Panel Discussion: Critical Issues in Aviation Law

October 6, 2009 at 8:04 am | Posted in Aviation Law, Aviation Law Current Event, Blogcast, NCRSASL News | Leave a comment

by P.J. Blount with the blog faculty

Today, the National Center for Remote Sensing, Air, and Space Law (Center) is hosting a panel discussion on Critical Issues in Aviation Law with:

* Jennifer Thibodeau, Esq., U.S. Dept. of Transportation, Office of the Assistant General Counsel for International Law, Director of DOT Honors Attorney Program
* Jeffrey Klang, Esq. Regional Counsel (Great Lakes Region) – Federal Aviation Administration, Federal Bar Association 2009 Transportation Lawyer of the Year
* Mr. Thomas Joseph Koger, Law Student, University of Mississippi School of Law, 2nd year law student
* Ms. Amanda C. Gunasekara, Law Student, University of Mississippi School of Law, 3rd year law student

This post will be updated throughout the panel with information from the discussion.

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Dean Samuel M. Davis started the event with a brief welcome to the University of Mississippi Law School.

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Prof. Joanne Irene Gabrynowicz, director if the National Center for Remote Sensing, Air, and Space Law, gave some introductory remarks that covered the work of the center and introduced Prof. Jacqueline Etil Serrao, Associate Director of the Center and moderator of the panel.

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Prof. Serrao introduced each of the speakers, and then handed the floor over to the first speaker.

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Jennifer Thibodeau, Esq., U.S. Dept. of Transportation, Office of the Assistant General Counsel for International Law, Director of DOT Honors Attorney Program, was the first speaker. She started with a brief introduction to DOT Honors Attorney Program. She then turned to a discussion of international aviation issues that she sees at DOT.

These issues included environmental concerns for aviation emissions, and specifically the application of EU regulations on foreign carriers. She stated that jurisdiction and application issues were primary concerns in these regulations for carriers from around the world. Next, she discussed Open Skies issues between the EU and the US, and also the potential for an Open Skies agreement between Japan and the United States and the potential issues with such and agreement.

Next, she discussed of issues dealing with the National Hockey League and the chartering of flights between the United States and Canada using Air Canada, and the cabatoge issues related to these charters. Cabatoge is when a foreign carrier transports persons or cargo between two domestic points.

She also discussed airport issues at Philadelphia International Airport and LAX and the litigation that ensued from from specific disputes involved with these airports. She finished with brief discussions of a variety of different issues, with which the DOT has recently dealt. These included issues with certificates for Mexican carrier, Alaskan mail service, essential air services, mergers, and anti-trust immunity issues.

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Next, Jeffrey Klang, Esq. Regional Counsel (Great Lakes Region) – Federal Aviation Administration, Federal Bar Association 2009 Transportation Lawyer of the Year, spoke. His comments began with a discussion of a DC-10 that lost and engine in the 1970s. The accidents investigation report from the NTSB issued a recommendation to the FAA, which was not compulsory for the FAA to follow. The report stated that the procedures for maintenance of the aircraft from the airline were not in accord with the procedures from the manufacturer. As a result the FAA issued an airworthiness directive that required operators to comply with these maintenance procedures. After this the FAA grounded all U.S. DC-10s and the grounded every DC-10 that was flying into the U.S. He then posed the question to the audience, as to whether this was legal? He stated that this resulted in a suit filed by British Caledonia in D.C. Circuit Court, which resulted in the FAA rescinding the order. At court he stated that the FAA then argued mootness in the litigation, but that the court continued to hear the case because it was an issue that could recur. Next, he said that the FAA argued that a potential detrimental impact from a foreign carrier justified the FAA’s action. The court found that the Chicago Convention required the United States to recognize a foreign country’s air worthiness certificate. The FAA also argued that the Chicago Convention was not self executing, however he stated that the Federal Aviation Act required the FAA administrator to comply with the United States international obligations.

He then brought the discussion to the late 1990s, and some airline crashes that occurred then. He said that as a result of these accidents, Congress made a law that aircraft should have Traffic and Collision Avoidance System (TCAS). The FAA, in light of the earlier case, could not require foreign carriers to have TCAS for airworthiness reasons. As a result, the FAA included it as an operational rule, which allowed them to make the requirement and not violate the rule laid out in the British Caledonia Case. He used this discussion to highlight how the FAA governs air safety for carriers in the United States.

Next, next he discussed issues concerning the O’Hare modernization as a way to illustrate the variety of legal issues that the FAA sees on a day to day basis. He stated that O’Hare was critical to the U.S. aviation system, and that delays in O’Hare can create delays across the country. He stated that as a resulted of this O’Hare modernization is very important to the entire system. The modernization will require the construction of new runways and new towers. This creates numerous legal issues for the FAA such as contracts, noise complaints, issues dealing with moving cemeteries, eminent domain problems, and environmental problems.

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The next speaker was Ms. Amanda C. Gunasekara, Law Student, University of Mississippi School of Law, 3rd year law student working on research for drafting air navigation laws for Kosovo under Prof. Serrao. Specifically, this research project is related to Air Navigation Service Providers (ANSP) in Kosovo. She gave a brief introduction to Pristina International Airport and uses before, during, and after the conflict in Kosovo. She stated that the project was to draft legislation that would create a separate ANSP agency, and that these regulations would have to be European Community compliant since Kosovo was vying to become an EC member. Gunasekara research on the project focused on searching for a model act to use in the drafting of the regulation, and she summarized the process and problems with doing this sort of research.

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The final speaker was Mr. Thomas Joseph Koger, Law Student, University of Mississippi School of Law, 2nd year law student who is also working on the Kosovo problem. His research focus is on the economic issues involved with privatizing Pristina International Airport. He stated that his research began by looking for specific models, and he discussed several issues involved with doing this sort of research.