Aviation Law Prof Blog

Russia Confirms Bomb Caused Jet Explosion

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.

Fallout from Kolavia Flight 9268

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.  

DOJ Opposes United Acquisition of Newark Slots

The United States Department of Justice has filed a complaint in federal court in an attempt to prevent United Airlines from acquiring 24 takeoff and landing slots at Newark Airport in an exchange with Delta Air Lines for slots at JFK Airport. United has a dominant position at Newark, owning more than 70 percent of the slots. United believes the relevant market for antitrust analysis should not be confined to city-pairs between Newark and other cities, but should encompass the entire New York city region in which there exist alternatives to Newark Airport and a greater degree of competition. The DOJ forced United to divest slots at Newark as a condition of its merger with Continental and has opposed subsequent attempts by United to reacquire Newark slots, so it can be assumed that the DOJ has already considered and rejected this argument. If the slot swap is to go forward, United may need to convince a court that the DOJ is mistaken.

Fight Over Unfair Competition to Shift to Europe

Reuters is reporting that the European Commission is drafting a legislative proposal for release early next year that would allow it to take a tougher line against competitive practices by non-EU carriers the Commission deems to be unfair. The report indicates that the new proposal could extend the Commission's authority to a broader range of practices, grant the Commission new investigative powers, and add new sanctions for violators up to and including revocation of traffic rights. The proposal is clearly intended with the Gulf carriers in mind, as the article mentions that the Commission hopes to discuss the issue of government subsidies with the UAE and Qatar in air services agreement negotiations next month. While subsidy accusations by the legacy U.S. carriers against the Gulf states, including a Wall Street Journal Op-Ed yesterday, have been the dominant story of 2015, this report indicates that Europe is poised to significantly escalate matters this winter.

ICAO Panel Votes Against Battery Ban

A proposal to ban shipment of lithium-ion batteries on passenger flights was brought before the ICAO dangerous goods panel earlier this week, but the panel reportedly voted against making a recommendation to ICAO's Air Navigation Bureau that the ban be adopted. Shipment of lithium-ion batteries have become an increasingly contentious issue in recent years as they have been found to present a fire risk if improperly stored, while demand has exploded as a result of their use in consumer electronic devices. The panel did recommend certain procedural safeguards be implemented with regard to battery shipment. The Bureau is expected to follow the panel's recommendation.

6th Circuit Allows District Courts to Hear Challenges to No Fly List Placements

A Sixth Circuit opinion handed down Monday should provide more options to persons seeking to challenge their placement on the No Fly List. Currently, the Department of Homeland Security provides an administrative process through which redress can be sought. Appeals of these DHS decisions are statutorily confined to U.S. appellate courts. According to the Sixth Circuit's ruling in Mokdad v. Lynch, challenges of a citizen's placement on the No Fly List by the Terrorist Screening Center, as opposed to appeals of the results of the administrative application for redress, are not covered by the aforementioned statutory restrictions and can therefore by heard by U.S. district courts, opening up a new venue for challenges. A more complete explanation of the legal issues involved can be found here.

Etihad Buys Time in Dispute Over Air Berlin Codeshares

The German transport ministry relented late last week on its refusal to approve codesharing between Air Berlin and Etihad on a number of flights, but only on a temporary basis. The ministry warned that it did not intend to approve operation of the codeshares beyond January 15. Etihad and Air Berlin had previously operated the codeshares in question, but the transport ministry announced last year that it had determined the codeshares were not authorized by the Air Services Agreement between Germany and the United Arab Emirates. Under the ASA, neither Etihad nor Emirates have the rights to serve Berlin, so Etihad has instead been sharing its code on Air Berlin flights between Berlin and Abu Dhabi. The transport ministry's recent decision appears to have been prompted by an injunction handed down by a German administrative court, presumably on the basis that Air Berlin would have been materially harmed if the codeshare question had gone unresolved beyond the October 25 deadline for approval of the winter flight schedule, and that Etihad's investment in a 29.2% stake in Air Berlin was predicated on the assumption that the codeshares would be permitted to continue. The dispute over codeshares is undoubtedly being influenced by the increasing tension between European carriers and the Gulf Carriers over issues of fair competition and Gulf carrier expansion into the EU market.

FAA Grants Nicaragua Category 1 Rating

The FAA announced last week that, for the first time since the creation of the International Aviation Safety Assessment program, Nicaragua has qualified for Category 1 status. The upgrade doesn't portend any immediate commercial ramifications as Nicaragua lacks an international carrier that could take advantage of the expanded operating privileges to the United States market that accompany a Category 1 rating, but it is nonetheless a welcome recognition for the country's aviation sector.

Issues in Aviation Law and Policy, Fall 2015 Issue

The Volume 15, Autumn 2014 issue of the International Aviation Law Institute's journal, Issues in Aviation Law and Policy (IALP), will be available in November. The following papers will appear in the upcoming edition:

• Brian F. Havel & John Q. Mulligan, International Aviation’s Living Constitution: A Commentary on the Chicago Convention’s Past, Present, and Future (Commentary)
• Federico Bergamasco, State Subsidies and Fair Competition in International Air Services: The European Perspective
• René David-Cooper, Implementing Safety Management Systems (SMS) in Canada: Is Flight Safety on a Collision Course with the Forced Disclosure of SMS Data?
• Ariel Martín Oliveto, FAA vs. EASA: A Comparative Analysis of the Disciplinary Systems Applied in Aviation Law
• Taylor Strosnider, The Discount List: Achieving Cape Town Convention Implementation and Its Future
• “Conversations with Aviation Leaders” Oral History Program: A Conversation with Frederick W. Smith (Transcript of Oral History Program Episode)

 

What are Russia's Options?

According to news reports today, Russia hopes to prevent yesterday's report from the Dutch Safety Board from becoming the final word on the downing of Malaysia Airlines Flight MH17 and is asking ICAO for help. It isn't quite clear what Russia is hoping ICAO will do. Annex 13 to the Chicago Convention, which covers Aircraft Accident and Incident Investigations, contains no provisions under which ICAO would commission a second, separate investigation upon conclusion of the official investigation and issuance of the final report. Investigations can be reopened if new evidence is discovered, but Russia has not indicated what new evidence it has in its possession, and the decision to reopen would be made by the Netherlands as the State that conducted the investigation. There appears little reason to believe the matter will be reopened, and it is likely that today's reports were primarily intended as a way for Russia to reiterate its opposition to the Dutch report.

Russia had limited participation in the investigation because it was not the State of Registry, the State of Manufacture, the State of the Operator, and there were not Russian nationals aboard the flight. This may seem unfair to Russia, as it essentially stands accused, but the investigative report is not intended to assign blame or liability. Should a criminal tribunal be established outside of ICAO or the UN, Russia would presumably have an opportunity to defend itself then.

Dutch Safety Board Releases MH17 Report

The Dutch Safety Board has released its final report into the downing of Malaysia Airlines Flight MH17 over Ukraine last year. According to the report, the aircraft was most likely struck by a Russian-made Buk missile fired from the contested portion of eastern Ukraine. The report certainly supports theories that the aircraft was shot down by Russian-supported separatists, without proving them inconclusively. Russia immediately disputed the report. The report also concludes that Ukrainian officials should have closed that region of airspace to civil aircraft.

Will Russia be Held Accountable for MH17?

Despite Russia's veto earlier this summer of a UN Security Council Resolution to establish a tribunal to investigate the downing of Malaysian Airline Flight MH17, the countries who lost nationals in the tragedy are determined to pursue some form of accountability for the attack. Australia, the Netherlands, Malaysia, Belgium and Ukraine are reportedly considering the formation of an independent tribunal that would not require UN approval, similar to the one adopted for the 1988 Lockerbie bombing. Expect to hear more about this idea  in the wake of a fairly convincing account produced yesterday by a group of British investigative journalists detailing Russian responsibility for the incident, which will be followed by the next Tuesday's release of an official report by Dutch investigators.

Regulatory Approval Holding Up US-Cuba Operations

Airlines had been hoping diplomatic talks in Havana earlier this week would clear the way for commercial operations between the countries later this year but according to reports, the FAA will need more time to ensure that Cuba's regulatory apparatus meets U.S. standards. 

ICAO to Postpone Flight Tracking Standards Until 2018

According to a Wall Street Journal report, ICAO will acquiesce to the wishes of industry and various Member States that the deadline to comply with new flight tracking standards be pushed back from 2016 to 2018. Reportedly, a proposed requirement that aircraft be equipped with deployable flight recorders is proving particularly contentious as at least Japan, the EU, and the U.S. believe superior technological solutions are available. 

Coincidentally, AirAsia today announced plans to install flight tracking systems on its aircraft. Interestingly, AirAsia will use different flight tracking technology then AirAsia India, which announced plans to fit its fleet with tracking systems last month. The AirAsia "franchise" model has at times raised questions about whether "effective control" of all AirAsia affiliates ultimately rests with the Malaysia-based parent. The fact that AirAsia and AirAsia India have chosen different flight tracking suppliers may offer one small data point in favor of affiliate independence.

U.S. Congress Extends FAA Funding by Six Months

The U.S Congress has passed a bill to prevent the FAA's authorization from lapsing until April of 2016. With the need to pass numerous appropriations bills before the new federal fiscal year begins tomorrow, it was clear that Congress was not yet ready to pass more ambitious legislation that would provide the FAA with long-term funding and direction. Though the summer began with talk about using the next FAA reauthorization to make significant changes, such as the possible privatization of air traffic control, the just-passed status quo extension calls to mind the 23 temporary measures passed before agreement was finally reached on the 2012 reauthorization. If there is reason for optimism, it is that by extending the FAA's funding into Spring, Congress has deliberately detached it from the anticipated budget fights over funding for the rest of the federal government, which is only expected to be extended into December. 

Russian Airlines Banned from Ukrainian Airports

As part of a series of economic sanctions imposed against Russia in response to its contributions to the hostilities in Eastern Ukraine, the Ukrainian government has revoked permission for Russian carriers to exercise third and fourth freedom rights to Ukrainian airports. Overflights, except for the transport of military cargo or troops, will still be permitted and presumably second freedom rights will also continue to be honored. Despite aviation's absence from agreements such as GATS, States have long considered air services a legitimate subject for inclusion in broader economic sanctions. Russia has threatened to retaliate with equivalent restrictions on Ukrainian carriers.

FAA Administrator Huerta Visits IALI

On Tuesday, September 22, the DePaul University International Aviation Law Institute hosted a morning reception at the Institute’s suite in the College of Law to welcome the incumbent Administrator of the Federal Aviation Administration (FAA), Michael P. Huerta, and the FAA’s Deputy Administrator, Michael G. Whitaker.   Also attending were the new Dean of DePaul College of Law, Jennifer Rosato Perea, her predecessor Professor Greg Mark, Institute Directors Professor Brian F. Havel and Professor Bruce L. Ottley, Adjunct Professor Steve Sandler, Institute Executive Director Stephen B. Rudolph, Institute Research Fellow John Q. Mulligan, and several current DePaul aviation law JD and LLM students.  As part of the event, the Administrator and Deputy Administrator joined a wide-ranging discussion of FAA regulatory policy moderated by Professor Havel.  Among the topics considered were the benefits and drawbacks of the FAA’s extensive rulemaking system, the agency’s expanding reliance on data collection and risk analysis, and the regulatory challenges posed by unmanned aircraft systems.  The discussion also examined the FAA’s increasing use of voluntary initiatives and performance-based rules, the agency’s “staged” approach to regulatory issues, the conceptual problems presented by possible regulation of unmanned operations in low-altitude airspace, and the FAA reauthorization bill currently before Congress.  Professor Havel concluded the discussion by inviting Administrator Huerta to participate in the Institute’s oral history series, “Conversations with Aviation Leaders,” past installments of which are available for viewing on the Institute’s website.

ECJ: Technical Problems are not Extraordinary Circumstances

In a significant judgment released today, the Court of Justice of the European Union ruled that airlines cannot avail themselves of the "extraordinary circumstances" defense in the case of cancellations or delays caused by technical problems in order to avoid paying compensation as required under EU Regulation No 261/2004. EU passenger rights law requires airlines to compensate passengers for cancellations or extended delays, but exempts carriers from this duty if "the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken." The CJEU had previously ruled in Wallentin-Hermann that "technical problems" did not rise to the level of "extraordinary circumstances" that would permit a carrier to avoid paying compensation. KLM attempted to distinguish the facts in this most recent case, Corina van der Lans v KLM,  from the Wallentin-Hermann judgment on the grounds that the faulty parts responsible for the delay had not exceeded their average life spans and the carrier had no reason to expect they would fail. The court was unsympathetic to this argument, concluding that part failures are inherent in the normal exercise of air carrier activity, and therefore not "extraordinary circumstances." This is yet another loss for airlines before the CJEU, and barring a hidden manufacturing defect, carriers should assume that they will have to compensate for technical delays.   

CAAC Hit with Corruption Probe

According to reports, the Communist Party of China has spent the past few months investigating top officials at the Civil Aviation Administration of China (CAAC) amidst a broader investigation into corruption at state agencies. Two specific officials were identified as under investigation and it is possible that the probe will affect others who have yet to be named.

Airworthiness Directive Already Existed for Exploding Engine

The Daily Beast is reporting that last week's high-profile incident in which a British Airways' Boeing 777 caught fire shortly before takeoff was caused by an engine flaw already known to the FAA, and for which the FAA had already issued an Airworthiness Directive mandating increased inspections for that engine type. British Airways claims to have been complying with all FAA directives, suggesting that once the full NTSB investigation is concluded, more frequent inspections may be required going forward.