LEGAL NOTES
Law, insurance reps meet in Florida
by John F. Infanger
DAYTONA BEACH, FL - Embry-Riddle Aeronautical University held its 14th
annual Aviation Law/Insurance Symposium here recently. Following are excerpted
highlights from two white paper presentions.
The symposium brings together aviation attorneys and insurance executives, as well as representatives of airports and businesses. The meeting is part of ERAU's Division of Continuing Education.
AIRLINE BAILOUT BILL
Attorney Gerald C. Sterns of Sterns & Walker, Oakland, CA, raises
questions related to the Airline Transportation and System Stabili-zation
Act, passed by Congress last September. Specifically, Sterns addresses
the limitation of liability to the carriers that states it shall not be
"in an amount greater than the limits of liability coverage maintained
by the air carrier.
"This inartfully drawn provision of course is subject to all kinds
of potential problems, criticism, and litigation. First of all, the question
of whether or not the Congress has the constitutional power, ex post facto
to bestow blanket immunity on a potential tortfeasor after the fact. This
would seem to attempt to retroactively wipe out any claims, which have
accrued, and there may be some serious constitutional questions as to
whether Congress can do so. Secondly, assuming that it can, whether this
language does what they intended it to do, and if so what is meant [by]
the term liability coverage 'maintained' by the air carrier?
"Another potential serious problem is where does this leave the security
companies; they are not mentioned by name in the bill. They are not 'air
carriers' by any stretch, but they indeed are carrying out nondelegable
duties of the air carrier, and may arguably be agents thereof. Are the
security companies protected to an extent by this provision? This is a
completely open question.
"For instance, given the incidents at Logan Airport, it could be
argued with some degree of conviction, that the security breakdown there
was serious and was negligent, thus exposing the security company to potential
liability for all the havoc caused by those two aircraft...
"...It would seem that you had a classic case of nondelegable duty
so that indeed the airlines would be vicariously responsible in full.
The airlines, however, have immunity, presumably under Section 408. What
about the security companies? Also, as a practical matter, it is generally
understood that the security companies should not carry anywhere near
the type of liability coverage that is available to the airlines."
PILOTS AND DWIS
James D. Struble, senior counsel for Jackson Walker, L.L.P. of Dallas,
says that more than half of the aviation cases his firm handles are related
to alcohol reporting requirements. "Although the regulations outlining
pilots' responsibilities with respect to reporting and documenting alcohol-related
problems have been around for years, the FAA still routinely hands out
suspensions ranging from 90 days to one year to pilots who fail to disclose
alcohol-related offenses and ... problems to the FAA," notes Struble.
In addition, he says, if a license is suspended as a result of an arrest
or refusal to take an alcohol test, a letter to FAA is required by the
pilot. If a subsequent conviction results, another letter is required
to FAA, although the agency will see it as one event. Also, participation
in an alcohol treatment program in lieu of conviction must be reported.
"If an airman receives a Driving While Intoxicated or Driving Under
the Influence conviction, he is required under FAR Section 61.15 to report
this 'motor vehicle action' to the FAA within 60 days of the conviction,"
reports Struble. If a pilot fails to report to FAA within 60 days, FAA
can 1) deny any application for any certificate (including medical) for
up to one year; and 2) suspend or revoke any certificate previously issued.
The standard penalty, he says, for failing to report a single motor vehicle
action is a 30-day suspension.
Despite the fact that much of this is well known to pilots, says Struble,
the number of cases that his firm and FAA handle indicates it is all too
often overlooked or misunderstood.
Struble also emphasizes that pilots have a responsibility from "allowing
any person who appears to be intoxicated or ... under the influence of
drugs to be carried on an aircraft, as prohibited by Federal Aviation
Regulation 91.17."
