Centerline. Preventing Airline Liability for Spread of Communicable Diseases IN THIS ISSUE

Transcription

1 Centerline tm December 2007 Volume 2, Issue 3 Preventing Airline Liability for Spread of Communicable Diseases Judith Nemsick Suhey Nevarez The international health scare triggered by Atlanta attorney Andrew Speaker, who earlier this year traveled on a series of international commercial flights from the United States to Europe for his wedding and honeymoon while infected with multidrug-resistant tuberculosis (MDR-TB), 1 has once again heightened the concerns about an outbreak of a serious communicable disease during air travel. Although Mr. Speaker was warned not to board any long-haul flights for his return travel (as health authorities believed at that time that he was infected with a more severe drug-resistant form of tuberculosis), he nonetheless flew home on commercial flights via Prague and Montreal, crossing the U.S. border by car. By traveling with tuberculosis, Mr. Speaker potentially exposed numerous passengers and crew members to his disease. Transporting a passenger like Mr. Speaker raises concerns about the potential liability exposure of an airline in the event of an infectious disease outbreak. In addition to lawsuits for fear of exposure to and/or actual contraction of a communicable disease, airlines would likely face an increase in cancelled flights and denied boarding claims, along with an overall decrease in public air travel. Discussed below are some relevant international and federal regulations, potential bases for airline liability for outbreaks on domestic and international flights, and several suggested precautions for airlines to take to prevent or limit their liability exposure. International Regulations Airlines are expected to comply with a new set of international health regulations (IHR (2005)) developed by the World Health Organization (WHO), which entered into force on June 15, The International Air Transport Association, International Civil Aviation Organization and the U.S. Centers for Disease Control and Prevention all In addition to lawsuits for fear of exposure to and/or actual contraction of a communicable disease, airlines would likely face an increase in cancelled flights and denied boarding claims, along with an overall decrease in public air travel. collaborated with WHO in developing these regulations and guidelines. The new legal framework establishes rules for international coordination in the detection, investigation and response to diseases, including treatment, and sets forth special procedures addressing a public health emergency. The regulations seek to avoid unnecessary interference with international travel and trade, while at the same time strengthening global IN THIS ISSUE Preventing Airline Liability for Spread of Communicable Diseases... 1 District Court Confirms That Air Carriers Have No Direct Duty to Ground Victims Absent Physical Injuries... 5 Use of Private Aircraft by Members of Congress and Federal Candidates Under New Ethics Reforms... 6 Passengers Claims Based on Air Carrier s Refusal to Fly Are Beyond the Reach of Article 19 of the Montreal Convention... 7 European Union Updates Airline Operating Ban List... 9 FAA Regulatory Review Currently Underway...10

2 public health awareness and detection. Airlines also are expected to familiarize themselves with specific laws and regulations concerning infectious diseases in the countries in which they operate. Federal Regulations Airlines often are faced with the difficult task of balancing the safety of their crew and passengers against the interests and rights of a passenger traveling with a communicable disease. For example, the Air Carrier Access Act (ACAA) prohibits airlines from discriminating against a passenger with a disability, which includes a person with a communicable disease or infection, in the provision of air transportation. 3 A carrier may deny boarding, require a medical certificate, or impose conditions on a passenger (such as wearing a mask) only in cases where a passenger with a communicable disease poses a direct threat to the safety and health of others. 4 In determining whether a passenger poses such a threat, the airline makes an individualized assessment by relying on current medical knowledge, the likelihood of potential harm to others, and whether reasonable procedures or modifications could mitigate the risk. 5 The airline, however, must transport a passenger with a communicable disease or infection if he or she presents a medical certificate describing conditions or precautions that would prevent transmission and the airline can feasibly carry out these measures. 6 Airlines must be careful not to discriminate against passengers who have a communicable disease but do not necessarily pose a threat of transmission to other passengers. 7 Airlines also must comply with the Federal Public Health Regulations, which concern the control of communicable In determining whether a passenger poses such a threat, the airline makes an individualized assessment by relying on current medical knowledge, the likelihood of potential harm to others, and whether reasonable procedures or modifications could mitigate the risk. disease and are intended to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into and within the United States. For example, airlines are required by these regulations to notify public health authorities of any death or ill person among passengers or crew, and may be penalized for failing to do so. 8 Proposed amendments to the regulations expand reporting requirements for ill passengers, require more detailed passenger contact information, and impose substantial penalties for violation of the federal quarantine rules and regulations (e.g., up to $500,000 per event by an organization). 9 Potential Airline Liability: The Airline s Duty of Care As a common carrier, an airline generally owes its passengers a high duty of care. 10 A passenger who claims that he or she has been injured by contracting a contagious disease during a flight, including suffering emotional distress from exposure, generally would have to establish a breach of the duty and that such breach proximately caused the injury. While case law on airline liability for a passenger s contraction of a communicable disease in flight is scarce, 11 a ABOUT THIS NEWSLETTER Please direct all inquiries to: David J. Harrington, Editor david.harrington@hklaw.com Christopher G. Kelly, Editor christopher.kelly@hklaw.com Judith R. Nemsick, Editor judy.nemsick@hklaw.com Holland & Knight LLP 195 Broadway, 24th Floor New York, NY Information contained in this newsletter is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different, and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel. Holland & Knight lawyers are available to make presentations on a wide variety of aviation law issues. 2

3 In situations where a passenger claims solely emotional distress damages (such as fear of contracting the disease) but has sustained no physical injury, the passenger is not entitled to any recovery under the Convention. negligence claim against the airline could be based on several scenarios, such as where an airline: permits an obviously sick passenger to board without making any inquiry, requiring a medical certificate, or denying boarding to determine their medical fitness fails to quarantine or isolate a passenger who is discovered in flight with a communicable disease, or otherwise fails to respond appropriately knowingly allows an infected passenger or crew member to travel or work fails to properly equip and maintain the aircraft to prevent the spread of airborne disease fails to notify the appropriate medical authorities and await assistance at the flight s destination fails to alert the proper medical authorities and make efforts to contact all passengers on the flight after becoming aware of a passenger s communicable illness 12 Whether the airline would ultimately be held responsible for contraction of the disease by other passengers most likely turns on the airline s prior knowledge of the illness, whether it should have known or suspected the health risk, and the airline s response once it became aware of the passenger s illness. Liability Under the Montreal Convention Many international flights are governed by the Montreal Convention. Under Article 17 of the Convention, 13 the airline is presumptively liable for physical injury or death of a passenger caused by an accident on the aircraft or during the course of embarking or disembarking. Article 17 provides the exclusive cause of action to a passenger for bodily injury or death and preempts any state law-claims against the airline. 14 While an Article 17 accident arises when there is an unexpected or unusual event or happening that is external to the passenger, 15 it generally will not be established when an injury results from a passenger s preexisting condition or in reaction to the normal operation of a flight. 16 Accordingly, an airline should not be liable to a passenger boarding the aircraft with a preexisting illness unless there was some unexpected or unusual event by the airline that caused them physical injury. 17 Where other passengers contract a contagious disease during a flight, or in the course of embarking or disembarking, a court may very well consider this an unexpected or unusual event external to the passenger. However, determining when contraction occurred may prove to be very difficult. If an accident is found, the airline is presumptively liable for a passenger s provable damages up to a maximum of 100,000 Special Drawing Rights (SDRs) (approximately $150,000). An airline is not responsible for any damages beyond this amount if it proves that it was not negligent or that the incident was caused solely by the negligence of others, such as the contagious passenger who knowingly traveled on the flight without notifying the airline or health authorities. The airline also may disclaim liability to the contagious passenger by arguing that the injury was caused or contributed to by the negligence or other wrongful act of that passenger. In situations where a passenger claims solely emotional distress damages (such as fear of contracting the disease) but has sustained no physical injury, the passenger is not entitled to any recovery under the Convention. 18 Precautions and Recommendations In addition to crew training on the handling of an infectious disease outbreak, additional precautions and recommended practices to consider include the following: be aware of individuals, both on the aircraft and at the gate, who appear sickly or have a heavy cough, and conduct an appropriate medical inquiry make sure the air ventilation system in the cabin is working properly and is compliant with aviation standards have the flight crew make regular safety announcements, including warning passengers who experience flu-like symptoms to seek immediate medical attention in the event that a passenger s carrying of an infectious disease is known before the flight, notify personnel immediately and, if required, the relevant health authorities ensure that there are adequate emergency medical supplies aboard all aircraft arrange for disinfecting procedures of the aircraft in the event of an outbreak 3

4 in the event of an outbreak, facilitate frequent pilot communication with flight attendants, air traffic control, and any other necessary personnel or authorities create educational leaflets informing passengers of safety measures in the event of an outbreak ensure compliance with international, federal and state standards, regulations and guidelines concerning communicable diseases, including notifications to passengers and appropriate health authorities Conclusion With the increase in global air travel, particularly throughout Asia, airlines must be prepared, and their employees thoroughly trained, to handle an emergency situation arising from a medical outbreak. Airlines should comply with international and federal regulations, conduct regular training of crew members and staff, have plans and procedures in place to respond to outbreaks (whether the outbreak occurs on the aircraft or following transportation of a passenger with a contagious disease), and take precautions before a situation occurs. Airlines also should make every effort to document the measures they have taken to prevent contagion and be prepared to demonstrate that they acted reasonably under the circumstances. For more information, Judith Nemsick or Suhey Nevarez at judith.nemsick@hklaw.com or suhey.nevarez@hklaw.com, respectively, or call toll free, See abcnews.go.com/gma/oncall/story?id= &page=2; see also Centers for Disease Control and Prevention, Traveler Fact Sheet, 2 See See also World Health Organization, Tuberculosis and Air Travel: Guidelines for Prevention and Control (2d ed. 2006), U.S.C (2003) C.F.R (a), (b). A direct threat is defined as a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. 14 C.F.R (b)(2) C.F.R (b)(3) C.F.R (b)(4). 7 Violations of the ACAA generally will result in an investigation by the Department of Transportation and possibly the imposition of fines against the airline; however, there is no implied cause of action to sue on that basis. See, e.g., Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002). 8 See 42 C.F.R (b). 9 See 10 See Price v. Canadian Airlines, 429 F. Supp. 2d 459, 464 (D. N.H. 2006); Kirkham v. Societe Air France, No. Civ. A (JD), 2004 WL , at *5 (D.D.C. Nov. 2, 2004), aff d, 429 F.3d 288 (D.C. Cir. 2005). 11 See N. Pieter M. O Leary, Cock-a-Doodle-Doo: Pandemic Avian Influenza and the Legal Preparation and Consequences of an H5N1 Influenza Outbreak, 16 Health Matrix 511, 532 (2006). 12 See Ruwantissa Abeyratne, International Responsibility in Preventing the Spread of Communicable Diseases through Air Carriage The SARS Crisis, 30 Transp. L.J. 53, 61 (2002) (illustrating various liability situations). 13 In those cases where the Warsaw Convention is the applicable treaty, the analysis of an Article 17 accident is generally the same; however, the airlines defenses may vary depending on whether the Warsaw Convention, as unamended or supplemented, applies to the particular transportation. 14 El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999). 15 Air France v. Saks, 470 U.S. 392, 405 (1985). 16 Id. at 406 ( [w]hen the injury indisputably results from the passenger s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident ). 17 An accident may arise where the airline crew fails to take certain necessary vital steps in response to a situation such that this inaction could quite naturally and, in routine usage of the language, be an event or happening. Olympic Airways v. Husain, 540 U.S. 644, 656 n.10 (2004). 18 See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991); Ehrlich v. American Airlines, 360 F.3d 366 (2d Cir. 2004); In re Air Crash at Little Rock, Arkansas on June 1, 1999, 291 F.3d 508 (8th Cir. 2002). 4

5 District Court Confirms That Air Carriers Have No Direct Duty to Ground Victims Absent Physical Injuries David Harrington Lindsay Tasher On September 4, 2007, defendant American Airlines and Airbus Industrie G.I.E. secured a motion for summary judgment in a decision that will likely prove significant for future aviation litigation cases. In an opinion by Judge Robert W. Sweet, the United States District Court for the Southern District of New York clarified two major issues in granting the defendants motion for summary judgment in In re Air Crash at Belle Harbor, New York on November 12, 2001 (Michael Morley, Jr. v. American Airlines, Inc.), 508 F. Supp. 2d 204 (S.D.N.Y. 2007). The Morley case arose out of the crash of an Airbus A- 300 aircraft, operated as American Airlines Flight 587, on November 12, 2001, in Belle Harbor, New York. All 260 persons on board the aircraft died, five residents of Belle Harbor were killed and additional residents suffered injuries and personal property damages. This specific summary judgment motion involved a threeyear-old boy who was in his home in Belle Harbor with his grandmother at the time of the accident. While inside the home, the two heard a loud explosion when Flight 587 crashed across the street. The house immediately caught fire from the impact of the crash. Morley and his grandmother escaped from the burning house physically unscathed, and, once safe outside, watched their house burn down. Morley has since had to undergo fourteen months of psychotherapy focused on relieving post-traumatic nightmares and fears related to the fire. Morley s father brought an action in his son s name to recover damages for personal injuries, as well as for his own loss of his son s services, companionship and comfort due to the injuries. The plaintiffs also attempted to establish a third cause of action for a claim of negligent infliction of emotional distress. However, the complaint alleged no physical injuries to either the boy or to his father. Under New York Law, there are two generally accepted methods of proving a claim of negligent infliction of emotional distress: (1) the bystander or zone of danger The court agreed with defendants, concluding that unless a direct duty was owed to plaintiffs, there was no basis for recovery. theory, and (2) the direct duty theory. The Morley plaintiffs conceded they did not have a claim under the bystander theory, so the main issue of the case was essentially whether airlines and aircraft manufacturers owe a direct duty, absent physical injury, to people on the ground. The plaintiffs argued that the guarantee of genuineness cause of action allowed for recovery of emotional distress damages regardless of whether there was a direct duty to the plaintiff, and regardless of whether the plaintiff suffered any physical injury. Specifically, the plaintiffs argued that there was an especial likelihood of genuine and serious mental distress arising from the accident (even absent a direct duty) that entitled them to collect damages. The defendants argued to the contrary, contending that the guarantee of genuineness theory of recovery is effectively an alternative manifestation of the direct duty theory. Specifically, the defendants noted that the case law on which plaintiffs relied to support this proposition involved scenarios in which guarantee of genuineness claims were only colorable because they were also accompanied by a direct duty to those respective plaintiffs. The court agreed with defendants, concluding that unless a direct duty was owed to plaintiffs, there was no basis for recovery. In determining whether the defendants owed plantiffs a direct duty, the court clarified the question left unanswered from Judge Hellerstein s decision in In re September 11 Litigation, 280 F. Supp. 2d 279 (S.D.N.Y. 2003), holding that, in the absence of any physical injury, airlines and aircraft manufacturers do not owe a direct duty to a non-passenger. The court noted that this issue had already been resolved by two earlier cases arising out of the crash of Avianca Flight 52, which declined to extend an air carrier s direct duty to all the non-passengers its planes fly over on a daily basis and held that an airline s duty was limited to those non-passengers who had suffered physical injury. See In re Air Crash 5

6 The plaintiffs argued that there was an especial likelihood of genuine and serious mental distress arising from the accident (even absent a direct duty) that entitled them to collect damages. Disaster at Cove Neck (Tissenbaum v. Aerovias Nacionales De Colombia, S.A.), 885 F. Supp. 434 (E.D.N.Y. 1995); Hassanein v. Avianca Airlines, 872 F. Supp (E.D.N.Y. 1995). As In re September 11 Litigation cited both Avianca cases with approval, the Court reasoned that Judge Hellerstein did not intend to extend air carriers duties to non-passengers who suffered no physical injuries. Therefore, as no direct duty was owed to Morley, the defendants motion for summary judgment was granted and the plaintiffs claims were dismissed with prejudice. The court also dismissed the father s claims for loss of companionship, comfort and services of his son, as New York does not allow recovery by a parent for the loss of consortium of a child in a personal injury case. See Gilbert v. Stanton Brewery, Inc., 295 N.Y. 270, 67 N.E.2d 155 (1946). These claims also failed because they were derivative of his underlying claim for emotional distress, which, as the court established, lacked a basis in law. For more information, David Harrington or Lindsay Tasher at david.harrington@hklaw.com or lindsay.tasher@hklaw.com, respectively, or call toll free, Use of Private Aircraft by Members of Congress and Federal Candidates Under New Ethics Reforms Jonathan Epstein The rules regarding carriage of members of Congress and their staff on private and charter aircraft changed this September with the enactment of the Honest Leadership and Open Government Act (the Act). The old price of a first-class ticket rule for travel on private aircraft is out, and significant additional restrictions are now in place. Further, by the end of the year, the Federal Election Commission (FEC) is expected to approve new rules to clarify how the Act affects federal candidates and the Senate Ethics Committee is developing similar guidance for current members and employees of the Senate. With an election year close on the horizon, companies owning business aircraft should be aware of these changes, and public companies in particular should update their corporate aircraft usage policies before the requests come in. What Are the Current Rules for Federal Candidates and Members of Congress? The current rules for federal candidates and members of Congress are summarized here: members of the U.S. Senate must reimburse the pro-rata share of the fair market value of the normal and usual charter fare or rental charge for a comparable aircraft of comparable size, as determined by dividing such costs 6 The old price of a first-class ticket rule for travel on private aircraft is out, and significant additional restrictions are now in place. by the number of members, officers or employees of Congress on the flight members of the U.S. House of Representatives may not use personal funds, official funds or campaign funds to pay for a flight on a private aircraft candidates for U.S. Senate or president must reimburse the pro-rata share of the fair market value of the flight (as determined by dividing the fair market value of the normal and usual charter fare or rental charge for a comparable aircraft of comparable size by the number of candidates on the flight) within a commercially reasonable time candidates for the U.S. House of Representatives may not use campaign or leadership political action committee (PAC) funds to pay for a flight on a private aircraft aircraft owned by candidates or their immediate family members are generally exempt from prohibitions and rate restrictions subject to certain requirements

7 In general, a private owner whose aircraft is operated by a certificated charter operator could consent to allow a member of Congress or other person subject to House or Senate Rules or FEC regulations to charter the aircraft from the operator. When Can a Private Aircraft Owner Accept Compensation? In general, an owner of an aircraft operated as a private aircraft under Federal Aviation Regulations (FAR) Part 91 cannot accept reimbursement for provision of air travel, except under limited circumstances. And while the FAA does not restrict carriage of guests at no charge, political candidates or officials are often required to make payment or are otherwise limited in accepting in-kind contributions. Basically, under FAR Part 91 reimbursements, an owner can generally accept reimbursement from the following: federal and state candidates for elected office and their staff, when such reimbursement is required by FEC or state law under FAR (note that under the Act, a Senator s non-election campaign flight would require the Senator to reimburse a private owner, but the FAA regulations would not allow such reimbursement, as FAR only applies to a candidate in a federal election) other persons or entities under a time-sharing, interchange or other arrangement specified and limited in FAR , including corporate reimbursement between parent/subsidiary/sister companies within an intra-corporate family (since the new rules essentially require arms-length charter rates, however, the provisions of to the extent they cap payments may be of limited use in carrying members of Congress and their staff) In addition, use of a corporate aircraft for carrying members of Congress, political candidates, or their staff may only qualify as good business use in particular circumstances, and may implicate: the deductibility of the direct and indirect operating costs of such travel for federal and state income tax purposes regulatory reporting requirements for companies under state and federal laws (e.g., lobbying and election laws) corporate governance restrictions on use of corporate assets What About Charter Flights? In general, a private owner whose aircraft is operated by a certificated charter operator could consent to allow a member of Congress or other person subject to House or Senate Rules or FEC regulations to charter the aircraft from the operator. However, that person will likely be required to pay the commercial charter rate without a discount. What to Do While the Dust Settles The recent legislation substantially changes the way private aircraft can be used by members of Congress and federal candidates. Since the rules are somewhat more complex than the summary above, and FEC rules are currently being revised, such flights on private aircraft may have FAA and tax implications and should only be undertaken after consultation with your counsel. For more information, Jonathan Epstein at jonathan.epstein@hklaw.com or call toll free, Passengers Claims Based on Air Carrier s Refusal to Fly Are Beyond the Reach of Article 19 of the Montreal Convention Amy Kletnick In a recent decision, the United States District Court for the Eastern District of New York distinguished between claims sounding in delay that fall within the purview of the Montreal Convention and claims sounding in nonperformance of a contract that are outside the scope of the Montreal Convention. The case of In re Nigeria Charter Flights Contract Litigation 1 involved purchasers of airline tickets for travel between the United States and Nigeria who were denied passage when the defendant air carrier, World Airways, Inc. (World), discontinued its flight operations to Nigeria. World operated charter flights between cities in the United States and Lagos, Nigeria pursuant to a contract with 7

8 The U.S. Department of Transportation concluded that this stranding of passengers violated various federal statutes and regulations and required World to pay $350,000 in civil penalties. Ritetime Aviation and Travel Services, Inc. (Ritetime) that terminated on December 30, However, it was contemplated that the program would continue into 2004, and Ritetime sold tickets to passengers for flights that would take place in The plaintiffs had purchased tickets for flights in 2004 and were not transported as scheduled, due to World s discontinuation of flight operations. Some plaintiffs had flown one leg of their trip prior to the discontinuation of flight services, and were stranded far from home. The U.S. Department of Transportation concluded that this stranding of passengers violated various federal statutes and regulations and required World to pay $350,000 in civil penalties. The plaintiffs alleged that World was liable for its failure to transport them under either the Warsaw Convention or its successor, the Montreal Convention, as well as for breach of contract, negligence, and fraud. Both World and the plaintiffs moved for summary judgment. World argued that it was entitled to summary judgment because (1) the Montreal Convention preempts plaintiffs state law claims, and plaintiffs have not shown liability under the Convention itself; (2) even if plaintiffs contract claims are not preempted, they should be dismissed since plaintiffs are not in privity with World; (3) even if the Montreal Convention does not preempt plaintiffs negligence and fraud claims, those claims are preempted by the Airline Deregulation Act; and (4) to the extent that plaintiffs claims under the Montreal Convention are dismissed, the Court should decline to exercise supplemental jurisdiction over any remaining state law claims. The plaintiffs cross-moved for summary judgment on their state-law claims or, alternatively, their claims brought under the Montreal Convention. 2 The court ultimately granted World s motion for summary judgment on the plaintiffs claims for delay under the Montreal Convention but held that the Convention does not preempt the plaintiffs state-law claims. Under Article 19 of the Convention, a carrier is liable for damage occasioned by delay in the carriage of passengers, baggage or cargo. Article 29 of the Convention 3 preempts state-law claims falling within its scope. The court, accepting the plaintiffs argument, held that World s failure to transport the passengers constituted nonperformance of a contract, not delay. Thus, the court held that the plaintiffs state-law claims were 8 not preempted under the Montreal Convention, because nonperformance does not fall within the scope of Article 19: The plain language of Article 19 of the Montreal Convention indicates that it governs claims for delay, not nonperformance. The court read the drafting history of the Convention to mean that, in the case of total nonperformance of a contract, the injured party has a remedy under the law of his or her home country and thus does not need the protection of the Convention. The court further explained that its holding applied to all of plaintiffs state-law claims (contract, negligence, and fraud claims) because World refused to fly plaintiffs and did not provide alternate transportation. Judge Dearie looked at New York s choice-of-law rules for cases involving foreign jurisdictions and held that New York law controlled the dispute. The court then considered the plaintiffs contract claim under New York law and denied the plaintiffs summary judgment motion because the plaintiffs had not yet established privity of contract between the plaintiffs and World. The plaintiffs had argued that, even if the tickets failed to establish privity of contract, World was liable under theories of agency, apparent authority, or ratification, but these alternative arguments failed to justify summary judgment because they all raised questions of fact. The court read the drafting history of the Convention to mean that, in the case of total nonperformance of a contract, the injured party has a remedy under the law of his or her home country and thus does not need the protection of the Convention. World further contended that the plaintiffs fraud and negligence claims were preempted by the Airline Deregulation Act of 1978 (the ADA). 4 The Second Circuit applies the ADA s preemptive provision on a case-by-case basis. Judge Dearie applied the three-part test for determining whether tort claims are preempted by the ADA described in Rombom v. United Air Lines, Inc. 5 The Rombom court held that the ADA would preempt their tort claims only if (1) the activity at issue in the claim was an airline service, (2) the claim directly affected the airline service, and (3) the underlying tortious conduct was reasonably necessary to the provision of a service. Here, the application of all three factors led the Court to conclude that the ADA did not preempt plaintiffs state-law claims. Judge Dearie found that although the first two factors were easily satisfied, the third was not because World s refusal to transport ticketed passengers was not

9 When the dismissal of the federal claim occurs late in the action, the district court can retain supplemental jurisdiction in the interest of judicial economy, convenience, and fairness to litigants. reasonably necessary to the provision of services, i.e., the carriage of ticketed passengers. Although the court dismissed the plaintiffs federal claims, it chose to retain jurisdiction over plaintiffs state-law claims despite World s argument that the court should decline to exercise supplemental jurisdiction over the state-law claims because the federal claims were no longer before the court. Under 28 U.S.C. 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction. However, when the dismissal of the federal claim occurs late in the action, the district court can retain supplemental jurisdiction in the interest of judicial economy, convenience, and fairness to litigants. Here, the parties had been litigating in federal court for years and already had engaged in discovery. Thus, a dismissal on jurisdictional grounds at this juncture would frustrate the goals of judicial economy, convenience, and fairness. For more information, Amy Kletnick at amy.kletnick@hklaw.com or call toll free, F. Supp. 2d, 2007 WL (E.D.N.Y. Oct. 25, 2007). 2 The court held that there are no relevant significant differences between the Warsaw Convention and the Montreal Convention, and it applied the Montreal Convention. 3 Article 29 states: In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention. 4 The ADA provides that no state shall enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. 49 U.S.C (b)(1) F. Supp. 214, (S.D.N.Y. 1994). European Union Updates Airline Operating Ban List Alan Reitzfeld Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 established a general mechanism to create and update a Community list of third-country air carriers to be subject to an operating ban within the European Community for not meeting safety criteria. Commission Regulation (EC) No 473/2006 of 22 March 2006 provided specific implementing rules for establishing and primarily for updating the list of carriers subject to the ban. That same day, Commission Regulation (EC) No 474/2006 established the initial operating ban list. To date, the list has been updated six times: on 20 June 2006, 12 October 2006, 5 March 2007, 4 July 2007, 9 September 2007, and 28 November The regulations, operating ban list, and other materials are available online at eu/transport/air-ban/furtherinfo_en.htm#3. For more information, Alan Reitzfeld at alan.reitzfeld@hklaw.com or call toll free,

10 FAA Regulatory Review Currently Underway David Harrington On November 7, 2007, the FAA announced that it is requesting comments from the public to identify any FAA regulations currently in effect that it should amend, remove or simplify. For many years, the FAA has maintained an active regulatory review program, the last major review occurring in February According to the FAA, since 1992 the FAA has completed five rounds of regulatory review and has received more than 1,300 comments. As part of its ongoing review process, the FAA is inviting any interested party to identify three regulations, in priority order, that it believes the FAA should amend or eliminate. In order to focus on areas of greatest interest, and to effectively manage agency resources, the FAA requests that commentators limit the three issues they believe are the most urgent, and to list them in priority order when submitting. Specific suggestions where rules could be developed as performance-based rather than prescriptive, and specific plain-language suggestions as to how those regulations should be written are encouraged. At the end of the process, the FAA will publish a summary and general disposition of the comments received and, where appropriate, how the FAA will adjust its regulatory priorities. Specific suggestions where rules could be developed as performance-based rather than prescriptive, and specific plain-language suggestions as to how those regulations should be written are encouraged. Comments, identified by Docket Number FAA , are due by January 16, 2008, and may be submitted (1) on-line at (2) by mail or by hand to Docket Management Facility, U.S. Dept. of Transportation, 1200 New Jersey Ave., S.E., West Bldg Ground Fl., Room W12-140, Washington, D.C , or (3) by fax to the Docket Management Facility at As they say, speak now or forever hold your peace! For more information, David Harrington at david.harrington@hklaw.com or call toll free, Holland & Knight LLP Copyright 2007 Holland & Knight LLP All Rights Reserved 10