2016 Aviation Law and Insurance Symposium Planning Committee Co-Chairs Announced

Press release from Venu Inc.

Gary W. Allen and Paul H. Leonard will co-chair the 2016 Aviation Law and Insurance Symposium program committee

Cecile Hatfield, former Chair of The Aviation Law and Insurance Symposium (ALIS), has announced that the 2016 Program Committee will be Co-Chaired by Gary W. Allen, Former Director, Aviation and Admiralty, Torts Branch, Civil Division, Department of Justice, Williamsburg, VA, and Paul H. Leonard, CEO, Charles Taylor Aviation (USA), Dallas, TX.

Gary W. Allen is an attorney and consultant specializing in aviation matters. He retired in September 2005 after serving for 20-years as Director of the 50-person Aviation & Admiralty Litigation staff of the Torts Branch, Civil Division of the Department of Justice with responsibility for the prosecution and defense of all aviation and admiralty tort litigation brought by or against the United States and its departments and agencies. He is an active member of the Virginia Bar and recently served as a Special Master in the Northern District of Texas for discovery-related issues in a putative class action against an air carrier and worked abroad on a private aviation arbitration matter in London.

Paul Leonard is Senior Vice President and Chief Executive Officer of Charles Taylor Aviation and Adjusting in Dallas, Texas, a subsidiary of Charles Taylor Consulting PLC in London. Paul is a licensed pilot with 38-years of aviation insurance experience. He is a former Senior Vice President of AIG Aviation; Executive Vice President of Signal Aviation Underwriters; and Chief Operating Officer of Universal Loss Management, Inc. Specializing primarily in Liability claims, he has been responsible for the defense of insureds in hundreds of cases under a wide variety of aviation insurance policies, including Aircraft Liability, Airport CGL and Hangarkeepers Liability, and Manufactured Products and Completed Operations.

Cecile Hatfield will remain a member of the Program Committee along with S.V. (Steve) Dedmon, Esq., Embry-Riddle Aeronautical University, Daytona Beach, FL; James Kreindler, Esq., Kreindler & Kreindler, LLP, New York, NY, Marc Moller, Esq., Kreindler & Kreindler, LLP, New York, NY; Mia Wouters, LVP Law, Brussels, Belgium.

The Aviation Law & Insurance Symposium is endorsed by Embry-Riddle Aeronautical University (ERAU) and is one of the most prestigious and well attended Aviation Law programs nationwide. This symposium provides a forum for aviation attorneys, insurance personnel, and other professionals involved and interested in aviation law and insurance to discuss relevant issues. The focus is on present conditions, practices and future trends.

Reference to CJEU for a preliminary ruling on derogation from greenhouse gas emissions trading schemes

Swiss International Air Lines Ag v (1) the Secretary of State for Energy And Climate Change (2) the Environment Agency [2015] EWCA Civ 331
Court of Appeal
Lord Justice Underhill, Lord Justice Vos, Lord Justice Burnett
1 April 2015

The appellant and claimant, Swiss International Air Lines AG (“Swiss”), challenged the validity of Decision 377/2013/EU of the European Parliament and of the Council of 24 April 2013 (the “Decision”). The Decision made provisions that derogated temporarily from Directive 2003/87/EC (the “Directive”) of the European Parliament and of the Council of 13 October 2003 which had established a scheme for greenhouse gas emission allowance trading within the European Union (“EU”) (as amended by the Directive 2008/101/EC (the “Aviation Directive”) of the European Parliament and of the Council of 19 November 2008 so as to include aviation activities). The effect of these directives was extended to states in the European Economic Area (“EEA”) by EEA Joint Committee Decisions 6/2011 and 43/2011.

Swiss is an air transport operator licensed in Switzerland. Switzerland is not a member of the EEA or the EU.

Rather than directly challenging the Decision, Swiss alleged before the UK court the invalidity of the regulations implementing the Decision in the UK, namely the Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2013 (No. 1037) (the “Regulations”). Since the Regulations do no more than implement the Decision, Swiss sought a reference to the CJEU, which is the only court that has jurisdiction to declare an EU measure invalid.

Swiss contended that it is badly affected by this state of affairs, and alleged that the Decision is a breach of the EU law principle of equal treatment. The lower courts rejected the application on the grounds that the EU law principle of equal treatment did not apply to differential treatment by the EU towards third countries, and that, even if the principle did apply, there was no arguable case that it had been breached in this case. The issue before the Court of Appeal was whether the judges were right on these two points. If they were not, then, it was common ground that a reference to the CJEU would be appropriate at least as to the validity of the Decision. Swiss aims to recover the surrendered allowances or their monetary worth.

Swiss brought the proceedings in the UK because the UK is Swiss’s “administering Member State” under article 18a of the Directive, as Swiss’s greatest estimated attributed aviation emissions in the relevant period were in relation to UK flights. The Environment Agency, the 2nd defendant and 2nd respondent, is the agency that undertakes that administration. The 1st defendant and 1st respondent, the Secretary of State for Energy and Climate Change, were joined because they were responsible for making the Regulations that are directly challenged.

The appeal was allowed and the following questions were referred to the CJEU for a preliminary ruling:

Question 1: Does the Decision infringe the general EU principle of equal treatment insofar as it establishes a moratorium on the requirements to surrender emissions allowances imposed by the Directive (as amended) in respect of flights between EEA states and almost all non-EEA states, but does not extend that moratorium to flights between EEA states and Switzerland?

Question 2: If so, what remedy must be provided to a claimant in the position of Swiss, which has surrendered emissions allowances in respect of flights that took place during 2012 between EEA states and Switzerland, to restore that claimant to the position it would have been in, but for the exclusion from the moratorium of flights between EEA states and Switzerland? In particular:-

a) Must the register be rectified to reflect the lesser number of allowances that such a claimant would have been required to surrender if flights to or from Switzerland had been included in the moratorium?

b) If so, what (if any) action must the national competent authority and/or the national court take to procure that the additional allowances surrendered are returned to such a claimant?

c) Does such a claimant have a right to claim damages under Article 340 of the TFEU against the European Parliament and the Council for any loss that it has suffered by reason of having surrendered additional allowances as a result of the Decision?

d) Must the claimant be granted some other form of relief, and if so what relief?

For further UK case law, see our United Kingdom – Cases page.

 

Employer’s duty of care for the death of an employee in connection with an aircraft accident

Cassley & Ors v GMP Securities Europe LLP & Ors [2015] EWHC 722 (QB)
High Court, Mr Justice Coulson, 31 March 2015

The Judge concluded that, although the employer, GMP, had failed in their duty to Mr Cassley, if they had done what they should have done, he would still have been on the flight that crashed at Avima on the morning of 19 June 2010. The accident, and the causes of the accident, was not reasonably foreseeable and/or too remote in law. The claimants seek to make GMP liable for the selection of Aero-Service as the carrier for the flight, and the manner in which that flight was executed when GMP was two steps removed from that decision. The manner in which the charter was executed was the responsibility of the pilots.

There is no general liability on a defendant for the action of a third party unless what happened was a “highly likely” consequence of the actions of that third party. That is not this case: the actions of the pilots that caused the accident were not ‘highly likely’. In those circumstances, the duty owed by GMP did not extend to the performance of the carrier once the flight had started: again that is consistent with the judgment of Hamblen J in Dusek. Or to put the same proposition in another way, no risk assessment performed by GMP would have identified the risk of pilot error, which was the primary cause of the accident.

For further UK case law, see our United Kingdom – Cases page.

2015: Volume 40(2) of Air & Space Law now available

2015: Volume 40(2) of Air & Space Law now available

The second issue of Volume 40 contains the following articles:

Peter Hulsroj, ‘Peter Hulsroj on Handbook of Space Law, edited by Frans von der Dunk with Fabio Tronchetti’ (2015) Air & Space Law, Vol. 40(2), 203–206

Geoffrey Deasy, ‘EU Competition Law Developments in the Aviation Sector: July to December 2014′ (2015) Air & Space Law, Vol. 40(2), 165–202

George N. Tompkins, ’2014 Summary of MC99 Court Decisions’ (2015) Air & Space Law, Vol. 40(2), 147–164

Vincent Correia and Noura Rouissi, ‘Global, Regional and National Air Passenger’ (2015) Air & Space Law, Vol. 40(2), 123–146

Stefan A. Kaiser, ‘Legal Considerations about the Loss of Malaysia Airlines Flight MH 17 in Eastern Ukraine’ (2015) Air & Space Law, Vol. 40(2), 107–121

For further articles on or related to aviation law, see our Articles page.

2015: Volume 40(1) of Air & Space Law now available

The first issue of Volume 40 contains the following articles:

Ida Bagus Rahmadi Supancana, ‘How the Progressive Development of Outer Space Law Affects the Formulation of National Space Legislation: The Experience of Indonesia’ (2015) Air & Space Law, Vol. 40(1), 93–106

George N. Tompkins, ‘A Tribute to the Legacy of Or Wassenbergh The Flight of the 1999 Montreal Convention—On Course?—Stalled?—Encountering Turbulence?—The Course Ahead’ (2015) Air & Space Law, Vol. 40(1), 83–92

Berend Crans, ‘The World According to Or – First and Foremost a Tribute to Henri A. Wassenbergh but also Flagging some Strange Inconsistencies in Aviation Law’ (2015) Air & Space Law, Vol. 40(1), 71–81

P.P.C. Haanappel, ‘Regulatory Developments at the European Union (EU) and World Trade Organization (WTO) Levels’ (2015) Air & Space Law, Vol. 40(1), 65–69

Prachee van Brandenburg-Kulkarni, ‘‘Sixth Freedom’ Revisited in the Twenty-First Century’ (2015) Air & Space Law, Vol. 40(1), 55–63

Roderick van Dam, ‘The Long and Winding Road: Air Traffic Management Reform in Europe’ (2015) Air & Space Law, Vol. 40(1), 43–54

Chia-Jui Cheng, ‘Henri A. Wassenbergh’s Contribution to the Development of Modern International Air Transport Policy and Law’ (2015) Air & Space Law, Vol. 40(1), 15–42

Bin Cheng, ‘Henri Wassenbergh on Air and Space Law: An Appreciation’ (2015) Air & Space Law, Vol. 40(1), 9–13

For further articles on or related to aviation law, see our Articles page.

Meaning of ‘passenger’ under EU air carrier insurance regulation and Montreal Convention

Wucher Helicopter GmbH and Euro-Aviation Versicherung AG v Fridolin Santer
C-6/14, CJEU, 26 February 2015

References for a preliminary ruling — Regulation (EC) No 785/2004 — Air carriers and aircraft operators — Insurance — Requirements — Definitions of ‘passenger’ and ‘member of the crew’ — Helicopter — Carriage of an expert in the blasting of avalanches using explosives — Injury suffered during a work flight — Compensation

The request for a preliminary ruling concerned the interpretation of Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators and Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’).

The request was made in ‘revision’ proceedings between Wucher Helicopter GmbH, an Austrian air carrier (‘Wucher’) and Euro-Aviation Versicherungs AG (‘Euro-Aviation’), a German insurance company and Mr Santer, concerning compensation for Mr Santer for an injury suffered in an accident which occurred on a flight.

The Oberster Gerichtshof referred the following questions to the Court for a preliminary ruling:

1. Is Article 3(g) of [Regulation No 785/2004] to be interpreted as meaning that the occupant of a helicopter held by a Community air carrier,
– who is carried on a contractual basis (specifically: a contract between the air carrier and the occupant’s employer),
– but who is carried for the purpose of a particular job of work (specifically: the blasting of avalanches)
and
– who is involved in that operation as a “guide familiar with the terrain” and must at the pilot’s direction open the helicopter door during the flight and then hold it open in a particular manner and for a particular period of time,

(a) is a “passenger”
or
(b) ranks among “on-duty members of both the flight crew and the cabin crew”?

2. If Question 1(a) is answered in the affirmative:

Is Article 17(1) of the [Montreal Convention] to be interpreted as meaning that the term “passenger” (German: “Reisender”) in any event includes a “passenger” (German: “Fluggast”) within the meaning of Article 3(g) of Regulation (EC) No 785/2004?

3. If Question 2 is answered in the negative:

Is Article 17(1) of the Montreal Convention to be interpreted as meaning that under the conditions stated in Question 1 the occupant of a helicopter held by a Community air carrier is a “passenger” (“Reisender”)?’

The CJEU held:
1. Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators must be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, who is carried on the basis of a contract between that air carrier and the occupant’s employer in order to perform a specific task, such as that at issue in the main proceedings, is a ‘passenger’ within the meaning of that provision.

2. Article 17 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 on the basis of Article 300(2) EC, approved on behalf of the EC by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that a person who comes within the definition of ‘passenger’ within the meaning of Article 3(g) of Regulation No 785/2004, also comes within the definition of ‘passenger’ within the meaning of Article 17 of that convention, once that person has been carried on the basis of a ‘contract of carriage’ within the meaning of Article 3 of that convention.

For further CJEU case law, see our European Law – Cases page.

Takeover bids and European competition law: Ryanair Holdings v The Competition & Markets Authority

Ryanair Holdings Plc v The Competition And Markets Authority & Anor [2015] EWCA Civ 83
Court of Appeal
Lord Justice Laws, Lord Justice Patten, Lord Justice Floyd
12 February 2015

Takeover bids and European competition law. Ryanair appealed to the Court of Appeal against a decision of the Competition Appeal Tribunal (view here), who rejected previous challenges to the findings of the Competition Commission (CC). Ryanair’s three grounds of appeal were:

(1) it was procedurally unfair for the CC to have refused to disclose to Ryanair (or its external lawyers) the material allegations and evidence relied upon by the CC in reaching the conclusion that Ryanair might affect Aer Lingus’s ability to participate in a combination with another airline. Particular weight was attached to the evidence of other airlines but their identities and the underlying evidence were withheld from Ryanair despite its requests for their disclosure. It was therefore denied a fair opportunity to respond;

(2) the decision to require divestiture of all but 5% of the minority stake involved a breach of the duty of sincere co-operation under Article 4(3) of the Treaty on European Union (“TEU”) because of a material risk of conflict between the order and a future decision of the European Commission (following the appeal to the General Court) that Ryanair should be permitted to bid for 100% of Aer Lingus; and

(3) The divestiture remedy was disproportionate and was imposed by the CC on the basis of a misdirection as to the degree of risk of an SLC occurring that has to be found before a remedy can be imposed and which dictates the type of remedy required.

Appeal dismissed.

For further UK case law, see our United Kingdom – Cases page.

Application for annulment of Decision 2013/199/EU concerning differentiated air travel tax rates implemented by Ireland

Aer Lingus Ltd v European Commission
T-473/12, CJEU, 5 February 2015

State aid — Irish tax on air passengers — Lower rate for destinations no more than 300 km from Dublin — Decision declaring the aid incompatible with the internal market and ordering its recovery — Advantage — Selective nature — Identification of the beneficiaries of the aid — Article 14 of Regulation (EC) No 659/1999 — Obligation to state reasons

Application for annulment of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) concerning differentiated air travel tax rates implemented by Ireland.

Application granted. Article 4 of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) — Differentiated air travel tax rates implemented by Ireland, in so far as it orders the recovery of the aid from the beneficiaries for an amount which is set at EUR 8 per passenger in recital 70 of that decision annuled.

For further CJEU case law, see our European Law – Cases page.

Application for annulment of Decision 2011/708/EU concerning an international air transport agreement

European Commission v Council of the European Union C-28/12

Opinion of Advocate General Mengozzi, 29 January 2015

Action for annulment — Article 218 TFEU — Decision on the signing and provisional application of international agreements — Hybrid decision of the Council and of the Representatives of the Governments of the Member States — Alternative procedure — Voting rules — Obligation of sincere cooperation — Principle of the organisational autonomy of the institutions — Unified representation of the European Union

Application for annulment of Decision 2011/708/EU, adopted on 16 June 2011 by the Council and the Representatives of the Governments of the Member States of the European Union, meeting within the Council on the signing on behalf of the EU and provisional application by the EU and its Member States of two international agreements in the field of air transport.

The Advocate General proposed that the CJEU should:

1) annul Decision 2011/708/EU of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 16 June 2011 on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part;

2) maintain the effects of Decision 2011/708 until the adoption of a new decision;

3) order the Council of the European Union to pay the costs;

4) order the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Italian Republic, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs.

For further CJEU case law, see our European Law – Cases page.