On April 27 2018 the US House of Representatives passed the Federal Aviation Administration (FAA) Reauthorisation Act 2018 (HR 4), which provides funding for the FAA for the next five years. The bill does not include:
- the controversial proposal to privatise US air traffic control;
- proposed restrictions on 'flag of convenience' carriers; or
- further restrictions on aircraft registration procedures.
However, it does contain three sections which bear watching:
- mobile phone use;
- passive finance party immunity from passenger state law tort claims; and
- airline seat size.
Section 402 of the act instructs the secretary of transportation to issue regulations prohibiting an individual on an aircraft from engaging in voice communications using a mobile communications device on a flight during a scheduled passenger interstate or intrastate service. Law enforcement acting in an official capacity, on-duty flight crew and on-duty flight attendants would each be exempt from the prohibition. The prohibition also does not apply to phones installed in the aircraft.
The purpose of this section seems to be to foster peace and quiet on flights – a welcomed passenger benefit. The prohibition applies only during a flight, and a 'flight' is defined as "the period beginning when the aircraft takes off and ending when the aircraft lands". This means that before gate pushback, prior to take-off and once the aircraft has landed at its destination, passengers are free to use their mobile phones, as many do now, without constraint. There is also no exception for an in-flight emergency, but there is arguably little need to codify this type of exception.
Section 514 of act further strengthens the immunity of passive aircraft finance parties from passenger liability. 49 USC § 44112 now states that:
"A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of
(1) the aircraft, engine, or propeller; or
(2) the flight of, or an object falling from, the aircraft engine, or propeller." (Emphasis added).
Section 514 deletes the reference to "on land and or water". This change would clarify that the statute pre-empts tort claims by passengers against passive finance parties no matter where they occur, and implicitly overturns the Florida Supreme Court's holding in Vreeland v Ferrer,(1) which found that 49 USC § 44112 did not pre-empt tort claims against passive finance parties by passengers onboard the aircraft because 49 USC § 44112 was limited to claims for damages "on land or water". 49 USC § 44112 specifies the level of control that a passive finance party must have to create liability by inserting 'operational' before 'control', so that 49 USC § 44112 would read as follows: "is in the actual possession or operational control of the lessor". 14 CFR § 1.1 of the Federal Aviation Regulations defines 'operational control' with respect to any flight as "the exercise of authority over initiating, conducting or terminating a flight". Presumably, as long as the passive finance party does not have actual possession of the aircraft and has no authority to initiate or terminate a flight, it should be able to avail itself of the protections of 49 USC § 44112.
Finally, Section 541 of act attempts to resolve the arguments set out in Flyers Rights Education Fund v FAA.(2) In Flyers Rights the petitioners sought to have the FAA regulate the size of airline seats. The FAA denied this request and, on appeal, the DC Circuit Court of Appeals ruled that when considering a request to regulate under its powers concerning health and safety, the FAA must produce the evidence it relied on in making any such determination. The DC Circuit remanded the matter for further consideration by the FAA. Section 541 mandates that:
"Not later than 1 year after the date of enactment of this Act, and after providing notice and an opportunity for comment, the Administrator of the Federal Aviation Administration shall issue regulations that establish minimum dimensions for passenger seats on aircraft operated by air carriers in interstate air transportation or intrastate air transportation, including minimums for seat pitch, width, and length, and that are necessary for the safety and health of passengers."
If passed into law, Section 541 would clearly interject a minimum seat size into airline design and open an extensive rulemaking process on the issue that may take years to come into effect and which will surely create new issues concerning grandfathering of currently operating aircraft.
How much any of this survives or gets incorporated into a final bill after conference with the Senate remains to be seen. The 2018 Senate version of FAA Reauthorisation S1405 includes none of these provisions. S1405 is pending in the Committee on Commerce, Science and Transportation.
For further information on this topic please contact Timothy J Lynes at Katten Muchin Rosenman LLP by telephone (+1 202 625 3500) or email ([email protected]). The Katten Muchin Rosenman LLP website can be accessed at www.kattenlaw.com.
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