Aviation and the law 5th Ed.” Laurence E. Gesell
Chapter 3 – Constitutional Law and its Evolution

The end of despotic rule in Europe occurred at the Enlightenment Period, when the idea of natural law, natural ethics and natural religion became dominant in society and politics. The model for the physical, or natural sciences was then adopted by the moral and social disciplines. All subjects were thought to be amenable to natural law. It was triumph of reason over tradition, and the evolution of the intellectual class raising to a dominant position in the State.
End of the English Monarchy
The English Revolution occurred when King James II alienated almost every politically and military segment of English Society. He was forced to flee England after Parliament drove King James from the throne and ending “divine right” and Parliament’s supremacy over the monarchy. In 1689, Parliament passed the English Bill of Rights limiting the powers of the monarchy over parliament.
End of the French Monarchy
In France, during this time the opposite was occurring with Louis XIV straining the all the country’s resources to maintain his monarchy. The country nearly went bankrupt. During the reign of Louis XV, merchants and landowners began to prosper, but peasants and the lower class profited little. By 1789, after Louis XVI’s support of the colonists in the American Revolution, along with inept management, France was on the brink of bankruptcy. Greater taxes were imposed on an already suppressed and over-taxed population. On July 14, 1789, the revolutionaries stormed the Bastille, and overthrew the monarchy.
American Independence
Prior to entering the Revolutionary, the colonists had made several petitions to King George III to no avail. Benjamin Franklin had been sent to England several times. In 1775, before officially declaring their independence, the colonists issued a lengthy Declaration of the Causes and Necessity of Taking Up Arms, declaring their grievances but explicitly denying any intention to separate from Great Britain, or establish independent states.
Instead King George placed the colonists outside the law, and so they had no access to justice or fairness leading to the American Revolution. The “Laws of Nature and of Nature’s God” were cited as the legal authority impelling the colonists to separate. The divine right of kings was denounced and works of Jeremy Bentham, Adam Smith, John Locke and other “enlightened” theorists took hold.
The Declaration of Independence contained indictments against the King including the inability of the colonists to pass laws without his assent, obstructing natural laws and depriving people of their basic liberties.
At the end of the American Revolution, a new government was established, and the U.S. Constitution became the basic law of the land. The Constitution is grounded on three principles: (1) separation of powers; (2) citizens rights; and (3) federalism.
The national government is the federation of the 13 states that then existed, and is given supremacy. Under federalism, the states subordinate themselves to the central or national government. The states still retain limited powers, and those powers are vested by the 10th Amendment. There, the States have police powers to enact laws for the safety, health and welfare of their constituents.
Article One of the Constitution vests legislative powers in Congress, which is comprised of the Senate and the House of Representatives. Congress makes laws, collects taxes, establishes rules of naturalization of non-citizens and regulates commerce.
Article Two vests powers in the executive branch, consisting of the President and Vice President, and they are empowered to execute laws, and to preserve, protect and defend the Constitution. The President is the Commander-in-Chief of the military forces. Foreign policy is in the exclusive domain of the President.
Article Three vests powers in the judicial branch, the United States Supreme Court comprised of the Chief Justice and eight Associate Justices. The Supreme Court hears cases: of legal issues arising under the Constitution; if the United States is a party (plaintiff or defendant) in a lawsuit; lawsuits between two or more states; lawsuits between citizens of different states; and cases between a state and a citizen of a different state.
The Bill of Rights is the first ten amendments of the Constitution and was enacted to further insure the security of every citizen’s rights, including life, liberty and the pursuit of happiness. This includes freedom of speech, press, religion and peaceful assembly provided by the first amendment; and the fourth amendment’s right of the citizens to be protected against unreasonable search and seizure. The search must be prompted by probable cause, which is much more than mere suspicion. After 9/11, the issue of the individual’s right of privacy has been balanced with the public’s need for improved security and safety
The Tenth Amendment is the Reserved Powers Clause. The powers not delegated to the federal government, nor expressly prevented to the states, are reserved to the state or to the people. The 10th Amendment provides the State’s police powers to enact laws for the safety, health and welfare of their constituents.
The 14th Amendment protects the privileges and immunities of citizenship. The 14th Amendment contains the second due process clause, protecting persons from deprivation of life, liberty or property without due process of state action. It guarantees citizens equal protection under the law; and makes the Bill of Rights directly applicable to the states.
While the 10th Amendment provides for the states to enact laws for the safety and welfare of their citizens, the Federal Aviation Act of 1958 and its regulations preempt state law standards of care in the field of aviation safety. The federal preemption of aviation safety by the Federal Aviation Act of 1958 has been the issue of much litigation since the statute’s enactment.
In July 2014, a federal court in New York held that the Federal Aviation Act did not provide for a federal general standard of care in the hiring, training and supervision of pilots and co-pilots. In that case, the Plaintiffs argued that numerous courts and FAA Administration decisions have imposed a federal general standard of care for carriers to perform their duties in the operation of aircraft with the highest possible degree of safety.
The Plaintiffs in that case wanted the Court to expand this general federal standard of care (highest possible degree of safety) to the carrier’s actions of hiring, training and supervision of its pilots. The federal court refused to do so.
**********************************************************************************
Please read the case below:
44 Misc.3d 724; Supreme Court, Erie County, New York.
In re AIR CRASH NEAR CLARENCE CENTER, NEW YORK ON FEBRUARY 12, 2009.
July 10, 2014.
Synopsis
Background: Survivors of passengers who died in airplane crash sued air carrier, claiming negligent hiring, training, and supervision of pilot and co-pilot. Survivors moved for order imposing federal general standard of care on air carrier with respect to their claims.
Holdings: The Supreme Court, Erie County, Frederick J. Marshall, J., held that:
1. federal aviation regulation did not provide general standard of care applicable to claims,
and
2. Federal Aviation Act (FAACT) did not provide general standard of care applicable to claims.
Motion denied. Opinion by FREDERICK J. MARSHALL, J.
In a previous ruling, this Court, citing the pervasiveness and completeness of the Federal regulatory scheme, held that the Federal Aviation Act of 1958 (“FAACT”) and Federal Aviation Regulations (“FARS”) preempted all state standards of care. In re Air Crash Near Clarence Ctr. N.Y., on Feb. 12, 2009, 38 Misc.3d 308, 951 N.Y.S.2d 841 [Sup.Ct.2012]. Now plaintiffs move this Court for an order imposing upon the defendant, Colgan Air, Inc. (“Colgan”), a federal general standard of care with respect to their claims of negligent hiring, training, selection and supervision.1
On February 12, 2009 Continental Connection Flight 3407 (“Flight 3407”), operated by Colgan, crashed on approach to the Buffalo–Niagara International Airport. Forty-nine passengers and crew died in the crash and there was one fatality on the ground. Also, two individuals on the ground were injured.
Colgan concedes that it is vicariously liable for the admitted negligent actions of it’s pilot and co-pilot that caused the loss of control and subsequent crash of the airplane. See Affidavit in Opposition of David J. Harrington, Esq., paragraph 24 and Colgan Memorandum of Law, footnote 1. However, Colgan argues that any direct claims of liability against air carriers for negligent hiring, training and supervision may only be proven by a showing that the carrier violated specific provisions of the FAACT or FARS.
By this motion, plaintiffs have asked this Court to recognize a federal general standard of care which, if violated, would impose liability directly against Colgan for its alleged negligent hiring, training and supervision of the pilot and co-pilot of Flight 3407.
DISCUSSION
I. Plaintiffs first argue that their claims are governed by the general standard of care enunciated in 14 C.F.R. § 91.13(a) which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” See 14 C.F.R. § 91.13(a).
1 The plain language of this regulation seems to restrict its applicability to conduct that occurs while an airplane is being “operated” in the air. Colgan urges the Court to adopt this interpretation and follow Chief Judge Skretny’s decision in the companion Federal cases involving Flight 3407. See *276 In re Air Crash Near Clarence Ctr., N.Y., 09–MD–2085, 2013 WL 5964480 [W.D.N.Y. Nov. 6, 2013]. See also Williams v. U.S. Airways, Inc., No. 10–0399, 2010 WL 4720844 [E.D.Pa. Nov. 18, 2010].
In urging this Court not to follow Chief Judge Skretny’s decision, plaintiffs point to the definition of the phrase “operate aircraft” found in the FAACT. The statute defines “operate aircraft” as “using aircraft for the purposes of air navigation, including—(A) the navigation of aircraft; and (B) causing or authorizing the operation of aircraft with or without the right of legal control of the aircraft.” See 49 U.S.C. § 40102(a)(35). Similarly, under § 1.1 of the FARS, the definition of “operate” includes “cause to use or authorize to use aircraft, for the purpose … of air navigation.” See 14 C.F.R. § 1.1. Thus, plaintiffs contend that Colgan was “operating” Flight 3407 when it caused or authorized the operation of the aircraft by two allegedly unqualified persons, Captain Renslow and his co-pilot.
Plaintiffs cite an FAA Administration decision which, they contend, provides an expanded meaning of the term “operate”. In that case, an owner gave permission to a pilot to fly his aircraft and the pilot, while flying the aircraft, engaged in careless and reckless behavior, almost causing a mid-air collision. See In re Fenner, FAA Order No. 96–17, 1996 FAA LEXIS 1224 [May 3, 1996], aff’d sub. nom. Fenner v. FAA, 113 F.3d 1251 [11th Cir.1997]. (Emphasis supplied) In Fenner, the FAA administrator found that the owner “operated” the aircraft citing the statutory and regulatory definitions of “operate”. However, nothing in that case, nor any other case cited by the plaintiffs, involved allegations of negligent hiring, training or supervision by an air carrier. Fenner and other FAA decisions cited by plaintiffs only demonstrate that a carrier or other owner may be vicariously liable for the careless or reckless actions of a pilot because the carrier or owner authorized the pilot’s use of the aircraft. Consequently, plaintiffs’ claim that the term “operate” found in § 91.13(a) encompasses its claims of negligent hiring, training and supervision is without support in the law. See In re Air Crash Near Clarence Ctr., N.Y., 09–MD–2085, 2013 WL 5964480 [W.D.N.Y. Nov. 6, 2013].
II. Plaintiffs also ask this Court to find a federal general standard of care within the FAACT itself. Indeed, the FAACT does recognize the “duty of an air carrier to provide service with the highest possible degree of safety in the public interest.” 49 U.S.C. § 44701(d)(1)(A).
2 Without question, a carrier’s operation of an aircraft must not only comport with specific federal aviation regulations, but also the general standard of § 91.13(a). Abdullah v. American Airlines, Inc., 181 F.3d 363 [3rd Cir.1999]. Plaintiffs cite to Abdullah and its progeny to support their claim that an overarching federal general standard of care must be recognized to fill the gaps when more specific regulations are not violated. See Abdullah, id; Aldana v. Air East Airways, Inc., 477 F.Supp.2d 489 [D.Conn.2007]; Shupert v. Continental Airlines, Inc., No.00–CV–2743, 2004 WL 784859 [S.D.N.Y. April 12, 2004].
These decisions have one uniform component—they all involve allegedly negligent conduct while an aircraft is being operated. Plaintiffs have not cited to any state or federal decision which recognizes a general federal standard of care governing the hiring, training or supervising of pilots. Yet, they have asked this Court to carve a statutory general standard of care out of the language of the FAACT and the numerous Federal decisions which acknowledge the duty of carriers to perform their services with the highest possible *277 degree of safety. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 [1984]; In re Sept. 11 Litig., 594 F.Supp.2d 374 [S.D.N.Y.2009]. The Federal Aviation Administration has also cited 49 USC § 44701(d)(1)(A) in recognizing the statutory duty of carriers to exercise the highest possible degree of care. See In re AlaskaAirlines, Inc., FAA Order No.2004–8, 2004 FAA LEXIS 905, at *14 [Oct. 4, 2004].
Colgan argues that the Courts have recognized a general federal standard of care relating only to the operation of aircraft in the absence of a specific regulatory violation. See Abdullah, supra.
Given the absence of a clear and unequivocal statutory mandate or judicial precedent, this Court is reluctant to recognize a federal general standard of care for hiring, training and supervision of pilots. If, as the plaintiffs contend, a general federal standard of care should be based on “the highest possible degree of safety”, would such a standard exceed even the careless or reckless standard found in § 91.13(a)? (Emphasis added). Could not the words “highest possible degree of safety” lead a jury to conclude that air carriers must act with near perfection when exercising their judgment in making decisions to hire or retain a pilot? Under the plaintiffs’ proposed standard, no amount of training or re-training would be sufficient to avoid direct carrier liability in the event of an accident. Nothing in the FAACT suggests this result.
3 With these practical and legal difficulties in mind, the proper standard of care must spring from the numerosity and specificity of the FARS that delineate the requirements that must, at a minimum, be satisfied in order for an air carrier to properly hire and train its pilots.2 Considering the breadth and scope of the regulatory scheme controlling hiring and training of pilots, plaintiffs’ attempt to find an even higher standard of care within the FAACT, must fail. Carriers are free to exceed the minimum standards of the FARS, but their failure to do so does not leave them short of meeting the standard of care created by the FARS. See Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 811 [9th Cir.2009].
III. Lastly, plaintiffs urge the Court to look to federal common law to “fill the gaps” that they contend exist with respect to their claims of negligent hiring, training and supervision. However, that approach has been rejected by the Federal Courts. See Martin, id. at 811.
CONCLUSION
Where, as here, the regulatory scheme for controlling, hiring, training and supervision of pilots is pervasive, the standard of care is set by those regulations and there is no general federal standard of care independent therefrom.
Plaintiff’s motion is, in all respects, denied.

FORUM DISCUSSION:
What were the Plaintiff’s main arguments to support their position that the general federal standard of care of carriers in the hiring, training and supervision of its pilots was based on the “highest possible degree of safety?
What were the Defendants’ main arguments to support their position that the standard of care imposed by the FARs are applicable?
What arguments, laws, cases did the Court find most persuasive in rendering its decision?
Chapter 4 – United States Common Law

US law is comprise of:
Criminal Law which is the state’s effort to prescribe individual conduct. The legislature decides behavior that will be criminalized and the punishment imposed for any violations. It is statutory and written into penal codes. Crimes are classified according to its severity and penalties attached:
1. Felony – serious and punishable by death or imprisonment
2. Misdemeanor which is serious but less severe than penalties and
3. Violation – Infraction, such as a parking ticket.

Criminal acts have:
1. Actus reus – connection between the action and the crime
2. Mens rea – Person’s state of mind – wrongful, guilty mind, knowing, willful, intentional and purposeful
3. Causation – But for test, is that but for the actions of the accused, the victim would not have been harmed.
4. Standard of proof for a crime is — Beyond a reasonable doubt

Civil law focuses on relations and disputes between persons, corporations and governments. A civil action is brought in the system of the courts, utilizing case law and legislation or statutes to resolve controversies. Civil law includes the law of property, contracts, and torts. Property involves real property; contracts involve agreements between two parties; and torts involve bodily injury, property damage, injury to reputation and a taking of a person’s individual rights without just cause.
If the damages were caused through unintentional acts the party may be found negligent. To be found negligent, four elements must be established:
1. Duty to a person;
2. Breach of that duty;
3. The breach of the duty was the proximate and foreseeable cause of injury or damages
4. The party was damaged as a result of the breach.

Non-US law
Civil law outside the US means codified law based on Roman or French law.
Common law refers to court-made jurisprudence.
Public international law means law of nations, as expressed in international conventions, treaties, agreements, decisions of international tribunals or customary law. One example is the International Civil Aviation Organization (“ICAO”) which prescribes Standards and Recommended Practices governing safety and navigation. Annex 13 of ICAO is titled Aircraft Accident and Incident Investigation and sets forth the standards and recommended practices of developing policies for aircraft accident and incident investigations conducted by Member States. Similar to the NTSB, the objective is to prevent accidents and incidents and not apportion blame or liability.
Private international law refers to the law surrounding the rights and remedies of persons (individuals and corporations) in commercial transactions, and in areas such as personal injury. Examples include the Warsaw Convention which places aircraft carrier liability to bodily injury to approximately $75,000.00 per passenger, with limited exceptions. The Montreal Convention on the Unification of Certain Rules Relating to International Carriage by Air also prescribes carriers’ strict liability to passengers.

Federal Courts
The Federal Courts hear cases involving:
1. the plaintiff and defendant who are residents of different states and the damages exceed $75,000.00 (these cases are based on diversity jurisdiction);
2. the United States government, the United States Constitution or federal laws, or controversies between states or between the United States and foreign governments. These cases are based on “federal question”; and
3. Bankruptcy and tax cases.
The Federal Courts include the United States District Courts which are the trial courts for civil and criminal cases in federal court. Appeals are heard in the US Court of Appeals, and on further appeal to the United States Supreme Court.

State Courts handle civil and criminal claims and actions arising from state law, and not otherwise brought in federal court. Each State has its own process and procedure in which its judicial system arises. In most states the Supreme Court of the State is the highest Court in the State. However, in New York, the Supreme Court is the trial court of the State of New York, and the Court of Appeals is the Court of last resort in New York except if the case is appealed on constitutional grounds.

Administrative Agencies
Administrative law is derived from rules, regulations and procedures of governmental administrative agencies. The regulations of these agencies have the force of law and include the FAA (Federal Aviation Administration) and the NTSB (National Transportation Safety Administration). If the administrative law is to be tested in the Courts one or more of the following must be present:

1. The actions of the government do not achieve the public purpose for which it is created;
2. The government’s act is vague and discriminatory;
3. The agency has overreached its powers and authority;
4. The penalties were imposed without adequate notice;
5. The agency failed to provide due process; and
6. Legal rights were violated.

Please:
1. Brief the Newberger v. Pokrass Case in Chapter 4. Please also answer the following:
2. In the Newberg case, Pokrass’ Estate was held liable for the negligent acts of Pokrass. However, the jury also found Newberg 15% contributorily negligent, stating that he could have prevented the accident by staying awake.?Does a passenger have a duty to stay awake especially after he’s advised the pilot that he will be sleeping? What are your thoughts? How would you have decided if you were a juror at the trial?
3. What do you think are the factors that a jury would use to assess the amount of damages in a personal injury claim and a wrongful death claim?
Chapter 16 Manufacturers’ Liability

Please answer the following to Chapter 16.
Hide Full Description
I. Pursuant to Bruce v. Martin-Marietta, please answer the following:
a. Why was Ozark Airlines not held liable? If Ozark was in the business of selling aircraft, do you think the Court would have held Ozark liable as an intermediate seller or owner? Explain your answer.
b. How long is a general aviation aircraft manufacturer/merchant liable for its products?
c. What statute was enacted which addresses Question b. and what does the statute say?

II. According to Miles v. Kavanaugh, is a non-commercial seller responsible for warranties? Explain your answer.

III. In Pioneer Seed v. Cessna Aircraft, what constitutes abnormal aircraft operation and therefore a waiver of warranty provisions?

IV. In New York Airways v. United Technologies:

Does the product liability concept apply where both the buyer and seller are sophisticated commercial entities with equal bargaining strength, and was solely for a claim for economic damages? Please explain your answer and the Court’s reasoning.

CLICK BUTTON TO ORDER NOW