AVIATION (AIRPORTS) / Federal Aviation Administration “updates, simplifies, and streamlines rules of practice and procedure for filing and adjudicating complaints against federally-assisted airports”.

“Rules of Practice for Federally-Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” 

September 12, 2013. Final Rule.

“It improves efficiency by enabling parties to file submissions with the Federal Aviation Administration (FAA) electronically, and by incorporating modern business practices into how the FAA handles complaints. This amendment is necessary to reflect changes in applicable laws and regulations, and to apply lessons learned since the existing rules were implemented in 1996.” Continue reading

AVIATION (AIRPORTS) / Federal Aviation Administration hereby, “publishes the entire Policy Regarding Airport Rates and Charges currently in effect in a single document”. This new comprehensive document does not either adopt or propose substantive changes to existing regulation.

“Policy Regarding Airport Rates and Charges”

September 10, 2013. Notice; Publication Of Entire Policy Statement As Amended. Continue reading

REMARKS / Court rejects bailment action as the basis for recovery after damage to parked aircraft: Plaintiff Part 135 charter operator’s business jet flown to Nashville airport for some maintenance work to be done the following morning. Fixed base operator (FBO) tows that business jet and parks it on a general aviation ramp. Next morning business jet shows damage to windshield and left engine. Plaintiff alleges that this occurred while FBO towed business jet past a Boeing 737 whose jet blast caused the damage – though there is no direct evidence of this. Plaintiff lawsuit against fixed base operator under Tennessee bailment statute. Held: No bailment relationship – either formal or de facto – between Plaintiff aircraft owner and FBO because business jet was NOT in FBO’s “SOLE custody and control” – others such as maintenance provider would also have expected to take custody and control. Comment: In context of formal contract of bailment this almost certainly would have worked. But after-the-fact improvisation of de facto bailment did not fly.

Executive Jet, LLC v. AirTran Airways, Inc., Case No. 3:10-CV-00710 (U.S. District Court for the Middle District of Tennessee, May 22, 2013). Copy of court’s version of opinion available here.

Legal Take-Away:

No real legal development here. Law of bailment since Medieval times has required sole custody and control as precondition to finding a bailment relationship.

Why? Because the responsibility of bailee as more or less guarantor of property in its custody requires the ability commensurate with such a high standard of responsibility – i.e., the bailor intended that the bailee and only the bailee have custody and control of the bailed property.

Practical Take-Away:

Use of an arcane theory like bailment – at least arcane in the context of a fixed base operator towing an aircraft between the time when it is in owner / operator’s custody and control to point where it is in maintenance provider’s custody and control – is a substitute for either good forethought in contracting or taking the precaution to have one’s own personnel see to the aircraft’s safe delivery to the maintenance provider.

AVIATION (AIRPORTS) / Audit Report – U.S. DOT Office of the Inspector General issued “[American Recovery and Reinvestment Act of 2009] Lessons Learned: Opportunities Exist for FAA to Further Improve its Oversight of Airport Grant Payments” April 18, 2013.

Complete inspector general report available here, and summary available here.

Note in particular the observations of JDA Blog’s Cynthia Schultz – Vice President in charge of the airports SMS practice at JDA Aviation Technology Solutions and former Boeing aeronautical engineer and Director of a city airport. Ms. Schultz express concern that the timing of this Inspector General report might well inflamed already-heated sequestration discussions and other debates surrounding this portion of the non-entitlement, “discretionary” FAA budget.

AIRPORTS (ENVIRONMENTAL & ADMINISTRATIVE LAW) / The Federal Aviation Administration issued a letter to the City of New York that endorsed the recommendations of a blue ribbon panel approving city plans to re-open a coastal garbage transfer facility in regard to its impact upon “safe airport operations at LaGuardia Airport” and the related mitigation of wildlife hazards. Various environment-minded plaintiffs petitioned the Second Circuit to “review” the letter as the action of an administrative agency – held: The FAA letter was not a final order under 49 U.S.C. § 46110(a) therefore the petition was dismissed.

Paskar v. U.S. Department of Transportation, Docket No. 10-4612-ag, Slip copy (U.S. Court of Appeals for the 2nd Circuit, April 9, 2013). Free copy of opinion available here.

ANNOUNCEMENT / “FAA and Port Authority of New York and New Jersey Reach Agreement on Airport Safety Violations” – “Settlement agreement” among Federal Aviation Administration and entity that operates LGA, JFK, EWR and Teterboro relating to aircraft rescue and firefighting (ARFF) violations from December 2010 to June 2012 at four New York area airports. Comment: Airport managements and related municipalities and other entities should pay attention to this “public hanging” (read more below) and its price tag of a $3.5 million fine, and lengthy list of remedial action agreed to.

Announcement available here.  

There is a substantial back-story to this announcement and I don’t pretend to know fully what it is. But the agency is definitely sending a signal that all similar operators need to take seriously.

At an American Bar Association conference at which I presented a few years ago the panel of four lawyers scheduled to follow my presentation consisted of 4 past heads of the Securities & Exchange Commission’s Division of Corporate Finance – the SEC unit that oversees the disclosure of important corporate information from securities issuers to the investing public.

In an informal moment with these 4 distinguished regulators who had served presidents during the past 30 years I asked: What is a regulatory agency’s single key to being taken seriously by those it regulates?

One of the 4 said: “A public hanging”. Hearty laughter and unanimous agreement followed.

Given the prominence of the “defendant” here, it would be wise for airport operators around the country to pay attention to this “public hanging”.

AVIATION (AIRPORTS) / “FAA Launches Second Phase of GA Airports Study”.

FAA announcement on website available here.

“The FAA is beginning the second phase of its general aviation (GA) study issued last spring, General Aviation Airports: A National Asset, to further define the role of GA airports.  In the original study, the FAA captured the critical and diverse roles of the nation’s 2,952 general aviation airports, which resulted in four new categories — national, regional, local, and basic.  However, while completing the study, the FAA learned that more than 497 airports did not clearly fit into any of the categories.  Therefore, the agency committed to resume its work with airport sponsors, state aeronautic divisions, and industry to gather additional information on these airports. Continue reading

AVIATION (AIRPORTS) / Wrongful death negligence action arising from mid-air between Cessna Citation and one or more American White Pelicans approximately 4 miles from general aviation (not Part 139) airport – held: (1) Regarding airport: No evidence that its failure to implement wildlife mitigation program was proximate cause; and (2) Regarding FAA, simultaneous alternative rulings: (a) No evidence of ATC negligence in monitoring of radar, and (b) ATC’s monitoring of radar was a “discretionary function” removing application of Federal Tort Claims Act.

In two separate opinions issued the same day the court ruled as follows:

1. Based upon pleadings and undisputed facts before the court airport’s lack of a wildlife mitigation program could not be considered the proximate cause of the mid-air collision with birds that ultimately caused the Cessna Citation to crash. 

2. Based upon pleadings and undisputed facts before the court there was “not a scintilla of evidence to show that [ATC personnel’s] radar display was not configured in the ‘correlated’ mode as is the standard operating procedure of the FAA”. Hence no showing of negligence in that connection.

3. “The type of radar equipment the FAA uses to provide air traffic control services to pilots, the mode in which the equipment is operated, the information displayed on the air traffic controller’s radar screen, and the training given to air traffic controllers regarding the use of the equipment clearly involve policy-based judgments that are of the type that the discretionary function exception to the FTCA was designed to shield from liability”.

Hartman v. United States, Slip copy, 2013 WL 501346 (U.S. District Court for the Western District of Oklahoma, February 8, 2013). No free copy of opinion available at time of posting.

Hartman v. United States, Slip copy, 2013 WL 500973 (U.S. District Court for the Western District of Oklahoma, February 8, 2013). No free copy of opinion available at time of posting.

AVIATION / Airport – Changes in a major FAA grant progam for airports: The FAA will be making significant changes in the “Airport Improvement Program”, by which the FAA provides grants to public agencies — and, in some cases, to private owners and entities — for the planning and development of public-use airports that are included in the National Plan of Integrated Airport Systems (NPIAS).

“This notice announces the request for comments on the draft of FAA Order 5100-38D, Airport Improvement Program Handbook. When finalized, this Order will replace Order 5100-38C, Airport Improvement Program Handbook, issued on June 28, 2005. This update clarifies statutory requirements, including changes to the AIP statute from the recent FAA reauthorization.” 

Note that FAA “Orders”, strictly speaking, are directed solely to FAA personnel. The agency here offers a draft of its new order for public comments since the order text will direct various non-FAA private personnel involved in public-use airports. 

February 1, 2013, Invitation To Comment On Draft FAA Order 5100 38, Airport Improvement Program Handbook.    Continue reading

EMPLOYMENT / AIRPORTS: The Port of Seattle as owner and operator of the Sea-Tac Airport is governed by the same “principles of liability [as those] imposed on other entities that control the common area of a multiemployer workplace”.

Here employee of company that was ground services contractor at Sea-Tac Airport sued airport on theories of (1) premises liability, (2) Washington statute to protect employees from injuries, and (3) common law negligence. Airport moved for summary judgment. Motion denied on all three theories because of material fact dispute. 

Put another way, no theory could be dismissed at this point as a matter of law because of material issues of fact. 

Afoa v. Port of Seattle, 2013 WL 363192 (Supreme Court of the State of Washington, January 31, 2013). Free copy available hereContinue reading