Practical aviation & aerospace law

Practical Aviation & Aerospace Law, Sixth Edition J. Scott Hamilton, with Dr. Sarah Nilsson

© 2015 Aviation Supplies & Academics, Inc. All rights reserved.

Sixth Edition published 2015 by ASA. Publication history: Fifth Edition published 2011 by ASA. Fourth Edition originally published 2005 by Blackwell Publishing. Other past editions—First, 1991; Second, 1996; Third, 2001.

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Photo credits and acknowledgments. Unless otherwise stated, photographs used are © J. Scott Hamilton. Photos indicated throughout are courtesy of and copyright of the following organizations or individuals and are used with permission: 1-3, Washington Metropolitan Airport Authority; 1-5, NASA; 1- 6, (upper) Hyku Photo, and, 1-7, (lower) Eclipse Aerospace, Inc.; 1-8, U.S. Customs and Border Protection; 7-1, Library of Congress, G.G. Bain Collection; 7-4, Clay Observatory at Dexter and Southfield Schools, for Virgin Galactic; 8-2 U.S. Navy; 8-3 Bernie Roland; 9-1, U.S. Army; 13-4, USGS digital orthophoto of Santa Monica Airport (via TopoQuest); 13-5, Denver International Airport; 14-2, U.S. Air Force; 15-3, Transportation Security Administration; 18-1, photo by Danny Fritsche; 18-2, NASA– Gagarin Cosmonaut Training Center (ISS Soyuz 13 mission training session, Star City, Russia); 18-3, Bigelow Aerospace, LLC; 18-4, NASA illustration.

Cover: iStockphoto ©yongbum park

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ASA-PRCT-LAW6-EK ISBN 978-1-61954-273-0

Preface

Practical Aviation and Aerospace Law is designed to be used in conjunction with the Practical Aviation and Aerospace Law Workbook as a university text for aviation and aerospace law courses and, standing alone, as a reference guide for aviation and aerospace business managers, pilots, mechanics, aircraft owners, and others involved in aviation by vocation or avocation.

Originally titled simply Practical Aviation Law, beginning with the first edition in 1991 and continuing through the fifth edition in 2011, the book has continuously grown in response to industry developments and instructor feedback. In much of the world, aviation is generally considered to be included in the term “aerospace industry,” but in the United States, a distinction has persisted, with the term “aviation industry” generally encompassing operations, repair and maintenance, while “aerospace industry” is used to refer to aircraft, spacecraft, and component design and manufacturing, and now also spaceflight operations. With the recent expansion of the number of companies engaged in commercial spacecraft design and manufacturing, and most of these companies engaging in or preparing to engage in operation of those spacecraft (beyond the flight test phase) for commercial purposes, it appeared timely to add a new chapter covering the law of commercial spaceflight operations in this edition. The addition of “and Aerospace” to the title signifies the book’s expanded scope for this and subsequent editions. The author of this new chapter (the first contributed by another author since the book’s inception) is Dr. Sarah Nilsson, Assistant Professor at Embry-Riddle Aeronautical University’s Prescott, Arizona, campus, whose research interests encompass this topic.

Except for certain treaties having worldwide or at least multinational effect, the scope of previous editions of the book has been limited to the law of the United States and may have had little relevance to the domestic laws of other nations. In keeping with the truly global nature of the aviation and aerospace industries and in recognition of the worldwide employment opportunities that offers, this edition begins what is likely to be a long-term effort to continually

expand the global perspective. The book does not attempt to explore the entire seamless web of the law—only those areas particularly applicable to aviation and aerospace. I recommend that students considering a career in aviation and aerospace, whether in operations, maintenance, engineering, manufacturing or business management, also take courses in business law and aviation labor relations. While there is some overlap between the content of those courses and this text, those give much broader and deeper coverage of some of the legal concepts and principles studied here.

As the title suggests, this book takes a practical viewpoint. It aims to provide the reader with basic legal knowledge and perspectives along with an understanding of how the legal system works in relation to aviation and aerospace activities. It aims to provide that in a form that can be applied to help you recognize and avoid common legal pitfalls, and to recognize when the moment has come to stop what you are doing and consult your lawyer. If this book had a subtitle, it would be How to Avoid Aviation Lawyers and When to Call One.

No book can hope to advise you what to do in every conceivable situation. In advising our clients, lawyers must take into consideration not only the law but also the facts and circumstances. In over thirty-five years of practicing law—in private practice, as government and later corporate counsel—I represented clients in well over three thousand aviation matters involving every subject in this book, and never saw two identical cases. While similar facts give rise to similar considerations, slight differences in the facts and circumstances often lead to major differences in the best approach to solving the problem. Examples in this book and its accompanying workbook are drawn largely from cases I encountered in my practice.

The law itself is also in a constant state of change. Even as I write, the Congress of the United States, fifty state legislatures, and a vast number of administrative agencies are daily making changes to statutes and regulations, while hundreds of federal and state courts are writing and publishing case decisions on the interpretation, application, and constitutionality of those laws and regulations, along with decisions that modify, clarify, or sometimes confuse the common law. Simultaneously, U.S. diplomats are negotiating with their foreign counterparts new or amended treaties to be ratified by their governments. Such changes as have occurred since the fifth edition of this book was published are one reason for this expanded and updated sixth

edition. While this process of continual change keeps the lawyer’s work from

becoming routine to the point of boredom, it also means that what was good advice yesterday (or the day this book went to press) may no longer be good advice today. While the fundamental legal principles discussed in this book are less susceptible to sudden obsolescence than, say, a text on the Internal Revenue Code and IRS Regulations, you are cautioned not to attempt to solve actual individual legal problems on the basis of information contained in this book. Finding yourself faced with an actual legal problem, you should recognize that the time has come to consult your lawyer.

Acknowledgments

I would like to thank the following people for their encouragement, advice, and support, without which I would not have undertaken and persevered with the writing of this text, the related workbook and teacher’s manual, and subsequent updated editions of each. These acknowledgments should not be construed to imply an endorsement of this teaching system by any of the persons or organizations mentioned.

Dr. Stacy Weislogel, chair, Department of Aviation, The Ohio State University, one of the first to urge me to write this book.

Professor Gary Kitely of Auburn University, who recently retired as executive director of the University Aviation Association, an organization that consistently provides a wonderful forum and source of information to those of us who teach aviation-related courses in colleges and universities. He was a source of encouragement not only in the drafting of the original manuscript for the first edition, but also in the continuously expanded international law coverage of each subsequent edition.

Dr. Rex A. Hammarback, director, University of North Dakota Aviation Foundation and formerly a professor in UND’s renowned aviation program, who after I had explained my concept for the book said simply and directly: “If you write it, I’ll use it.”

Hon. John E. Faulk, NTSB administrative law judge (retired), a practicing attorney with the Trachtmann law firm in Melbourne, Florida, and an adjunct professor in the School of Aeronautics at the Florida Institute of Technology. Many of his recommendations based on his classroom experience using this teaching system have been incorporated as improvements to each successive edition.

Professor Terri Haynes, Chadron State College, Chadron, Nebraska. She deserves particular credit for strongly encouraging me to avoid “legalese” jargon wherever possible in favor of plain English to make the book as clear and understandable as possible to students and other readers having no previous training in the law.

Jonathan Stern, Esq., partner in the Washington, D.C. office of the world- renowned Schnader, Harrison, Segal & Lewis law firm and editor of the American Bar Association’s Aviation Litigation Quarterly. Jon has been especially helpful in providing materials, insights, and updates on the continuing evolution of international law governing airline liability.

Bill Behan, president, AirSure, Ltd., Golden, Colorado. Bill continues to be a reliable source of information on developments in the ever changing field of aviation insurance.

John and Kathleen Yodice, a father-and-daughter team in the Yodice & Associates law firm in Bethesda, Maryland, who do yeoman service for general aviation as legal counsel for the Aircraft Owners & Pilots Association and other clients and have proved themselves reliable sources of insights into recent developments in FAA enforcement, aviation medical, and airport and airspace access issues.

Professors Robert Kaps of Southern Illinois University (Carbondale) and Timm Bliss of Oklahoma State University, co-authors with me of the new Labor Relations in Aviation and Aerospace textbook and study guide with supplemental readings, published by Southern Illinois University Press, and Professor Jack Panosian of Embry-Riddle Aeronautical University’s Prescott, Arizona, campus, who strongly encouraged that effort. All of them also use this Practical Aviation & Aerospace Law text and motivated me to expand the coverage of Chapter 17 to provide students a broader introduction to that topic.

Dr. Sarah Nilsson, Assistant Professor, Embry-Riddle Aeronautical University, contributing author of the new chapter on commercial spaceflight operations, was also a particularly helpful sounding board on recent developments in the law governing unmanned aircraft and on the Pilot’s Bill of Rights and proposed Pilot’s Bill of Rights 2 legislation. Both of these topics are moving targets, areas of rapid development having application to and receiving expanded coverage in several chapters.

The Lawyer-Pilots Bar Association, Southern Methodist University’s Journal of Air Law and Commerce; DePaul University College of Law’s International Aviation Law Institute (IALI) and its journal, Issues in Aviation Law and Policy; and the University of Denver’s Transportation Law Journal, each of which consistently provides wonderful forums and opportunities for attorneys and others interested in aviation and aerospace law to share

knowledge and ideas in print and face-to-face in an atmosphere of professional collegiality. They continue to contribute greatly to the advancement of the legal profession and the quality of legal service to aviation and aerospace clients.

Colleagues teaching aviation and aerospace law courses at numerous colleges and universities who provide feedback and suggestions that contribute to the continuous improvement of each successive edition of this teaching system.

My students, past and present, who continue to relentlessly question, challenge, and demand clear explanations and sound reasoning, rightly refusing to settle for less.

Not unlike the airline and aerospace industries, the publishing industry is in dynamic change as publishing companies merge, are acquired, go out of business, or adjust their scope and market focus, particularly in response to technological advancements in alternative means of dissemination of knowledge. Through all this change, successive editors at Iowa State University Press, Blackwell Publishing Professional, and now Aviation Supplies & Academics have recognized the need for this teaching system and its periodic updates, turning my vision into the solid reality you are now holding in your hand or viewing on your electronic device.

My family, who encouraged me in this project and more-or-less cheerfully tolerated the many hours I spent sequestered writing and updating this work (often after a full day of practicing aviation law, running a corporation or teaching), and especially my wife Charlotte, who did most of the work of preparing the original and subsequent manuscripts.

The credit is theirs; the errors are mine.

Notes on the Text

Unless otherwise noted, all opinions expressed herein are entirely my own and do not necessarily reflect the views of my employers, past or present.

All photos and illustrations are by the author, unless otherwise credited. The use of proper language and phraseology is of crucial importance in the

law. The primary use of italics in the text is to alert you to the introduction of a law, legal word or phrase you need to understand to grasp the concepts under discussion, though italics are also occasionally used to give special emphasis to a point.

The law is constantly evolving to keep abreast of challenges presented by the evolution of society and technology. The aviation and aerospace industries are among the most dynamic of all enterprises, and thus the locus of some of the most continual legal change. The reader can watch for changes that may occur after this book is in print by consulting the “Reader Resources” page for this book on the ASA website at http://www.asa2fly.com/reader/prctavlaw.

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About the Authors

J. Scott Hamilton is an adjunct professor and course developer at Embry- Riddle Aeronautical University, formerly assistant professor and faculty chair. He previously served as general counsel for the Civil Air Patrol, then as the national organization’s chief operating officer. Prior to that, he served as senior assistant attorney general for the State of Wyoming. While practicing aviation law in Colorado, he also was a faculty member at the University of Denver College of Law, as well as Metropolitan State College of Denver. He is an experienced pilot and skydiver who served as a HALO instructor in the Green Berets. Hamilton is widely published on aviation law and has received many honors, including induction into the Colorado and Arkansas Aviation Halls of Fame.

Sarah Nilsson is an Assistant Professor at Embry-Riddle Aeronautical University and a practicing attorney in Arizona, where her practice focuses on aviation/aerospace and business law. She previously managed an Aerospace Magnet program at an inner city high school in Phoenix. Nilsson gained extensive aviation operating experience working as a cargo pilot and flight instructor and now volunteers as a safety representative on the FAA Safety Team. Her research interests include aviation, space, and unmanned aerial systems law.

PART I

ADMINISTRATIVE LAW

1

Regulatory Agencies and International Organizations

If you are involved in aviation, you will deal with administrative agency regulations far more frequently than any other area of the law. Indeed, you will probably be confronted with making decisions based on the Federal Aviation Regulations (FARs) on a daily basis. Those regulations also establish standards of legal behavior by which a judge or jury may later decide whether you and your employer are legally liable for negligence in the event of an aircraft accident. Hardly any aspect of aviation today is unaffected by these regulations. That is why we begin with an examination of administrative law, with particular focus on the role of the Federal Aviation Administration (FAA) in administering the federal program of air safety regulation.

Since the 1920s, Congress has created a plethora of regulatory agencies to administer the many federal programs it has initiated. Indeed, federal agencies continue to grow and multiply, under Democratic and Republican administrations alike. We start here with an overview of the numerous U.S. administrative agencies most directly involved with some aspect of aviation, distinguishing them from each other according to the specific role played by each in regulating aviation. Although this chapter focuses on the U.S. model, virtually all nations have their own counterparts of these agencies, engaged in similar aviation regulatory activities. For example, at least 165 nations have their own domestic counterpart of the FAA, such as the European Union’s European Aviation Safety Agency, the Civil Aviation Authority of Singapore, the National Civil Aviation Agency of Brazil, the United Arab Emirates’ General Civil Aviation Authority, and the Civil Aviation

Administration of China. The ease with which civil aircraft cross national borders, air

transportation’s key role in the global economy, and recent horrific and effective use of civil airliners as weapons of terror have made the regulation and development of civil aviation a continuing subject of not only national but also international concern.

This chapter also introduces the International Civil Aviation Organization (ICAO) and the International Air Transport Association (IATA), organizations that, although not technically regulatory agencies, play an important role in harmonizing technical standards for civil aviation worldwide.

FEDERAL ADMINISTRATIVE AGENCIES The terrorist attacks of September 11, 2001, shook the United States to the core. Few industries—indeed, few aspects of American life—were untouched, though some were more deeply affected than others. Civil aviation, having been so infamously and effectively abused in these attacks as a weapon of terror, has borne the brunt of these changes.

One of the results of the attacks was the most sweeping reorganization of the federal government in over a half-century.

Transportation Security Administration (TSA) (www.tsa.gov) Barely two months after the attacks and for the express purpose of improving security in all modes of transportation, including civil aviation, Congress enacted the Aviation and Transportation Security Act of 2001, creating the Transportation Security Administration (TSA). The TSA was originally established as an operating agency of the Department of Transportation (DOT), but moved into the Department of Homeland Security (DHS) when that agency was created.

Previously, operators of airports served by commercial airlines had been responsible for airport security, relying primarily on contractors, with some FAA oversight. The new law brought the responsibility for day-to-day screening of airline passengers, baggage and cargo into the federal arena, under the TSA, which immediately set about hiring and training security personnel. Most of the new federal screeners were the same individuals

http://www.tsa.gov

previously employed by those contractors that had been performing the function prior to its federalization. With a change of uniform and some additional training, they returned to the same work. However, in late 2004, the Screening Partnership Program (SPP) enabled airports to obtain TSA approval to replace those federal screeners with qualified, TSA-approved private sector vendors. At this writing, some eighteen airports have taken advantage of the SPP and now utilize private sector contractors to provide passenger and baggage screening services.

The TSA also took over from the FAA the responsibility for inspecting and testing security measures at airports, with the added responsibility for the same at other transportation facilities, including foreign aircraft repair stations. Congress also empowered the TSA to receive, assess, and distribute intelligence information related to transportation security. The new agency was directed to develop plans, policies, and strategies for dealing with threats to transportation security and to coordinate countermeasures with other federal agencies. Congress also ordered that the Federal Air Marshal program be beefed up and that steps be taken to increase the availability and use of explosive detection systems at air carrier airports.

Under the Secure Flight Program, the TSA is now responsible for maintaining the Terrorist Watchlist and related No Fly and Selectee lists. The “watch list” of known and suspected terrorists is a uniform list used to identify persons who should be prevented from boarding (the No Fly List) or who should undergo additional security scrutiny (the Selectee List). The TSA began taking over the responsibility for the pre-boarding matching of airline passengers’ names against these lists from the airlines in early 2009.

Transportation Security Oversight Board (TSOB) Congress’ initial investigation into the terrorist attacks revealed that various federal law enforcement agencies had clues that, if assembled together and investigated coherently, might have revealed the plot and enabled prevention, but that these agencies tended to hoard, rather than share, potentially crucial intelligence information. In an effort to address that shortcoming, the Aviation and Transportation Security Act also created the Transportation Security Oversight Board (TSOB), an extremely high-level panel composed of the Secretaries of Homeland Security, Transportation, Defense, and Treasury; the Attorney General, and the Director of National Intelligence (or

designees of any of the foregoing), along with a presidential appointee representing the National Security Council (NSC). The TSOB was made responsible for assuring the coordination and sharing of intelligence relating to threats against transportation.

Department of Homeland Security (DHS) (www.dhs.gov) Next, Congress and President George W. Bush created the new Department of Homeland Security (DHS), now the largest federal department. Paralleling President Truman’s epic 1947 merger of all branches of the U.S. armed forces into a new Department of Defense (DoD) to better coordinate the nation’s defense against military threats, 24 federal agencies were brought under the new DHS to protect the nation against further terrorist attacks and respond to natural disasters. Agencies brought into the DHS include the following (italics indicate the agency’s former home in the federal bureaucracy):

Secret Service Coast Guard (Department of Transportation) U.S. Customs Service (Department of the Treasury) Immigration and Naturalization Service (INS) (part, from Department of

Justice) Transportation Security Administration (TSA) (Department of

Transportation) Federal Protective Service (General Services Administration) Federal Law Enforcement Training Center (Department of the Treasury) Animal & Plant Health Inspection Service (part, from Department of

Agriculture) Office for Domestic Preparedness (Department of Justice) Federal Emergency Management Agency (FEMA) Strategic National Stockpile & Disaster Medical System (Department of

Health and Human Services) Nuclear Incident Response Team (Department of Energy) Domestic Emergency Response Teams (Department of Justice) National Domestic Preparedness Office (FBI) CBN Countermeasures Program (Department of Energy)

http://www.dhs.gov

Environmental Measures Laboratory (Department of Energy) National Biological Warfare Defense Analysis Center (Department of

Defense) Plum Island Animal Disease Center (Department of Agriculture) Critical Infrastructure Assurance Office (Department of Commerce) Federal Computer Incident Response Center (General Services

Administration) National Communications System (Department of Defense) National Infrastructure Protection Center (FBI) Energy Security and Assurance Program (Department of Energy) The Aviation and Transportation Security Act originally assigned the

attorney general responsibility for screening all aliens applying for training at U.S. flight schools for security risks. Due to comparatively low fuel costs, prevalent VFR weather, and abundant suitable airspace, the United States (and particularly Florida and the desert southwest) was a popular destination for large numbers of foreigners wishing to learn to fly (and land). This new requirement hit U.S. flight schools—many of which were heavily reliant on foreig