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                                Aviation and the Law

Types of Cases
    Constitutional Law
    U.S. Common Law
    Legal Research
    Criminal Law
    Ownership
    Airmen
    Airlines
    Accidents
    Eminent Domain
    Airports
    Labor Issues
    Insurance

                                   Constitutional Law

1. Betts v. Brady
316 U.S. 456 (1941) (see Gesell, 1993, pp. 48-49)

Question: Are the Bill of Rights guarantees obligatory upon the states?

Facts: Petitioner Brady was indicted on robbery charges and was to appear before the
Circuit Court of Carroll County, Maryland. He did not have the funds to engage an
attorney for his defense. He asked the court to appoint an attorney, but he was refused by
the court, because it was not their custom to appoint an attorney for indigent (poor)
persons. Brady did not waive his right to counsel, but proceeded to defend himself before
the court. He elected to be heard without the benefit of a jury. The court found him guilty
and sentenced him to prison. While serving time, Brady filed a habeas corpus petition,
asserting that he was denied the right to counsel, which had been the interpretation of the
“due process” provision under the 14th Amendment. The case was heard before the U.S.
Supreme Court by writ of certiorari. At the time, only 9 states had definitive laws
regarding the supply of counsel for those who could not afford counsel in a criminal case.
Therefore, the judgment of the lower court was affirmed.

Outcome: The U.S. Supreme Court affirmed the lower court‟s judgment. Brady served
his remaining sentence and the Maryland court continued to uphold its decision about
indigent persons in criminal cases.
2. Clarence Earl Gideon v. Wainwright, Corrections Director
372 U.S. 335 (1963) (see Gesell, 1993, pp. 50-52)

Question: Are the Bill of Rights guarantees obligatory on the states?

Facts: Clarence Earl Gideon broke into a poolroom. He was caught and his case came
before the Florida state court. Mr. Gideon did not have funds for legal representation and
therefore represented himself. He was declared guilty by the jury and he served five years
on prison. While there, Gideon filed a petition that his Constitutional rights had been
violated. His attorney used Betts v. Brady (316 U.S. 455) as his defense. The 6th
Amendment provides the right to counsel, if the accused is unable to pay for an attorney
to try his or her case.

Outcome: The U.S. Supreme Court reversed the judgment of the Florida court and the
cause was remanded to the Supreme Court of Florida. This determination reopened the
debate of Betts v. Brady, suggesting that the former decision was made without due
regard to a broader interpretation of the law.

                                   U.S. Common Law

3. Melvin C. Newberger v. Irving M. Pokrass et al.
CCH 10 AVI 17,118 (1967) (see Gesell, 1993, pp. 72-73)

Question: Can a passenger share responsibility with the pilot in the negligent operation of
an aircraft?

Facts: Melvin Newberger and Willard Pokrass were friends and often made trips
together. Pokrass owned an Apache (twin) aircraft. Newberger, Pokrass, and another
friend, Barbara Seely decided to fly to Eagle River, Wisconsin where Pokrass had a home
near winter recreational activities. Making their way to their destination in adverse
weather conditions, they had to stop at Oshkosh until the weather permitted further travel
by air. They made a refueling stop at Wausaw, determining to go on to Rhinelander when
the weather permitted. During the flight en route Rhinelander, Newberger, sitting beside
the pilot, napped. Pokrass had mentioned he was also sleepy. Just before the aircraft
crashed, Newberger woke up and warned Pokrass they were about to hit the trees.
Pokrass said “I know,” but did nothing to avert the crash. The aircraft did crash and
Pokrass and Seely lost their lives in the fire. Newberger survived, but was not found for
14 hours. Newberger brought a suit against the estate of Pokrass. He won the suit and was
awarded pain and suffering relief as well as money for lost wages. The estate of Pokrass
appealed the court‟s decision. The court had determined that res ipsa loquitur applied
(the thing speaks for itself). The appellants insisted that had Newberger stayed awake, he
could have helped Pokrass avert the disaster. The Wisconsin Supreme Court countered
the appellant‟s argument by stating that Pokrass could have been found negligent in
several aspects.

Outcome: The Court affirmed the lower court‟s judgment and Newberger was awarded
money for lost wages, and pain and suffering caused by the 14-hour ordeal in wintry


4. Greater Westchester Homeowners v. City of Los Angeles
603 P2d 1329, 160 Cal. Rptr. 733 (1979) (see Gesell, 1993, pp. 106-107)

Question: Is a municipality which owns and operates an airport liable for personal
injuries sustained by nearby residents, and caused by noise from aircraft using the

Facts: Homeowners near the two north runways of Los Angeles International Airport
sued the City in inverse condemnation for property damage, and on a nuisance theory, for
personal injuries caused from aircraft generated noise, smoke and vibration. The defense
(City of Los Angeles) argued that airport operations and aircraft operations were lawful
because they were regulated by federal law.

Outcome: Preemption is a defense that infers sovereignty of the federal government.
However, the Federal Aviation Act of 1958 had expressed that terms within its law “shall
not abridge „remedies now existing at common law or by statute.‟” Plaintiffs were
awarded damages for personal injuries sustained. (5th Amendment rights were at stake

                                      Criminal Law

5. United States v. Marvin R. Feldman
CCH 10 AVI 18,351 (1969) (see Gesell, 1993, p. 131)

Question: Is the enactment of a statute that imposes a civil penalty for falsely reporting a
bomb constitutional?

Facts: While Marvin R. Feldman was eating lunch at a counter at the Dulles International
Airport, a person seated next to him asked him what was ticking. He responded, “it could
be a bomb.” The incident was reported and the airport police searched Feldman‟s person
and belongings for the source of the ticking. They found a Westclox alarm clock. At issue
was the United States Code regarding the imparting or conveying of false information.
Feldman argued that the code violated his 1st, 5th, and 6th Amendment rights.

Outcome: The U.S. District Court found the statute (Section 35a, 18 U.S.C.A.) to be
clearly constitutional and denied the defendant‟s motion for dismissal. In 1965, an
amendment had imposed a civil penalty to protect the public interest in air travel. “It has
never been deemed an abridgement of freedom of speech or press to make a course a
conduct illegal merely because the conduct was in part initiated, evidenced or carried out
by means of language, either spoken, written or printed” (p. 131).

6. United States v. Benrus Eugene Brown
CCH 11 AVI 17,429 (1969) (see Gesell, 1993, pp. 132-133)

Question: At what point does the attempt to board an aircraft with a concealed weapon
take place?

Facts: A person reported seeing a man drop an object that looked like a gun or smoking
pipe. Airport security approached Benrus Eugene Brown and asked if he had a weapon.
The defendant said, “yes.” The defendant was not given his constitutional warnings (see
Supreme Court decision in Miranda v. Arizona 384 U.S. 436 (1966)). The government
argued that at the moment the defendant surrendered his ticket and passed into the
departure lounge, this constituted an “attempt to board an aircraft.” The defendant
contended that until he set foot on the airplane, he had not consummated boarding.

Issues: (1) Did the acts of the defendant constitute an attempt to board an aircraft? (Court
says “Yes”) (2) Were statements made by the defendant at the time of his arrest
admissible, in view of the fact that he had not received warnings? (Court says, “No”) (3)
Was the evidence which was seized from the defendant, that is, a .22 caliber pistol and an
airplane ticket, illegally obtained from him as a result of an unlawful search and seizure?
(Court says, “No”)

Outcome: The U.S. District Court answered the first question in the affirmative, and the
second and third questions in the negative. The court defined the term “attempt” as an
effort to consummate a crime, beyond merely planning for the crime (answer to issue 1).
When the security guard followed up accusations of carrying a weapon with a search, it
was clear that the security guard intended to put the defendant under arrest, but did not.
By not giving proper warning of rights, nothing the defendant said after being detained
could be admitted in court (answer to issue 2). The court found there was probable cause
for the arrest, and the arrest was lawful. When a person is lawfully arrested, the officer
has the right, without a search warrant, to make a contemporaneous search of the person
of the accused for the fruits of, or the instrumentalities used to commit, the crime. The
weapon as well as the ticket was, therefore, admissible in evidence (answer to issue 3).

7. United States v. Frank Lopez
328 F. SUPP. 1077 (1970) (see Gesell, 1993, pp. 134-136)

Question: Is the use of a metal detector a reasonable search allowable under the 4th

Facts: Frank Lopez and companion Ernesto Gonzalez were apprehended on November
14, 1970 at John F. Kennedy International Airport. The men had set off the
magnetometer and neither man could produce personal identification. Under the anti-
hijacking profiling system, this was enough information to alert the U.S. Marshals. Two
Deputy Marshals approached the men and asked for identification. Gonzalez identified
himself with his real name. Lopez used the name Julio Lopez, which appeared on this

ticket. The Marshals had each man walk through the detector, first with a small bag they
were carrying and then without. The alarm was set off in both cases. The Marshals did a
pat down on Lopez and found a tinfoil covered plastic envelope with white powder on it
(heroin). The two men were arrested. The Marshals did not find anything on Gonzalez
and released him. Lopez was tried in U.S. District Court and charged with concealment
and transportation of narcotics.

Outcome: In Terry v. Ohio, the court upheld the practice of searches during airport
screening. However, in Terry v. Ohio the police were not given the right to search
without judicial approval. However, in the anti-hijacking system, immediate action is
necessary and security must determine if it is possible to wait for judicial approval. In this
case, the Marshals were right to continue their investigation, given the repeated alarms of
the magnetometer. “The district court concluded that contraband seized as a result of a
properly circumscribed investigatory frisk predicated on information generated by a well
administered federal anti-hijacking system is admissible in evidence. Such a seizure
comports with established 4th Amendment principles, and were it not for the special
circumstances of this case, the court would not have hesitated to deny this motion to
suppress.” Since the Pan American Passenger Service Manager had not updated the
profile system that applied to anti-hijacking screening procedures, they were operating
outside the rules established for Pan American Security Services, the U.S. Marshals, and
the FAA. The evidence was therefore suppressed. Without any evidence, the government
had not case and the indictment was dismissed.

8. United States v. James Edward Ware
CCH 11 AVI 17,863 (1970) (see Gesell, 1993, p. 137)

Question: Is an unloaded gun considered a “dangerous” weapon?

Facts: A passenger saw a pistol fall out of the pocket of passenger James Edward Ware.
The incident was reported and an officer approached Ware. He informed him of the
information he had heard and patted him down. The officer found a .25 caliber pistol in
the defendant‟s coat pocket. The pistol was not loaded, and neither he nor his companion
had ammunition for it.

Outcome: The U.S. District Court found that the officer had acted appropriately, under
the circumstances. The defendant wanted the evidence suppressed because the weapon
was not loaded. The court extended the law to include unloaded weapons, in keeping with
the maintenance of public safety by forbidding the carrying of a dangerous weapon by
persons boarding an airliner. The court contended that the .25 caliber pistol was a
dangerous weapon and overruled the defendant‟s motion to suppress the evidence.

9. Lawrence B. Havelock v. United States
CCH 11 AVI 17,599 (1970) (see Gesell, 1993, p. 138)

Question: Is circumstantial evidence, largely based upon bizarre behavior, sufficient to
convict in an aircraft arson case?

Facts: Lawrence B. Havelock had used the lavatory 3 times in the space of 70 minutes.
He had been seen stuffing a yellow object between seats and had also been seen wearing
yellow rubber gloves. He was the last person to use the middle-aft restroom, shortly
before a fire broke out in that lavatory. Matchbooks were found in all the places where
Mr. Havelock had been. Arson investigators found the ignition source to be matches and
the authorities pursued a more thorough investigation of Havelock‟s movements before
the incident. They searched a hotel room where Havelock had stayed before making the
flight. In it, they found a ticket for a flight never taken. They also found that he had taken
out an insurance policy for $60,000 naming his wife as beneficiary. The compounded
evidence suggested that Havelock was guilty and he was tried and convicted by a lower
court. Havelock appealed on grounds that the evidence was insufficient to convict him.

Outcome: The U.S. Court of Appeals found that even though the evidence was less than
direct, it was sufficient. The lower court had not admitted erroneous evidence in their
case, despite allegations that the testimony and exhibits were prejudicial. The judgment
of the lower court was affirmed.

10. United States v. Bobby R. Lindsey
451 F. 2d 701 (1971) (see Gesell, 1993, pp. 139-140)

Question: May a suspect be frisked based upon observations of suspicious appearance
and behavior?

Facts: Bobby R. Lindsey ran into the boarding area for Eastern Airlines Flight 427, just a
few minutes before scheduled departure, and told the ticket agent to “save a seat for
Williams.” The ticket agent noticed the man‟s name was James Marshall. Aroused by the
suspicious behavior, the ticket agent signaled for Marshal Brophy to observe the
defendant. Brophy was part of the Anti-Hijacking Task Force. At the moment of
departure, the defendant moved toward the aircraft. Brophy intercepted the defendant had
asked for identification. The defendant gave the Marshal a Selective Service card with the
name Melvin Giles. He also produced a Social Security card with the name Bobby R.
Lindsey on it. Brophy noted two bulges in Lindsey‟s coat pocket and patted down
Lindsey‟s coat. He found two aluminum wrapped packages of heroin. Lindsey was taken
into custody, tried, and convicted in the U.S. District Court. Lindsey appealed, saying the
evidence was inadmissible because of unlawful search and seizure.

Outcome: The government relied on Terry v. Ohio (392 U.S. 1 (1968)) for their argument
for lawful search and seizure. The unusual behavior of Lindsey was enough to cause
increased concern on the part of Brophy. In the context of possible airplane hijacking,
and because of the limited time before the flight left, Brophy did not have time to secure
judicial approval of a warrant. The judgment of the district court was affirmed.

11. United States v. Cecil Epperson
454 F. 2d 769 (1972) (see Gesell, 1993, pp. 141-142)

Question: What constitutes a legitimate search and seizure?

Facts: Cecil Epperson was detained and later arrested when he failed the magnetometer
search. The U.S. Marshal asked Epperson is he was carrying metal objects. He produced
several metal objects, but upon entering the magnetometer again, he set it off. The
Marshal then patted down Epperson and found a loaded .22 caliber pistol in the jacket he
was carrying. Epperson was convicted in the United States Magistrates Court,
Alexandria, Virginia, of attempting to board an aircraft engaged in interstate commerce
while carrying a concealed dangerous weapon. Epperson appealed on the grounds that the
pistol and ammunition were obtained by illegal search and seizure.

Outcome: The lower court contended that the search by the magnetometer did not violate
4th Amendment rights, because it was not unreasonable. Unreasonable searches are
against the law, but reasonable searches are not. A search by a magnetometer was not
invasive, and was not as humiliating as a frisk. Terry v. Ohio (392 U.S. 1 (1968)) was
argued, but the appeals court found that the swift action was warranted, given the
circumstances of the case. There was not enough time for a court-ordered warrant. Given
that the magnetometer indicated the presence of contraband, the continued search actions
of the Marshal were warranted. The conviction of the lower courts was affirmed by the
U.S. Court of Appeals.

12. United States v. Gerald Kroll
481 F 2d 884 (1973) (see Gesell, 1993, pp. 143-144)

Question: What constitutes unwarranted search and seizure?

Facts: During the time that Gerald Kroll purchased a ticket on TWA Flight 338 for
Chicago, Illinois, the ticket agent determined that he fit the profile of a hijacker. Kroll
was asked to produce a driver‟s license. The license number was written on the ticket,
which was a signal to passenger security that Kroll fit the profile of a hijacker. The
defendant passed through the magnetometer and the alarm was set off by the metal hinges
and lock of the attaché case he carried. The attaché case was searched. A U.S. Marshal
witnessed the search. The Marshal became suspicious when the defendant did not open
the file section of the case. The Marshal ordered Kroll to open the file section. The
Marshal saw a white envelope; and feeling that the defendant was suspicious, he ordered
Kroll to open the envelope. Within the envelope there was a small plastic bag which
contained an amphetamine and a partly-consumed marijuana cigarette.

Outcome: In a pretrial motion, the defendant asked that the evidence be suppressed, on
the grounds that the evidence was obtained illegally. The government could not prove
that Kroll had given consent to open the envelope. He had been coerced to open the
envelope. The government said that posted signs that passengers might be searched were
an implied consent to search. The appeals court did not agree. The search was

unreasonable. Further, the appeals court did not believe that there was sufficient reason to
suspect that the defendant was carrying explosives or weapons. Clearly, the small white
envelope was not of sufficient size to conceal weapons or explosives. The U.S. Court of
Appeals affirmed the U.S. District Court‟s determination to allow suppression of the

13. United States v. Abraham Pina Moreno
475 F 2d 44 (1973) (see Gesell, 1993, pp. 145-146)

Question: What constitutes a reasonable suspicion of a suspect‟s behavior?

Facts: Abraham Pina Moreno arrived at San Antonio International Airport on a Braniff
Airlines flight. Deputy U.S. Marshal Granados observed Moreno as he came through the
lounge area. He appeared to be looking for someone and was visibly nervous. Moreno
left the airport in a taxi and returned to the airport two hours later. Moreno purchased a
ticket and headed for the Southwest Airlines gate. Moreno looked at Granados and
diverted into the men‟s restroom. Granados noticed that there was a distinct bulge in
Moreno‟s coat. Suspecting air piracy, Granados pursued Moreno in the restroom and
asked him to produce identification. Moreno was hesitant to show identification, which
alarmed Granados further. Moreno had said he had taken the cab to a hospital, but
Granados had inquired about the destination of the cab and it was not the hospital
reported by Moreno. Because of the lie, and thinking that Moreno might flee the scene,
Granados called for backup and Moreno was taken to the security office for further
search. Moreno was asked to produce what was in his pockets. Eventually, Moreno was
asked to remove his coat. His coat was searched and the Marshal found three cellophane
wrapped packages containing heroin. Prior to trial, Moreno filed a motion to suppress the
evidence on the grounds that the resulting search and seizure was beyond the
constitutionality permissible intrusion contemplated in Terry v. Ohio (392 U.S. 1 (1968)).

Outcome: The U.S. District Court convicted Moreno of unlawful possession of heroin in
an attempt to distribute. He appealed the decision. The appeals court held that in light of
the nervous behavior of the defendant and the bulge in his coat pocket and because the
defendant had purchased a ticket and was proceeding toward an airline gate, and because
when confronted he was evasive and hesitant, his 4th Amendment rights were not
offended. The district court conviction was affirmed.


14. Northwest Airlines, Inc. v. State of Minnesota (1944)
(Pucci, p. 2-29; Gesell, 1993, p. 189)

Question: "In which state does an interstate air carrier pay taxes?" (Gesell, 1993, p. 189).

Plaintiff: Northwest Airlines, Inc.

Defendant: State of Minnesota

Brief Synopsis: The State of Minnesota wished to tax Northwest Airlines, Inc. based on
its entire fleet of aircraft, including its corporate holdings in the State of Minnesota.
Northwest Airlines, Inc. said that the entire fleet was not in the State of Minnesota during
the entire year, although all airplanes were in the State sometime during the year. The
airline contended that because they were engaged in interstate commerce, one State did
not have the right to tax the entire airline.

Court's Opinion: Justice Frankfurter declared that the State of Minnesota did have the
right to tax its corporations. The decision was based in part on the precedent set by New
York Central & H.R.R. Co. v. Miller, in which the court upheld the ruling that a
corporation was taxed by the State of residency of its holdings (Pucci, 1981). Therefore,
since Northwest Airlines, Inc. resided in Minnesota, the State of Minnesota could tax the

Question and Answer: "In which state does an interstate air carrier pay taxes?" (Gesell,
1993, p. 189). It would appear that this case establishes the State of residency as the
taxing state. Nothing had been established to indicate that taxation would be split
between States where part of the company's property resided. The decision was not
without dissent or argument among the justices. One justice believed the decision to be in
violation of the Commerce Clause. Also in question was the Fourteenth Amendment's
Due Process clause. The U.S. Supreme Court with a writ of centiorari upheld the State of
Minnesota's right to tax the airline and found not violation of due process.

This next case is another example of how States have become involved in the rights of air
carrier's when conducting interstate commerce.

15. Braniff Airways, Inc. v. Nebraska State Board of Equalization
and Assessment et al. (1954)
(Pucci, p. 2-55)

Question: Can a State levy an ad valorem personal property tax on an airline, even if the
airline does not reside in that State?

Appellant: Braniff Airways, Inc.

Defendant: Nebraska State Board of Equalization and Assessment

Brief Synopsis: The State of Nebraska levied an ad valorem tax on Braniff Airways, Inc.
based on 18 daily stops in the State by Braniff aircraft, where the air carrier picked up
and discharged passengers and freight equally 1/10 of its revenue. The air carrier
appealed the decision of the Nebraska Supreme Court to pay the tax to the U.S. Supreme

Court's Opinion: Justice Reed delivered the opinion of the court saying that the State of
Nebraska did have the right to levy the ad valorem tax. The appellant's argument
concerned the Civil Aeronautic Act of 1938, which brought the air carrier within the
jurisdiction of Federal government based on the international laws governing national
sovereignty. The U.S. Supreme Court contended that the appellant erroneously applied
the commerce clause of the U.S. Constitution and failed to apply the due process clause
of the Fourteenth Amendment. As regards commerce in the State of Nebraska, following
due process, the question was whether the State offered any benefits or protection to the
air carrier while aircraft transited airports in Nebraska. Seeing that Nebraska airports
offered a place for passengers and freight to embark and disembark, and provided
services to Braniff's aircraft while at the airports, the Court ruled that the State of
Nebraska could indeed impose an ad valorem tax on the air carrier. Justices Frankfurter
and Jackson dissented.

Question and Answer: Can a State levy an ad valorem personal property tax on an airline,
even if the airline does not reside in that State? The number of stops that Braniff
Airways, Inc. aircraft made each day in the State of Nebraska, gave the State the right to
impose an ad valorem tax on the air carrier. It is interesting that the air carrier, regulated
by the Federal government, was not released from the taxation. It is also interesting that
surface vessels on inland waterways were used as an example. This is not the first time
watercraft have been used to illustrate the rules governing taxation.

This next case is another example of State involvement in air commerce. Although the
court did not decide on behalf of either party, it is significant that the case would not
proceed until the State of Kentucky had determined its ideas behind the Air Board's
powers. Keep in mind that this case is well before the Airline Deregulation Act of 1978.


16. Raul Pastrana v. United States, Bryant M. Chestnutt and Eastern Airlines
746 F. 2d 1447 (1984) (see Gesell, 1993, pp. 228-229)

Question: Is an airline pilot‟s certificate a Constitutionally protected right under the 5th

Facts: On October 28, 1981, Raul Pastrana was the pilot-in-command of an Eastern Air
Lines flight. During the landing the aircraft‟s left landing gear was allowed to depart the
runway. Debris and mud was kicked up by the tires, which was ingested into the engine,
causing the subsequent flight to be cancelled. Bryant Chestnutt, the airline inspector
working on behalf of the FAA, asked to see Pastrana and his crew for questioning.
Pastrana refused to meet, saying he hadn‟t talked to his union representative yet.
Chestnutt ordered Eastern Air Lines to suspend Pastrana until he could be reexamined for
pilot qualification. Eastern followed Chestnutt‟s orders and suspended Pastrana from
flying and suspended his pay as well. On November 12, 1981, the FAA Southern Region

Counsel‟s office issued an Emergency Order of Suspension pursuant to statute (49 U.S.C
1429). Pastrana brought action against Chestnutt and Eastern Air Lines.

Outcome: The U.S. District Court dismissed Pastrana‟s various constitutional tort claims
against the United States and the FAA‟s employee Bryant Chestnutt. The court decided
that a pre-suspension hearing was not required under 49 U.S.C. 1429. Pastrana appealed.
The U.S. Court of Appeals reversed the finding of the district court, and determined that
Pastrana had asseted a constitutionally protected right and an appropriate cause of action.
Title 49 U.S.C. 1429 granted the FAA authority to reexamine civilian pilots, but
Chestnutt did not have the authority to amend, modify, suspend, or revoke a pilot‟s
certificate. Only the Administrator and a few other top officials within the FAA could do
this. Further, Pastrana‟s pilot certificate was cognizable property interest protectable by
the 5th Amendment. Chestnutt had exceeded his authority. The higher court reversed the
dissmissal by the district court and the case was remanded for further action.

17. John E. Green v. J. Kenneth Brantley, et al.
CCH 22 AVI 17,783 (1989) (see Gesell, 1993, pp. 230-231)

Question: Is a flight examiner‟s certificate a Constitutionally protected right under the 5th

Facts: Based on an investigation by J. Kenneth Brantley, Operations Inspector for the
Flight Standards District Office (FSDO), he found the flight examiner activities of John
E. Green to be less than acceptable and together with Edgar V. Lewis (FSDO Operations
Unit Supervisor) and Craig R. Smith (FSDO Manager) revoked Green‟s examiner
designation. During the proceedings, the FSDO members said that Green‟s flight exams
were too short and therefore incomplete. These matters were not shared with Green
before the revocation of his examiner designation. The matter was brought before the
court. Green contended that his 5th Amendment rights had been violated (no “person shall
be…denied of life, liberty or property). Green believed that his examiner designation was
similar to a license and conformed to the rationale under 5 U.S.C. The defendants (FSDO
members named above) pressed for a summary judgment (Procedural device available for
prompt and expeditious disposition of controversy without trial and when there is no
dispute as to either material fact or inferences to be drawn from undisputed facts, or if
only question of law is involved—see Black’s Law Dictionary 6th edition, p. 1001).

Outcome: The court ruled in favor of Green for a number of reasons. First, based on 5
U.S.C., a license can also be a certificate, similar to that of an examiner designation.
Second, since a license can be described as a protectable property interest, it is protected
under the 5th Amendment of the U.S. Constitution. Third, even though the Secretary of
Transportation may rescind any delegation, under 49 U.S.C., neither the Pilot Examiner‟s
Handbook (the FAA instrument) nor the privileges given the Secretary of Transportation
could annul the plaintiff‟s constitutional rights. Last, the defendants were not under any
“perilous” or “unique” situation (such as an emergency) that would entitle them to
“qualified immunity.” Therefore, the court decided that the defendants were not entitled
to a summary judgment on their claim.

18. Lowell G. Ferguson v. National Transportation Safety Board and Langhorne M
CCH 17 AVI 17,139 (1982) (see Gesell, 1993, pp. 232-233)

Question: Is it reckless conduct for a pilot to land without clearance at the wrong airport?

Facts: Lowell Ferguson (over 12,000 hours of flight time) and his co-pilot James
Bastriani mistakenly landed at Buffalo, Wyoming, instead of their planned destination of
Sheridan. On a night with good visibility, air traffic control had given the Western
Airines flight more direct routing to Sheridan, in an attempt to help Ferguson make up for
lost time. The aircraft‟s route went over Buffalo, Wyoming en route to Sheridan. Neither
Ferguson nor Bastriani had flown into Sheridan before, so were unfamiliar with the
airport. The crew landed at Buffalo, Wyoming and only figured out that they had made a
mistake when the nose wheel sank in the turnoff pad beyond the runway. The FAA
Administrator ordered a suspensioin of Ferguson‟s Air Transport Pilot certificate for 60
days. Ferguson was violated for “(1) deviating from an air traffic control clearance, (2)
landing at an airport not certified for air carrier operations, (3) landing at an airport not
listed in the Western Airlines Operations specifications, and (4) operating an aircraft in a
careless or reckless manner so as to endanger the life or property of another” (p. 232).
Ferguson believed he qualified for a waiver of punishment under FAA Advisory Circular,
AC 00-46B. He also believed that the conclusion that he was reckless was not accurate.

Outcome: An administrative law judge affirmed the 60-day suspension. Ferguson filed an
appeal, but during the appeal process the NTSB affirmed the suspension. The
administrative law judge, with support from the NTSB, concluded that Ferguson‟s
actions were reckless. The appellate court was bound by the Administrative Procedures
Act to allow the administrative law judge to interpret its own regulations. AC 00-46B had
been created to aid in the discovery of and the prevention of unsafe conditions. A waiver
of AC 00-46B could not be given if the actions under investigation were reckless in
nature. The NTSB decision that Ferguson acted in a reckless manner by landing at the
wrong airport, supported by the administrative law judge‟s interpretation of AC 00-46B
were enough to convince the appellate court that the decision of the administrative law
judge should be affirmed.

19. Lee Sorenson v. The National Transportation Safety Board and Charles E.
CCH 17 AVI 17,184 (1982) (see Gesell, 1993, pp. 236-237)

Question: Is a pilot entitled to Miranda warnings before being cited for violation of
Federal Aviation Regulations?

Facts: Lee Sorenson, a commercial pilot, attempted to taxi his aircraft on the Fresno Air
Terminal. Before Sorenson climbed into the aircraft and taxied, he was seen to be
staggering, spilling coffee from his cup, and spilling oil on his clothes. His speech was
also slurred. There were a number of witnesses to the facts. Airport security and members

of the Air National Guard were called on to assist in deterring Sorenson from his planned
flight. After Sorenson began to taxi his aircraft, he was stopped and asked to deplane. A
sobriety test was administered. He had trouble remembering the alphabet after the letter
“M.” He was asked to wait several hours before attempting the flight. The FAA ordered
the revocation of his pilot certificate, based on the alleged violations and testimony of the
witnesses. Sorenson stated that the smell of wine came from spilled wine on his clothing
from the evening before the incident. His staggering and unsteady balance was the result
of a bad back. Sorenson appealed the FAA decision to revoke his pilot certificate.

Outcome: An administrative law judge found that Sorenson had violated the regulations
as alleged. Sorenson appealed this decision to the National Transportation Safety Board.
The Board affirmed the Administrator‟s revocation of the pilot certificate. Sorenson
appealed to the U.S. Court of Appeals. He argued that “(1) the Board‟s finding of
intoxication was not supported by substantial evidence, (2) his administrative hearing did
not comply with the requirements of due process because the Administrator never
presented empirical evidence of intoxication, (3) that the filed sobriety test should have
been excluded because he was not read his Miranda rights, and (4) the Board‟s findings
were not supported by sufficient evidence because the government‟s evidence constituted
uncorroborated hearsay under the Federal Rule of Evidence” (p. 237). The court
determined that (1) the testimony of the witnesses was sufficient evidence of his
intoxication, (2) circumstantial evidence is sufficient in this case, (3) Miranda rights are
for criminal proceedings while a person is in custody, which is not what happened in this
instance, and (4) under the Administrative Procedures Act an agency need only exclude
“irrelevant, immaterial or unduly repetitious evidence” (p. 237). Sorenson‟s last defense
was that the regulations were unconstitutionally vague because of the phrase “under the
influence of alcohol.” The order of the Board (NTSB) was affirmed.

20. Laurence R. Wenzel v. United States of America
CCH 11 AVI 17,349 (1969) (see Gesell, 1993, pp. 249-250)

Question: Is an air traffic controller negligent for information not considered the
proximate cause of an accident?

Facts: Laurence Wenzel and his co-pilot took off from McChord Air Force Base in a
commercial C-46 (twin-engine cargo aircraft). Shortly after departing, Wenzel reported to
air traffic control that he had a runaway propeller (left engine). He wished to land as soon
as practical. The air traffic controller assumed that this was an emergency (Wenzel did
not declare an emergency) and alerted the Radar Approach Control (RAPCON) facility.
RAPCON reported to Wenzel his position, relative to McChord and also relative to Thun
Field. Neither Wenzel nor his co-pilot knew about Thun Field. They requested vectors to
Thun and asked to know the runway length. The controller said, “5300.” The crew made
an approach, but during the final moments they had to abort the approach (too high) and
went around. During the go-around, it was witnessed that the aircraft made a sharp left
turn, and barely avoiding the trees, the aircraft crashed 1 ½ miles northeast of Thun.
During the ensuing investigation, Wenzel alleged that the proximate cause of the crash
was the inaccurate reporting of the runway length at Thun. Wenzel said that had he

known that the true runway length was 2,667 feet, he would have asked for vectors to
McChord. He also said that had he known the true length, he would have requested a
different approach into Thun, one which would have positioned the aircraft better.

Outcome: Wenzel had made the issue of negligence of the U.S. government as acted out
by the air traffic controller. The case went to the U.S. District Court. When Wenzel failed
to show the court that the defendant‟s actions were negligent, he appealed the case. The
U.S. Court of Appeals upheld the district court‟s findings that Wenzel had made a
successful go-around and that the crash was caused by something other than the
inaccurate runway information. The controller did nothing to “control or influence the
handling of the aircraft” (p. 250). Due to the long period of unconsciousness suffered by
Wenzel following the crash, he could not remember any of the events just prior to the
crash. “The court of appeals determined the judgment of the district court to be sound and
right, and affirmed its decision” (p. 250).


21. Leckbee v. Continental Airlines, Inc.
CCH 10 AVI 18,352 (1969) (see Gesell, 1993, p. 295)

Question: "Is an airline liable for damages sustained as a result of exercising prudent
judgement in an emergency situation?" (Gesell, p. 295).

Plaintiff/Appellee: Charles M. Leckbee

Defendant/Appellant: Continental Airlines, Inc.

Brief Synopsis: During the takeoff roll of a Continental Airlines four-engine turbo prop
aircraft, the Captain's seat became dislodged and moved to its full aft position. The
Captain had been in control of the aircraft during takeoff. The Captain elected to refuse
(abort) the takeoff, which incidentally caused recurrent damage to the bones, back, and
soft tissue of one Charles M. Leckbee. Leckbee had undergone surgery for the removal of
a herniated disc in his lower back some time before the flight. The plaintiff brought the
case before the U.S. District Court, but the Court did not find that the rejection of the
takeoff constituted negligence on the part of the pilot or the airline, even though it did
cause the plaintiff's injuries, and directed a verdict in favor of Continental. The plaintiff
appealed the case to the Fifth Circiut Court of Appeals. The court of appeals determined
that the airline could be held liable for negligence, and remanded the case for retrial.

Arguments: Continental argued that the pilot exercised prudent judgment in aborting the
takeoff when he determined that he could not safely fly the airplane. Mr. Leckbee argued
that the pilot was negligent in his responsiblities, and that his injuries stemmed from such

Court's Opinion: From the ruling, "Continental would avoid the result we reach by its
contention that the DECELERATION of the plane was not an act of negligence. It is true
that there was no evidence of the captain's having acted negligently in aborting the
takeoff. Common sense suggests that under the circumstances he exercised good
judgment. Nevertheless, the prudence of Continental's pilot in aborting the takeoff cannot
be invoked to absolve the carrier from liability if the emergency necessitating the
abortion was created by Continental's negligence, i.e., permitting the captain's seat to
malfunction. As stated by the Texas court, the issue as to responsibility is in . . .
circumstances [of emergency] to be resolved by reference to the act or omission which
brought the dangerous situation into existence." That is, the pilot was right to reject the
takeoff, and was not negligent for doing so; however, the situation never would have
occurred had the pilot not been negligent in his preflight duties, including a proper
inspection of his seat.

Texas law judges proximate cause on two elements: "(1) cause in fact, where but for the
negligent act no harm would have been incurred, and (2) foreseeability, where a person of
ordinary intelligence and prudence could anticipate the danger to others created by his or
her negligent act" (Gesell, p. 295). The first element was not relevant in that the Captain
took the proper action and no negligent act was committed. The court decided that the
second element was pertinent in that the Captain could have made sure his seat was
safely locked in place, to preclude it from moving backward. The Appeals Court reversed
the decision of the U.S. District Court " . . . and the case was remanded for a new trial"
(Gesell, p. 296).

Significance: In this case it would appear that an airline is not liable for prudent
judgment. However, if the prudent judgment were required because of some other
circumstance neglected by a representative of that airline (pilot), then the airline might be
liable. The outcome of the case, after the new trial, is not stated in this chapter. Therefore,
one cannot determine from what is present in this chapter that the airline would be liable.

22. Hannelore Adamsons v. American Airlines, Inc.
CCH 17 AVI 17,781 (1982) (see Gesell, 1993, p. 297)

Question: "Can a disabled person recover damages for the carrier's refusal to transport?"
(Gesell, p. 297).

Plaintiff/Appellee: Hannelore Adamsons

Defendant/Appellant: American Airlines, Inc.

Brief Synopsis: The plaintiff, who had resided in Haiti, had an undiagnosed illness. She
was to go to New York, apparently for diagnosis and treatment, but due to obvious
expressions of pain and special needs (catheter and disposal bag) the defendant decided
to refuse service on the grounds that the plaintiff's health and the safety of the other
passengers was at risk due to the plaintiff's condition. Subsequently, the plaintiff's illness
rendered her paralyzed from the waist down. The plaintiff, based on a jury trial, was

awarded $525,000. The defendant appealed the case to the New York State Court of

Court's Opinion: The question before the higher court was whether the airline exercised
its authority as provided by the Federal Aviation Act of 1958, or if the airline had acted
negligently. The Court's opinion was that the airline, based on the authority of the Federal
Aviation Act, had the power of discretion. The airline could refuse service if the
circumstances warranted. The Court also determined that the act by the airline was not
arbitrary, capricious, or irrational. The higher court reversed the lower court's decision
and the complaint was dismissed.

Question and Answer: In this case, the disabled plaintiff could not recover damages from
the airline. However, there were special circumstances in this case, which might not be
used in other cases. The disabling illness was undiagnosed and the condition of the
disabled person was worsening, a condition that opposed the description given to the
airline at the time the flight was booked. The decision to refuse service was made only
after the plaintiff demonstrated extreme discomfort at the time of boarding, accompanied
by evidence that the plaintiff had special needs not known to the airline. This made the
airline's sense of duty for this disabled person higher. It was determined that the
extraordinary duty for this passenger jeopardized the safety of not only this person but
also of other passengers. The subsequent decision was to refuse service.

23. American Airlines, Inc. v. Wolens et al.
Certiorari to the Supreme Court of Illinois
No. 93-1286. Argued November 1, 1994, Decided January 18, 1995

Question: Do States in the U.S. have the authority to enforce State laws in regards to air

Facts: In consolidated state court class actions brought in Illinois, plaintiffs (respondents
here), as participants in American Airlines' frequent flyer program, challenged
American's retroactive changes in program terms and conditions--particularly,
American's imposition of capacity controls (limits on seats available to passengers
obtaining tickets with frequent flyer credits) and blackout dates (restrictions on dates such
credits could be used). Plaintiffs alleged that application of these changes to mileage
credits they had previously accumulated violated the Illinois Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) and constituted a breach of
contract. American answered that the Airline Deregulation Act of 1978 (ADA), 49 U. S.
C. App. §1305(a)(1), preempted plaintiffs' claims. The ADA prohibits States from
"enact[ing] or enforc[ing] any law . . . or other provision having the force and effect of
law relating to [air carrier] rates, routes, or services."

While the Illinois class action litigation was sub judice, this Court decided Morales v.
Trans World Airlines, Inc., 504 U. S. ___. Morales defined §1305(a)(1)'s "relating to"
language to mean "having a connection with or reference to airline `rates, routes, or
services,' " id., at ___, and held that National Association of Attorneys General (NAAG)

guidelines on airline fare advertising were preempted under that definition. The Illinois
Supreme Court, post-Morales, ruled that plaintiffs' monetary claims survived for state
court adjudication. Those claims related only "tangential[ly]" or "tenuous[ly]" to "rates,
routes, or services," the Illinois court reasoned, because frequent flyer programs are
"peripheral," not "essential," to an airline's operation.

Outcome: Held: The ADA's preemption prescription bars state imposed regulation of air
carriers, but allows room for court enforcement of contract terms set by the parties
themselves. Pp. 6-15.

(a) Morales does not countenance the Illinois Supreme Court's separation of "essential"
operations from unessential programs. Plaintiffs' complaints, accordingly, state claims
"relating to" air carrier "rates" (i.e., American's charges, in the form of mileage credits,
for tickets and class of service upgrades) and "services" (i.e., access to flights and
upgrades unlimited by retrospectively applied capacity controls and blackout dates). P. 6.

(b) The full text of the ADA's preemption clause, and the congressional purpose to leave
largely to the airlines themselves, and not at all to States, the selection and design of
marketing mechanisms appropriate to the furnishing of air transportation services, impel
the conclusion that §1305(a)(1) preempts plaintiffs' Consumer Fraud Act claims. The
Illinois Act is prescriptive, controlling the primary conduct of those falling within its
governance; the Act, indeed, is paradigmatic of the state consumer protection laws that
underpin the NAAG guidelines. Those guidelines highlight the potential for intrusive
regulation of airline business practices inherent in state consumer protection legislation.
The guidelines illustrate that the Illinois Act does not simply give effect to bargains
offered by the airlines and accepted by customers, but serves as a means to guide and
police airline marketing practices. Pp. 6-8.

(c) The ADA, however, does not bar court adjudication of routine breach of contract
claims. The preemption clause leaves room for suits alleging no violation of state
imposed obligations, but seeking recovery solely for the airline's breach of its own, self
imposed undertakings. As persuasively argued by the United States, terms and conditions
airlines offer and passengers accept are privately ordered obligations and thus do not fit
within the compass of state enactments and directives targeted by §1305(a)(1). A remedy
confined to a contract's terms simply holds parties to their agreements--in this instance, to
business judgments an airline made public about its rates and services. Court enforcement
of private agreements advances the market efficiency that the ADA was designed to
promote, and comports with provisions of the Federal Aviation Act of 1958 (FAA) and
related Department of Transportation (DOT) regulations that presuppose the vitality of
contracts governing air carrier transportation. Such enforcement is responsive to the
reality that the DOT lacks the apparatus and resources required to superintend a contract
dispute resolution regime. Court adjudication of routine breach of contract claims,
furthermore, accords due recognition to Congress' retention of the FAA's saving clause,
which preserves "the remedies now existing at common law or by statute." Nor can it be
maintained that plaintiffs' breach of contract claims are identical to, and therefore should
be preempted to the same extent as, their Consumer Fraud Act claims. The basis for a

contract action is the parties' agreement; to succeed under the state Act, one need not
show an agreement, but must show an unfair or deceptive practice. Pp. 8-13.

(d) American's argument that plaintiffs' claims must fail because they depend on state
policies independent of the parties' intent assumes the answer to the very contract
construction issue on which plaintiffs' claims turn: Did American, by contract, reserve the
right to change the value of already accumulated mileage credits, or only to change the
rules for credits earned from and after the date of the change? That pivotal question of
contract interpretation has not yet had a full airing and remains open for adjudication on
remand. P. 14.

157 Ill. 2d 466, 626 N. E. 2d 205, affirmed in part, reversed in part, and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy,
Souter, and Breyer, JJ., joined, and in which Stevens, J., joined as to Parts I (except for
the last paragraph) and II-B. Stevens, J., filed an opinion concurring in part and
dissenting in part. O'Connor, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which Thomas, J., joined except for Part I-B. Scalia, J., took no part
in the consideration or decision of the case.

24. Walt Shinault v. American Airlines
CCH 22 AVI 18,420 (1990) (see Gesell, 1993, p. 299)

Question: "Are emotional distress damages recoverable under the Air Carrier Access
Act?" (Gesell, p. 299).

Plaintiff: Walt Shinault

Defendant: American Airlines

Brief Synopsis: The plaintiff, a 30 year old disabled quadriplegic, was enroute to a press
conference at Jackson Airport via an American Airline flight. Due to maintenance and
weather delays, the plaintiff's on-time arrival was jeopardized. When the passengers were
transferred from one aircraft to another, the plaintiff was further delayed because of
company policies on the disembarkment of disabled passengers. The plaintiff missed his
connecting flight. The plaintiff filed a suit against the airline based on the language of the
Air Carrier Access Act (ACAA) of 198629. The relief sought was substantial.

Court's Opinion: The court's decision was based on existing law at the time. The
Secretary of Transportation was to formulate regulations for non-discrimination, based on
the Act; but at the time of the proceeding, those regulations were not yet promulgated.
The court was then left with provisions stated in the Rehabilitation Act of 1973.
Emotional damage claims are not recoverable under the Rehabilitation Act of 197330.
Since the plaintiff's claims were predominately emotional damage oriented, the complaint
was dismissed.

Question and Answer: This case does not determine whether emotional damages would
never be granted under the Air Carrier Access Act, it only demonstrates what happens
when the architecture of a law is curtailed by the lack of activity by other parties. The
Department of Transportation had not formed their regulations governing non-
discrimination, which may have precluded the plaintiff from recovery under the ACAA.
It is unknown whether the counsel for the plaintiff cited the U.S. Constitution, regarding
the rights to peace of mind-normally associated with emotional distress. Gesell (1993)
indicated that the plaintiff could have argued a case for emotional distress on the basis
that the action of the airline was intentional discrimination (animus31). Had the plaintiff
argued outside the ACAA, the might have been a different verdict. The mention of the
ACAA forced the court to find a law that applied. The closer match appeared to be that of
the Rehabilitation Act of 1973. Unfortunately, there was no provision for emotional
distress claims in that source.

25. Ralph Nader and Connecticut Citizen Action Group v. Allegheny Airlines, Inc.
626 F2d 1031 (1980) (see Gesell, 1993, p. 291)

Question: "May an airline overbook its flight by accepting more reservations than it can
accommodate?" (Gesell, p. 291).

Plaintiff/Appellee: Nader

Defendant/Appellant: Allegheny Airlines, Inc.

Brief Synopsis: The appellant had booked a flight with the appellant on April 25, 1972,
intending to fly to Hartford, Connecticut for a rally on April 28th. His reservation was
confirmed. However, upon arriving to check in, he was told that all seats were taken and
that other arrangements would need to be made. The appellant offered an alternative, but
the appellee declined and he missed the rally. The case started in the U.S. District Court,
but the plaintiff appealed to the Court of Appeals. Still not happy with the outcome of the
Appeals Court decision, the case was appealed to the U.S. Supreme Court, because the
Appeals Court contended that the Civil Aeronautics Board (CAB) needed time to
determine whether the practice of overbooking was deceptive. The U.S. Supreme Court
remanded the case to the District Court with the judgment that the case could be heard
without waiting for the CAB to make its determination. The District Court awarded the
plaintiff punitive damages. The appellant again appealed the decision and it went back to
the Appeals Court, which made the final decision.

Court's Opinion: The Court decided on two questions: (1) "Was Allegheny liable to
Nader in tort for fraudulent misrepresentation? [and (2)] Assuming such liability, was the
award of punitive damages proper?" (Gesell, p. 293). The award for punitive damages
was determined to be in error, since the CAB stated that "any rigid controls over
overbooking, as now practiced, would inevitably lead to restriction on privileges which
contribute greatly to the convenience of air transportation . . ." (pp. 293-294). The Court
dismissed the first question of fraudulent misrepresentation, based on evidence that
Allegheny did not show any intent to deceive, having announced its practice of

overbooking publicly; and based on evidence that Nader had been bumped from two
other airlines within the last six months, suggesting he knew full well that the practice
existed. Therefore, the practice of overbooking remained in force, and the Appeals Court
reversed the decision of the U.S. District Court for the award of punitive damages.

Question and Answer: An airline can overbook its flights. The practice apparently
originated with the Civil Aeronautics Board, the economically minded organ created by
the Civil Aeronautic Act of 1938 and later managed under the Federal Aviation Act of
1958. The stated purpose for overbooking appears in the comments above. In 1972, the
chances of being bumped from a flight were approximately 1 in 2000 (Gesell, 1993).
Overbooking is directly related to the number of "no shows" for each flight. Each airline
tries to seat, no less than, the optimum number of passengers to offset the sunk costs for
fuel, maintenance, salaries, airport costs, etc. To assure that that optimum number is
available, the airlines overbook the seats available.

The questions before the many courts related to the principle of deceit, related to tort law
defining fraudulent misrepresentation. "The elements in tort of fraudulent
misrepresentation are: (1) a false representation, (2) in reference to a material fact, (3)
made with knowledge of its falsity, (4) and with intent to deceive, and (5) with action
taken in reliance upon the representation " (Gesell, p. 294).

In 1972, the airlines were still under the guidance of the CAB. Whereas today, the
airlines are deregulated, based on the Airline Deregulation Act of 1978. The CAB
determined the ticket price structure for all United States air carriers, also making
decisions on the economics of filling seats.

26. William H. Schaefer v. National Airlines, Inc.
 CCH 16 AVI 17,354 (1980) (see Gesell, 1993, p. 302)

Question: "What are passengers' rights in the event of an airline flight cancellation?"
(Gesell, p. 302).

Plaintiff: William Schaefer

Defendant: National Airlines, Inc.

Brief Synopsis: On March 25, 1979 the plaintiff and others traveling with him were
unable to return to Maryland from Florida due to a flight cancellation. The defendant
could not accommodate the plaintiff for two days. The defendant refunded the price of
the tickets and gave an additional $250 to defray expenses. The plaintiff hired a private
jet, costing the plaintiff $3100 and returned to Maryland. The plaintiff filed an action
against the defendant saying the airline had breached a common law duty.

Court's Opinion: The decision was based on the grounds of limited recovery to the
plaintiff due to tariffs filed with the Civil Aeronautics Board. Although the plaintiff
argued that the CAB rule was invalid-indicating that the rule had been cancelled, after the

incident, the Court's summary judgment was in favor of the defendant, expressing that the
rule was effective at the time of the incident.

Question and Answer: The rules governing flight cancellations have most likely been
altered since this case. This case clearly shows that the passenger did not have any rights
due to the cancellation, but were subject to rules that protected the airline. The date of the
incident, being so close to the Airline Deregulation Act of 1978, might more clearly
indicate the conflict of moving away from the economic controls of the CAB toward a
economics controlled solely by each airline.

27. Air Line Pilots Association International v. United Airlines
CCH 19 AVI 17,613 (1985) (see Gesell, 1992, pp. 329-333)

Question: Do the provision of the Railway Labor Act apply to prospective employees of
an airline?

Facts: United Airlines had an established practice of hiring student pilots in ab initio
programs. As slots came open, these student pilots would fill the voids. It was understood
by management and ALPA that these student pilots were considered as employees,
starting seniority status at the beginning of training. However, in the fall of 1984 United
Airlines was running short of pilots. By the next spring the airline was in the middle of a
collective bargaining negotiation for a new contract. The deadline was set for May 17,
1985. Management ordered 500 student pilots, already in training, to report to their
training center in Denver by May 17. On May 17 ALPA went on strike. The union
contended that management had wrongfully ordered the Group of 500, as they were
called, to report to Denver. They were considered under the protection of the union and
did not have to report. After ALPA members went on strike, management tried to fill the
slots with non-union members, giving them a considerable wage deal. ALPA contested
the moves by management and the case went to court.

Outcome: The court concluded that United‟s policy of denying employment and accrued
seniority to the Group of 500, and of conducting and attempting to implement the strike
related rebid of pilot positions violated the Railway Labor Act. The Court declared
United‟s policy of paying super-pay to the fleet-qualified pilots did not violate the RLA.
Therefore, judgement was entered in favor of the plaintiff [ALPA International] on the
claims regarding the Group of 500 and the rebid of the airline. Judgement was entered in
favor of the defendant [United Airlines] regarding rates of pay for fleet qualified
permanent replacements.

28. John Dean v. Trans World Airlines, Inc. and Air Line Pilots Association,
CCH 17 AVI 18,470 (1983) (see Gesell, 1993, pp. 327-328)

Question: May a union pilot unilaterally decide to discontinue payment of dues?

Facts: In 1983, John Dean, a TWA pilot, decided that his dues were being used to support
political expenditures and therefore violated the Supreme Court‟s holding in
International Association of Machinists v. Street. Unable to resolve the issue with ALPA,
he decided to reduce his monthly payments. The union sent notices of delinquency, but
Dean was unwilling to change his mind. The union had Dean dismissed. Dean sued.

Outcome: The district court ruled in Dean‟s favor, agreeing that Street was rightly
applied to the situation. Dean was reinstated. The union appealed. “The U.S. Court of
Appeals ruled that the district court erred when it granted summary judgement in Dean‟s
favor” (Gesell, 1993, p. 327). The higher court cited Street, saying that the Supreme
Court had not released protesting employees from the obligation of paying dues. “To
allow an injunction restraining dues collection could „interfere with the . . .unions‟
performance of those functions and duties which the Railway Labor Act places upon
them to attain its goal of stability in the industry” (p. 327).

29. Pan American World Airways, Inc. v. The Civil Aeronautics Board
CCH 17 AVI 17,297 (1982) (see Gesell, 1993, pp. 334-336)

Question: Is an airline management employee eligible for labor protection in a merger of

Facts: Wallace, an employee of National Airlines, alleged violation of his rights under the
Employee Protection Program (EPP) during a merger between National and Pan
American World Airways. Because of the merger, Wallace found himself in a worse state
than what he enjoyed while an employee of National. He protested under the authority of
EPP, claiming compensation be granted by Pan Am. Although the Civil Aeronautics
Board (CAB) had been ordered to stand down following the Airline Deregulation Act of
1978, the CAB retained influence in merger agreements. Since Wallace had argued that
Pan American had violated his rights to compensation, the matter was decided between
Pan American and the CAB. In 1982, the CAB decided that Wallace‟s situation should be
arbitrated, ordering it to be so. Pan Am appealed the decision saying that the CAB had
“erred in three respects: (1) Wallace‟s eligibility for employee protection, (2) the claim
for displacement benefits, and (3) finding the dismissal claim arbitrable” (Gesell, 1993, p.

Outcome: The U.S. Court of Appeals held that the CAB had acted within its scope. The
court affirmed the Board‟s order directing arbitration on behalf of Wallace.

30. David L. Bigelow and Charles J. Edwards v. Hawaiian Airlines
CCH 21 AVI 18,174 (1987) (see Gesell, 1993, pp. 337-338)

Question: What is the statute of limitations in claims for reemployment under the
Employee Protective Provisions of the Airline Deregulation Act?

Facts: Many airline pilots found themselves out of work after deregulation. New airlines
emerged, many of which did not have a union, competing with low labor costs than the

established CAB airlines. The competition among airlines, old and new, was fierce.
Continental Airlines, in 1983, was one of the casualties of the deregulated world of air
carriers. Charles Edwards and David Bigelow found themselves out of work, needing to
find employment in another airlines if it were possible. Both of them sought relief with
Hawaiian Airlines, between 1984 and 1986. They were each refused, even though the
EPP stated that protected employees “shall have first right of hire, regardless of age, in
his occupational specialty, by any other air carrier hiring additional employees” (Gesell,
1993, p. 337). Both former employees of Continental sought the protection accorded
under the Employee Protective Provisions of the Act. In David L. Bigelow and Charles J.
Edwards v. Hawaiian Airlines, Hawaiian Airlines contended that there should be a statute
of limitations for the Act. No statute existed in the EPP or the Department of Labor.

Outcome: In this case, the court uses the most suitable statute or rule of timeliness from
another source. A statute of limitations of six months became the rule, based on a
National Labor Relations Act (1935) limitation for an unfair labor practice. Bigelow and
Edwards were clearly outside the statute of limitations and failed to be protected by the


31. Marlene J. Brock, Donna M. Kresheck v. United States of America
CCH 14 AVI 18, 246 (1977) (see Gesell, 1993, p. 625 )

Question: "Was the crash of TWA Flight 514 the result of negligence on the part of air
traffic control, flight crew and/or both?" (Gesell, 1993, p. 625).

Plaintiffs: Marlene J. Brock (Captain's widow), Donna M. Kresheck (First Officer's

Defendant: United States of America

Brief Synopsis: Flight 514, from Indianapolis, Indiana to Washington National Airport,
was diverted to Dulles International Airport and subsequently cleared for the VOR/DME
Runway 12 approach at Dulles. The Captain accepted an early descent while on the 300-
degree radial from Armel VOR. At approximately 25 nautical miles northwest of Dulles,
the Boeing 727 impacted the ground, killing all 92 persons onboard.

Court's Opinion: The court did not find any negligence on the part of the air traffic
controllers who gave Flight 514 instructions during the course of the ill-fated flight.

Question and Answer: Was the crash of TWA Flight 514 the result of negligence on the
part of air traffic control, flight crew and/or both? (p. 625). Gesell (1993) indicated that
the "last clear chance" to avoid the disaster was clearly in the hands of the crewmembers
on Flight 514, not the air traffic controllers. The crewmembers could be described as
"inattentive" meaning, " . . . one who would negligently placed oneself in a position of

peril from which one physically would be unable to remove oneself, but would be
unconscious of the personal peril" (Gesell, 1993, p. 634). Regardless of the outcome, the
National Transportation and Safety Board (NTSB) indicated that public safety in the
National Airspace System is the responsibility of both those who fly and control the

                                      Eminent Domain

32. United States v. State of Texas (1950)
(Pucci, 1981, p. 2-3)

Question: Who owns the rights to US territorial waters (including the land beneath them)-
the state to which those waters are adjacent, or the Federal government?

Plaintiff: United States

Defendant: State of Texas

Brief Synopsis: Before joining the union, the republic of Texas claimed the rights to its
territorial waters, and the land under same. They claimed these rights out to a distance of
24 miles from the coastline. The United States later brought action against the State of
Texas over a dispute over the rights to lands under the water on the coastline of Texas.
The concept of "equal footing" was argued. Texas claimed a right of the state and the
United States claimed to have rights over all of the properties of a state. A similar case,
United States v. California acted as the precedent in this case and was used to rule on the
side of the United States.

Arguments: Three years earlier, the Supreme Court made a similar ruling in U.S. v. State
of California concerning the mineral rights off the coast of California. The State of
California also argued the doctrine of "equal footing," specifically: "The basis of
California's asserted ownership is that a belt extending three English miles from low
water mark lies within the original boundaries of the state, Cal. Const. 1849, Art. XII;1
that the original thirteen states acquired from the Crown of England title to all lands
within their boundaries under navigable waters, including a three-mile belt in adjacent
seas; and that since California was admitted as a state on an 'equal footing' with the
original states, California at that time became vested with title to all such lands" (United
States v. State of California). The State of California lost the case, and the right to coastal
waters was declared to belong solely to the Federal government.

Court's Opinion: Mr. Justice Douglas ruled on the side of the United States. Three
justices dissented. The first, and strongest, point in the ruling said that "[t]he United
States of America is now, and has been at all times pertinent hereto, possessed of
paramount rights in, and full dominion and power over, the lands, minerals and other
things underlying the Gulf of Mexico, lying seaward of the ordinary low-water mark on
the coast of Texas, and outside of the inland waters, extending seaward to the outer edge

of the continental shelf and bounded on the east and southwest, respectively, by the [340
U.S. 900 , 901] eastern boundary of the State of Texas and the boundary between the
United States and Mexico. The State of Texas has no title thereto or property interest
therein." In English, that says that the US owns all of the territorial waters, and the State
of Texas has no rights to them. There were several other points in the ruling, all of which
enhanced this position.

Significance: This ruling asserts that when a state joins the union, it gives up all claims to
territorial waters, including rights to the land under the water, and mineral rights. In US v.
California, the court stated that "[t]he crucial question on the merits is not merely who
owns the bare legal title to the lands under the marginal sea. The United States here
asserts rights in two capacities transcending those of a mere property owner. In one
capacity it asserts the right and responsibility to exercise whatever power and dominion
are necessary to protect this country against dangers to the security and tranquility of its
people incident to the fact that the United States is located immediately adjacent to the
ocean. The Government also appears in its capacity as a member of the family of nations.
In that capacity it is responsible for conducting United States relations with other nations.
It asserts that proper exercise of these constitutional responsibilities requires that it have
power, unencumbered by state commitments, always to determine what agreements will
be made concerning the control and use of the marginal sea and the land under it" (US v.
California). The US v. Texas ruling is remarkably brief, and makes heavy references to
the California case. While this case did not deal with aviation and airspace, it, like its
sister-case (US v. California), set a strong precedent that was later used to determine
airspace sovereignty.


33. American Airlines, Inc., Trans World Airlines, Inc.,
And Eastern Air Lines, Inc. v. Louisville and
Jefferson County Air Board
CCH 6 AVI 17,587 (1959) (see Gesell, 1993, p. 432)

Question: "Is an airport within the normal scope of governmental services?" (Gesell, p.

Appellees: American Airlines, Inc., Trans World Airlines, Inc., and Eastern Air Lines,

Appellant: Jefferson County Air Board

Brief Synopsis: The three airlines wished to continue their lease agreement with the
appellant for another ten years. The two sides could not agree on terms, and in the
ensuing time the contract period ended. Having not agreed on terms, the leases were not

extended as of October 31, 1957. The airlines appealed the case to the U.S. Court of

Court's Opinion: The U.S. Court of Appeals judged that the case should be left set aside
until the state of Kentucky defined more thoroughly the ideas behind the Air Board's
powers " . . . as may be necessary or desirable to promote aviation and the development
of facilities for air travel and transportation" (Gesell, p. 434).

Question and Answer: The question was not settled in the case, as stated. It was up to the
state of Kentucky to determine the answers to questions of law pertaining to powers
given to the Air Board.

34. Northwest Airlines, Inc. et al. v. County of Kent, Michigan, et al.
Certiorari to the United States Court of Appeals for the 6th Circuit
No. 92-97, Argued November 29, 1993, Decided January 24, 1994

Question: Who establishes the reasonableness of rates charged by an Airport?

Facts: Respondents, the owner and operators of Michigan's Kent County International
Airport (collectively, the Airport), collect rent and fees from three groups of Airport
users: commercial airlines, including petitioners (Airlines); general aviation; and
concessionaires such as car rental agencies and gift shops. The Airport allocates its air
operations costs--e.g., maintaining runways--to the Airlines and general aviation in
proportion to their airfield use, and its terminal maintenance costs to the Airlines and
concessions in proportion to each tenant's square footage. It charges the Airlines 100% of
their allocated costs, but general aviation only 20% of its costs. The concessions' rates
substantially exceed their allocated costs, yielding a sizable surplus that offsets the
general aviation shortfall and has swelled the Airport's reserve fund by more than $1
million per year. After the County Board of Aeronautics unilaterally increased the
Airlines' fees, they challenged the new rates, attacking (1) the Airport's failure to allocate
any airfield costs to the concessions, (2) the surplus generated by the fee structure, and
(3) the Airport's failure to charge general aviation 100% of its allocated costs. They
alleged that these features made the fees unreasonable and thus unlawful under the Anti
Head Tax Act (AHTA)--which prohibits States and their subdivisions from collecting
user fees, 49 U. S. C. App. §1513(a), other than "reasonable rental charges, landing fees,
and other service charges from aircraft operators for the use of airport facilities,"
§1513(b)--and under the Airport and Airway Improvement Act of 1982 (AAIA). The
Airlines also asserted that the Airport's treatment of general aviation discriminates against
interstate commerce in favor of primarily local traffic, in violation of the Commerce

Held: The District Court held, inter alia, that the Airlines have an implied right of action
under the AHTA, but not the AAIA, and no cause of action under the Commerce Clause,
and that the challenged fees are not unreasonable under the AHTA. The Court of Appeals
affirmed in principal part, but held that the Airport had misallocated fees for the cost of
providing "crash, fire, and rescue" (CFR) services.

Outcome: 1. The Court declines to decide whether there is a private right of action under
the AHTA but assumes, for purposes of this case, that the right exists. A prevailing party
may defend a judgment on any ground properly raised below, without filing a cross
petition, so long as that party seeks to preserve, and not to change, the judgment. The
Airport did not cross petition on the CFR issue it lost below, and resolving the private
right of action issue in its favor would alter that portion of the judgment. Pp. 7-8.

2. The Airport's fees have not been shown to be unreasonable under the AHTA. Pp. 8-16.

(a) The AHTA sets no standards for determining a fee's reasonableness. In the absence of
guidance from the Secretary of Transportation, the Court adopts the parties' suggestion to
resolve the reasonableness issue using the standards stated in Evansville Vanderburgh
Airport Authority Dist. v. Delta Air Lines, Inc., 405 U.S. 707, for determining
reasonableness under the Commerce Clause. Although Congress enacted the AHTA
because it found unsatisfactory the end result in Evansville--the validation of "head"
taxes--§1513(b) permits "reasonable" charges and the Evansville formulation has been
used to determine "reasonableness" in related contexts, see, e.g., American Trucking
Assns., Inc. v. Scheiner, 483 U.S. 266, 289-290. Thus, the levy here is reasonable if it (1)
is based on some fair approximation of the facilities' use, (2) is not excessive in relation
to the benefits conferred, and (3) does not discriminate against interstate commerce.
Evansville, 405 U. S., at 716-717. Pp. 8-12.

(b) The Airport's decision to allocate air operations costs to the Airlines and general
aviation, but not to the concessions, appears to "reflect a fair, if imperfect, approximation
of the use of facilities for whose benefit they are imposed." Ibid. While those operations
generate the concessions' customer flow and, thus, benefit the concessions, only the
Airlines and general aviation actually use the runways and navigational facilities.
Accepting the District Court's finding that the Airlines were charged only the break even
costs, the Court concludes that the fees in question were not "excessive in comparison
with the governmental benefit conferred." Id., at 717. Nor is the Airport's methodology
unlawful because it generates large surpluses. Since §1513(b) applies only to fees
charged to "aircraft operators," it does not authorize judicial inquiry focused on the
surplus generated from the concessions' fees. The Court rejects the Airlines' argument
that it should take into account concession revenues, as the Seventh Circuit did in a 1984
decision, when deciding whether the Airlines' fees are reasonable. The Seventh Circuit
overlooked the Department of Transportation's regulatory authority regarding the federal
aviation laws. In view of the Department's authority, there is no cause for courts to offer a
substitute for conventional public utility regulation. While the AAIA directly addresses
the use of airport revenues, the Airlines do not suggest that the Airport has misused the
funds in violation of that Act and did not seek review of the lower courts' ruling that they
had no AAIA cause of action. Finally, the record in this case does not support the
Airlines' argument that the lower general aviation fees discriminate against interstate
commerce and travel. There is no proof that the large and diverse general aviation
population served by the Airport travels typically intrastate and seldom ventures beyond
Michigan's borders. Pp. 12-16.

3. The fees do not violate the "dormant" Commerce Clause. Even if the AHTA's express
permission for States' imposition of reasonable fees were insufficiently clear to rule out
dormant Commerce Clause analysis, the Court has already found the challenged fees
reasonable under the AHTA using a standard taken directly from the Court's dormant
Commerce Clause jurisprudence. Pp. 16-17.

955 F. 2d 1054, affirmed.

Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens,
O'Connor, Scalia, Kennedy, and Souter, JJ., joined. Thomas, J., filed a dissenting
opinion. Blackmun, J., took no part in the consideration or decision of the case.

35. United States v. Causby et ux.
328 U.S. 256 (1946) (see Gesell, 1993, pp. 428-429) (Pucci, 1981, pp. 2-15)

Question: Does the flight of aircraft over the property of another constitute a taking?

Facts: Thomas Causby and his wife owned a chicken farm under the approach path to a
leased military airfield near Greensboro, North Carolina. Allegedly because of the noise
of the airplanes and the glare of the landing lights, more than 150 chickens had died and
the Causbys had to give up their farm. They filed a claim with the U. S. Court of Claims,
which ultimately ended up in the U.S. Supreme Court. One of the issues of the case
concerned eminent domain. Another was the ancient rule of owning property. For a very
long time it was thought that ownership of land included the air above it to the limits of
the universe. "It is ancient doctrine that at common law ownership of the land extended to
the periphery of the universe" (Pucci, 1981, p. 2-19). A writ of centiorari was granted,
which provided instructions from the U.S. Supreme Court to the lower court.

Outcome: The Supreme Court agreed with the lower court that some "diminution" of
property had occurred, but there had not been a clear description of the easement taken,
therefore no judgment could be made on behalf of the Causbys. The Supreme Court,
therefore, ruled in favor of the United States, saying that no evidence was available which
described the precise way the property had been taken, although the court did
acknowledge that a "taking" had occurred.

36. Griggs v. Allegheny County
82 S. Ct 531 (1962) (see Gesell, 1993, pp. 436-437)

Question: Who is liable for a taking which is the result of aircraft landing and taking off:
the Federal government, the aircraft owners, or the airport proprietor?

Facts: Thomas N. Griggs held that noise from aircraft taking off and landing from the
Greater Pittsburgh Airport made his home unbearable for use. Further, the plaintiff
alleged that the county had appropriated his property with the noise generated from
aircraft flying over his house. He wished to recover damages for the appropriation of his
property in keeping with the remedies granted by the U.S. Constitution under the 5th

Amendment (“nor shall private property be taken for public use, without just
compensation”). The County of Allegheny alleged that they had bought the land and
constructed the airport within the guidelines set by the Civil Aeronautics Administration
and the National Airport Plan and that the aircraft owners or the federal government
should respond to the accusations. The defendant cited rules set by the CAA.

Outcome: The case was first heard by the Court of Common Pleas, which dismissed the
exceptions of both parties. The case was appealed to the Supreme Court of Pennsylvania,
which found that had a “taking” occurred, the respondent (former defendant) was not
liable. The property owner petitioned for writ of certiorari, which was granted by the U.S.
Supreme Court. The U.S. Supreme Court granted the writ, finding the County of
Allegheny as having appropriated the property owner‟s property under the “taking”
clause of the U.S. Constitution. The County had not purchased enough land on which to
construct the airport, which then brought the aircraft too close to the property owners
adjacent to the airport.

                                       Labor Issues

37. Hawaiian Airlines, Inc. v. Norris
Certiorari to the Supreme Court of Hawaii
No. 92-2058. Argued April 28, 1994, Decided June 20, 1994

Question: Does the Railway Labor Act preempt an employee‟s state law actions?

Facts: Respondent Norris was terminated from his job as an aircraft mechanic by
petitioner Hawaiian Airlines, Inc. (HAL), after refusing to sign a maintenance record, as
required by his collective bargaining agreement (CBA), for a plane he considered unsafe,
and reporting his concerns to the Federal Aviation Administration. In separate state court
suits against HAL and its officers, also petitioners, he alleged, inter alia, that he had been
wrongfully discharged in violation of the public policy expressed in the Federal Aviation
Act and implementing regulations and in violation of Hawaii's Whistleblower Protection
Act. The court dismissed these tort claims as pre-empted by the Railway Labor Act's
(RLA's) mandatory arbitral mechanism for so called "minor" disputes, which grow "out
of grievances or out of the interpretation and application of agreements concerning [pay
rates], rules, or working conditions," 45 U.S.C. § 153 First (i). The State Supreme Court
reversed, concluding that §153 First (i)'s plain language does not support pre-emption of
disputes independent of a labor agreement, and interpreting the opinion in Consolidated
Rail Corp. v. Railway Labor Executives' Assn., 491 U.S. 299, to limit RLA pre-emption
to disputes involving contractually defined rights. The court rejected petitioners'
argument that the claims were pre-empted because resort to the CBA was necessary to
determine whether Norris was discharged for insubordination, pointing to Lingle v. Norge
Division of Magic Chef, Inc., 486 U.S. 399, in which thisCourt held that the Labor
Management Relations Act, 1947 (LMRA), pre-empts state law only if a state law claim
is dependent on the interpretation of a CBA, and that purely factual questions about an

employee's conduct and the employer's conduct and motives do not require interpreting
such an agreement's terms.

Outcome: Held: The RLA does not pre-empt Norris' state law causes of action. Pp. 5-21.

(a) The minor disputes contemplated by the RLA are those that are grounded in a CBA.
See, e.g., Consolidated Rail Corp., 491 U. S., at 305. The RLA pre-emption standard for
resolving such disputes that has emerged from the relevant cases, see e.g., Atchison, T. &
S. F. R. Co. v. Buell, 480 U.S. 557, is that a state law cause of action is not pre-empted if
it involves rights and obligations that exist independent of the CBA. This standard is
virtually identical to the pre-emption standard employed in cases involving §301 of the
LMRA. Given the convergence of the two standards, Lingle provides an appropriate
framework for addressing RLA pre-emption, and its standard--that the existence of a
potential CBA based remedy does not deprive an employee of independent remedies
available under state law--is adopted to resolve such claims. Elgin, J. & E. R. Co. v.
Burley, 325 U.S. 711; Consolidated Rail Corp., 491 U. S., at 302, distinguished. Pp. 5-

(b) Under Lingle, Norris' state law claims are independent of the CBA. Petitioners'
argument that resort to the CBA is necessary to determine whether Norris was discharged
for cause is foreclosed by Lingle's teaching that the issue whether an employer's actions
make out the element of discharge under state law is a purely factual question. Similarly,
Norris' failure to sign the maintenance record is not relevant to the determination of his
state law tort claims. Pp. 20-21.

74 Haw. 648, 847 P. 2d 263 (first case), and 74 Haw. 235, 842 P. 2d 634 (second case),

Blackmun, J., delivered the opinion for a unanimous Court.


38. Buffalo Air Park, Inc. v. National General Insurance Co.
CCH 15 AVI 18,432 (1980) (see Gesell, 1993, pp. 651-652)

Question: Where more than one aircraft is damaged by the same event, may the damage
incurred by each aircraft be considered a separate occurrence?

Facts: The roof of a hangar, in which there were 16 aircraft, collapsed under the weight of
snow. The airport operator at Buffalo Air Park, who was responsible for the hangar,
checked into the insurance that he had with National General Insurance Co., to determine
the extent of recovery for the damage caused by the collapsed roof. The hangarkeeper‟s
liability insurance coverage was $25,000 for each occurrence and $25,000 for each
aircraft. In a case decided by the New York State Supreme Court, the court decided that

the collapsed roof was a single occurrence, which entitled the insured to $25,000 for
damages, rather than separate awards of $25,000 for each aircraft damaged in the
incident. The court insisted that the language of the agreement was unambiguous. They
also insisted on the definition of occurrence to be “an accident, or a continuous and
repeated exposure to conditions, which results in injury during the policy period,
provided the injury is accidentally caused. All damages arising out of such exposure to
substantially the same conditions shall be considered as arising out of one occurrence.”

Outcome: The New York State Supreme Court denied the motion by Buffalo Air Park for
separate awards for each aircraft damaged, saying that the single occurrence only
committed the defendant to an award of $25,000, minus the deductible.

39. Mary Jo Hawkins v. State Life Insurance Co.
CCH 13 AVI 17,212 (1972) (see Gesell, 1993, pp. 653-654)

Question: Does an aviation exclusion in an insurance policy include an aviator killed as a
result of war?

Facts: Mary Jo Hawkins was the beneficiary of a life insurance policy of a deceased
military pilot. In 1968, the military pilot was engaged in an air operation during which his
aircraft was shot down. The pilot was killed as a result of hostile fire during war in
Southeast Asia. The insurance company denied the beneficiary recovery, based on an
aviation exclusion clause in the policy. However, the beneficiary insisted that the cause
of the death was not based on aviation, but rather on the risk of death related to war.

Outcome: The U.S. District Court concluded that aviation was a contributing cause of the
death and was not the proximate cause. Enemy fire was the proximate cause of the death.
Since the death was not caused by aviation, the exclusion clause did not apply and the
insurance company was instructed to award the beneficiary recovery under the agreement
of the policy.

40. Lachs v. Fidelity & Casualty Co. of New York
118 N.E. 2d 555 (1955) (see Gesell, 1993, pp. 655-656)

Question: Must the language in an insurance policy be clearly understood by the insured?

Facts: The decedent (dead person), before the flight during which she was killed, bought
Airline Trip Insurance of the sum of $25,000. She bought the insurance through a
vending machine in front of the Consolidated Air Service Counter. Her daughter
(beneficiary) filed for recovery under the insurance policy. Fidelity & Casualty Co. of
New York denied the claim by the beneficiary, under the excuse that the flight taken by
the decedent was on a non-scheduled air carrier and the policy was clearly written for
scheduled airline flights.

Outcome: The Court of Appeals of New York insisted that a policy must be read through
the eyes of the average man or housewife and that average persons do not have

knowledge of the Civil Aeronautics Act of 1938 or the Code of Federal Regulations. The
defendant countered with the fact that the policy clearly indicated that the policy only
covered flights on scheduled air carriers. The plaintiff defined scheduled airline as one
who maintains regular, published schedules. The defendant used a definition (although
accurate from the law) that the average man would not be aware of. The court affirmed
an order of the appellate division in favor of the plaintiff beneficiary. One judge
dissented, arguing that the policy clearly stated that the coverage was only for scheduled

41. Standard Oil Company of California v. Hawaiian Insurance and Guaranty
Company, Ltd
CCH 17 AVI 18,411 (1982) (see Gesell, 1993, pp. 657-658)

Question: Does the insurance company have a duty to defend even if the liability at issue
is not one covered by the insurance policy?

Facts: Under the rules of insurance underwriters, underwriters have two responsibilities
to the insured. First, they must defend the insured in court; and second, they must pay
damages according to the agreement laid out in the policy. On May 20, 1973 a pilot and
his passengers died as a result of fuel contamination and resultant failure of the left
engine of an airline piloted by Dr. Robert Chung. The survivors and beneficiaries brought
suits against the Standard Oil Company of California (SOCAL), Air Service Corporation
(ASC), Universal Enterprises dba Associated Aviation Activities (AAA). Each of these
companies was underwritten by Hawaiian Insurance and Guaranty (HIG) Company, Ltd.
When SOCAL asked HIG to tender their defense, HIG refused. HIG claimed that they
had not received notice in a reasonable time. The case was appealed.

Outcome: The intermediate appellate court determined from the record that HIG had been
given notice when SOCAL‟s attorneys contacted them. The case was appealed to the
Hawaii Supreme Court which concluded that the intermediate appellate court had not
erred. The Supreme Court said that HIG had received notice when Chung had filed
complaints against ASC and AAA, operators of the truck insured by HIG. The court also
affirmed the insurer‟s duty to defend the insured where there is a potential for
indemnification. “An insurer must look beyond the effect of the pleadings and must
consider any facts brought to its attention or any facts which it could reasonably discover
in determining whether it has a duty to defend.”

42. Robert W. Potter v. Ranger Insurance Company
CCH 18 AVI 17,871 (1984) (see Gesell, 1993, pp. 662-663)

Question: Must an aircraft‟s airworthiness certificate be in full force and effect for an
insurance policy covering the aircraft to be in effect?

Facts: An aircraft, insured by Robert Potter, crashed. He expected the insurer to pay; but
Ranger Insurance Company did not pay, citing an exclusion clause that in effect said the
insurer would not pay if the airworthiness certificate was not in full force and effect. The

U.S. District Court determined that the exclusion clause was ambiguous and Potter
should receive payment. In particular, the court said that if the policy was written in
language that was not understandable by an average person, it was ambiguous. Ranger
Insurance Company appealed the decision.

Outcome: The U.S. Court of Appeals studied the language of the exclusion clause and
determined that there was no ambiguity in the exclusion clause. It clearly stated that the
policy would not be in effect if the airworthiness certificate was in full force and effect.
The district court decision was reversed and remanded (sent back to the lower court).


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