CASE STUDY – Court of Queen’s Bench for Saskatchewan rejects tort plaintiff’s (decedent’s survivor’s) challenge to Canadian Aviation Regulations’ 2005 amendments that implemented “Safety Management Systems” that allegedly created a lax regulatory development contributing to the circumstances of an air crash.

For concise overview see write-up by Carolos P. Martins of Bersenas Jacobsen Chouest Thomason Blackburn LLP. Write-up available here.

Practical business take-away:

It looks to me as though this Saskatchewan case is the first “shot” fired in a new war between the plaintiffs’ tort bar in the common law countries and the actions of regulatory agencies and legislatures who do away with at least some of the “tried-and-true” grounds for tort liability in the form of safety statutes and regulations.

Plaintiff’s claim 

Plaintiff contended: SMS was substituted for tangible rules & in-person enforcement – led to crash.

Procedural context: Ministry of Transport for Canada as defendant through the Attorney General of Canada brought application “to strike out the statement of claim issued by the [plaintiff’s survivor] on the basis that it discloses no reasonable cause of action as against these defendants”.This meant that even if plaintiff proved every factual allegation that it made on this point the defendant Ministry of Transport for Canada would not have violated any law. In the U.S. system this is akin to a motion to dismiss for failure to state a cause of action in state court or a motion under Federal Rules of Civil Procedure 12(b)(6) in a U.S. District Court.

Free copy of opinion available here.

Background to Canadian SMS: Concerns expressed when 2005 amendments adopted

At the risk of over-simplifying, some sources in Canada have argued that Safety Management Systems (“SMS”) as implemented in Canada in 2005 amount to replacing hands-on confirmation through rigorous inspection that aircraft operators are conducting themselves safely with a poor substitute of procedural abstraction, empty formalities and paperwork unconnected to actual aircraft condition.

For examples of this view see here, here, here and here.

What relevance if any to United States?

Quite a bit actually. Three developments.

First, the international aviation safety body, ICAO, has adopted SMS methodologies as a means to increase safety of airline operations. See ICAO Safety Management Manual adopted back in 2006 here.

As a consequence, many air ministries both major (United Kingdom Civil Aviation Authority) and not so major (Commonwealth of the Bahamas Civil Aviation Department) have adopted SMS already.

Second, the U.S. Federal Aviation Administration has issued encouragement of SMS methodologies in the near term (see notice). that some airlines have already begun to implement (for instance American Airlines and American Eagle Airlines).

Third, regarding a mandatory SMS framework, the FAA has had pending since 2010 notice of proposed rulemaking to require SMS in specified Part 121 (airline) operations. It is not yet a final rule.

SMS is getting implemented worldwide – even in the U.S. eventually – so what?

The Saskatchewan case reminds that there is a legal liability system that surrounds the operations of an airline. Whatever methodological debates advocate for or against SMS as a substitute for or as a complement to specific rules, the tort liability system in common law countries like Canada and the U.S. gives special place to rules as the basis for civil liability for monetary damages.

Put differently, where a party causes a physical harm to someone simultaneously with violating a safety rule embedded in a regulation or statute, the courts often deem this to be automatic or “per se” negligence. At least those in common law countries (e.g., the U.S., the various legal systems that used to  comprise the British Commonwealth – but not so-called “Napoleonic Code” systems such as France, Mexico or the Canadian Province of Quebec).

In the future it is likely that substituting the relative abstraction of SMS for hands-on certainty of an inspection to see if a rule was followed will have two implications for the legal liability system: 

First, it may be the SMS is substituted for rules and inspections – at least to some extent. If so, it will give rise to more cases like this one in the Court of Queen’s Bench for Saskatchewan. The argument – though rejected here – will be: Because the government did away with important rules on the grounds that SMS will suffice for safety, I or my decedent was harmed by the lax safety environment that resulted.

Second, the absence of such rules as are displaced will render unavailable to tort plaintiffs – at least as to the rules dispensed with – the tort doctrine of automatic – or “per se” negligence. Here an operator fails to conform its conduct to a safety statute or regulation and as a result the tribunal concludes that proof of the regulatory violation proves a safety malfeasance.

REMARKS – PHMSA, ICAO and lithium batteries on U.S. domestic flights.

Link to post last Wednesday (here, here and here).

Two important points:

1. Lithium batteries are light in weight, small in dimension and ubiquitous in the electronic technology that is a staple of air cargo. 

Unfortunately, two situations push against each other. The non-transportation lay person views them as distinct from “real” hazardous materials – the nasty chemicals that one would expect to require adherence to the Hazardous Materials Regulations.

But the pilots and professional hazardous materials shipping experts associate lithium batteries with powerful combustion events that have reputedly already created real damage to aircraft.

Given their combustibility, lithium batteries present a genuine danger in a setting (aviation) where shipment by air is commercially compelling.

2.  According to PHMSA and FAA rules pre-dating concern with lithium batteries, shippers and carriers have historically enjoyed a choice on domestic airline flights: Comply with the U.S. Hazardous Materials Regulations or opt to comply with ICAO rules. 

For some in the context of movement of lithium batteries by air, this danger forces a “re-think” of the old dual regulation framework – at least as to this sort of freight.

HAZARDOUS MATERIALS / Should shippers and carriers be allowed to choose between U.S. Hazardous Materials Regulations versus ICAO Dangerous Goods rules when transporting lithium batteries by airline domestically?

To date PHMSA has in many situations allowed shippers and carriers of “hazardous materials” (U.S. legal term of art) / “dangerous goods” (international legal term of art) choice to conform either to U.S. Hazardous Materials Regulations or ICAO Dangerous Goods Technical Instructions on the Transport of Dangerous Goods by Air – for domestic freight moves within the United States.

January 7, 2013, Notice of proposed rulemaking; request for additional comment.

As the U.S. DOT Pipeline and Hazardous Materials Safety Administration put it:  Continue reading

HAZARDOUS MATERIALS / U.S. Hazardous Materials Regulations amended to “maintain alignment with international standards” of ICAO (air) and IMO (ship).

As the U.S. DOT Pipeline and Hazardous Materials Safety Administration put it: 

“PHMSA is amending the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements.” 

January 7, 2013, Final ruleContinue reading

HAZARDOUS MATERIALS / This “responds to administrative appeals” from earlier (1/19/2011) harmonization of U.S. Hazardous Materials Regulations with “international standards for the transport of hazardous materials by all modes.

The earlier harmonization (1/19/2011), “amended the Hazardous Materials Regulations (HMR) by revising, removing or adding proper shipping names, the hazard class of a material, packing group assignments, special provisions, packaging authorizations, packaging sections, air transport quantity limitations, and vessel stowage requirements.” 

January 7, 2013, Final rule. Continue reading