety: Lessons from the Malaysia Airlines Flight MH17 Air Crash
- Moses George, Airport Privatization – International Organizations and Emerging Issues
- Delphine Defossez, Will There Be More Competition After the Single European Sky Is Implemented?
Wednesday, April 22, 2015
Earlier this month the U.S. 7th Circuit Court of Appeals issued its opinion in Volodarskiy v. Delta Airlines, affirming the opinion of the Northern District Court of Illinois that Regulation 261/2004 of the European Union (EU 261), which pertains to the rights of airline passengers to certain treatment and possibly compensation for canceled or delayed flights, does not provide for judicial redress outside of the EU Member States.
At issue here was whether a passenger entitled to bring an EU 261 claim could choose to do so in U.S. courts. In a handful of prior cases, plaintiffs have had limited success bring breach of contract claims in U.S. courts against carriers they alleged to have incorporated the compensation requirements of EU 261 into their terms of service. Having conceded at an earlier stage of litigation that such a claim was unavailable in this case, the plaintiffs rather cleverly argued that they should be able to seek to enforce the right of action granted by EU 261 directly in U.S. courts. The text of EU 261 instructs Member States to establish administrative bodies for the purposes of handling EU 261 claims, and permits passengers to seek relief through the "competent courts and bodies." The plaintiffs contended that there is no explicit requirement within the text that passengers that choose to seek relief via courts restrict themselves to the courts of the EU Member States. Evident in both the oral arguments and the written opinion is the court's keen awareness that the likely purpose behind attempting to bring these relatively small value claims in the U.S. is the possibility of combining multiple claims into a high dollar class action.
Regardless of the motivations behind the case, the question of whether a private right of action created by an EU regulation with no analogue in U.S. law should be recognized in U.S. courts is highly interesting. As the court observed on page 8 of its opinion, "It is hard to classify this dispute doctrinally. It has shadings of jurisdiction, venue, and choice-of-law, but it doesn't fit neatly into any of these doctrinal baskets." The court ultimately decided that the text of EU 261 is best interpreted as authorizing a private right of action only within the courts of the EU Member States. The opinion includes some discussion of comity, forum non conveniens, and similar alternative principles on which a decision might have been based, but those appear largely relegated to dicta.
The full opinion can be found here.
Wednesday, April 8, 2015
Applying the recently revised Guidelines on State aid to airports and airlines, the European Commission has approved three schemes proposed by the French government for the purposes of improving regional connectivity and development and relieving air traffic congestion.
Thursday, April 2, 2015
We hope to offer additional details and commentary as more facts emerge from last week's tragedy involving Germanwings Flight 9525, but for now what follows is an overview of the basic legal issues pertaining to the event as we understand them.
French authorities bear the primary responsibility for leading the investigation into the crash of Germanwings Flight 9525 and producing the final accident report. This assignment of responsibility stems from Annex 13 of the International Convention on Civil Aviation (Chicago Convention), which assigns responsibility for investigating the circumstances of an accident to the State of Occurrence. Other States legally entitled to have representatives participate in the investigation include the State of Registry, State of the Operator, and the State of Design and Manufacture. Because the aircraft in question was an Airbus A320 aircraft registered in Germany and operated by a German carrier, Germany appears to be the only other State with a legal right to participate in the investigation.
The primary legal concern with the conduct of the investigation, which is in its early stages, is the amount of information that has been leaked to the general public. Standard 5.12 from Annex 13 instructs the State conducting the investigation not to disclose a wide range of information including statements from investigation authorities, communications between persons operating the aircraft, cockpit recordings or transcripts thereof, medical or similarly private personal information about persons involved in the accident, and the analysis or opinions of accident investigators, unless a determination is made that the disclosure of such information outweighs any potential impact on this or future investigations. While it appears to this point that most of the public disclosures have been made by French criminal investigators as opposed to the technical accident investigators, such as France’s Bureau d’Enquetes et d’Analyses (BEA), the past week has demonstrated how difficult it is to conduct a confidential investigation in the current social media environment.
Because this was an international flight and the affected States are all signatories, civil liability is governed by the 1999 Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention). This treaty sets no monetary cap on recovery, but does prohibit recovery of punitive or other non-compensatory damages.
The treaty holds Lufthansa (Germanwings is a wholly owned Lufthansa subsidiary) strictly liable for all proven damages up to 113,100 Special Drawing Rights (approximately $160,000) and presumes liability for any additional proven damages, unless the carrier is able to prove that the damage was not cause by its own negligence, wrongful act, or omission, or that of its agents or that the damage was solely caused by a third party. Pilots are considered agents of their employers. Based on the information presently available, there is no evidence that the carrier will be able to successfully defend itself from liability.
Lufthansa is likely to settle the vast majority of claims, with amounts likely to vary primarily based on the nationality of the victims. This variance is attributable to the ways different nationalities calculate damages in wrongful death cases as well as differences in national legal cultures regarding large awards. Should any claims proceed to litigation the plaintiffs will likely have their choice of forums between Germany and the home State of the passenger. Depending on where their tickets were purchased or the precise details of the passengers’ itinerary, some additional forums may be available to individual plaintiffs.
The Montreal Convention does not require carriers to provide advance payments to the families of victims to cover immediate needs, but it does permit States to impose such a requirement on their carriers which the European Union has done for all community carriers. Lufthansa has already announced plans to make advance payments of approximately $54,000 per passenger.
Ultimately, of course, the damages will actually be paid by Lufthansa’s insurers. Article 50 of the Montreal Convention mandates that States require their carriers be adequately insured to cover any and all liability to passengers that may arise under the Convention. Lufthansa is certain to have a separate policy covering the loss of the aircraft.
According to the standards contained in Annex 13 to the Chicago Convention, accident investigations are to be conducted for the purpose of gathering information to prevent future accidents and incidents and not for the purpose of apportioning blame or liability. However, some States pursue criminal liability for accidents and incidents involving aircraft according to their national laws. France is particularly aggressive about bringing criminal prosecutions for aircraft accidents. At these very early stages of the investigation, there does not yet appear to be any strong candidates for criminal prosecution.
One policy change has already been implemented in response to this incident, as airlines in Europe, Australia, Canada and elsewhere have begun requiring there to be two crew members in the cockpit at all times. This was already common practice in the United States. Given the recentness of the incident, these measures are, for now, voluntary. Though an incident of this nature will and should provoke further study of how to prevent its recurrence, with early commentary already focusing on pilot screening measures and cockpit security, it would be presumptive to recommend any significant changes to airline procedures before all of the evidence has been collected and analyzed.