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.